Recent decisions for Multiple courts

• Court of Appeal
• Court of Criminal Appeal

Catchwords:

APPEALS – failure to consider evidence – whether the primary judge failed to consider affidavit evidence filed by the Commissioner of Corrective Services as to arrangements made for the Respondent to access word processing and printing facilities – where orders were made by the primary judge requiring the Commissioner to provide the Respondent with a laptop with such facilities – whether there was a real controversy between the parties at the time the primary judge made those orders CIVIL PROCEDURE – court administration – court powers – control of proceedings – scope of the court’s powers to make orders to ensure effective access to civil proceedings – whether orders made by the primary judge were necessary to ensure the Respondent’s effective access to civil proceedings – where arrangements had been made for the Respondent to access a desktop computer with word processing and printing facilities – where the orders made by the primary judge would affect the operations of a correctional facility

Catchwords:

APPEALS — application for leave to appeal — where applicant made payment claim relating to construction works — where respondent sought reduction of amount on account of payment to third-party supplier — whether respondent sought to “bring any cross-claim” in contravention of Building and Construction Industry Security of Payment Act 1999 (NSW), s 15(4)(b)(i) — leave refused

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 — Representative proceedings — Conduct of proceedings — Notices — Court’s power to order that notice be given to group members — Proposed notice referred to intention to apply for order excluding group members who had neither opted out nor registered from receiving potential prospective settlement sum JUDGMENTS AND ORDERS — Court of Appeal — Where Full Court of Federal Court (Parkin v Boral Ltd (2022) 291 FCR 116; [2022] FCAFC 47) had held that previous decision of Court of Appeal (Wigmans v AMP Ltd (2020) 102 NSWLR 199; [2020] NSWCA 104) was “plainly wrong” — Where disagreement with that characterisation — Whether Court of Appeal should depart from Wigmans v AMP Ltd (2020) 102 NSWLR 199; [2020] NSWCA 104 STATUTORY INTERPRETATION — Context — Whether general words in statute should be read down to conform with surrounding provisions and purpose of the legislation

Catchwords:

CRIMINAL PROCEDURE – jurisdiction of Court of Criminal Appeal – application for stay of sentence – pending determination of proposed appeal – effect of filing of notice of intention to appeal – extension of time within which to appeal – notice does not commence proceeding – jurisdiction of Court not engaged CRIMINAL PROCEDURE – application for stay of sentence – contingent exercise of discretionary power to stay – whether stay of sentence necessary to preserve subject-matter of proposed appeal against conviction – opportunities for early hearing rejected by applicant – extent of prejudice from serving part of non-custodial sentence

Catchwords:

APPEALS – Leave to appeal required under s 101(2)(h) and (r) of Supreme Court Act 1970 (NSW) where no readily ascertainable monetary value – Granting of leave matter of discretion ultimately in interests of justice – Dispute substantially resolved prior to hearing below – Disproportional disputation must come to an end APPEALS – Procedure – Parties on appeal – Unrepresented litigants – Court’s function is to ensure fair trial for all parties and does not extend to giving judicial advice to unrepresented litigant JUDGMENTS AND ORDERS – Reasons – Reasons refusing leave to appeal need not be extensive

Catchwords:

CRIME — appeals — appeals against conviction — whether miscarriage of justice —Crown Prosecutor closing address — no evidence to support submissions on central issue — impermissible speculation — whether submissions affected jury verdict CRIME — appeals — appeals against conviction — whether miscarriage of justice — conduct of defence counsel — failure to object to submissions — failure to request evidentiary basis of Crown submissions — failure to address issue in cross-examination of complainant — defence case contrary to appellant’s evidence — no rational reason for conduct of defence counsel CRIME — appeals — appeals against conviction — unreasonable verdict — whether supported by evidence — new evidence — new evidence confirming position at trial on agreed facts — Crown case run contrary to agreed facts on one count — reasonable doubt not explained by manner in which evidence given — appellant acquitted on one count

Catchwords:

CONTRACTS – construction – whether the term “arrears” in Handover Agreement means amount actually owing under Leases or the amount owing under Rent Reduction Arrangements – whether appellants proved the amount owing under Rent Reduction Arrangements CONTRACTS – accord and satisfaction – whether obligation to pay Rental Arrears under Leases was released by an accord, constituted or evidenced by Handover Agreement, which the appellants satisfied APPEAL – where counsel for the appellants at first instance conceded second respondent was not party to Handover Agreement – whether appellants should be permitted to resile from that concession on appeal APPEAL – where appellants contend primary judge should have found entitlement to payment of Rental Arrears was a joint entitlement of first and second respondents – where that contention was not pleaded at first instance – where submissions to this effect were not made to the primary judge – whether appellants should be permitted to raise this contention for the first time on appeal

Catchwords:

CORPORATIONS – authority of company officers – statutory assumptions – Corporations Act 2001 (Cth), ss 128, 129 – loan agreements between property developer and multiple lenders – agreements signed by director without authority of company – agreements also signed by secretary not validly appointed by company – notification of appointment of secretary by ASIC agent of company – reliance on assumptions of authority – exception where party knew or suspected statutory assumptions were incorrect – whether knowledge of lenders’ solicitor was imputed to them for purpose of Corporations Act, s 128(4)

Catchwords:

CONTRACTS – solicitor client retainer – construction of retainer– where the appellant acted for the respondent in various capacities – where the appellant acted for the lender in respect of a loan to the respondent – where the appellant communicated that it would not act for the respondent on a previous transaction involving similar parties – where the transaction contemplated the respondent receiving independent legal advice – where the respondent received independent legal advice – whether primary judge erred in finding that the appellant was retained to act for the respondent in respect of a loan transaction EQUITY – fiduciary duties – breach – whether the primary judge erred in finding that the appellant owed a fiduciary duty to the respondent in respect of entering the loan transaction – whether the primary judge erred in finding that the appellant was relevantly in a position of conflict of interest EQUITY – fiduciary duties – causation – whether the primary judge erred in assessing causation by reference to what would have happened if informed consent was obtained – whether the primary judge erred in finding that the breach of fiduciary duty caused the respondent to enter the loan transaction EQUITY – fiduciary duties – informed consent – whether the primary judge erred in finding that the appellant required the consent of both directors to establish informed consent to it acting for the lender PROCEDURAL FAIRNESS – whether the primary judge erred by determining issues on a basis that was neither pleaded nor run at trial – whether there was any practical injustice arising from the primary judge’s findings PROPORTIONATE LIABILITY – apportionable claims – whether s 34(1) of the Civil Liability Act 2002 (NSW) requires a failure to take reasonable care to be an element of the cause of action

Catchwords:

CRIME – appeals – appeal against sentence – requirement to show error in appeals under s 5AA of Criminal Appeal Act 1912 (NSW) – fact finding in circumstantial cases – where none of the circumstances relied upon was indispensable, each circumstance not required to be proved beyond reasonable doubt – circumstances not to be considered piecemeal but as a whole based on the entirety of the evidence – no error in the fact finding process SENTENCING – relevant factors on sentence –specific deterrence – whether sentencing judge impermissibly gave specific deterrence primary significance in sentencing – weight to be given to a factor such as specific deterrence quintessentially a matter for sentencing judge – no error disclosed SENTENCING – assessing objective seriousness – whether sentencing judge failed to take into account the relevant circumstances of the present case when assessing objective seriousness – relevant circumstances taken into account – no error disclosed SENTENCING – whether sentence is manifestly excessive – comparable cases providing a yardstick – sentence not manifestly excessive

Catchwords:

CRIME – Bail – Appeal bail – applicant required to establish that special or exceptional circumstances exist – where applicant to be sentenced for unrelated convictions shortly after bail hearing – where it is likely that further custodial sentence will be imposed on applicant – where applicant has not proved that proposed appeals are most likely to succeed – application refused

Catchwords:

CRIMINAL PROCEDURE – conviction appeal – convictions of uncle for sexual abuse of young nephews – complaints by children to mother – delay in reporting to police – mother and father in acrimonious separation – court proceedings against father for domestic violence – challenge to mother’s credibility – failure to use evidence in domestic violence trial to challenge mother’s credibility in sexual abuse trial involving father’s brother – whether incompetence of trial counsel – whether trial unfair

