Recent decisions for Court of Appeal

Catchwords:

ENVIRONMENT AND PLANNING – development applications – judicial review – whether development consent validly granted – mandatory considerations under s 4.15 of the Environmental Planning and Assessment Act 1979 (NSW) and cl 2.20 of the State Environmental Planning Policy (Resources and Energy) 2021 (NSW) – whether Independent Planning Commission failed to consider whether to impose conditions to minimise Scope 3 greenhouse gas emissions resulting from the development – whether Independent Planning Commission failed to consider the likely impact on the locality of Scope 3 greenhouse gas emissions resulting from the development JUDGMENTS AND ORDERS – where judicial review proceedings dismissed in Land and Environment Court and orders under Pt 3 Div 3 of the Land and Environment Court Act 1979 (NSW) not there considered – whether to remit matter subject of appeal brought pursuant to s 58 of the Act – whether to make orders under Pt 3 Div 3 of the Act COSTS – where matter remitted to Land and Environment Court – order sought as to costs of first instance proceedings

Catchwords:

COMPULSORY ACQUISITION OF LAND —compensation — market value of land — statutory disregard of certain increases or decreases in value of land — public purpose for which the land acquired — meaning of “public purpose” — where Transport for NSW acquired land pursuant to s 177 of the Roads Act 1993 (NSW) for the construction of the M12 motorway — whether broader purpose of developing area of the Western Sydney Airport was part of Transport for NSW’s “public purpose” for the purposes of s 56(1)(a) STATUTORY INTERPRETATION — Land Acquisition (Just Terms Compensation) Act 1991 (NSW) s 56(1)(a) — meaning of “public purpose” — whether public purpose in s 56(1)(a) is limited to purposes for which an acquiring authority is authorised by statute to acquire land

Catchwords:

BUILDING AND CONSTRUCTION — Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act) ss 13, 14 and 31 — a written construction contract between the parties provides that if a payment claim under s 13 is made by email after 5:00pm on a business day it is deemed to have been received at 9:00am on the next business day (the Deeming Clause) — s 14 of the Act provides that if a payment schedule in response to service of a payment claim is not provided by the respondent to the claimant within the time provided by the relevant construction contract or within 10 business days of the time it is served, whichever time expires earlier, the respondent is liable to pay the amount claimed — the payment claim was served after business hours on Friday 28 February 2025 and the payment schedule was provided on 17 March 2025 — if the Deeming Clause operated to deem service of the payment claim to have been on the next business day ie. 3 March 2025, the payment schedule was within 10 business days of that day, but if service took place on 28 February 2025 it was out of time — HELD — service of the payment claim took place on Friday 28 February 2025 — the Deeming Clause did not operate to change that time for service to 3 March 2025 because on its proper construction s 14 of the Act permits the parties to agree a shorter period for service of a payment schedule than 10 business days from service of the payment claim but not a longer period — the payment schedule provided was out of time and the respondent became liable to pay the amount of the payment claim

Catchwords:

SUCCESSION – wills, probate and administration – contested probate – testamentary capacity – knowledge and approval of will – where deceased suffering cognitive impairment – evidence that deceased expressed intention to disinherit sole beneficiary under previous will – whether primary judge erred in making various factual findings and evidentiary rulings – whether primary judge erred in not accepting unchallenged expert evidence as to capacity and giving weight to lay evidence and that of solicitor witnessing the new will – whether primary judge erred in obiter finding that if new will invalid the evidence as to capacity as at that time would raise a doubt, which was not resolved by the evidence, as to capacity at time of previous will COSTS – whether primary judge erred in making costs order against appellant personally and not applying so-called probate exception to costs

Catchwords:

PARTNERSHIPS AND JOINT VENTURES – existence of partnership – whether primary judge erred in failing to find that there was an unwritten “overarching” partnership sitting above corporate and trust structure under which many of the properties within the Mir Group business were held – whether open to appellant to contend on appeal that the unwritten overarching agreement between the three Mir brothers (as declared by the primary judge after further hearings, having rejected the pleaded partnership claim) itself gave rise to a partnership between the three brothers EQUITY – trusts and trustees – appointment and removal of trustees – whether House v The King error established on the part of the primary judge in declining to remove trustees notwithstanding misconduct by trustees in denying that certain property held on trust and where serious findings made against one of the trustees in relation to his conduct

Catchwords:

LEGAL PRACTITIONERS — Disciplinary proceedings — Where practitioner communicated directly with opposing lawyers’ client on numerous occasions — Where practitioner’s communications with lawyers, Law Society and the NSW Civil and Administrative Tribunal (NCAT) were routinely offensive and discourteous — Breach of rr 4.1.2 and 33 of Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) — Where NCAT made finding of professional misconduct and recommended the practitioner’s removal from the Roll of Australian lawyers – Lack of insight by practitioner – Finding that respondent not a fit or proper person to remain on the Roll.

Catchwords:

COSTS — basis of quantification — indemnity basis — letter of offer — where appeal had no reasonable prospects of success — whether to make personal costs order — whether to order gross sum costs

Catchwords:

PRACTICE AND PROCEDURE — leave to appeal — interlocutory decision — dismissal of application for proceeding to be tried by jury — dismissal of application to further amend pleading — dismissal of application to reinstate paragraphs of proposed pleading previously abandoned — dismissal of application to join additional defendants — significant procedural history — no question of principle — no demonstrated injustice

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:

EQUITY — trusts — rural properties said to be held on trust — plaintiff aware of letter saying he was beneficiary of trust many years ago — plaintiff made deliberate decision not to advance claim based on trust in earlier litigation seeking family provision orders — litigation compromised by release approved by Court — whether claims barred by release — whether claims barred by res judicata or Anshun estoppel — whether claims made out on merits PROCEDURE — appeals — further or fresh evidence — whether plaintiff should be permitted to rely on further evidence — relationship between application for tender of further evidence on appeal and ground of appeal challenging rejection of same evidence at trial — whether plaintiff had established evidence not available by reasonable diligence and whether evidence likely to be material

Catchwords:

CIVIL PROCEDURE – application for expedition of summons seeking leave to appeal – where first respondent has limited life expectancy – loss of claim for future economic loss – expedition granted

Catchwords:

PRACTICE — security for costs — review of decisions of Judge of Appeal to order security for costs — applicant located in British Virgin Islands — no evidence of Australian assets against which a costs order could readily be executed — applications dismissed PRACTICE — adjournment — applicant seeks to adjourn hearing of application to review orders for security for costs — whether decision of English court likely to alter outcome of review — consideration of ss 56 and 60 of Civil Procedure Act 2005 (NSW) — applications dismissed OCCUPATIONS — legal practitioners — solicitor for applicant maintained ground of review that judge should have recused himself — transcript not provided — transcript provided by Court to parties — transcript established that after disclosure by judge, solicitor had not advanced any application — applicant’s further submission confirmed ground of review, without addressing the transcript or decision not to advance application — other unsatisfactory aspects of conduct and presentation of case by solicitor — opportunity to show cause why judgment should not be referred to Legal Services Commissioner

Catchwords:

APPEALS – interlocutory decision on a question of practice and procedure – not to order separate questions – no error of principle CIVIL PROCEDURE – separate determination of questions – application for separate questions under UCPR r 28.2 – where plaintiff applied under Part 1C of the Civil Liability Act 2002 (NSW) to set aside settlement agreements for historical child abuse as part of a claim for damages for personal injury – whether set aside application must be heard separately before hearing of underlying claim STATUTORY INTERPRETATION – Part 1C of the Civil Liability Act 2002 (NSW) – whether application for setting aside “affected agreement” required to be determined by separate determination prior to final hearing TORTS – liability for historical child sexual abuse – two prior proceedings involving substantially the same allegations – both settled by payment of money by the State of NSW – Part 1C of the Civil Liability Act 2002 (NSW) – new proceedings commenced including applications to have prior settlement agreements set aside – application under UCPR r 28.2 to have set aside applications determined as separate questions – separate questions not ordered

Catchwords:

COSTS – gross sum costs order – assessment of gross sum – no issue of principle – order made

Catchwords:

CONTRACT – contract – summary dismissal – allegations of sexual harassment and workplace bullying – whether Appellant engaged in a “haka” or a pelvic thrust – where conduct relied upon to found summary dismissal held not be established COSTS – Calderbank offer – where successful party did not “better” financial terms of offer by unsuccessful defendant made shortly prior to trial – relevance of issues going to public vindication in assessing reasonableness of rejection of offer – where argument going to this issue inadvertently overlooked – nature of judgment awarding of costs – even if matter dealt with summarily, key arguments need to be addressed DAMAGES – contract of employment – where conduct relied upon to found summary dismissal held not to be established – whether employer would have terminated employment following expiry of fixed term of employment on three months’ notice under termination without cause provisions in circumstances where employee had elected to continue employment following expiry of fixed term – proper basis for assessment of damages in such circumstances – loss of a chance or balance of probabilities EMPLOYMENT LAW – contract of employment – summary dismissal – allegations of sexual harassment and workplace bullying – whether Appellant engaged in a “haka” or a pelvic thrust – where conduct relied upon to found summary dismissal held not be established

Catchwords:

COSTS – costs recoverable by litigant in person – where litigant in person successful in District Court in appealing conviction from Local Court – where District Court ordered Director of Public Prosecutions (DPP) pay litigant in person’s costs – whether costs for printing, travel and accommodation recoverable by litigant in person – meaning of “professional costs” in s 211 of the Criminal Procedure Act 1986 (NSW) ADMINISTRATIVE LAW – judicial review – jurisdictional error – where now impugned costs were conceded as payable by DPP in District Court – where small quantum of costs in dispute – where no evidence of the costs incurred are before this Court – where matter would have to be remitted to District Court if applicant successful – discretion to refuse claim exercised – summons dismissed

Catchwords:

APPEAL — whether leave to appeal ought be granted from decision of primary judge dismissing appeal from NSW Civil and Administrative Tribunal — no issue of principle, question of public importance or serious injustice demonstrated GUARDIANSHIP — Public Guardian appointed to VY — decision reviewable in October 2025 — grant of leave not warranted

Catchwords:

APPEALS — orders on appeal — whether proceedings should be remitted to Court below — where Court ought determine quantum finally CONSUMER LAW — misleading or deceptive conduct — supply and assembly of prefabricated home — reliance on misleading conduct caused the appellants to agree to a contractual variation — measure of loss or damage suffered as a result of variation CONSUMER LAW — enforcement and remedies — action for damages — measure of damages — loss of bargain — whether cost of rectification is unreasonable — Australian Consumer Law, ss 236, 237 CONTRACTS — breach of contract — breach of express terms — contractual variation based on misleading or deceptive conduct

Catchwords:

APPEALS — leave to appeal — whether leave required — summary dismissal — whether summary dismissal interlocutory in nature — whether appeal otherwise by right

Catchwords:

PRACTICE AND PROCEDURE – application for leave to appeal – interlocutory decision – decision to grant freezing orders – whether primary judge erred in determining that the Court had jurisdiction to grant freezing orders against the appellant – whether ‘ordinary course of business’ transactions can ground the requisite danger for the purpose of Uniform Civil Procedure Rules 2011 r 25.14 – whether application raised a point of general principle

Catchwords:

LAND LAW – easements – protracted dispute between neighbours – where primary judge ordered applicants to disable audio recording on CCTV camera which pointed at easement – where primary judge made orders curtailing applicants’ rights under easement for four year period APPEALS – leave to appeal – no issue of principle, question of public importance or reasonably clear injustice – leave refused

Catchwords:

PRACTICE – interlocutory relief pending appeal – appellant a subsidiary of respondent – respondent called members’ meeting to replace directors – primary judge determined meeting valid and found appellant’s efforts to adjourn it motivated by improper purpose – appellant had also made off-market takeover offer for respondent, conditional on its directors not being removed – appellant sought injunctive relief pending appeal preventing meeting from occurring – consideration of strength of appeal – whether primary judge erred concerning exclusive jurisdiction of Takeovers Panel – whether primary judge erred concerning appellant’s Constitution – whether primary judge erred in failing to find respondent motivated by improper purpose – prospects of success weak at best – consideration of balance of convenience – significance of failure by appellant’s directors to become parties or offer any undertaking – ongoing breach of s 201A(2) of Corporations Act 2001 (Cth) – unchallenged finding that earlier attempt to vacate meeting for improper purpose – costs thrown away – interlocutory relief refused