Catchwords:

CRIME – appeals – appeal against sentence – misapplication of principle – where applicant pleaded guilty to multiple counts of sexual intercourse without consent and common assault – where parties had been in intimate relationship – offending occurred as a result of victim terminating relationship - whether sentencing judge erred by failing to give full effect to the findings in relation to Bugmy – where applicant was found to have mental health conditions and a very harsh background – where applicant’s moral culpability was reduced as a result of Bugmy factors but weight still given to specific and general deterrence – challenge to assessment of objective seriousness - where sentencing judge increased sentence but not objective seriousness (as applicant asserted) by reason of Form 1 matters – where applicant’s knowledge of lack of consent arose from unreasonable belief in victim’s consent – no error in assessment of objective seriousness – sentence not manifestly excessive

Catchwords:

CRIME — Appeals — Application for leave to appeal against sentence — Commonwealth offence — adverse credit findings about offender — extra-curial punishment

Catchwords:

SUCCESSION – contested probate – testamentary capacity – lack of knowledge and approval – where primary judge’s findings were predicated upon his view of the credibility of the witnesses assessed in the context of the whole body of evidence including contemporaneous medical records and the views of joint experts – Fox v Percy – where lay evidence was diametrically opposed – where no contemporaneous file notes made by the solicitor who prepared the will LEGAL PRACTITIONERS – solicitors – whether the primary judge erred in his assessment of the evidence of the solicitor who prepared the will on the basis that the solicitor was also the solicitor on record for the Respondents – where the primary judge held that the solicitor should have ceased to act earlier than he did APPEALS – from findings of fact – inferences from primary facts – Jones v Dunkel inference – where a witness swore affidavits in support of the Respondents’ case but was not called by the Respondents – where the witness was called by the Appellant but did not appear and a bench warrant was not issued – whether it was natural to expect the witness to have been called – where the witness was a family member with mental health issues and associated vulnerability EVIDENCE – witness evidence – affidavits – use of direct speech to recount past conversations of which a witness recalls only the gist – where direct speech is prefaced with the phrase “words to the following effect” ESTOPPEL – equitable estoppel – estoppel by encouragement – proprietary estoppel – estoppel by acquiescence – where primary judge’s findings as to estoppel expressed in the alternative and as a contingency – no issue of principle

Catchwords:

JUDGMENTS AND ORDERS — Enforcement — Application for stay of writ of possession — Where execution of writ previously stayed based on evidence later found to be a forgery — Where concurrent hearing of application for leave to appeal and substantive appeal was stayed until determination of criminal proceedings against first applicant relating to the forged evidence — Whether writ of possession ought be stayed pending determination of appeal — No reasonable arguable grounds for appeal — Stay least likely to lead to injustice when all relevant factors balanced — Application rejected and notice of motion dismissed

Catchwords:

CRIMINAL LAW – conviction appeal – one count of sexual intercourse without consent – whether the verdict of the jury was unreasonable and not be supported by the evidence – whether fresh evidence would have changed outcome of trial

Catchwords:

CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Drug supply offences — Parity principle — Where the applicant’s co-offender had committed similar offences with other offenders — Where the applicant raised a question of parity between his sentence and that of an offender who was sentenced for similar offences that were committed with the applicant’s co-offender

Catchwords:

CRIME – appeals – appeal against conviction – miscarriage of justice – whether trial miscarried because the applicant was denied the benefit of a good character direction – where applicant was unrepresented at the trial – where applicant had no history of sexual or violence offences – where no character direction of any sort was given – where Crown conceded that failure to give at least a limited good character direction gave rise to a miscarriage of justice - appeal upheld – conviction quashed – new trial ordered

Catchwords:

APPEALS — Leave to appeal — Where statutory right to appeal confined to “a question of law” — Where applicants contend that the application for leave to appeal is brought under “a question of fact, law and jurisdiction” — Where no error or question of law is clearly identified ADMINISTRATIVE LAW — Supervisory jurisdiction — Where summons also sought certiorari for error of law on the face of the record — Conduct of judicial review refused where applicants also sought leave to appeal

Catchwords:

CRIME – Appeals – Appeal against sentence – application for leave to appeal out of time – manifest excess – old age and poor health of offender – whether sentencing judge erred in giving personal deterrence prominence alongside finding that offender unlikely to reoffend – whether sufficient weight given to onerous conditions of custody given offender’s deteriorating health and age – whether appropriate approach taken regarding parity with co-offenders – where non-parole period only 55% of head sentence to reflect individual circumstances of the offender – sentence not manifestly excessive – extension of time granted – appeal dismissed

Catchwords:

BIAS — Apprehended bias — Application for recusal of judge — Whether previous adverse decisions can ground apprehended bias — Whether comments by judge at commencement of hearing gave rise to reasonable apprehension of bias — recusal application refused

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:

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:

CRIME – Appeals – Appeal against sentence – recklessly causing grievous bodily harm – ex tempore judgment – whether judge made findings of fact not available on the evidence – whether judge erred in finding the objective seriousness as slightly above mid-range – whether judge erred in declining to find reduced moral culpability on the basis of offender’s alcohol use disorder – whether sentence manifestly excessive – erroneous findings of fact – no error with respect to objective seriousness – no error with respect to moral culpability – re-sentence – no lesser sentence

Catchwords:

CRIME – Appeals – appeal against sentence – where expert evidence was unavailable at sentencing hearing – where applicant gave instructions not to adjourn sentencing hearing to obtain expert evidence – where it was unclear what advice was given to the applicant – whether there was a miscarriage of justice CRIME – Appeals – appeal against sentence – whether pre-sentence custody was taken into account CRIME – Appeals – appeal against sentence – extension of time in which to appeal

Catchwords:

SENTENCE APPEAL – plea of guilty to negligently dealing with the proceeds of crime contrary to s 404.3(3) of the Criminal Code (Cth) – applicant set up company structure and at the direction of others issued invoices – applicant did not perform any of work described in the invoices – when assessing objective seriousness of offending, sentencing judge took into account that “there was clearly planning in which the offender used his knowledge of accounting procedures and business affairs” – whether her Honour had taken into account an irrelevant consideration when assessing objective seriousness – error established – sentence appeal allowed – applicant re-sentenced.

Catchwords:

CRIMINAL LAW – interlocutory appeal – accused seeks to adduce co-accused’s conversation with police – excluded by trial judge – accused applies for separate trial to adduce evidence – probative value of evidence – whether evidence exculpatory – whether risk of injustice to accused if not able to adduce evidence in separate trial – leave to appeal refused.

Catchwords:

CRIME — bail — appeal bail — “special or exceptional circumstances” — s 22 Bail Act 2013 (NSW) — where application for release relies exclusively on strength of appeal — whether appeal is “most likely to succeed” — El-Hilli & Melville v R [2015] NSWCCA 146 — application refused

Catchwords:

PERSONAL PROPERTY – Property (Relationships) Act 1984 (NSW) – Domestic relationship between father and adult daughter – Deed entered into for father to transfer family house to daughter while retaining continuing right of occupation – Father moved out given dispute with daughter’s son – Error in taking account of inheritance – Error in undervaluing father’s contribution pursuant to the Deed – Incomplete reasoning – Consideration of matters not properly in issue and of little weight – Making of unfair and irrelevant findings – Re-exercise of discretion on appeal COSTS – Failure to make an offer of compromise not to be held against a party

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:

SUCCESSION — Mandatory interlocutory injunction Succession Act 2006 (NSW), s 62 — Leave to appeal refused

Catchwords:

CRIME – Appeals – Appeal against conviction – Whether the evidence of an uncharged act was wrongly admitted as tendency evidence – Where no objection is taken at trial to the adducing of such tendency evidence and the trial judge’s direction in regard to it – Where leave under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) is required – Leave to appeal refused CRIME – Appeals – Appeal against sentence – Manifest excess – Whether the sentencing judge gave sufficient reasons in regard to the finding of substantial emotional harm suffered by the victim – Leave to appeal granted – Appeal dismissed

Catchwords:

CRIME – Appeals – appeal against sentence – parity – hindering a police investigation of an unlawful killing – assessment of comparative culpability and subjective circumstances of co-offenders – where appellant’s sentence incomparable with one asserted co-offender – whether one of the persons sentenced was properly to be considered a co-offender – where second co-offender’s objective and subjective factors comparable – modest difference between sentences justified – appeal dismissed

Catchwords:

APPEALS — Procedure — Adjournment — application for adjournment — no issue of principle.

Catchwords:

COSTS – Security for costs – Relevant factors – Impecuniosity – no issue of principle

Catchwords:

COSTS — appeal allowed on terms — whether plaintiff acted unreasonably in rejecting Calderbank offer — whether partial success of plaintiff warranted favourable costs order — whether successful appellants’ obligation to pay compensation should be stayed pending assessment of costs

Catchwords:

CIVIL PROCEDURE – Court of Appeal – Objection to competency of appeal – Where leave to appeal required but not sought COSTS – Costs of appeal which dismissed as incompetent – Minor and inconsequential delay in service of motion – No reason costs not to follow event

Catchwords:

CONSUMER LAW – Misleading conduct under statute – Misleading or deceptive conduct – Whether positive representations made as to contamination on land – Whether there was a reasonable expectation of disclosure – Whether disclosures made amounted to half-truths CONTRACTS – Construction – Whether primary judge erred in construing “as far as possible” in the context of an obligation to assist in due diligence process – Whether vendor under positive obligation to disclose all matters which may be relevant – Appeal dismissed with costs

Catchwords:

EQUITY – trusts – estoppel – siblings transferred assets to parent – ongoing businesses operated by trustee of discretionary trust – parent the sole director and shareholder of trustee – siblings found to be shadow directors of trustee – whether primary judge erred in finding that assets held by parent on trust for siblings – whether primary judge erred in finding that trustee estopped from distributions with less than 50% to one sibling – whether breach of non-fettering principle – trustee made determinations in favour of one sibling’s spouse – whether primary judge erred in finding that distributions not paid and were owing – whether unpaid distributions should attract interest – whether credit should be given for tax paid

Catchwords:

SUCCESSION – Contested grant of Thai will – Executed in circumstances where testatrix ill with cancer – Primary judge held testator had capacity – Relevance of absence of medical records suggesting a lack of capacity – Primary judge taking into account universe of evidence – Suspicious circumstances – Whether established – Desirability of pleading or particularising suspicious circumstances

Catchwords:

OCCUPATIONS – medical practitioners – professional negligence – bariatric surgery – patient discharged with intra-abdominal haematoma – peer professional opinion – whether discharge widely accepted as competent professional practice by peer professional opinion in Australia – Civil Liability Act 2002 (NSW), s 5O

Catchwords:

ASSESSMENT OF DAMAGES – where plaintiff in the court below seriously injured in a fall on a building site – whether plaintiff contributed by his own negligence to his loss and damage or was merely inadvertent when performing work duties – whether plaintiff retained residual earning capacity – whether damages awarded for future economic loss, future domestic assistance and out-of-pocket expenses were manifestly excessive TORTFEASORS – contribution between tortfeasors – whether trial judge erred in assessment of respective liability between occupier of building site and plaintiff’s employer CROSS-APPEAL – damages for non-economic loss – whether trial judge erred in assessment of percentage of a most extreme case – whether plaintiff established that gratuitous attendant care services would not have been provided but for his injury

Catchwords:

CRIME – Appeals – Appeal against sentence – By Crown against inadequacy – Where respondent has pleaded guilty to 14 domestic violence offences against former de-facto partner – Where sentencing judge made guarded findings regarding the respondent’s prospects of rehabilitation – Whether sentencing judge paid sufficient regard to the sentencing principles of specific deterrence and community protection - Whether sentencing judge engaged in “double counting” in regard to the promotion of the respondent’s prospects of rehabilitation – Manifestly inadequate sentence established – Respondent resentenced

Catchwords:

CIVIL PROCEDURE – appeal from decision of Appeal Panel of NCAT – application for leave to appeal pending – stay of issue of writ of possession sought pending determination of appeal – writ issued and executed before stay sought – stay no longer available

Catchwords:

CRIME – appeals – appeal against aggregate sentence – four counts involving two complainants of assaulting a female and committing an act of indecency on a person under the age of 16 years – whether sentencing judge gave consideration to reducing the applicant’s moral culpability due to his age at the time of offence – where applicant did not make submissions on his age and immaturity – sentencing judge still reduced the applicant’s moral culpability – no error shown - whether sentencing judge had failed to find remorse – where no submission made by applicant to sentencing judge regarding remorse - where applicant had previously apologised to one complainant – no other statement or indication of remorse - apology did not show that applicant had accepted responsibility for his action – no error shown CRIME – appeals – appeal against sentence – manifest excess – whether indicative sentences were excessive resulting in manifestly excessive aggregate sentence - where the offences constituted serious offending against two young and defenceless victims – where a generous reduction of the non-parole period was granted – indicative sentences and the aggregate sentence were open to the sentencing judge – sentence not manifestly excessive EVIDENCE – new evidence – evidence sought to be led on appeal which was not before sentencing judge – where applicant submitted a miscarriage of justice resulted from the absence in the sentencing proceedings of new evidence – new evidence related to a conviction recorded against the applicant in 1975 – where applicant submitted that the new evidence demonstrated his mental health issues relating to offences against second complainant – new evidence did not add anything of substance to evidence before sentencing judge – new evidence did not make any link or material contribution to the applicant’s offending – where sentencing judge had reduced the applicant’s moral culpability on account of his mental health – no miscarriage of justice - evidence rejected

Catchwords:

CRIMINAL LAW – particular offences – drug offences CRIMINAL LAW – release application – show cause offences – significant period of time on remand – strong Crown case – cause not shown

Catchwords:

LEGAL PRACTITIONERS — Disciplinary proceedings — Misappropriation of trust accounts — Practitioner convicted of three offences under s 192E(1)(b) 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:

CRIME – Appeals – Appeal against conviction –whether miscarriage of justice arose out of conduct of Crown prosecutor – right to silence – consciousness of guilt reasoning – drawing of inferences unavailable on evidence – whether trial judge erred directing the jury it could rely on consciousness of guilt reasoning arising from the applicant’s demeanour and answers in ERISP – whether tendency directions amounted to a denial of procedural fairness appeal – appeal dismissed CRIME – Appeals – Appeal against sentence – multiple sexual assaults of child aged 10 years – whether sentencing judge erred in incorporating elements of s 66EA into sentencing decision – De Simoni principle – appeal dismissed

Catchwords:

CRIME — Appeals — Appeal against sentence — Application for leave to file notice of appeal out of time — Application for leave to appeal — Aggravated sexual intercourse without consent — Where circumstance of aggravation was that the complainant was under the age of 16 years — Whether sentencing judge erred in finding the complainant to be vulnerable and the offence to be aggravated by that fact — Whether the sentence was manifestly excessive

Catchwords:

CRIME — Appeals — Appeal against conviction — Unreasonable verdicts — Child sex offences

Catchwords:

CRIME – appeals – appeal against conviction –murder – death by thermal injury – where Crown relied on alternative acts causing death – extent to which jury unanimity required – where standard unanimity direction given – where direction given with respect to alternative intentional acts causing death – whether failure to direct jury as to requirement of unanimity as to specific act causing death

Catchwords:

CRIME — appeals — appeals against conviction — murder — whether miscarriage of justice — whether Liberato direction complete or effective — where evidence of applicant from previous trial tendered — where both parties rely on evidence of applicant —trial judge directions sufficient in particular circumstances — no miscarriage of justice

Catchwords:

CRIME – appeals – appeal against sentence – totality – whether sentencing judge erred in the application of the principles of totality – sentencing for multiple domestic violence offences – antecedent and current offences – determination involves exercise of discretion – non-parole periods – departure from statutory norm – whether reflective of error – applicant’s argument flawed – no foundation to complaint – leave to appeal granted – appeal dismissed

Catchwords:

COSTS – re-exercise of costs discretion after partially successful appeal

Catchwords:

PROCEDURE – stay of execution – whether any purpose served in application being heard prior to imminent hearing of summons seeking final relief

Catchwords:

CIVIL PROCEDURE — Time — Extension of time to commence judicial review proceedings ADMINISTRATIVE LAW — Whether reviewable decision — Jurisdictional error — where decision to issue a construction certificate legally unreasonable ENVIRONMENT AND PLANNING — Consent — Conditions — Construction certificate — plans and specifications or standards of building work or subdivision work specified in the certificate are not consistent with the development consent – effect of decision in Burwood Council v Ralan Burwood Pty Ltd (No 3) [2014] NSWCA 404 in circumstances where jurisdictional error has been established

Catchwords:

CONTRACT – contracts for residential building work – trial of claims for damages following dispute between owners and builder resolved by work being completed by builder – whether pleaded case extended to claim for damages for breach of contract, as opposed to deceit and statutory unconscionability – whether trial conducted on basis which departed from pleadings – whether primary judge erred in excluding valuation evidence and concluding no evidence of loss – effect of owners’ delayed payment of progress claims on their claims for damages – calculation of damages

Catchwords:

CRIME – APPEAL – appeal against sentence – Criminal Code Act 1995 (Cth) ss 11.1(1) and 307.5(1) – attempt to possess unlawfully imported border controlled drug – commercial quantity – ratio of non-parole period to the overall sentence – existence of convention in Commonwealth matters – manifest excess

Catchwords:

APPEALS – Adequacy of reasons – Brief ex tempore reasons – Distinct claim in tort not addressed – No substantial wrong or miscarriage occurred due to failure to address – Appellant not deprived of possibility of successful outcome APPEALS – From findings of fact – Finders of fact entitled to degree of practical judgment with respect to certain matters – Limits of judicial notice – No substantial wrong or miscarriage – Failure to address claimed tendency to violence – Not necessary in every case for judge to determine whether to accept version of events given by party not bearing the onus

Catchwords:

COSTS – Indemnity costs – Offer of compromise – Calderbank offer – Real and genuine element of compromise – Degree of compromise assessed cumulatively – No explanation as to significant costs asserted to have been incurred before exchange of submissions – No reason first respondent should obtain advantage of consensus later broken out to alter precise sums awarded COSTS – Active role played by second and third respondents appropriate and useful

Catchwords:

CRIME – Appeals – Appeal against sentence – Whether open to primary judge to find intent to kill – Whether disparate sentences between co-offenders consonant with parity principle – Whether sentence imposed manifestly excessive – Appeal dismissed

Catchwords:

JUDGMENTS AND ORDERS – amending, varying and setting aside – correction under slip rule – application to vary orders made in February 2024 – composite sum payable by appellants – assumption that each appellant liable for particular sums – interest calculable from different dates – reformulation of orders

Catchwords:

APPEALS – leave to argue point not raised below – need for statement of findings challenged – Uniform Civil Procedure Rules 2005 (NSW), r 51.36 CONTRACTS – express terms – incorporation of terms – written contract – customer required to tick box on sales agreement agreeing to agree to supplier’s standard terms – link to standard terms not working at time of execution – whether link was to document produced in evidence by supplier CONTRACTS – construction – commercial context – prior dealings between parties – whether specific terms consistent with minimum annual quantity clause in standard terms – operation of exclusivity clause

Catchwords:

COSTS – Indemnity costs – on appeal – Calderbank offer – offer open for two days – where offer made before service of appellant’s written submissions – whether respondents’ non-acceptance was reasonable

Catchwords:

CRIME – Appeals – appeal against sentence – parity – aid and abet in an attempt to possess a commercial quantity of cocaine – assessment of comparative culpability of co-offenders – extent of disparity not justified – appeal allowed – resentence

Catchwords:

CRIME — Appeals — Appeal against sentence — Parity

Catchwords:

CRIMINAL PROCEDURE – Court suppression and non-publication orders – Grounds – Open justice – Presumption in favour of open justice – Inutility in making orders under Act where there are other mechanisms having similar effect – Where limited order “necessary” to prevent prejudice to administration of justice CRIMINAL PROCEDURE – Court suppression and non-publication orders – Grounds – Undue distress and embarrassment – Where undue distress and embarrassment is asserted by well known relative of applicant – Insufficient reason to order non-publication or suppression MEDIA AND COMMUNICATIONS – Open justice – Access to court files – Application for access – Where court proceedings occurred in open court – Access to file granted

Catchwords:

CRIMINAL PROCEEDINGS – Stated question – question of law arising on appeal to Land and Environment Court – offence attracting special executive liability – cause place to be used as waste facility without lawful authority – law providing for special executive liability of executives for offence by corporation – offence committed by local council – liability of general manager of council – law applies to and in respect of council in same way as applies to and in respect of corporation – whether special executive liability law applies to and in respect of council – whether law applies to and in respect of general manager

Catchwords:

CRIME – appeals – failure to leave to the jury alternative verdict of manslaughter based on excessive self-defence in s 421 Crimes Act 1900 (NSW) – whether failure caused a miscarriage of justice – where applicant pleaded guilty to manslaughter and not guilty to murder in front of the jury – applicant convicted of murder as part of a joint or extended joint criminal enterprise – where no expert evidence proving which of the accused committed the act causing death – whether evidence capable of supporting an alternative verdict of manslaughter – whether evidence capable of supporting formation of a tacit agreement to act in concerted self-defence – whether failure to leave excessive self-defence caused substantial miscarriage of justice CRIME – appeals – statutory interpretation – excessive self-defence – meaning of “force that involves the infliction of death” in s 421 Crimes Act 1900 (NSW) – whether something less than a direct causal connection is required to raise the partial defence – whether distinction between the use of force that involves the infliction of death and force that causes death

Catchwords:

CRIME – appeals – appeal against convictions – knowingly taking part in supply of a prohibited drug – large commercial quantities of methylamphetamine found on premises jointly leased by applicant and her husband – jury directions – directions sought as to (i) applicant’s power as joint tenant to prevent the storage of drugs on premises by co-tenant and (ii) inability of applicant to prevent storage of drugs on premises by husband – directions inappropriate where prosecution case based on knowing and willing participation by applicant WORDS AND PHRASES – “take part in” – “permit”

Catchwords:

CRIMINAL LAW – conviction appeal – applicant pleaded guilty to charges of attempting to manufacture a pistol without permit or licence – no evidence to establish that offences committed – miscarriage of justice if not allowed to withdraw pleas of guilty – convictions quashed – aggregate sentence relating to these and other offences set aside – whether matter should be remitted to the District Court – matter remitted for resentence

Catchwords:

CRIME – appeals – appeal against sentence – severity appeal – dishonestly obtain financial advantage by deception offences – offences committed against employer – self-represented applicant – where applicant does not squarely raise legal error, manifest excess or miscarriage – where applicant concedes he cannot identify an error of law – where applicant candidly referred to his own responsibility and asked for a degree of leniency – not a basis on which this Court can intervene EVIDENCE – question as to new evidence sought to be relied upon by applicant on appeal – where there is no evidence linking new evidence to commission of offences – where this Court not persuaded that a miscarriage of justice was occasioned as a result of the absence of the new evidence before the sentencing judge – established principles – leave to rely upon new evidence refused CRIME – appeals – appeal against sentence – Form 1s – where the Court raised with counsel for the Crown a concern with respect to the manner in which offences on the Form 1s were dealt with – where Crown did not oppose the applicant being granted leave to rely on a complaint of this nature in the absence of an articulated ground of appeal – error found with respect to Form 1s – parties led sentencing judge into error – sentencing judge could not correctly undertake the process of determining an appropriate aggregate sentence due to lack of information – sentencing discretion miscarried – sentencing discretion exercised afresh

Catchwords:

CRIME – sentencing – appeal by Crown against sentence – sexual intercourse without consent – where offending occurred in circumstances of geographical isolation – where age and power differential between victim and respondent – whether sentence manifestly inadequate – whether residual discretion should not be exercised – appeal allowed

Catchwords:

CRIME – appeal against sentence – domestic violence offences – application of principles in Bugmy v the Queen (2013) 249 CLR 571; [2013] HCA 37 – whether weight given to childhood deprivation wrongly reduced by sentencing judge – relevance of considerations of the seriousness of the offence CRIME – appeal against sentence – leave to appeal out of time sought

Catchwords:

APPEALS – procedure – stay pending appeal – where bankruptcy notices issued against appellant and second respondent in respect of costs order made below – whether risk that enforcement of costs order would stultify appeal and cross-appeal

Catchwords:

CRIMINAL LAW – appeals – appeal against conviction – unreasonable verdict not supported by the evidence – whether the evidence adduced at trial was capable of proving guilt beyond reasonable doubt – jury’s advantage in seeing and hearing the evidence – verdict not unreasonable – appeal dismissed CRIMINAL LAW – appeals – appeal against conviction - whether trial miscarried because of Crown’s closing address – whether it was improper for the Crown to invite the jury to “jettison” the evidence of a witness – no complaint made at trial – no miscarriage established – appeal dismissed CRIMINAL LAW – appeals – appeal against conviction – whether the trial miscarried because evidence which was audible but not transcribed resulted in the trial being conducted as though it had not been adduced – miscarriage established – appeal allowed – retrial ordered

Catchwords:

ADMINISTRATIVE LAW — Jurisdictional error — Environmental Planning and Assessment Act 1979 (NSW) — where development consent granted for mine that was State significant development under Div 4.7 — where consent authority did not turn its mind to the likely effects of a necessary power transmission line which was not part of the development application in circumstances where it was proposed that it be included in a later application under Pt 5 — where the precise alignment of the power transmission line was described as unknown — whether transmission line was part of a “single proposed development that is State significant development” under s 4.38(4) — whether the likely environmental impacts of the transmission line were a matter for the consent authority or the court — whether likely environmental impacts of the transmission line were required to be considered by the consent authority — transmission line part of “single development”, but could be subject to later separate application under Pt 4 — likely impacts of the transmission line were nonetheless required to be considered as likely effects of the mine the subject of the development application — the consent authority failed to exercise its jurisdiction by failing to consider the transmission line in its determination — appeal allowed.

Catchwords:

CRIME – Appeals – Appeal against sentence –Appropriate where facts relevant to sentencing are disputed to acknowledge in terms that facts adverse to an offender must be proved beyond reasonable doubt – No indication that sentencing judge applied something less than the correct standard of proof CRIME – Appeals – Appeal against sentence – Necessary to give reasons for finding of facts material to sentencing which are under dispute – Failure to give reasons – Resentencing by Court of Criminal Appeal CRIME – Appeals – Appeal against sentence – Parity – Where applicant’s criminality somewhat higher than co-offender and subjective case somewhat weaker – No basis for complaint in relation to parity – No lesser sentence warranted

Catchwords:

PRACTICE AND PROCEDURE – Security for costs – Application for review of decision of Adamson JA – Review of decision of Registrar ordering security for costs of appeal – Consideration of public importance – Prospects of appeal – Issue of stultification – Obligations as model litigant

Catchwords:

ESTOPPEL — proprietary estoppel — standing by — where appellants registered proprietors — where appellants allowed respondents to occupy property long term for no rent — whether first appellant paid for property — whether first appellant asserted ownership of property to respondents — proprietary estoppel not made out APPEALS — review of findings of primary fact — whether primary judge erred by failing to make findings of fact — where evidence lost to passage of time — where multiple conflicting witnesses — error in finding on basis not put to parties or supported by evidence — evidence sufficient to support finding — findings made pursuant to s 75A of the Supreme Court Act 1970 (NSW)

Catchwords:

CRIME – appeals – appeal against sentence – misapplication of principle – dealing with property reasonably suspected of being proceeds of crime -whether sentencing judge breached De Simoni principle – where absolute liability applied to mental element of the offence - whether sentencing judge drew inference about the mental element to sentence for a more serious offence – sentencing remarks do not disclose any such inference CRIME – appeals – appeal against sentence – denial of procedural fairness – offender with gambling addiction - whether sentencing judge introduced into his deliberations evidence that was not before him – whether applicant’s attendance at a video game convention involved a form of gambling – whether applicant was provided the opportunity to make submissions on the matter – where applicant did not show that he had addressed his gambling addiction generally – where applicant’s continued gambling did not affect the assessment of the applicant’s prospect of reoffending – no denial of procedural fairness

Catchwords:

COSTS – party/party – offers of compromise – where the appellants seek variations to the costs orders made on appeal – where appellants issued offers of compromise to the respondent prior to the commencement of the appeal proceedings – where no notice of motion to vary the costs orders was filed within 14 days of the orders being entered as required by r 36.16(3A) UCPR – whether a letter sent between the parties can be characterised as an application or an intention to make an application to vary a costs order – requirement for a notice of motion dispensed with pursuant to s 14 Civil Procedure Act 2005 (NSW) – where the appellants obtained a judgment that was no less favourable to them than the terms of the offers issued to the respondent – where offers of compromise not renewed between the trial and the appeal

Catchwords:

CRIME – Appeals – Appeal against conviction – Exclusion of evidence under s 293 of the Criminal Procedure Act 1986 (NSW) – Whether evidence of sexual experience of complainant at about the time of the commission of the alleged prescribed sexual offences – Whether evidence of sexual experience of complainant forms part of connected set of circumstances in which alleged prescribed sexual offences occurred – Evidence not forming part of such circumstances CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Where offending occurred at applicant’s chiropractic studio – Where complainant has limited grasp of English – Where complainant took contemporaneous notes – Alleged inconsistencies between notes and other evidence – Where inconsistencies explicable – Verdict reasonably open to jury on all counts

Catchwords:

VALUATION – Compensation for compulsory acquisition of strip of land used for road to Sydney Airport – Market value – Procedural fairness in rejecting valuation method proposed – Notice of basis of rejection – Issue raised both in submissions and on the facts – Running commentary on submissions not required VALUATION – Market value – Statutory disregard of change in value caused by public purpose – Challenge partly overtaken by subsequent case law – No disregard for change in value resulting from owner’s free choice due to suspected acquisition VALUATION – Special value and disturbance – Tax gross up – Issue not raised – No basis for criticism for failing to give reasons with respect to claim not made APPEALS – Jurisdiction of appellate court – Appeal from Land and Environment Court – Question of law – Claimed constructive failure to exercise jurisdiction to make allowance for potentialities – Matter not put as part of appellant’s case below – Complex factual issue necessitating further evidence – No constructive failure – In substance appellant had been seeking to reopen its case

Catchwords:

OCCUPATIONAL HEALTH AND SAFETY – question submitted to Court of Criminal Appeal pursuant to s 5AE of Criminal Appeal Act 1912 (NSW) – whether pure question of law – whether appropriate to answer

Catchwords:

CONTRACTS – Interpretation – Whether payments totalling $1.3 million were made by respondent to appellant as a loan – Whether evidence established common assumption between parties as to nature of sum – Whether private uncommunicated views inconsistent with asserted characterisation – Appeal dismissed COSTS – Appeal from costs order of primary judge – Where primary judge ordered each party to bear own costs on the basis that the result was “mixed” – Where final result in proceedings was judgment in favour of AGT – Identification of relevant “event” for purposes of r 42.1 of Uniform Civil Procedure Rules 2005 (NSW) where result mixed – Apportionment of costs on an impressionistic basis – Proportionate reduction appropriate – Cross-appeal allowed APPEALS – Where cross-appeal initially brought with respect to grounds other than strictly costs – Where substantive grounds subsequently fall away – Whether leave to appeal necessary

Catchwords:

STATUTORY INTERPRETATION – literal meaning gives way to contextual and purposive approach – powers of court – “at the time the order is made” – Succession Act 2006 (NSW), s 59(2) SUCCESSION – family provision – evidence – whether primary judge erred in failing to require the claimants to provide updating evidence –– whether Succession Act 2006 (NSW), s 59(2), required claimants to file updating evidence – evidence was over five years old – judge subsequently accepted updated valuation of the estate – impact of delay on assessment of provision SUCCESSION – family provision – claim by grandchildren for provision from deceased’s estate –weight to be given to deceased’s testamentary intentions – intentions expressed in unexecuted will – passage of 16 years – evidence of applicants’ financial circumstances and needs lacking currency COSTS – requirement for leave to appeal – offer of compromise before first trial – order sought for indemnity costs – failure to challenge costs order on prior appeal – offer contained no real compromise