Catchwords:

CIVIL PROCEDURE – interim preservation – freezing orders – freezing orders discharged

Catchwords:

JUDGMENTS AND ORDERS – amending, varying and setting aside – order sought under r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to recall and replace order declaring scope of extended curtilage with a declaration extending the curtilage to enable vehicular access across appellants’ land – perceived misapprehension as to matters relating to vehicular access – application to vary costs orders COSTS – party/party – application for variation of costs orders – application for indemnity costs of motion

Catchwords:

PROCEDURE – appointment of amicus curiae – suggested by respondent and unopposed by applicant – questions of general principle arising – matter referred to Registrar for purpose of appointing amicus

Catchwords:

SUCCESSION – Family provision – where the deceased loaned significant sums of money on favourable terms and provided rent-free accommodation to enable the appellants to study in Australia – where the deceased made provision for the appellants in his will – where the appellants sought an order for provision in the sum of $300,000 to $450,000 out of the deceased’s estate – whether the primary judge erred in determining that the appellants had not demonstrated factors warranting under s 59(1)(b) of the Succession Act 2006 (NSW) – whether the primary judge erred in determining that adequate provision for the proper maintenance, education or advancement in life of the appellants had been made by the deceased under his will pursuant to s 59(1)(c) of the Succession Act CIVIL PROCEDURE – Appeals – appropriate standard of appellate review of a decision under ss 59(1)(b) and (c) of the Succession Act

Catchwords:

APPEALS — leave to appeal — principles governing — where proceedings raise questions of public importance — leave to appeal granted — time limits — extension of time — extension of time granted CIVIL PROCEDURE — effect of admission in points of defence in NCAT — where applicant admitted lessee was an impacted lessee under COVID-19 regulatory regime — Civil and Administrative Tribunal Act 2013 (NSW), ss 38, 53 — Evidence Act 1995 (NSW), s 191 LEASES AND TENANCIES — retail leases — retail shop lease — termination of retail lease covered by COVID-19 Regulation — whether lessee an impacted lessee under COVID-19 regulatory regime — application of Retail and Other Commercial Leases (COVID-19) Regulation 2021 (NSW), cll 6A, 6B, 6C, 6D

Catchwords:

CIVIL PROCEDURE – application to amend summons seeking declaratory relief – leave to amend summons – marked differences between proposed amended pleadings and current pleadings – whether amended pleadings disclosed reasonable cause of action – whether amended pleadings embarrassing – where allegations of dishonesty, collusion and abuse of process – whether arguable evidential basis for allegations – dictates of justice – whether applicant’s changes in position caused significant injustice – whether procedural unfairness CIVIL PROCEDURE – costs – whether applicant should pay costs of settled strike out motions – whether offers of compromise were relevant to costs application – whether applicant’s conduct unreasonable – whether applicant should pay costs on the motion to re-plead

Catchwords:

BUILDING AND CONSTRUCTION — adjudication — judicial review — whether adjudicator’s opinion that a submission was not “duly made” was reviewable — whether the adjudicator erred in law — whether adjudicator’s determination affected by jurisdictional error on the basis that he found certain submissions were not “duly made” — Building and Construction Industry Security of Payment Act 1999 (NSW), ss 13, 14, 17, 20, 22, 26, 32A

Catchwords:

BUILDING AND CONSTRUCTION – progress payments – Building and Construction Industry Security of Payment Act 1999 (NSW) – validity of payment claim – identification of work to which progress claim relates – payment claim operating by reference to contents of earlier invoices – identification, in a reasonable way, of the work to which claim relates – no express or implied requirement in the Act that purported payment claim have the objective character of being a claim “for” construction work or for related goods or services CIVIL PROCEDURE – summary disposal – judgment for plaintiff – requisite material and necessary assistance from parties to enable Court to reach definite and certain conclusion – only defence identified is one bound to fail – final hearing would be otiose

Catchwords:

APPEALS – Challenge to underlying findings of fact and credit-based findings – Where appellant unrepresented – Consideration of extent of court’s role in relation to unrepresented parties SUCCESSION – Where probate not granted in respect of a 2013 Will – Where primary judge not satisfied that deceased had testamentary capacity at time of making of 2013 Will – Where clinical notes recorded cognitive defects both before and after execution of 2013 Will – Significance of such evidence – Where will witnessed by a solicitor – Where testatrix unaware about why she was attending solicitor’s office – Application of Banks v Goodfellow (1870) LR 5 QB 549 COSTS – Where family provision claim rejected on basis that 1998 Will provided adequately for the appellant – Where primary judge may have held differently if appellant ordered to pay costs – Where primary judge unaware of Calderbank offer and formal offer of compromise made well prior to trial – Where different judge revisited costs order following primary judge’s retirement – Where, notwithstanding holding that Calderbank offer and offer of compromise unreasonably rejected, respondent awarded less than one quarter of his costs – Whether exercise of discretion vitiated by error or otherwise miscarried – Relevance of notional “buffer” that had been referred to by primary judge

Catchwords:

APPEALS – leave to appeal – where the applicant seeks to appeal two District Court decisions made on 23 September 2024 relating to the applicant’s criminal proceedings – where the related criminal proceedings have since been resolved – whether the District Court had jurisdiction to hear the appeal from the decision of the magistrate –whether the present appeal lacks utility – leave refused APPEALS – leave to appeal – where the applicant was a party to parenting proceedings before the Federal Circuit and Family Court of Australia – where the applicant sought to commence a private prosecution against the judge who made the parenting proceeding orders – where the applicant seeks leave to appeal from orders made on 10 October 2024 and on 15 August 2024 dismissing an application for review of a Local Court Registrar’s decision to refuse to issue the Court Attendance Notice for the applicant’s private prosecution – leave refused

Catchwords:

CONTRACTS – construction of standard form contract – terms in standard form contract may make provision for eventualities only to apply to the extent activated by parties – parties’ choice not to activate those provisions is not to be undermined by seeking to stretch other words in the contract to fill the purported gap EVIDENCE – onus of proof – language of “shifting” onus apt to deceive – notion of doubtful utility at the end of a hearing or in an appeal

Catchwords:

INSURANCE – policy for life and total and permanent disability (TPD) cover – where life insured provided services to appellant as a construction manager and project supervisor – where life insured undertook hip replacement – where appellant made claim for TPD under policy – meaning of “Own Occupation” under policy – whether primary judge erred in construing “Own Occupation” – no error EVIDENCE – whether primary judge erred in finding the life insured exaggerated his evidence – whether primary judge failed to give adequate weight to expert and documentary evidence – no error

Catchwords:

ADMINISTRATIVE LAW — jurisdictional error — procedural fairness — where District Court refused application to re-examine complainant on conviction appeal — where prosecution case depended on evidence of complainant — whether refusal amounted to denial of procedural fairness ADMINISTRATIVE LAW — jurisdictional error —relevant considerations — whether District Court failed to take into account matters supportive of applicant’s case ADMINISTRATIVE LAW — jurisdictional error — irrelevant consideration — whether District Court incorrectly assumed existence of evidence corroborating complainant’s account — whether District Court failed to take into account evidence inconsistent with complainant’s account ADMINISTRATIVE LAW — jurisdictional error — whether District Court failed to consider all elements of offence — whether sufficient evidence to find conduct was “towards” another person — whether sufficient evidence to find defendant knew of lack of consent

Catchwords:

PRACTICE – application to reopen under UCPR r 36.16 – no basis for reopening

Catchwords:

NEGLIGENCE — non-delegable duty of care — liability — where appellant injured back during primary school long jump competition — where appellant felt feet hit hard surface — whether failure to take reasonable precautions to ensure adequate amount of properly raked sand in landing area — whether failure to take reasonable precautions was a necessary condition of occurrence of harm NEGLIGENCE — damages — assessment of damages — assessment of loss of earning capacity for injury negligently occasioned to child — whether injury likely to be productive of financial loss — assessment of damages for non‐economic loss — whether primary judge erred in assessing damages at 20% of a most extreme case

Catchwords:

CIVIL PROCEDURE — Court of Appeal — objections to competency of appeal — where notice of appeal filed out of time — whether value of claim sufficient for purpose of s 101(2)(r) of the Supreme Court Act 1970 (NSW)

Catchwords:

APPEALS — Leave to appeal — leave required — no issue of principle, question of public importance, or reasonably clear injustice going beyond something that is merely arguable — leave refused

Catchwords:

EVIDENCE — certificate of conviction — where certificate of conviction is admissible to prove elements of offences for which the perpetrator was convicted — where primary judge misled a litigant in person as to the effect of the Evidence Act 1995 (NSW) — where primary judge denied appellant procedural fairness — whether Court of Appeal ought approach the matter as if the certificate of conviction had been tendered — where primary judge misapprehended the effect of ss 91, 92 and 178 of Evidence Act — where primary judge’s failure to appreciate the admissibility of certificate of conviction to prove elements of offences compromised assessment of the credibility and reliability of the appellant — Evidence Act 1995 (NSW), ss 91, 92, 178 EVIDENCE — tendency evidence — civil proceedings — tendency rule — whether certificate of conviction had significant probative value — Evidence Act 1995 (NSW), ss 97, 100, 135 NEGLIGENCE — duty of care — vicarious liability — whether the State breached its duty of care to the appellant by failing to apply for an adoption order — whether the State breached its duty of care to the appellant by placing her with the perpetrator — whether the State breached its duty of care to the appellant by failing to foster her relationships with her natural siblings — whether the State is vicariously liable for the conduct of the appellant’s former foster carers — whether third respondent breached her duty of care to the appellant by failing to prevent or report the abuse TORTS — trespass to the person — assault — battery — sexual assault — where appellant was physically and sexually abused by her foster carer while a ward of the State — where second respondent had been convicted of criminal offences against the appellant APPEALS — where appellate court has found error — whether court should resolve issue to avoid economic and emotional costs of re-trial — Supreme Court Act 1970 (NSW), s 75A TORTS — general principles –– damages –– aggravated damages –– buffer for past and future economic loss – earning capacity

Catchwords:

PRACTICE AND PROCEDURE – application for recusal – whether apprehended bias – application declined

Catchwords:

ADMINISTRATIVE LAW — Appeals — judicial review — decision of medical assessor referred to review panel — whether primary judge erred in finding that review panel determined the question of causation according to law — where primary judge did not so err ADMINISTRATIVE LAW — Appeals — judicial review — decision of medical assessor referred to review panel — whether primary judge erred in finding that review panel exposed its actual path of reasoning — where primary judge did not so err

Catchwords:

APPEALS — leave to appeal — application for stay pending appeal — stay refused — Civil Procedure Act 2005 (NSW), s 67 — Uniform Civil Procedure Rules 2005 (NSW), r 50.7 — lack of utility of stay CIVIL PROCEDURE — parties — failure to join all necessary parties to proceedings — where trustees were necessary parties COURTS AND JUDGES — bias — apprehended bias — lack of utility in granting a stay of primary judge’s dismissal of application for recusal

Catchwords:

CIVIL PROCEDURE — suppression and non-publication — interlocutory issues — suppression orders — transgender woman — targeted by activist — Binary Australia — order sought suppressing information concerning employment, occupation, residential address and financial position — whether order “necessary to protect the safety of any person” — whether order “necessary to prevent prejudice to the proper administration of justice” — Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8 COSTS — application for protective costs order — appellant seeking capped costs — protective costs order made — factors to consider in making protective costs order — whether first respondent brought application in the public interest — protective costs order made — Uniform Civil Procedure Rules 2005 (NSW), r 42.4(1)

Catchwords:

CIVIL PROCEDURE — Court of Appeal — stay pending appeal — whether the applicant has raised sufficiently serious issues to warrant stay — motion seeking stay of execution of writ of possession dismissed

Catchwords:

ADMINISTRATIVE LAW – jurisdictional error – refusal to submit questions of law to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912 (NSW) – whether District Court judge considered irrelevant matters – whether identified questions of law arose on the appeal CRIMINAL PROCEDURE – stay – convictions and sentence confirmed on appeal from Local Court to District Court – sentence served – summons seeking judicial review dismissed – whether convictions could be stayed

Catchwords:

PRACTICE AND PROCEDURE — hearings — ex parte — proceedings dismissed for non-compliance — failure to comply with directions and attend directions hearings — motions seeking to set aside Registrar orders dismissed