Catchwords:

CRIME – Appeals – interlocutory appeal – decision to refuse a permanent stay – criterion for leave to appeal from interlocutory decision in criminal proceedings – whether leave to appeal should be granted – where applicant for stay had been found unfit to stand trial on the indictment pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – whether standard of appellate review is the correctness standard in light of the High Court’s decision in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857 – whether there was an error of principle and possibility or likelihood of substantial injustice CRIMINAL PROCEDURE – stay of proceedings – permanent – where permanent stay of proceedings sought on multiple bases including the Applicant’s mental infirmity and forensic disadvantages arising out of delays in bringing the prosecution – whether “common humanity” test applies in cases where more than mental infirmity is relied upon to found an application for a permanent stay – whether sufficient weight given to the Applicant’s mental infirmity – whether primary judge inappropriately weighed the forensic advantage accruing to the accused as a result of delays in bringing the prosecution against those accruing to the Crown

Catchwords:

LEASES – whether a sub-clause of the leases entered into between the appellant (lessee) and each of the respondents (lessors), which provided for restrictions on the lessee dealing with its interest and rights/obligations under the leases, applied to the grant of a proposed licence by the lessee to a third party granting access rights – where that sub-clause was contained within a clause dealing with restrictions on assignment of the leases without the relevant lessor’s consent LEASES – if the sub-clause applied – whether the lessors unreasonably withheld their consent to the grant of the proposed licence deed CONTRACTS – construction – whether the lessee was entitled to grant the proposed licence without the lessors’ consent – where the lessee and lessors had shared rights to use the land the subject of the leases – where the lessee failed to exercise an option granted to it for the creation of an access easement, which would have resolved the issue of access by the third party

Catchwords:

CRIMINAL LAW – Appeals – appeal by applicant against aggregate sentence – trial judge’s misstatement of statutory threshold for large commercial quantity of methylamphetamine – trial judge overemphasised role of weight as factor in sentencing – appeal allowed – resentence applicant – lesser sentence warranted CRIMINAL LAW – Parity principle – issue of equality before the law – comparison of seriousness of criminality of applicant against co-offenders – like cases be treated alike – different cases be treated differently according to circumstances of the case – no error as to application of parity principle

Catchwords:

APPEALS — procedure — time limits — whether notice of appeal ought be dismissed for failure to serve on respondent in time CIVIL PROCEDURE — summary disposal — notice of motion seeking striking out or dismissal of proceedings — abuse of process — no reasonable cause of action — frivolous or vexatious proceedings — where self-represented appellant failed to adequately draft grounds of appeal

Catchwords:

COSTS – Application to vary costs order under Uniform Civil Procedure Rules (NSW), r 36.16 – where no notice of motion filed seeking such variation – where requirement to file notice of motion dispensed with pursuant to Civil Procedure Act 2005 (NSW), s 14 – where appellants seek an order that the respondents pay the appellants’ costs of the appeal proceedings on an ordinary basis up to 11 June 2024 and thereafter on an indemnity basis COSTS – Where appellants successful on appeal – where prayers 1-4 in the appellants’ summons remitted to primary judge for determination – whether respondents should pay the appellants’ costs of the proceedings at first instance – whether appellants will be entitled to the whole of their costs of the proceedings at first instance – whether order as to costs of the proceedings at first instance premature

Catchwords:

CRIME — application for leave to appeal against sentence — application for leave to appeal out of time — extension of time and leave to appeal granted. CRIME — appeal against sentence — aiding and abetting the supply of commercial quantity prohibited drugs — whether sentencing judge erred in assessment of objective seriousness — storage of prohibited drugs and characterisation of applicant as “user dealer” open to sentencing judge — no specific error demonstrated — appeal dismissed. CRIME — appeal against sentence — whether sentence was manifestly excessive — ground not made out — appeal dismissed.

Catchwords:

CRIMINAL LAW – bail – bail application – applicant charged with a number of drug-related offences including one show cause offence – applicant the director of a commercial cleaning supplies business which imported large quantities of various precursors and GBL – applicant arrested and remanded in custody – applicant applied for bail at the Local Court – bail refused – two further bail applications made at the Supreme Court – bail refused on both occasions – further application for a new hearing in Court of Criminal Appeal – s 75 Bail Act 2013 (NSW) – whether the applicant could show cause – ability to prepare for trial – applicant to be provided a laptop in custody – strength of the Crown case in relation to the show cause offence – evidence put forward on the present application did not indicate a strong Crown case for that offence – where there was to be a delay of two and a half years between arrest and trial – remand unacceptable in the circumstances – cause shown – whether the applicant poses an unacceptable risk – whether the applicant may interfere with witnesses – no evidence to suggest a real risk of such interference – whether the applicant will continue to commit serious offences – applicant has prior related convictions and ongoing drug issues – serious bail concern – whether the applicant would fail to appear – strong Crown case in relation to the other offences and high likelihood of custodial sentence if convicted – applicant’s family reside in Lebanon – no extradition treaty with Lebanon – provision of surety and electronic monitoring fail to mitigate these serious bail concerns – bail refused

Catchwords:

CRIME – appeals – appeal against sentence – child sex offence – where no explicit reference to s 16A(2AAA) Crimes Act 1914 (Cth) in remarks on sentence – where sentence proceedings previously reopened to correct orders – whether sentencing judge failed to engage with a mandatory sentencing consideration – whether sentencing discretion miscarried – appeal allowed

Catchwords:

ADMINISTRATIVE LAW — Jurisdictional error — Children and Young Persons (Care and Protection) Act 1998 (NSW) — where care orders made by the Children’s Court removed parental responsibilities from mother — where care orders confirmed on appeal by the District Court — where no appeal lies to the Court of Appeal — where part of applicant’s evidence not considered by judge — no cross-examination or argument addressed to judge on evidence not considered — whether judge displayed apparent bias — whether applicant denied procedural fairness — whether decision was legally unreasonable — nothing in transcript of hearing under review demonstrates reasonable apprehension of bias or procedural fairness — findings of judge were not unreasonable in any sense of the word — summons dismissed.

Catchwords:

INSURANCE – liability insurance – professional indemnity insurance – legal practitioners’ “approved insurance policy” for purposes of s 210 of Legal Profession Uniform Law (NSW) – whether s 95(2) of Legal Profession Uniform Law Application Act 2014 (NSW) confers power on Attorney General to approve insurer under policy – whether, for purposes of s 210(1)(a), s 95 is a “legislative arrangement for the approval or selection of insurers”

Catchwords:

CRIME – appeal against sentence – historic child sexual offences against own children and recent sex offences against step-grandson – application of MK v R; RB v R (2023) 112 NSWLR 96; [2023] NSWCCA 180 – approach to sentencing for s 66EA offences discussed – complaint of manifest excess considered

Catchwords:

CRIME — Appeals — Appeal against sentence — Re-sentence — Commencement date of sentence

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 six offences involving false and misleading conduct and participation in a criminal group and sentenced to a term of imprisonment – where Respondent did not oppose relief sought

Catchwords:

ESTOPPEL – Proprietary estoppel – Where representations made by appellants to respondents (their daughter and son-in-law) as to ownership of various farming properties and interest in family farming business – Where following a “catastrophic falling out” of the relationship between them, appellants resiled from those representations – Whether representations were sufficient to ground a proprietary estoppel – Whether respondents reasonably relied on representations – Whether respondents suffered detriment – Whether representations were conditional such that the change in circumstances following the falling out between the parties meant that the appellants’ departure from their representations was not unconscionable APPEALS – Leave to appeal – Whether leave required for cross-appeal solely as to costs COSTS – Party/Party – Where primary judge ordered that each party bear his or her own costs – Where respondents were substantially successful at first instance but did not receive entirety of relief sought – Re-exercise of discretion as to costs