Catchwords:

CORPORATIONS – directors and officers – directors’ duties – directors causing company to engage in fraudulent and unlawful practice – directors causing company to engage in commercial agreements and practices detrimental to company and beneficial to third parties in which directors had an interest – directors apprehending loss of control diverted business to third parties in which directors had an interest – whether directors breached obligations under Corporations Act 2001 (Cth), ss 181 and 182 – whether third parties involved in breach of ss 181 and 182 within the terms of s 79 – whether directors breached fiduciary duties CORPORATIONS – statutory construction – Corporations Act 2001 (Cth), ss 181, 182 – improper purpose need not be achieved – not necessary that director acts dishonestly – honest belief as to purpose only satisfied where belief is rational – unlawful conduct necessarily improper EQUITY – fiduciary duties – knowing assistance – liability of third parties under second limb of rule in Barnes v Addy – third parties owned or controlled by family members of fiduciaries – appropriate inferences as to knowledge of dishonest conduct of fiduciaries in absence of evidence to the contrary – no requirement of belief on part of the third party that conduct of fiduciaries was dishonest and fraudulent design – whether third parties operated independently of actions of fiduciaries

Catchwords:

TORTS — trespass to the person — false imprisonment — wrongful arrest — whether power to arrest lawfully exercised under s 99(1)(b) of the Law Enforcement (Powers and Responsibilities) Act 2022 (NSW) — whether arresting officer is required to consider available alternatives to arrest to form the requisite state of satisfaction under s 99(1)(b) — review by the court of state of satisfaction of arresting officer under s 99(1)(b) — construction of the “reasonable necessary” criterion CRIME — bail — whether bail and bail conditions can be imposed pursuant to the Bail Act 2013 (NSW) where a person has been charged with an offence but not arrested — nature of bail — police not empowered to impose bail on a person not in custody

Catchwords:

CIVIL PROCEDURE –– Court of Appeal –– Leave to appeal –– application for leave to appeal against order made under s 8 of the Vexatious Proceedings Act –– no appealable error –– orders varied –– appeal otherwise dismissed

Catchwords:

COSTS – gross sum assessment – where unsuccessful appellant likely unable to meet costs – where costs of appeal increased by appellant’s conduct – appropriate to make gross sum assessment – consideration of amount of gross sum order

Catchwords:

BUILDING AND CONSTRUCTION — Building and Construction Industry Security of Payment Act 1999 (NSW) — stay of execution of judgment obtained under s 25 of the Act pending determination of other proceedings — role of statutory policies in discretion to grant a stay of execution — where construction contract for consumer residential building work — where adjudicator did not determine aspects of principal’s response to payment claim — where other proceedings involve issue of whether construction contract void or voidable — where primary judge found principal has strong prima facie case in other proceedings

Catchwords:

COSTS — security for costs — pending appeal — where no dispute that security for costs should be ordered — where additional undertaking proffered by appellants — whether appellants should be afforded opportunity to file further evidence

Catchwords:

SUCCESSION — family provision — claim by grandchild — whether an eligible person — whether wholly or partly dependent —where deceased provided financial support to applicant as an adult SUCCESSION — family provision — claim by grandchild — whether factors warranting — where applicant provided companionship and assistance to deceased — where deceased provided financial support to applicant as an adult — where deceased intended to appoint applicant as attorney and guardian SUCCESSION — family provision — quantum of provision — large estate — whether provision unreasonable — where applicant has multiple sclerosis and is unlikely to receive significant financial support from parents

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:

LAND LAW — easements — construction of easements — general principles of construction — relevance of concept of “reasonable use” to task of construction — whether easement confers on dominant owners exclusive rights to use subject land for stated purposes — consideration of extent of rights retained by servient owner LAND LAW — easements — validity of easements — whether easement capable of forming subject matter of grant — where easement confers on dominant owners exclusive rights to use land for stated purposes — whether dominant owners’ rights inconsistent with servient owner’s possession and proprietorship of servient tenement

Catchwords:

CIVIL PROCEDURE – amendments – extension of time previously granted for statute-barred claim – whether proposed amendment pleaded the same cause of action – whether proposed amendment pleaded new cause of action arising out of the same or substantially the same facts – consideration of Civil Procedure Act 2005 (NSW), ss 64 and 65 – consideration of principles relevant to determining whether a proposed amendment arises out of substantially the same facts – whether further extension of time should be granted

Catchwords:

JUDGMENTS AND ORDERS – Court of Appeal – motion to set aside or vary orders – application for re-opening appropriate to be determined by judges who made the decision – too late for applicant to seek to join parties to proceedings where she was clearly warned she needed to do so before – no irregularity, illegality or lack of good faith identified – a party’s dissatisfaction with result of litigation does not suffice as basis for re-opening

Catchwords:

Application for leave to appeal - Part 13 rule 5.

Catchwords:

COSTS — where Class 4 proceedings in Land and Environment Court dismissed by consent — where on application under UCPR r 42.20(1) primary judge ordered “otherwise” by making no order as to costs — no question of principle or issue of public importance, no clear injustice which is more than merely arguable — leave to appeal refused, with costs

Catchwords:

ADMINISTRATIVE LAW – Jurisdictional error – Application to appear by audiovisual link under s 5B of the Evidence (Audio and Audiovisual Link) Act 1998 (NSW) – Convenience of applicant to be taken into account – Whether magistrate excluded consideration of applicant’s “convenience” APPEALS – Leave to appeal – Departure from arguments advanced before primary judge – Relevance to grant of leave to appeal – Importance of formal orders of lower courts being attained for purposes of appeals and applications for leave to appeal

Catchwords:

CONTRACT — agreement to commercialise intellectual property — repudiation — whether primary judge erred in finding no breach of obligation to reassign intellectual property — whether primary judge erred in finding no loss of valuable commercial opportunity CONTRACT — obligation to use best endeavours to offer further employment — whether primary judge erred in not awarding substantial damages

Catchwords:

COSTS – where respondents seek indemnity costs – where applicant advanced unmeritorious grounds in application for review – indemnity costs granted COSTS – where respondents seek gross sum costs order – where there is a real doubt about whether applicant can meet a costs order against it – gross sum costs order made

Catchwords:

BUILDING AND CONSTRUCTION — adjudication under the Building and Construction Industry Security of Payment Act 1999 (NSW) — service of underlying payment claim and notice of intention to apply for adjudication — jurisdictional error — where primary judge found adjudication application filed prematurely — whether adjudicator lacked jurisdiction to hear and determine payment claim BUILDING AND CONSTRUCTION — service — service under s 31(1)(d) of the Building and Construction Industry Security of Payment Act 1999 (NSW) — whether email address “specified” for service of payment claim and notice of intention to apply for adjudication BUILDING AND CONSTRUCTION — adjudication — Home Building Act 1989 (NSW) — where statutory requirements for licence and insurance contravened — whether ss 10 or 94 of Home Building Act prevent enforcement of adjudication under the Building and Construction Industry Security of Payment Act 1999 (NSW)

Catchwords:

LAND LAW – adverse possession – where the first respondent’s land borders on land owned by the appellants (Lot 41) – where the first respondent sought a declaration that he was entitled to legal title of part of Lot 41 (the contentious land) by reason of decades of adverse possession – whether the first respondent and his predecessors in title had demonstrated continuous exclusive possession and an intention to possess the contentious land – whether the primary judge erred in concluding that the Lot 41 paper title owners lost title to the contentious land in 1989 LAND LAW – adverse possession – extent of relief – whether the court ought to declare any part of the contentious land beyond which the appellants conceded in an open offer as curtilage

Catchwords:

CORPORATIONS – voluntary administration – where respondents are said to be in possession of property belonging to the applicant – where the respondents are in administration – where administrators propose to move under s 442C of the Corporations Act 2001 (Cth) for leave to dispose of the property – whether applicant should be granted leave to proceed under s 440D of the Corporations Act 2001 (Cth) for delivery up of property – leave under s 440D refused APPEALS – application for leave to appeal – where decision concerns a matter of practice and procedure – whether application raises an issue of principle or a significant injustice will occur if leave is not granted – point of principle raised – leave to appeal granted

Catchwords:

LEASES AND TENANCIES – where Applicant was evicted from student accommodation – whether residence under residential agreement between Applicant and University exempt from Residential Tenancies Act 2010 (NSW) – meaning of “hall of residence” – residential agreement and residential premises excluded from operation of Residential Tenancies Act 2010 (NSW) APPEALS – application for leave to appeal – no issue of principle, question of public importance or reasonably clear injustice identified – leave refused

Catchwords:

ADMINISTRATIVE LAW — Appeals — judicial review — whether the primary judge erred in holding that the medical assessor to whom the medical dispute was referred by the Personal Injury Commission under the Motor Accident Injuries Act 2017 (NSW) fell into jurisdictional error or error of law on the face of the record — where the primary judge did so err ADMINISTRATIVE LAW — Appeals — judicial review — whether the primary judge erred in holding that the delegate of the President of the Personal Injury Commission fell into jurisdictional error or error of law on the face of the record in concluding that he was not satisfied that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application under the Motor Accident Injuries Act 2017 (NSW) — where the primary judge did so err

Catchwords:

OCCUPATIONS – Health practitioners – Professional misconduct – Where appellant prescribed somatropin off-label – Where clinical records inadequate – Requirement for NSW Civil and Administrative Tribunal to provide adequate reasons – Requirement to afford procedural fairness by notifying appellant of allegations through amended complaint – Where findings of fact contradicted by contemporaneous clinical records

Catchwords:

CORPORATIONS – meetings – general meeting convened pursuant to Corporations Act 2001 (Cth), s 249F to remove directors – majority of members cast votes in favour of removal of three of four directors prior to meeting – directors appointed administrator on evening before meeting – chairman of meeting purported to adjourn meeting – no challenge to finding that purported adjournment invalid – authorised representative of major shareholder assumed chair – resolutions removing three directors and appointing replacements carried – whether authorised representative was appointed interim chair and was unable to chair meeting – whether other directors willing to act as chair – whether authorised representative, who was not himself a member, entitled to act as chair – whether grounds which had not been raised at trial ought be raised on appeal – whether s 1322 available to cure any defect

Catchwords:

MORTGAGES AND SECURITIES – Personal Property and Securities Act 2009 (Cth) – security interest – goods (solar panels) sold subject to retention of title – seller perfected purchase money security interest (PMSI) – buyer authorised to sell or dispose of goods in ordinary course of business – where buyer agreed under subcontract with contractor to design, supply and install solar photovoltaic equipment at principal’s premises – buyer supplied and delivered goods to site of works subject to retention of title – buyer transferred possession of goods to principal – whether dealing with collateral (panels) gives rise to proceeds – whether proceeds constituted buyer’s chose in action against contractor for milestone payment for delivery of goods – whether proceeds constituted monies paid by principal to contractor for delivery of goods by contractor to site – whether buyer has an interest in the proceeds – s 32, PPSA MORTGAGES AND SECURITIES – Personal Property and Securities Act 2009 (Cth) – taking free – grantor of security interest disposes of goods – where goods delivered to site of works under terms of subcontract – no transfer of title until seller paid in full invoice relevant to goods – ordinary course of seller’s business of selling goods of that kind – meaning of “sold” – whether “sold” requires a transfer of title – whether ordinary course buyer includes buyer under an agreement for sale – s 46, PPSA STATUTORY INTERPRETATION – Commonwealth and state legislation – meaning of “sold” in s 46, PPSA – whether “sale” as referred to in Sale of Goods Act 1923 (NSW) restricts the operation of ordinary course buyer protection in s 46, PPSA

Catchwords:

COURTS AND JUDGES – bias – application for recusal – actual or apprehended bias – where primary judge previously decided cases adversely to the applicant – where plaintiff alleged that primary judge altered transcripts – no actual or apprehended bias PROCEDURE – notice of motion – application to access audio recording of hearing – where applicant alleged that transcript had been altered – where applicant led no evidence – notice of motion dismissed

Catchwords:

COSTS – appellant enjoys partial success on appeal – common ground usual rule as to costs displaced – how costs order should reflect partial success

Catchwords:

JUDGMENTS AND ORDERS – amending, varying and setting aside – application under Uniform Civil Procedure Rules 2005 (NSW), (UCPR) r 36.16(3A) – application made within time and competent – motion to re-open judgment and set aside orders – whether Court overlooked two relevant legal principles – first issue not a focus of appeal or trial which turned on factual disputes – second issue dealt with in appeal judgment and not overlooked – application dismissed JUDGMENTS AND ORDERS – amending, varying and setting aside – application under UCPR, r 36.16(3A) – original application in time – proposed amendment to challenge different order out of time – Court lacks power to entertain further application JUDGMENTS AND ORDERS – application for reimbursement of costs paid under order set aside – failure to seek order under UCPR r 51.19 – application to vary orders made in time – orders generally made as of right

Catchwords:

NEGLIGENCE – historical sexual assault – whether error in process of making findings of primary fact – whether removal of limitation period alters obligation of plaintiff to establish elements of cause of action – whether primary judge sufficiently paid regard to inconsistencies in plaintiff’s account NEGLIGENCE – claim brought against “Diocese” – juristic nature of defendant – significance of defendant being proper defendant under Part 1B of Civil Liability Act 2002 (NSW) – whether defendant owed duty of care to plaintiff in 1969 – significance of litigation proceeding on basis that alleged abuser was a parish priest rather than an assistant priest – obligation to establish foreseeability of harm by assistant priest by evidence – no duty of care owed NEGLIGENCE – non-delegable duties – whether appellant could owe non-delegable duty of care for intentional criminal act of assistant priest

Catchwords:

CONTRACT – remedies – damages – measure of damages – contract for the sale of shares – where primary judge assessed damages by reference to lost expenditure – where breach results in uncertainty or difficulty of proof of loss – no error in primary judge’s approach CONTRACT – remedies – damages – time of assessment – where purchase price was paid but shares were not transferred in accordance with the contract – where respondents were unaware that shares were not transferred – no error in assessing damages by reference to events that occurred after the breach of contract RESTITUTION – ineffective transactions – general principles – restitution of money paid – failure of consideration– where parties’ relationship was governed by a valid contract – subsidiarity principle – where restitutionary claim did not undermine the parties’ allocation of risk

Catchwords:

COSTS – application for indemnity costs

Catchwords:

BUILDING AND CONSTRUCTION — adjudication — judicial review — money paid into Court when adjudication sought to be challenged by principal — principal’s challenge dismissed by primary judge and not the subject of appeal — whether adjudicator’s determination not to address parts of builder’s claim affected by jurisdictional error on the basis that he erroneously found that some submissions were not “duly made” or failed to consider submissions — issue on appeal whether Court has power to constrain any remitted adjudication to parts affected by jurisdictional error — stay pending appeal refused as builder has determination in its favour and principal does not challenge that part of the determination referable to amount paid into court — risk allocation favoured by Building and Construction Industry Security of Payment Act 1999 (NSW)

Catchwords:

ADMINISTRATIVE LAW — Appeals — judicial review — whether the primary judge erred in holding that a review panel of the Personal Injury Commission constituted under the Motor Accident Injuries Act 2017 (NSW) did not fall into jurisdictional error, fail to exercise its statutory powers or give adequate reasons ADMINISTRATIVE LAW — Appeals — judicial review — no failure to address clearly articulated submission in circumstances where there had been significant changes in the facts between the making of the submission and the decision under review TRAFFIC LAW AND TRANSPORT — traffic law — Motor Accident Injuries Act 2017 (NSW) — meaning of “threshold injury” under s 1.6 — whether claimant’s radiculopathy caused by motor accident — where Medical Assessor found radiculopathy present after motor accident

Catchwords:

INSURANCE – claim for work injury damages – pre-filing procedures under Workplace Injury Management and Workers Compensation Act 1998 (NSW) – where employer failed to serve pre-filing defence – where employer subsequently filed defence raising contributory negligence – where s 318(1)(c) prevents employer from filing a defence that wholly or partly disputes liability for the claim if employer has failed to serve a pre-filing defence – whether “wholly or partly disputes liability” includes raising a defence of contributory negligence – whether contributory negligence is an aspect of liability or damages – contributory negligence an aspect of liability – employer barred from raising contributory negligence – defence struck out STATUTORY INTERPRETATION – meaning of “wholly or partly disputes liability” – where statutory note in s 318A(2) in tension with plain interpretation of s 318 – where primary judge had regard to note in s 318A(2) – whether statutory note forms part of the Act – note not part of the Act – note may be considered as extrinsic material – note cannot displace the correct meaning of the section

Catchwords:

CIVIL PROCEDURE — Court of Appeal — stay of order for payment out of funds in Court — whether leave to appeal required — whether serious question to be tried — where balance of convenience lies

Catchwords:

PROCEDURE — stay pending appeal — whether the applicant has established an arguable case — whether stay should be granted where bankruptcy proceedings have already commenced — prejudice where applicant was not in a fit state to inform cross-examination — stay ordered in relation to the individual applicant but not the corporate applicants

Catchwords:

ADMINISTRATIVE LAW – Error of law on the face of the record – Children and Young Persons (Care and Protection) Act 1998 (NSW) s 98(3) – application to appear in proceedings in Children’s Court dismissed – appeal to District Court dismissed – whether error of law on the face of the record of the District Court – whether sufficient for applicant to be found to have a genuine concern for the safety, welfare and well-being of the child or whether application was subject to a further discretion – conflict in decisions of Supreme Court on approach to s 98(3) – whether relief should be withheld for discretionary reasons

Catchwords:

STATUTORY INTERPRETATION – extrinsic material – significance of delegated legislation to construction of a statute – relevance to statutory construction of legislative facts and claims asserted from the bar table – multiple statutory purposes – issue determined by textual considerations where none of the purposive and contextual arguments raised assists greatly to resolve construction issue TRAFFIC LAW AND TRANSPORT – traffic law – motor accident legislation – definition of “threshold injury” – injury to the skin which is not also an injury to nerves is a soft tissue injury

Catchwords:

CONTRACTS — Construction — Whether contract imposed an obligation to elect between mutually exclusive scenarios — Whether valid election could be made after contract terminated CONTRACTS — Construction — Requirement of clear and unequivocal communication or conduct to exercise rights — Where no relevant communication or conduct within relevant period

Catchwords:

CORPORATIONS — Directors and officers — Appointment, removal and retirement of directors — Whether director was validly appointed — where director appointed by purported exercise of casting vote of board chairperson — whether chairperson validly appointed by earlier agreement allegedly made during conversation — where primary judge not persuaded that director was validly appointed by earlier agreement made during conversation

Catchwords:

ADMINISTRATIVE LAW – powers of public authority – power to commence legal proceedings – court attendance notices issued by officer of Independent Commission Against Corruption – notices not signed by registrar – officer acting as “public officer” within s 3(1) of the Criminal Procedure Act 1986 (NSW) – whether officer acting in an “official capacity” – whether powers and functions of Commission extend to laying charges under the Crimes Act 1900 (NSW) for matters the subject of investigation into corrupt conduct – whether power and functions of Commission extend to laying charges for breaches of the Independent Commission Against Corruption Act 1988 (NSW) STATUTORY INTERPRETATION – implied powers and functions of public body – powers necessary or reasonably incidental to the exercise of functions and powers – legislation to be read harmoniously

Catchwords:

APPEALS – leave to appeal – leave not readily granted to challenge to discretionary exercise of power with respect to costs – as regards alleged error in not making a set-off costs order, not in interests of justice to grant leave given decision substantially founded on facts before primary judge, the position has since evolved, and it remains open to applicant to claim any amounts outstanding – applicant’s complaint also involves challenge to orders made in favour of persons not party to appeal proceedings – no point of principle or public important or reasonably clear injustice going beyond something merely arguable

Catchwords:

CORPORATIONS — Directors and officers — Fiduciary duties — Where directors of company resigned — Whether fiduciary duties of directors continued despite resignation — Whether the fact the company may not have been able to exploit commercial opportunity precluded a finding of breach of fiduciary duty by former directors EQUITY — Equitable remedies — Injunctions — Width of injunctive relief ordered against defaulting fiduciary and knowing assistant

Catchwords:

PROCEDURE — stay pending appeal — dispute as to composition of board of listed company — whether applicant had established proper basis for stay — appeal to be heard in 12 business days — applicant profferred undertaking to be personally liable for quantifiable costs — applicant provided security for liability on undertaking — stay ordered

Catchwords:

CIVIL PROCEDURE – notices to produce under r 21.10 of Uniform Civil Procedure Rules 2005 (NSW) – relevant to a fact in issue – justification for production concerns decision not impugned in summons – summons does not set out serious allegations invoked as basis for seeking documents – disputed documents not relevant to fact in issue CIVIL PROCEDURE – notices to produce under r 21.10 of Uniform Civil Procedure Rules 2005 (NSW) – objection to production of documents or things – client legal privilege – whether waived for purposes of s 122 of Evidence Act 1995 (NSW) – filing of document content of which influenced by views of an expert does not establish disclosure of those views, nor does expert’s agreement to be bound by expert witness code of conduct, nor does provision of joint expert report to court – no prima facie evidence to found alleged misconduct under s 125 of Evidence Act 1995 (NSW) CIVIL PROCEDURE – notices to produce under r 21.10 of Uniform Civil Procedure Rules 2005 (NSW) – objection to production of documents or things – document prepared for purposes of or in course of or as result of conciliation conference for purposes of s 34(11) of the Land and Environment Court Act 1979 (NSW) – s 34(11) enables production of documents to be resisted if relevant purpose dominant – protection ends when final version presented to commissioner for purpose of seeking s 34(3) decision

Catchwords:

LEGAL PRACTITIONERS – disciplinary proceedings against solicitor – whether Respondent a fit and proper person to remain on the Roll of Australian Lawyers – where Respondent convicted of participating in a criminal group, using a false document with the intention of inducing a person to accept as genuine and then to influence that person to exercise a public duty, and knowingly taking part in the supply of a prohibited drug – where Respondent served sentence by way of intensive correction order (ICO) – where ICO has expired – where Respondent opposes relief sought – whether Respondent likely to be unfit for the indefinite future – Court satisfied of unfitness to practice for the indefinite future

Catchwords:

BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – insurance – “last resort” home warranty insurance policy – where insurer denied liability under policy on basis insureds failed to satisfy requirements of s 103BB(3)(a) – whether s 103BB was itself incorporated as a term of policy – whether s 103BB alters the effect of the policy so as to engage s 54 of the Insurance Contracts Act 1984 (Cth) – whether operation of s 54 of Insurance Contracts Act 1984 (Cth) was attracted where a refusal to pay is premised upon effect of s 103BB(3) and not upon the policy CONSTITUTIONAL LAW – Commonwealth and State relations – inconsistency of laws – whether Home Building Act 1989 (NSW), s 103BB inconsistent with Insurance Contracts Act 1984 (Cth) COSTS – party/party – bases of quantification – indemnity basis – primary judge ordered costs on indemnity basis – where proceedings ongoing for some time when offer of compromise made – offer had necessary element of compromise – no error

Catchwords:

CIVIL PROCEDURE – Court of Appeal – application for stay – Burgandy Royale test – limited stay granted APPEAL — Security provided in form of bank guarantees — order that guarantees be released – limited stay of order

Catchwords:

CIVIL PROCEDURE — summary disposal — want of due despatch — delays by self-represented appellant in prosecuting an appeal — new circumstances come to light — not in the interests of justice to dismiss proceedings CIVIL PROCEDURE — Court of Appeal — objections to competency of appeal — uncertain whether leave to appeal required — appellant has attempted to comply with orders to file a summons seeking leave to appeal — appellant’s notice of appeal filed two days out of time — not in the interests of justice to dismiss proceedings CIVIL PROCEDURE — summary disposal — dismissal of proceedings — non-appearance of plaintiff — plaintiff withdrew legal representation mid-way through hearing and later left the courtroom— whether r 29.7 of the Uniform Civil Procedure Rules (2005) (NSW) applies where a party leaves the court room mid-way through a hearing CIVIL PROCEDURE — Court of Appeal — pro bono referral — party terminated previous pro bono referral — issue of principle emerged on appeal satisfying the “special reasons” requirement in r 7.36 of the Uniform Civil Procedure Rules (2005) (NSW)

Catchwords:

CONSUMER LAW — Application of the Australian Consumer Law — whether primary judge was required to, but did not, make a finding as to whether the representations made were “false or misleading” and fell within the ambit of s 29(1)(b) of the Australian Consumer Law and s 12DB(1)(a) of the Australian Securities and Investments Commission Act 2001 (Cth)

Catchwords:

CIVIL PROCEDURE – appeal – application for leave to appeal – respondent’s application for security for costs – whether corporate applicant unable to pay costs if unsuccessful – strength of applicant’s case for leave – stay until security paid into court CIVIL PROCEDURE – appeal – application to stay costs order made by primary judge – stay on basis of payment into court CIVIL PROCEDURE – application for leave to appeal – respondent’s application for security for costs – applicant issued notice to produce – respondent’s motion to set aside notice – documents sought to resist security for costs application – agreements between respondent and legal representatives – relevance not established – documents sought to show respondent owed money to applicant – relevance not established – to determine balance of account between parties would be to engage in satellite litigation

Catchwords:

PROCEDURE – judicial review of District Court’s dismissal of interlocutory appeal from Children’s Court – whether independent legal representative of child entitled to be heard – where divergence in submissions between Secretary and independent legal representative – where divergence of principle on face of authorities – where Court would be assisted by submissions from independent legal representative on questions of law – leave granted to be joined as intervener

Catchwords:

CIVIL PROCEDURE – hearings – application to expedite application for leave to appeal where final hearing below soon to commence – prolonged proceeding below with final hearing dates twice postponed on applicant’s application based on mental health arguments – applicant not yet filed materials on application for leave to appeal despite orders – application refused to avoid heavy burden on parties and interference in preparation for final hearing CIVIL PROCEDURE – Court of Appeal – whether should be concurrent hearing of leave application and appeal is administrative decision generally made by President of Court of Appeal – not open to applicant to seek that the decision be made by a judge of appeal determining a motion CIVIL PROCEDURE – hearings – adjournment – adjournment sought when very short period remains before commencement of final hearing

Catchwords:

CONTRACTS – Formation – Agreement – Whether an oral agreement of accord and satisfaction was formed – Lack of a genuine dispute between the parties CONTRACTS – Formation – Consideration – Where part payment of a debt is not good consideration EQUITY – Equitable interests in property – Priority disputes between competing equitable interests –Whether there was actual or constructive notice of the earlier equity – Whether there was a “registrable dealing” for the purposes of section 43A of the Real Property Act 1900 (NSW)

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:

CONTRACTS — construction and interpretation — letter of comfort — where parent company undertook to pay “any debts” of subsidiary — where liquidators of subsidiary admitted proofs of debt in respect of undetermined civil claims — whether “any debts” in the letter of comfort includes liabilities accepted by liquidators

Catchwords:

COSTS – review of decision of Judge of Appeal under s 46(4) of the Supreme Court Act 1970 (NSW) – where security for costs granted by Judge of Appeal – whether decision involved an error of principle or was plainly wrong – where Judge of Appeal found special circumstances were not required under s 1335 of the Corporations Act 2001 (Cth) – no error of principle

Catchwords:

APPEALS — Contracts — Construction — where two co-owners agreements (COA) govern relationship between co-owners of large suburban shopping centre — where pre-emption rights on defaults and deemed defaults by co-owners in dealing with that co-owner’s ownership interest entitle non-defaulting owners to purchase defaulting co-owner’s ownership interest — whether two separate transactions effecting a transfer of ownership interests were prohibited disposals triggering pre-emption rights — whether second COA had a greater effect than to substitute an outgoing co-owner with an incoming co-owner — whether ownership interest was acquired “under” clauses regulating dealing and establishing pre-emption rights — whether service provisions ought be construed as essential

Catchwords:

APPEALS – procedure – stay of orders in District Court pending outcome of judicial review application in Court of Appeal – serious issue may be raised – no significant prospects of success on broadbrush view – balance of convenience taking account of risk of prejudice militates against stay CORPORATIONS – practice and procedure – security for costs – some delay in seeking security – no inference that ordering security would stifle proceedings – security appropriate – case of confined issues – sufficient for one junior counsel to appear in short hearing – broadbrush assessment of costs to be allowed

Catchwords:

INSURANCE – Insurance Contracts Act 1984 (Cth) – non-disclosure and misrepresentation – duty of disclosure – where senior executive of Leighton made a file note in November 2010 detailing conversations with another senior executive (“Iraq File Note”) – where that executive advised he had an opportunity to extend/vary a contract for a major infrastructure project in Iraq but it would require payment to a third party nominated subcontractor of $50-$60 million where the real value of the work was less than 50% of the payment, and that the current contract was won by a payment to a nominated subcontractor “on the same terms” – where Iraq File Note not disclosed to insurers for 2011 year (“2011 Insurers”) – where Leighton subsequently entered into primary and excess layers of D&O Insurance for the 2011 year (“2011 Policies”) – whether Leighton breached its duty of disclosure under s 21 of the Insurance Contracts Act and made a misrepresentation to the 2011 Insurers INSURANCE – Insurance Contracts Act 1984 (Cth) – whether the 2011 Insurers were entitled to reduce their liability to nil under s 28(3) of the Insurance Contracts Act INSURANCE – Liability insurance – directors and officers – whether cll 5.3 and 7.1 of the 2011 Policy precluded the 2011 Insurers from reducing their liability under s 28 of the Insurance Contracts Act – whether cl 5.3(ii) of the 2011 Policy operated so that limit of liability under previous years policy (as reduced by amounts previously paid) applied to CIMIC’s claims INSURANCE – Insurance Contracts Act 1984 (Cth) – contribution – whether AIG entitled to equitable contribution of 50% from Berkley and Swiss Re – where, without recourse to s 54 of the Insurance Contracts Act, AIG could not have contribution from Berkley – whether an omission to form an expectation that a claim could arise is a relevant omission for the purposes of s 54 of the Insurance Contracts Act INSURANCE – Liability insurance – directors and officers – where primary judge granted declaratory relief against insurers for the 2010 year – whether Court had jurisdiction to grant declaratory relief or alternatively whether the exercise of jurisdiction to grant declaratory relief miscarried APPEALS – Procedural fairness – whether primary judge denied Berkley procedural fairness in limiting its cross-examination of two witnesses

Catchwords:

AGENCY – authority of agent – implied actual authority – reason to infer board’s authorisation for one of its directors to sign on its behalf – Jones v Dunkel inferences drawn where no evidence from board AGENCY – service requirement under s 55(1)(c) of the Property, Stock and Business Agents Act 2002 (NSW) – circumstances militating in favour of ordering relief under s 55A from disentitlement to commission and expenses CIVIL PROCEDURE – pleadings – failure to raise issue in pleadings below – unfair to respondent to hold that counsel’s attempt to meet a point on the run was a concession that the point was in issue

Catchwords:

COSTS – Party/Party – General rule that costs follow the event – Relevance of Model Litigant Policy for Civil Litigation – Where offer of compromise rejected – Where no better outcome achieved

Catchwords:

JUDGMENTS AND ORDERS – amending, varying and setting aside – correction under slip rule – application to vary order made on 20 February 2025 – where respondents commenced new proceedings – where respondents sought a winding up order in relation to first appellant – where respondent alleged that the second appellant was not the beneficial owner of units recorded in relevant unit trust – whether court of appeal judgment set aside an unchallenged declaration regarding the second appellants’ beneficial ownership of units in relevant unit trust – whether orders should be corrected under r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW)

Catchwords:

COSTS – receivers – privately appointed receiver of company in liquidation brought appeal against another company in liquidation seeking to overturn decision of primary judge to depart from pro rata distribution – appeal failed – whether receiver should be ordered to pay costs of successful respondent – where acknowledgement that receiver liable for adverse costs requested but not provided – where security for costs not sought

Catchwords:

APPEALS – leave to appeal – competency – monetary threshold – procedural irregularity in filing summons seeking leave not causing distinct prejudice APPEALS – procedure – time Limits – extension of time – reasonable explanation for delay in filing notice of appeal – delay significant but not substantial – no distinct prejudice to other party – no utility in granting extension for continuous failure to demonstrate reasonably or fairly arguable case on appeal CIVIL PROCEDURE – summary dismissal where no reasonable cause of action disclosed – pleadings – striking out – none of three attempts by appellant properly identify grounds of appeal beyond raising matters not in issue below or matters which would not establish that the proceeding was not statute-barred LIMITATION OF ACTIONS – suspension of time – plaintiff asserted to be under disability – restraint or detention in foreign country

Catchwords:

CIVIL PROCEDURE – respondent’s application for security for costs – applicant sought recusal – reasonable apprehension of bias – judge on court which dismissed separate appeal proceedings 15 years ago – previous judgment not concerned with merits of current proceeding – no findings as to credibility

Catchwords:

CONTRACTS – claim for unpaid legal fees – where primary judge determined that various alleged oral contracts and variations of terms of retainer were inconsistent with written record – where primary judge preferred contemporaneous documents over honest recollection – whether the primary judge erred in factual findings as to the timeline of meetings between the parties – whether the primary judge erred in failing to find that the oral agreements contended by the appellant did occur.

Catchwords:

NEGLIGENCE — personal injury — worker injured on building site when lifting a concrete hose with another worker — identification of risk of harm — whether findings of fact permitted elements of negligence of other worker to be established — identity of other worker undisclosed — uncertainty whether other worker was employee or supplied under labour hire agreement — whether employer vicariously liable for negligence of other worker — whether sufficient that other worker performed tasks “as if” an employee - whether transfer of control — whether evidence permitted finding that other worker was employee — assessment of contributory negligence NEGLIGENCE — damages — personal injury damages — assessment of future economic loss —plaintiff suffered from degenerative spine condition prior to incident — assessment of future domestic assistance — appropriate hourly rate

Catchwords:

ESTOPPEL – proprietary estoppel – encouragement – nature of promise – where parents promised to build house for son on farming property 30 years ago – whether the promise included skirt of land surrounding the house (the Lot) – detrimental reliance – in reliance on the promise the son forewent the parents’ offer to buy him another block of land and father-in-law’s financial contribution to the son’s marriage in favour of expenditure on improvements on the Lot – whether it would have been unconscionable for the parents to resile from the promise ESTOPPEL – Proprietary estoppel – encouragement – relief – where land jointly owned – where buy-out order made instead of appointing trustees for sale – whether sufficient evidence of value of land – where single joint expert appointed by the parties had valued the Farm and the Lot – whether procedural unfairness in ordering updated valuation after trial LAND LAW – real property – indefeasible title – in personam exception – whether personal equity in respect of unregistered interest in part of farming property (the Lot) – Farm owned by parents – where parents made promise to older son to build house on the Lot and “it will be yours” – where parents later transferred the Farm to older son and his brother as tenants in common in equal shares for nil consideration – transfer of land subject to conditions that the two sons continue the farming business as partners, not sell the Farm and parents have right of management veto – whether assurances of conduct by the brother that would have preserved older son’s interest in the Lot – where assurances given in knowledge that parents were giving the Farm to both sons subject to older son’s existing rights and interests COSTS – party / party – exceptions to general rule that costs follow the event – Calderbank offers – where split trial of partnership proceedings – where partnership accounts not yet finalised – whether premature to make special costs order – whether exercise of costs discretion miscarried

Catchwords:

BUILDING AND CONSTRUCTION – adjudication – judicial review – whether adjudication affected by jurisdictional error – principles of jurisdictional error under Building and Construction Industry Security of Payment Act 1999 (NSW) ADMINISTRATIVE LAW – Judicial review – content of obligation “to consider” – whether failure specifically to refer to a matter reveals failure to consider that matter – scope of obligation to consider under Building and Construction Industry Security of Payment Act 1999 (NSW), s 22(2) – whether procedural unfairness established – whether decision legally unreasonable

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:

TAXES AND DUTIES — land tax — liability —principal place of residence — unoccupied land concession — where multiple strata lots are claimed as principal place of residence — where strata lots are intended to be consolidated into a single lot — where taxable land does not exactly correspond to future lot intended to be occupied — whether subject matter of concession is existing land or future lot — whether substantial coincidence between existing land and future land is required

Catchwords:

PRACTICE AND PROCEDURE — Adjournment — application for adjournment of application for recusal

Catchwords:

PRACTICE AND PROCEDURE – urgent application for stay pending as yet unfiled application for special leave to appeal to the High Court – application of Burgundy Royale test – no substantial prospect of special leave being granted – stay refused

Catchwords:

PRACTICE AND PROCEDURE — application for recusal —apprehended bias — application declined

Catchwords:

PRACTICE AND PROCEDURE — application for recusal —apprehended bias — application declined

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:

COSTS — Application to vary costs order — Where application to vary order brought out of time — Where application lacked merit

Catchwords:

SUCCESSION – informal wills – where deceased amended will leaving estate to children but did not comply with formalities required for a valid legal will – where deceased emailed “new will” to new executor – where deceased dies in boating accident in 2023 – where former de facto partner seeks probate of earlier signed will leaving estate to her – whether primary judge erred in determining that deceased intended for the amended will to form his will for purpose of requirements in s 8 of the Succession Act 2006 (NSW) – whether primary judge erred in concluding that deceased was not aware that will had to be executed and witnessed to be valid – whether primary judge erred in finding that relationship between the appellant and deceased had been definitively terminated in May 2019 – whether primary judge erred in inferring that deceased had told the appellant about the amended will immediately after it was made COSTS – whether costs of proceedings at first instance be paid of out of deceased’s estate – whether primary judge erred in determining that appellant pay 75% of respondent’s costs

Catchwords:

CIVIL PROCEDURE — Court of Appeal — review of decision of single judge of appeal — Supreme Court Act 1970, s 46(4) — Uniform Civil Procedure Rules 2005, r 51.58 —whether applicants demonstrated error of principle or that the decision was plainly wrong

Catchwords:

CIVIL PROCEDURE – costs – application for order against non-party – director of company with carriage of proceedings for company – director granted leave to appear – company unsuccessful – conduct not improper or unreasonable – no evidence that company insolvent – no evidence that director funded proceeding – application refused

Catchwords:

ADMINISTRATIVE LAW – judicial review – jurisdictional error – disposal of property on application to court – forfeiture of property to the Crown – construction of s 219 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)

Catchwords:

EQUITY — fiduciary duties — solicitor — claim against solicitor personally by other side in litigation — whether client gave informed consent to solicitor continuing to act — solicitor subsequently in breach of duty by putting forward settlement deed in which solicitor received a benefit — whether error in finding by primary judge that breach not dishonest — whether primary judge could accept concession that liability in equity depended on finding of dishonesty — whether claim statute-barred absent dishonesty RECEIVERS — instrument appointing receivers expressed to be signed, sealed and delivered — whether a deed — whether primary judge erred in finding instrument was not a deed and therefore six year limitation period applicable — whether receivers breached fiduciary duties or were knowingly involved in breach of duty by solicitor — whether any breach was dishonest — whether any claim against receivers statute-barred PROCEDURE — appeals — notice of appeal — failure to identify grounds briefly and specifically — failure to comply with statement as to challenge to findings of fact — failure to comply with page limit — unnecessary to address numerous subgrounds of appeal and submissions

Catchwords:

TORTS — false imprisonment — whether power to arrest lawfully exercised under s 99, Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) — whether police officers suspected on reasonable grounds that the person committed offences — where suspected offences comprised breaches of an ambiguous order — “reasonably necessary” criterion — whether arresting officer’s satisfaction that the arrest was reasonably necessary was manifestly unreasonable, or arbitrary, capricious, irrational or not bona fide CIVIL PROCEDURE — Court of Appeal — competency of appeal — whether appeal involves matter at issue amounting to or of the value of $100,000 or more — need for party seeking to appeal to demonstrate that the appeal is not limited by monetary sum

Catchwords:

TORTS – nuisance – private nuisance – plaintiffs claimed their properties were affected by construction of Sydney Light Rail – whether interference with enjoyment of plaintiffs’ property substantial and unreasonable – whether failure by plaintiffs to establish a failure to take reasonable care determinative – whether defendant bore onus of establishing that it took reasonable care – whether defendant failed to take reasonable care – significance to cause of action in nuisance of taking reasonable care – whether use of road for construction purposes exceptional – whether interference with plaintiffs’ enjoyment inevitable – whether delay in construction attributable to discovery of unknown utilities – whether damages should include a “recovery period” – whether s 43A of Civil Liability Act 2002 (NSW) applicable DAMAGES – pure economic loss – funded litigation – funding agreement included commission to funder – whether commission recoverable as component of damages

Catchwords:

WORKERS COMPENSATION — medical assessment — medical assessment certificate — assessment of permanent impairment — whether Medical Assessor fabricated evidence or made factual errors resulting in jurisdictional error WORKERS COMPENSATION — medical assessment — medical assessment certificate — assessment of permanent impairment — whether Medical Assessor failed to apply [1.32] of the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment resulting in an error of law on the face of the record WORKERS COMPENSATION — medical assessment — medical assessment certificate — assessment of permanent impairment — whether Medical Assessor adopted wrong criteria in NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment resulting in jurisdictional error or error of law on the face of the record WORKERS COMPENSATION — medical assessment — medical assessment certificate — assessment of permanent impairment — whether Medical Assessor had conflict of interest or decision was affected by actual or apprehended bias or he abused his power such that the assessment suffers from jurisdictional error WORKERS COMPENSATION — medical assessment — medical assessment certificate —decision of delegate of President of Personal Injury Commission not to allow appeal to proceed to Medical Appeal Panel — whether limited time to submit application to appeal constituted denial of procedural fairness — whether decision was open to delegate WORKERS COMPENSATION — medical assessment — certificate of determination — whether certificate of determination tainted by jurisdictional error or error of law on face of the record in decision of delegate of President of Personal Injury Commission not to allow appeal to proceed to Medical Appeal Panel

Catchwords:

CIVIL PROCEDURE — security for costs — non-resident applicant for leave to appeal — unpaid costs orders in other proceedings — no issue of principle

Catchwords:

CIVIL PROCEDURE - Court of Appeal - Expedited hearing - Where an expedited hearing of an application for leave to appeal and appeal against an order made on an interlocutory basis is sought - Where the order varied and deleted certain conditions of an Extended Supervision Order - Where it was contended that expedition should be ordered having regard to the public interest and so that the appeal not be rendered inutile - Where expedition was opposed on the grounds of prejudice

Catchwords:

CIVIL PROCEDURE - Court of Appeal - Judges of Appeal - Powers of - Power of single Judge of Appeal - Whether orders sought by motion are orders that could be properly made by a single Judge of Appeal

Catchwords:

APPEALS — leave to appeal – leave required because monetary threshold not met – alleged defamation in social media posts – posts removed after limited exposure – defence of justification upheld – defence of honest opinion also upheld – contingent assessment of damages of $15,000 – amount in issue not approaching $100,000 threshold – disproportion between amount of possible damages and legal costs – no significant error of law, issue of principle or matter of general importance identified – court invited to reconsider factual findings of trial judge – no clear prospect of a different outcome if leave were granted, the appeal allowed, and a retrial held

Catchwords:

COSTS – where plaintiff in the court below seriously injured in a fall on a building site – where parties disagree upon some aspects of the final calculations anticipated by the appeal judgment – whether a medical expense incurred after an award of damages can be claimed as an additional out-of-pocket expense – whether UCPR 42.15A should be applied – whether a differential costs order as to costs of appeal should be made

Catchwords:

COURTS AND JUDGES - Bias - Application for recusal – Claim of lack of independence – Whether actual or apprehended bias

Catchwords:

APPEALS — Contracts — Formation — where primary judge found intention to form a binding and enforceable contract in the terms of a letter — whether primary judge erred in assessment of circumstances — whether primary judge erred in assessment of parties’ intentions — whether contract excluded by prior agreements APPEALS — Procedural fairness — Evidence — where primary judge preferred evidence of plaintiff as to key disputed conversations — where primary judge regarded evidence of defendant as “self-interested” — whether error in treatment of evidence of witnesses APPEALS — Procedural fairness — where slight disparity between pleaded case and case as conducted — where counsel for defendant at first instance confirmed no prejudice — whether defendant denied procedural fairness APPEALS — Further evidence — Power to receive further evidence — where appellant made informal application to adduce fresh evidence on day of hearing — whether leave should be granted to admit fresh evidence

Catchwords:

APPEALS — Procedure — Summons seeking leave to appeal — Where President of Court of Appeal directed that application for leave be heard alone not concurrently with argument on the appeal — Where applicant for leave challenged administrative decision of single judge of appeal — Whether listing decision is a judgment or order or direction amenable to challenge or review APPEALS – Procedure – Application to vacate leave only hearing to provide more time to prepare – Unrepresented litigant – Where other party filed response to summons late – Where nothing in other party’s response capable of taking applicant by surprise

Catchwords:

COSTS — application for gross sum costs order pursuant to s 98(4)(c) of Civil Procedure Act 2005 (NSW) — application for indemnity costs — costs of two notices of motion

Catchwords:

CIVIL PROCEDURE - Court of Appeal - Objections to competency of appeal – Appeal purportedly brought as of right from interlocutory decision – Appeal dismissed as incompetent

Catchwords:

APPEALS — Leave to appeal — appeal from summary dismissal — where multiple prior proceedings brought on behalf of related parties — abuse of process — reflective loss — whether reflective loss applies to indirect but ultimate shareholders — whether distinct loss of applicants can be discerned — whether appeal demonstrates an issue of principle, question of public importance, or reasonably clear injustice

Catchwords:

COSTS – judicial advice – beneficiaries and non-beneficiary joined – beneficiaries’ costs to be paid on indemnity basis – whether non-beneficiary’s costs should be paid on indemnity basis – whether non-beneficiary’s costs necessarily incurred for benefit of trust – consideration of Re Buckton [1907] 2 Ch 406

Catchwords:

COURTS AND JUDGES — application for recusal — whether apprehended bias — where allegation of apprehended bias based on association — where allegation of apprehended bias arose from outcome of internal court administrative procedures — where complaint made to the Judicial Commission CIVIL PROCEDURE — summary disposal — dismissal of proceedings — where no reasonable cause of action disclosed — where proceedings are an abuse of process

Catchwords:

COSTS — security for costs — relevant factors — where no evidence of financial capacity — where trust monies used to pay costs of earlier application — whether special circumstances required under s 1335 of the Corporations Act 2001 (Cth) CIVIL PROCEDURE — stay of proceedings — pending application for leave to appeal — where trust monies used to pay costs of earlier application — whether stay should be conditional on payment into Court of the amount of previous unpaid costs order

Catchwords:

TRUSTS – existence of trust – funds comingled with personal funds of trustee – intended beneficiaries were wife of settlor and other members of settlor’s family in need – whether payment to trustee’s son during life of settlor’s wife constituted distribution of corpus of trust – evidence of trustee’s intention – original trustee deceased and administrator of estate new trustee – burden of proof that trust existed TRUSTS – trustee replaced by court order – retiring trustee’s claims for indemnity for costs incurred in protecting comingled funds – relevance of trustee’s subjective belief that trust no longer existed – whether indemnity available where trust obtained material benefit from expenditure – whether apportionment of costs appropriate according to ratio of trust funds to the general estate under administration

Catchwords:

APPEALS – leave to appeal – interlocutory orders – pleading dispute – striking out part of cross-claim – refusal of leave to amend statement of claim – whether arguable causal connection pleaded – whether questions reasonably arguable – whether injustice CIVIL PROCEDURE – pleadings – strike out application – amendment application – claims under Superannuation Industry (Supervision) Act 1993 (Cth), s 55(3) – causal requirement in statutory norm – causal connection between contravening conduct and loss – whether literal construction untenable – whether material facts plead arguable causal connection between contravening conduct and loss – whether pleading has tendency to cause prejudice, embarrassment or delay in proceedings

Catchwords:

CORPORATIONS – statutory derivative action – Corporations Act 2001 (Cth), s 237 – application to bring proceedings on behalf of company – where company is corporate trustee – leave sought by former director of company who is a discretionary object of trust – nature of good faith requirement – whether applies to application for leave and to the desire to bring the underlying proceedings – where impugned transaction occurred 11 years after applicant ceased to be a director and 19 years before applicant sought leave under s 237 – where unexplained delay APPEALS – nature of appeal – application for leave to bring statutory derivative action – standard of appellate review – correctness standard applies

Catchwords:

CONTRACTS – Formation – Intention to create legal relations – “Fourth category” of Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72 – Whether emails exchanged prior to formal loan agreement established an intention immediately to be bound CONTRACTS – Formation – Consideration – Past consideration – Where advance made nine days prior to execution of formal loan agreement – Whether loan agreement supported by consideration – Whether earlier advance constituted past consideration in respect of the formal loan agreement ESTOPPEL – Conventional estoppel – Where purported concession made in cross-examination – Where purported concession conflicted with contemporaneous documents – Whether purported concession provided a basis for a conventional estoppel claim

Catchwords:

HIGH RISK OFFENDERS – extended supervision orders – appeal against Supreme Court’s refusal of application – whether offence against s 33A(1) of Crimes Act 1900 (NSW) is a “serious violence offence” defined in s 5A(1) of the Crimes (High Risk Offenders) Act 2006 (NSW) – elements of claimed index offence necessarily such as to satisfy the requirements of s 5A(1)(a), even though not expressed in that way STATUTORY INTERPRETATION – principle of legality inapplicable to ss 5A and 5B of Crimes (High Risk Offenders) Act 2006 (NSW) – in any event would not outweigh significance of text, context and purpose CRIMES – attempt – if person discharges firearm with intent to cause grievous bodily harm they have necessarily at least undertaken an act not merely preparatory towards commission of crime of engaging in conduct causing grievous bodily harm with intent to do so

Catchwords:

TAXES AND DUTIES — Dutiable transactions — Dutiable value — Land — landholder duty — whether interest in pipeline is “land holdings” or “goods” — meaning of “land holdings” in s 155 of the Duties Act 1997 (NSW) — meaning of “goods” in s 155 of the Duties Act — nature of interest conferred by the Water Industry Competition Act 2006 (NSW) TAXES AND DUTIES — Dutiable transactions — dutiable value — whether interest in pipeline is indeterminate thus non-dutiable

Catchwords:

EQUITY – trusts and trustees – constructive trusts – property owned by respondent sold to the appellant trustee company controlled by respondent’s son – whether joint endeavour between respondent and son pursuant to which respondent could continue to reside at property after sale – where following sale respondent provided funds to cover costs associated with property and renovations – application of principles in Baumgartner v Baumgartner (1987) 164 CLR 137; [1987] HCA 59 – challenges to findings as to existence of joint endeavour and end of joint endeavour without attributable blame of respondent EQUITY – remedies – constructive trust on basis of failed joint endeavour – constructive trust for sale of property and division of net proceeds – form of declaration – return of contributions – sharing of surplus

Catchwords:

APPEALS – leave to appeal – where respondent granted summary judgment at first instance under r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) – where appeal has limited practical utility – appellant identified reference to issue of costs – monetary threshold – not satisfied

Catchwords:

APPEALS – procedure – application for stay of proceedings pending hearing of summons seeking leave to appeal – where proceedings commenced in Local Court – motor vehicle accident – where respondent admits liability – whether damages exceed the jurisdictional limit of the Local Court – whether merit in the appellant’s appeal – whether failure to grant a stay will render the appeal nugatory – consideration of the competing interests of the parties – whether grant of stay least likely to lead to an injustice

Catchwords:

EQUITY - equitable charges and liens – where debtor emails creditor offering a pledge of units in trust – where creditor does not accept pledge – whether debtor conferred an equitable charge over units as security for repayment of loans – whether the claim for an equitable charge fails under the requirements for signed writing in s 23C(1)(c) of the Conveyancing Act 1919 (NSW) EQUITY - trusts and trustees - unit trusts - whether trustee obliged to process redemption request in amount claimed by appellants

Catchwords:

CIVIL PROCEDURE – Interpleader – Sheriff – whether interpleader required to be brought by Sheriff’s alternate – whether proceedings are one to which the Sheriff is a party for the purposes of s 6(1)(a) of the Sheriff Act 2005 (NSW) – whether contravention of s 6 of the Sheriff Act 2005 (NSW) requires mandatory dismissal of proceedings – Summons dismissed with costs STATUTORY INTERPRETATION – Construction of s 6(1) of the Sheriff Act 2005 (NSW) – whether reference to “the Sheriff’s functions in relation to” refers to the function of commencing or maintaining legal proceedings to which the Sheriff is a party

Catchwords:

COSTS – Indemnity costs – Calderbank offer – where offer made between primary judgment and appeal hearing – whether rejection of offer unreasonable – whether to include post-judgment interest in determining whether offer is less favourable – whether post-judgment interest accrues from date of primary or appeal judgment

Catchwords:

APPEALS — application for leave to appeal — where applicant sought reduction of amount in payment claim served by respondent on account of an upfront payment made before the payment claim was served — whether defence alleging upfront payment as reduction was a defence prohibited by Building and Construction Industry Security of Payment Act 1999 (NSW), s 15(4)(b)(ii) or whether it raised a matter which was required to be taken into account to determine the unpaid portion of the claimed amount — leave, if required, refused — otherwise appeal dismissed

Catchwords:

WORKERS COMPENSATION — uninsured liability regime — Workers Compensation Act 1987 (NSW), s 140 — meaning of “work injury damages” — meaning of “injury” — where relevant injury is silicosis DUST DISEASES — dust diseases legislation — distinction between legislative treatment of dust diseases and general workers compensation

Catchwords:

PRACTICE AND PROCEDURE – Vexatious proceedings order – Whether vexatious proceedings order should be set aside – Whether leave required under ss 9(3) or 14 of the Vexatious Proceedings Act 2008 (NSW) – Basis for exercising jurisdiction to set aside vexatious proceedings order – Where application substantially repeated previously rejected submissions

Catchwords:

COSTS – leave to appeal – no question of principle

Catchwords:

APPEALS — Leave to appeal — Whether leave required LAND LAW — Easements — Substantial interference with easements — dominant owner proposes extended width of driveway on their own land — proposal that drivers from servient tenement will cross onto dominant owner’s land — alleged that the development application contains certain deficiencies— servient owner’s consent required for making of development application pursuant to s 23(1) of the Environmental Planning and Assessment Regulation 2021 (NSW) — whether servient owner’s refusal to consent to the making of a development application constitutes a substantial interference in the dominant owner’s rights

Catchwords:

CONTRACTS — construction — where parties entered into initial agreement for sale of two coconut milk production plants — where two parts of a plant were delivered — where initial agreement was terminated by deed of settlement and a new supply of two plants was to be provided — whether “new supply” meant a supply that was independent of the supply under the initial contract — whether vendor could rely on delivery of parts under initial agreement in part satisfaction of its obligations under settlement documents CONTRACTS — construction — construction of release clause in deed of settlement — application of Grant v John Grant & Sons Proprietary Limited (1954) 91 CLR 112; [1954] HCA 23 — where parties agreed they had “no further obligations” in respect of a primary contract for sale of two coconut milk production plants — where vendor released seller from “all Claims and actions arising from or in connection with” settled matters — where title to plants under initial agreement did not pass to purchaser until full purchase price was paid — whether release clause extinguished vendor’s claim to title to the plants in circumstances where full purchase price was not paid under initial agreement

Catchwords:

EQUITY — Equitable remedies — Specific performance — Contract for the sale and purchase of land 2022 edition — where vendor issued a notice to complete — where completion did not occur — where vendor issued a notice of termination — where purchaser sought specific performance of contract in circumstances where vendor said to be in breach of contract — where purported breach related to the requirement that a notice of attornment be served by the vendor and held in escrow at least two business days prior to completion — whether vendor’s failure to serve notice of attornment a “disentitling breach” such that it was relevant to or connected with the securing of completion

Catchwords:

LAND LAW — Compulsory acquisition of land — Compensation — Loss attributable to disturbance — costs incurred in connection with relocation — meaning of “relocation” — where lessee seeks costs of constructing landlord’s fixtures for use in lessee’s business — fit out costs — whether fit out costs encompass replacement of landlord’s fixtures LAND LAW — Compulsory acquisition of land — Compensation — market value — relationship between loss attributable to disturbance and market value of interest in land LAND LAW — Compulsory acquisition of land — compensation — Loss attributable to disturbance — costs incurred in connection with relocation — difference between rent at acquired premises and at the relocation premises — profit rental assessed for market value — whether compensation available as disturbance for difference in market rents

Catchwords:

CIVIL PROCEDURE – Court of Appeal – application for pro bono referral – where application made shortly before listed hearing date – whether the respondent will suffer prejudice if hearing date is vacated – where applicant has recently directed substantial sums through his accounts – application refused

Catchwords:

TORTS – assessment of damages – injury caused by State Transit Authority bus colliding with bicycle – whether damages to be assessed under Ch 5 of the Motor Accidents Compensation Act 1999 (NSW) or under the Motor Accident Injuries Act 2017 (NSW) STATUTORY INTERPRETATION – scheme regulating awards of damages by reference to two distinct categories – scope of categories of “motor vehicle” accidents and “public transport” accidents – government bus capable of satisfying each criterion – special or specific category to prevail – result not inconsistent with primary purpose of later legislation

Catchwords:

JUDGMENTS – significance of plaintiff who settles with one defendant and characterises payment as going to costs – meaning and scope of rule against double recovery – significance of plaintiff settling with and releasing a defendant after judgment has been entered – nature of defendants’ liability after entry of judgment COSTS – gross sum costs order – costs of long and complex trial and appeal – whether materials sufficient to permit making of gross sum costs order – whether costs associated with after-the-event insurance were disbursements or expenses – significance of costs being necessary, reasonable, and brought about by application for security for costs by ultimately unsuccessful respondents – whether and how costs should be discounted for various matters

Catchwords:

JUDGMENTS AND ORDERS – Adjudication determination entered as a judgment – Adjudication determination affected by jurisdictional error – Judgment set aside on the basis that adjudication determination affected by jurisdictional error RESTITUTION – Where moneys paid under a garnishee order pursuant to a judgment – Where judgment subsequently set aside – Right to restitution of moneys paid under a judgment subsequently set aside – No discretion to refuse relief under general law – Alternative basis for restitution pursuant to s 124A of the Civil Procedure Act 2005 (NSW)

Catchwords:

LEGAL PRACTITIONERS – disciplinary proceedings – solicitor – whether Respondent a fit and proper person to remain on the Roll of Australian Lawyers – where Respondent convicted of offences relating to misappropriation of trust funds – where Respondent engaged in, or represented that he was entitled to engage in, legal practice following the suspension of his practising certificate and the issue of Supreme Court injunctions restraining him from legal practice

Catchwords:

ADMINISTRATIVE LAW — judicial review — application to Local Court to revoke apprehended domestic violence order (ADVO) — where application brought before order expired — where extension of ADVO sought to enable it to be revoked — where Local Court allowed both applications — where Supreme Court dismissed summons seeking judicial review. STATUTORY INTERPRETATION — improper purpose — whether purported extension of ADVO for improper purpose where not for purpose of protecting a person — whether purported revocation of order for improper purpose where for purpose of disengaging prohibition in s 11(5)(c) of the Firearms Act 1996 (NSW) — Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 73. COSTS — appeals — whether proceeding seeking judicial review a “proceeding in the nature of an appeal” — Suitors’ Fund Act 1951 (NSW), s 6.

Catchwords:

PARTNERSHIP AND JOINT VENTURES – rights and duties between parties – expulsion – whether expulsion valid – interpretation of Partnership Deed – where resolution to waive time and expulsion resolution were voted by a single voting button – whether resolutions required approval of not less than 80% of all Capital Partners PARTNERSHIP AND JOINT VENTURES – rights and duties between parties – findings of fact – whether appellant lost the opportunity to increase calibration points – whether resolutions proposed for an improper purpose PARTNERSHIP AND JOINT VENTURES – dissolution – dissolution by court of partnership – whether date of dissolution is the date of the statement of claim or the date of the expulsion resolution – dissolution on just and equitable ground APPEALS – from exercise of discretion – separate question order – whether primary judge erred in making order for costs for hearing the separate question – whether appellant’s claim sufficiently heard – whether relief granted incomplete

Catchwords:

BUILDING AND CONSTRUCTION – payment claim – validity – claim for payment due under construction contract – whether claim must be “for construction work” – purpose of claim to recover an amount obtained by respondents through recourse to bank guarantees provided by claimant – defence asserted in payment schedule – whether issue to be determined by adjudicator or Court

Catchwords:

APPEALS — Procedure — Stay pending appeal

Catchwords:

TRUSTS – judicial advice – scheme established to compensate victims of asbestos-related diseases – two victims claimed damages for personal injury based on exposure to asbestos – victims obtain judgments – victims had previously received workers compensation payments from Queensland workers compensation insurer – WorkCover Queensland asserted an entitlement to reimbursement and a charge over the judgments – whether trustee justified in not making payments to discharge judgment debts of liable entity to the extent that they were subject to reimbursement by WorkCover Queensland

Catchwords:

REAL PROPERTY – Easements – Construction of the definition of the statutory terms of an easement for services – Where applicant had installed a CCTV camera to monitor passageway outside storage area – Where CCTV cables traversed benefited lot – Whether on proper construction of statutory terms of easement the CCTV camera was a “domestic service” “to or from” the benefited lot – Whether necessary that service provided by a third party provider – Appeal allowed

Catchwords:

APPEALS – apprehension of bias – procedural fairness – whether the trial judge’s interventions gave rise to apprehension of bias or procedural unfairness – whether excessive judicial questioning or comments – whether real danger that trial was unfair TORTS – malicious prosecution – where criminal proceedings result in acquittal – where police officer instituted proceedings by charging the accused – where proceedings taken over by Director of Public Prosecutions – whether police officer maintained the proceedings – whether in charging the accused police officer acted without reasonable and probable cause – whether officer acted with malice TORTS – misfeasance in public office – whether malice proved TORTS – false imprisonment – where plaintiffs detained for purpose of investigation – whether unlawfully detained beyond the maximum investigation period – whether permitted timeouts extended the investigation period – whether trial judge erred in findings as to period of false imprisonment – whether false imprisonment ended when respondents charged and refused bail APPEALS – damages for false imprisonment – whether trial judge failed to apply correct counterfactual scenario – whether error in awarding compensatory damages – whether nominal damages appropriate – whether error in awarding aggravated and exemplary damages APPEALS – from finding of fact – credibility of witnesses – whether primary judge erred in credibility and reliability findings

Catchwords:

COSTS – Application for gross sum costs order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) – Whether appropriate to make such an order – Quantification of sum to be awarded

Catchwords:

TORTS – intentional torts – battery – appeal only as to assessment of damages – where respondent alleged his career as an actor had been affected by physical and psychological injuries caused by appellant – whether primary judge erred in finding that respondent suffers from chronic post-traumatic stress disorder – whether primary judge erred in determination of general damages, past economic loss, and future economic loss

Catchwords:

NEGLIGENCE - breach – discrete or hidden risk – where risk of a non-operational smoke alarm was foreseeable and highly significant – where precautions were not onerous NEGLIGENCE – intoxication – where relevant conduct or activity was being asleep in home – whether there was impairment of capacity to exercise reasonable care and skill due to intoxication APPEALS - from finding of fact - credibility of witnesses – where primary judge observed the appellant giving evidence - primary judge entitled to make adverse credibility findings

Catchwords:

LEGAL PRACTITIONERS — Disciplinary proceedings — Misappropriation of trust account funds — Practitioner convicted of larceny as a bailee under s 125 of the Crimes Act 1900 (NSW) — Declaration that the practitioner is not a fit and proper person to remain on the Roll of Australian Lawyers

Catchwords:

CIVIL PROCEDURE — stay of order to distribute estate sought pending appeal — where question of stay already determined — notices of motion impermissibly used to appeal from decision — no material change in circumstances — notices of motion dismissed

Catchwords:

CIVIL PROCEDURE — Court of Appeal — application for pro bono referral — where appellant terminated previous pro bono representation and has not been responsive to directions from the Court

Catchwords:

NEGLIGENCE – Duty of care – Public authorities – Police officers owe duty to take reasonable care to avoid risk of harm to class of persons in immediate vicinity of operational response during protest march – Risk of harm in police actions inflicting physical injury on identified class of persons – s 43A of Civil Liability Act 2002 (NSW) inapplicable NEGLIGENCE – Breach – Regard to be had to police obligations to take actions to prevent breaches of the peace even in crowded situations –Reasonable to effect arrest in the way done – No breach made out NEGLIGENCE – Causation – Novus actus interveniens – Third party actions leading to respondent’s injury not occurring in ordinary course of things which might flow from police actions – Issue of fact and degree in all circumstances – Distinct and significant criminal action of third party led to arrest leading up to injury – Chain of causation broken TORTS – Trespass to the person – Battery – Police “utterly without fault” in colliding with respondent – Battery not made out

Catchwords:

EVIDENCE — documentary evidence — proof of contents of documents — where parties agreed that certain specified documents would be treated as evidence of the contents, but not the truth of the matters set out in those documents — whether the primary judge erred in using those documents when making factual findings — where primary judge used those documents to corroborate or confirm other available evidence — where primary judge’s fact finding process not inconsistent with the agreement between the parties BUILDING AND CONSTRUCTION — Australian Consumer Law — misleading or deceptive conduct

Catchwords:

CIVIL PROCEDURE – permanent stay of proceedings – claim of vicarious liability for damages for child abuse – child abuse alleged to have occurred in 1976 at holiday camp – most relevant witnesses deceased – primary judge ordered permanent stay prior to decision in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32 – whether GLJ changed applicable principles – whether fair trial possible of primary allegation of child abuse – where appellants intended to adduce further expert evidence concerning holiday camps – leave granted and timetable for further evidence and submissions ordered

Catchwords:

CORPORATIONS – winding up – liquidators – after paying all creditors, liquidator achieved a surplus – where company being wound up had large unsatisfied judgment debt against its majority shareholder – where majority shareholder also being wound up – application of “rule in Cherry v Boultbee” – where liquidator sought and obtained special leave to distribute whole of surplus to shareholders other than majority shareholder – relationship between common law, equity and statute – whether continuing operation of “rule in Cherry v Boultbee” incoherent with purposes and policy of the Corporations Act – consideration of history and nature of “rule in Cherry v Boultbee”

Catchwords:

CONTRACTS — construction — Facility Agreement between joint lenders and borrower company — where “Lender” in opening words of agreement refers to both individual lenders — whether reference to “Lender” in clause concerning issue of redemption notices by borrower to “the Lender” means either or both of them — where meaning of “Lender” throughout the agreement is a question of construction CONTRACTS — where Facility Agreement required two lenders nominate a bank account into which proceeds could be paid — where only one lender nominated an account — where proceeds of facility paid into nominated account in breach of requirements of agreement such that borrower did not obtain good discharge of its debt — where proceedings as between the two lenders were litigated — whether those proceedings amounted to ratification of rogue lender’s nomination such that the borrower obtained good discharge of its debt — whether right of action now lies against borrower

Catchwords:

CONTRACTS – Construction – Whether poorly drafted deed created charge over property owned by respondent named as guarantor – Label of “rectification by construction” to be avoided – Courts may “correct” language and punctuation of contract by way of construction where obvious mistake established by parties’ clear objectively ascertainable intention – Charge not created

Catchwords:

GUARANTEE AND INDEMNITY – Construction Scope of liability of guarantor – Where contract for sale of land and underlying businesses not completed by purchasers – Where vendor sought order for specific performance as against guarantor – Where order for specific performance granted by primary judge - Whether guarantor liable to perform purchasers’ principal obligations – Appeal allowed

Catchwords:

JUDGMENTS AND ORDERS – Remittal by Court of Appeal to Land and Environment Court – Scope of remitter – Where respondent sought to adduce further evidence on the remittal – Where primary judge refused to grant leave to adduce further evidence – Whether primary judge erred in law in refusing to admit further evidence – Appeal dismissed APPEALS – Jurisdiction of appellate court – Remittal to Land and Environment Court – Construction of remittal order – Whether a question of law for purposes of s 57(1) of the Land and Environment Court Act 1979 (NSW)

Catchwords:

NEGLIGENCE – Duty of care – Mental harm – Where respondent exposed to traumatic incident in the course of employment – Whether respondent’s exposure to incident was causative of post-traumatic stress disorder and major depressive disorder – Whether respondent actually exposed to incident – Whether respondent’s employer breached duty of care in failing to direct respondent not to attend incident – Whether duty of care negatived by s 32 of the Civil Liability Act 2002 (NSW) – Appeal allowed EVIDENCE – Expert evidence – Where assumptions made by experts called by respondent not proved on the facts – Where facts as proved dissimilar from expert assumptions – Where little to no weight can be attributed to expert evidence as to causation

Catchwords:

ASSOCIATIONS AND CLUBS — Council of the NSW Bar Association — Whether Bar Council has standing to institute and prosecute disciplinary proceedings in Tribunal and Supreme Court — Where Bar Council is not a separate legal entity to NSW Bar Association ADMINISTRATIVE LAW — NSW Civil and Administrative Tribunal — Occupational Division — Disciplinary decisions — Whether Tribunal erred in finding professional misconduct and unsatisfactory professional conduct — Whether Tribunal erred in recommending barrister be removed from the roll — Where practitioner instituted and maintained proceedings against another practitioner without reasonable justification on material available — Where deemed judgment upon lodgment of costs certificate in Supreme Court not paid by practitioner — Whether denial of procedural fairness — Whether apprehension of bias — Whether delegation of complaint by NSW Commissioner to Bar Council valid — Whether application for disciplinary findings and orders valid OCCUPATIONS — Legal practitioners — Disciplinary proceedings — Barristers — Application for removal from roll of barristers — Where unsuccessful appeal from Tribunal decisions finding professional misconduct and recommending removal from the roll — Where prior adverse findings against practitioner — Where lack of insight and absence of contrition for breach of Barristers Rules — Where practitioner not held practising certificate for over 6 years — Whether practitioner fit to practise — Whether removal from roll warranted in all the circumstances

Catchwords:

COURTS AND JUDGES — Application for recusal — Whether apprehended bias — Claim of lack of independence — Based on association with family member or other judges of Supreme Court — Claim of prejudgment — Based on conduct during the hearing — Recusal application made 10 weeks after judgment reserved and after notice of listing for judgment — Whether waiver of any right to object

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COSTS – application for gross sum costs order – where gross sum already agreed between the parties – application refused

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LAND LAW — Indigenous land rights — Aboriginal Land Rights Act 1983 (NSW) — claimable Crown lands — where primary judge found land was not claimable Crown lands under s 36(1)(c) because it was needed for an essential public purpose — whether primary judge applied s 36(1)(c) erroneously— where primary judge failed to address the absence of decision of executive government that the land was needed for a particular purpose — where primary judge identified essential public purpose as education provided by private community college — whether primary judge’s conclusion was legally unreasonable APPEALS — right of appeal — scope of right — error of law — where appeal from decision from Land and Environment Court only lies on question of law — whether appeal grounds raise questions of law — where grounds allege error in primary judge’s application of s 36(1)(c) of the Aboriginal Land Rights Act 1983 (NSW)

Catchwords:

ADMINISTRATIVE LAW – judicial review – supervisory jurisdiction over District Court determining criminal appeals – review limited by s 176 of District Court Act 1973 (NSW) to jurisdictional error – whether error in construing offence provision jurisdictional – whether error jurisdictional if question of construction is “core” issue in prosecution – no jurisdictional error established – inappropriate to determine questions of construction

Catchwords:

APPEALS – Leave to appeal – Summary dismissal – Proceedings barred by issue estoppel or Anshun estoppel – Proceedings instituted outside limitation period – No issue of principle or public importance – Leave refused

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Contract terms – Which of two entities in same corporate group is true employer of respondent – What reasonable person in position of all persons potentially party to contract would understand as to which entity was party as employer – Post-contract conduct relevant where contract unwritten – Factors still relevant in employee/independent contractor characterisation context may shed some light on issue – Question of control and direction significant though not definitive CIVIL PROCEDURE – Pleadings – Admission contrary to subsequent argument not withdrawn – Pleadings and particulars define issues for decision – Primary judge entitled to determine issue based on admission LIMITATIONS OF ACTIONS – Discoverability – Personal injury – Knowledge of fault of defendant – When plaintiff “ought to know” facts – No requirement that plaintiff knows capacity in which putative defendant might be liable – Reasonable steps to be taken by plaintiff, not plaintiff’s lawyers – Lawyers’ omissions not to rebound on plaintiff where he had taken all reasonable steps NEGLIGENCE – Damages – Non-economic loss, future economic loss for loss of earning capacity, future out-of-pocket expenses, past gratuitous domestic assistance