Catchwords:

ADMINISTRATIVE LAW – Jurisdictional error –Whether District Court should have declined to hear appeal from application to extend apprehended domestic violence order – Whether applicant denied natural justice and procedural fairness – Whether primary judge applied correct test – Whether primary judge’s ex tempore reasons adequate – Summons dismissed

Catchwords:

LIMITATION OF ACTIONS – breaches of fiduciary duty by director – claims by company for equitable relief against director and associated third parties – when company “first discovers” facts giving rise to claim for purposes of Limitation Act 1969 (NSW), s 47(1)(e) – principles applicable to attribution of director’s knowledge to company – whether those principles involve application of general rule in favour of attribution subject to “fraud exception” turning on whether company received benefit from director’s conduct – director’s knowledge of circumstances of breaches not attributed to company where attribution sought to defeat company’s claims EQUITY – equitable remedies – where director misappropriates company funds – where director subsequently characterises payment to him of company funds as a “loan” – whether later payment by director to company should be treated as reducing amount of equitable compensation to which company entitled – not established that later payment when made was to be applied in reduction of “loan”

Catchwords:

CONTRACTS – Construction of a commercial lease – Whether COVID public health restrictions prevented tenant from “opening” the premises for business – Paramount clause to be construed before paramountcy can take effect – Not construed to require illegal activity CONTRACTS – Termination – Frustration – Impossibility of performance – Frustration does not apply as COVID public health orders as supervening event was risk for which tenant had assumed responsibility under the lease – Relevant orders did not require radical or fundamental change in what contracted for in any event

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:

CRIME – appeal against sentence – where discount applied per s 23 Crimes (Sentencing Procedure) Act 1999 (NSW) – in addition to discount for early pleas of guilty – drug supply offences and firearms possession offence – determining appropriate s 23 discount – where sentencing judge suggested discount percentages at sentence hearing but applied different percentages at judgment – complaints relating to procedural fairness and failure to provide reasons

Catchwords:

CRIME — appeals — appeal against conviction — unreasonable verdict — 11 counts of sexual offending by applicant against biological daughter — whether verdicts unable to be supported by the evidence — whether complainant lacked credibility — where complainant did not make contemporaneous complaint — whether complainant had motive to lie — where there were minor inconsistencies in complainant’s evidence as to tangential details — whether complainant’s version implausible CRIME — appeals — appeal against conviction — unreasonable verdict — where applicant convicted of offence under s 66C(2) of the Crimes Act 1900 (NSW) — where s 66C(2) requires proof that complainant was under 14 years of age at time of offending — where there was reasonable doubt as to complainant’s age — where alternative charge under s 66C(4) was left to jury — whether Court of Criminal Appeal could find the applicant guilty of the alternative count

Catchwords:

CRIME — appeals — appeal against sentence — manifest excess — where applicant challenged aggregate sentence on ground that indicative sentence was manifestly excessive — where applicant did not submit that aggregate sentence was manifestly excessive — where patent error was not alleged — whether alleged manifestly excessive indicative sentence caused sentencing discretion to miscarry — whether Court could re-exercise sentencing discretion on such basis

Catchwords:

CRIME – appeals – appeal against sentence – child sexual assault against multiple victims – trial judge sentenced on the basis of a concession – whether sentence manifestly excessive

Catchwords:

COSTS – Security for costs – delay in making application for security – appeal date vacated if order for security made - motion dismissed

Catchwords:

CRIME – Crown appeal against inadequacy of aggregate sentence – 6 offences against s 66C(4) of the Crimes Act 1900 (NSW) (“Crimes Act”) – 2 offences against s 66C(3) of the Crimes Act – Form 1 offences – a single victim – whether indicative sentences manifestly inadequate – whether offences committed whilst respondent was subject to an ADVO is an aggravating factor under s 21A(2)(j) of the Crimes (Sentencing and Procedure Act) 1999 (“CSP Act”) – whether Form 1 offences and aggravating factors adequately reflected in indicative sentences – whether the specification of the non-parole period in standard non-parole period offences in indicative sentences was a technicality – whether offence being committed in the garage of the victim’s home was an aggravating factor under s 21A(eb) of the CSP Act – victim impact statement – s 25AA of the CSP Act – whether heightened need for specific and general deterrence – whether aggregate sentence manifestly inadequate – whether residual discretion should not be exercised – [redacted] – assessment of moral culpability – sentence increased

Catchwords:

CRIME – appeals – appeal against sentence – child sex offences – multiple instances of offending over two decades – where statements made in relation to special circumstances during sentencing hearing – where sentencing judge declined to vary the statutory ratio – whether statements made by sentencing judge raise procedural unfairness – whether sentence manifestly excessive – appeal dismissed

Catchwords:

CRIME – Appeals – Appeal against sentence – Application for leave to appeal – Whether the sentencing judge erred in finding that factors contributing to the disadvantage and mental health of the applicant increased the importance of community protection – Whether such disadvantage and mental health factors ought to have moderated the moral culpability of the offender – Whether the sentencing judge erred in the assessment of the indicative sentence – Whether the sentence was manifestly excessive.

Catchwords:

CRIME — appeals — appeal against conviction — miscarriage of justice — whether direction to jury about elements of s 61HE of the Crimes Act 1900 (NSW) erroneous — elements of proving applicant was reckless as to whether complainant consented to sexual intercourse— distinction between advertent and inadvertent recklessness — distinction between subjective and objective recklessness CRIME — appeals — appeal against conviction — unreasonable verdict — where applicant convicted of attempted and actual sexual intercourse with complainant without her consent — where complainant was intoxicated — whether complainant lacked credibility — whether complainant’s evidence unreliable — whether Crown excluded applicant’s version beyond reasonable doubt — whether applicant knew the complainant was not consenting to sexual intercourse

Catchwords:

CRIMINAL PROCEDURE – fitness inquiry – question of unfitness raised by self-represented accused at commencement of trial – District Court refused to order an inquiry – urgent application for leave to appeal under Criminal Appeal Act 1912 (NSW), s 5F – where finding that psychiatrist’s opinion founded on accused’s “pretended” presentation and history – where psychiatrist’s report given little or no weight – whether trial judge erred in finding that question of unfitness not raised in good faith, engaging prohibition in Mental Health (Forensic Provisions) Act, s 10(2) – whether on evidence there was a real or substantial concern as to unfitness – appeal dismissed

Catchwords:

CRIMINAL PROCEDURE – stay of proceedings – lack of legal representation – stay refused by District Court – urgent application for leave to appeal refusal of stay under Criminal Appeal Act 1912 (NSW), s 5F – where previous counsel had withdrawn – where trial was to commence in matter of weeks – where applicant not impecunious – where applicant did not establish that had taken reasonable steps to secure other representation – appeal dismissed

Catchwords:

CRIME — appeals — appeal against conviction — miscarriage of justice — whether trial judge’s failure to recuse herself and abort trial resulted in a miscarriage of justice — where new evidence raised mid-trial — where defence would have conducted their case differently had the evidence been raised before trial — whether failure to vacate had a prejudicial effect — whether appellant was denied a fair trial CRIME — appeals — appeal against conviction — unreasonable verdict — whether conviction of child sexual assault offences could not be supported having regard to the evidence — whether inconsistencies in the complainant’s evidence raised reasonable doubt about the applicant’s guilt — where complainant signed a retraction statement — where applicant subsequently admitted offending conduct to members of his own family CRIME — appeals — appeal against sentence – extension of time in which to appeal — whether extension of time for leave to appeal against sentence ought be granted — where applicant suffers from terminal illness — whether fresh evidence of terminal illness ought be received — whether applicant was suffering from terminal illness at time of sentencing — where applicant has been released on parole

Catchwords:

CRIMINAL – conviction appeal – grievous bodily harm with intent – where appellant bit off victim’s nose – where self-defence raised – where error in trial judge’s summing up because of reference to requirement at common law that there be “reasonable grounds” for belief as to necessity of conduct in self-defence – whether proviso applies – whether Court satisfied that not open to a jury to have reasonable doubt as to whether appellant acted in self-defence

Catchwords:

CRIME – appeal against sentence – child sexual offences and sexual assault offence – where applicant sentenced for other historic and non-historic child sex offences in 2016 and subject offences pre and post-dated those offences –whether sentence judge erred in findings of objective seriousness – whether principle of totality breached by superimposing new sentence on existing sentence – whether aggregate sentence is manifestly excessive CRIME – appeal against sentence – leave to appeal out of time sought – delay due to COVID pandemic

Catchwords:

ADMINISTRATIVE LAW – Judicial review – Whether primary judge erred in finding jurisdictional error and error of law – Failure of medical assessor to assess relevant material and make deduction based on previous injury – Whether Medical Appeal Panel of the Personal Injury Commission exceeded scope of grounds of appeal – Whether assessment de novo within grounds of appeal

Catchwords:

APPEALS – motor vehicle accident – whether primary judge erred in rejecting appellant’s evidence – whether factual error involved a finding contrary to incontrovertible facts – whether the matter should be remitted for retrial in the District Court

Catchwords:

CRIME – appeals – appeals against sentence – one count of aggravated break and enter with intent to commit a serious indictable offence and two counts of use offensive weapon with intent to commit an indictable offence – alleged error in applying the discount for the applicant’s guilty pleas to aggregate sentence rather than indicative sentences – alleged error in finding that that there was the actual intentional use of a knife to slash across the victim’s torso – ground 2 upheld – applicant re-sentenced

Catchwords:

NEGLIGENCE — Workplace injury — Where worker fell in a stormwater drain on construction site — Whether accident occurred as alleged — Competing testimony of witnesses — Whether director of appellant knew or ought to have know that the drain was uncovered — Director knew the drain was uncovered NEGLIGENCE — Duty of care — Duty of occupier to employee of subcontractor — Whether it was reasonable for occupier to assume that that a competent contractor would have addressed the risk — Occupier owes a duty to use reasonable care to avoid physical injury to individuals on site — Occupier was negligent NEGLIGENCE — CLA s 5D — Whether the negligence was a necessary condition of the occurrence of the harm — Proximate cause irrelevant WORKERS COMPENSATION — Common law remedies — Workers Compensation Act 1987 (NSW) ss 151A and 151Z — Damages payable by a non-employer — Proper operation of s 151Z(2) — Consensual adjustment of figures

Catchwords:

APPEALS – point not taken below – whether argument sought to be run on appeal was outside the pleadings and the manner in which the case was run at first instance – where evidence relied upon by the Respondent on appeal was not challenged by the Appellant at first instance given the way the case has been formulated and run CONTRACTS – formation – consideration – forbearance to sue – whether there was a presently owing debt as at the date when the agreement was entered into – whether the primary judge made a finding that there was a presently owing debt as at the date when the agreement was entered into – where pleadings were silent as to how any indebtedness was said to have arisen – where the Respondent sought to advance a different argument on appeal that was not pleaded at first instance and did not reflect the way the trial was conducted at first instance

Catchwords:

CIVIL PROCEDURE — parties — removal of parties — application to remove employee of the registry of the New South Wales Civil and Administrative Tribunal (NCAT) as party to proceedings — where claim was for judicial review of an NCAT decision — whether employee was a necessary and proper party

Catchwords:

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — frivolous or vexatious proceedings — no reasonable cause of action disclosed — abuse of process — whether primary judge erred in dismissing proceedings — where applicant sought government grant for sporting achievements CIVIL PROCEDURE — summary disposal — dismissal of proceedings — incompetence — where leave to appeal was required — where a summons seeking leave was not filed

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:

EQUITY – fiduciary duty – existence – whether employee owes fiduciary obligations to employer – whether employee recognised as accepted category of fiduciary – separate element as to whether employee’s conduct falls within scope of fiduciary obligation – whether open to Australian courts below the High Court to reject separate elements of existence and scope of fiduciary obligations of senior employees – Nottingham University v Fishel [2000] EWHC 221 (QB); [2000] IRLR 471 disapproved EQUITY – fiduciary duty – knowing involvement in breach – level of assistance sufficient to render third party liable – extent of knowledge sufficient to render third party liable – circumstances when knowledge imputed to third party – scope of “fraud exception” EQUITY – fiduciary duty – breach – causation – where loss of opportunity turned upon alleged further breach of trust by trustee to which fiduciary obligations were owed by employees – whether such further breach of trust stood in way of assessment of liability of fiduciaries and knowing assistants – whether proposition produces incoherence and leaves dishonest fiduciaries with a windfall – whether allegation of further breach of trust put to trustee – whether there was informed consent to any further breach of trust EQUITY – fiduciary – breach – loss of a chance – whether any lost opportunity caused by breaches was so speculative that it was not valuable – assessment of loss of chance – discounts for future contingencies – appropriateness of “global” discount because future contingencies not independent – significance of paucity of evidence being a consequence of breaches of fiduciary duty – appropriateness of drawing inferences and resolving doubtful questions against fiduciary

Catchwords:

ADMINISTRATIVE LAW — judicial review — decision of medical appeal panel under the Workplace Injury Management and Workers Compensation Act 1998 (NSW) — where appeal panel revoked medical assessor’s assessment of whole person impairment —whether primary judge erred in finding no jurisdictional error in appeal panel’s decision — whether primary judge erred in finding no denial of procedural fairness in appeal panel’s decision WORKERS COMPENSATION — injury — dispute as to assessment of whole person impairment — deduction for previous injury pursuant to s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) — where medical assessor did not refer to evidence of previous injury — powers of medical appeal panel to revoke and issue new certificate of assessment

Catchwords:

CONSUMER LAW – Misleading or deceptive conduct – Purported termination of contract – “No transaction” case – Termination unavailable where breach of contract was minor and innocent party affirmed the contract COURTS AND JUDGES – Bias – Alleged “differential” treatment of parties – Adverse credibility assessments not evidence of bias COSTS – Where a judge other than the trial judge determines costs – Offer of compromise unreasonably rejected – Discretion as to costs not constrained by Uniform Civil Procedure Rules 2005 (NSW) r 36.16(3A) where primary judge expressly provided opportunity to apply to vary costs order under that rule.

Catchwords:

PROFESSIONS AND TRADES – medical practitioners – application for reinstatement – deregistered medical practitioner applied for reinstatement order – NCAT made order – Medical Council appealed, purportedly as of right – appeal as of right confined to questions of law – notice of appeal failed to identify any questions of law – belated application for leave to appeal on other grounds – whether error of law in NCAT’s decision – whether any other error disclosed – appeal dismissed

Catchwords:

BAIL – breach of condition – arrest without warrant – applicant convicted of resisting officer in execution of duty – police officer reasonably believed applicant had not complied with bail condition – s 77(1) of Bail Act 2013 (NSW) empowered officer to take one of six actions, one of which was arrest – s 77(3) of Bail Act provided that officer was to consider four matters in deciding whether to take action and which action to take in those circumstances – officer considered none of those matters – whether non-compliance with s 77(3) meant that arrest was not in lawful execution of duties – appeal allowed, conviction set aside and charge dismissed

Catchwords:

CRIME – appeal against conviction – causing grievous bodily harm with intent – joint criminal enterprise – physical altercation between three people – evidence against first accused overwhelming – injuries to victim serious – jury directed that if not satisfied of the existence of a joint criminal enterprise they must acquit both accused – whether direction wrong in law – whether miscarriage of justice

Catchwords:

CRIME — Appeals — Appeal against sentence — Persistent sexual abuse of a child — Sentencing judge misinformed about facts of and maximum penalty for one constituent unlawful sexual act — Crown conceded error — Applicant resentenced

Catchwords:

CIVIL PROCEDURE – appeal – interlocutory injunction – extension of order granted pending hearing of appeal – owner of property in default under loan agreement – receiver and manager appointed by lenders – proceeds of sales of secured property and rental income held by receiver and manager – application by owner to prohibit payment to lenders pending outcome of challenge to loan agreement

Catchwords:

APPEALS – Procedural fairness – Bias or apprehension of bias – Where primary judge intervened during the examination of witnesses and made comments in relation to the State’s submissions – Where no issue of apprehended bias was raised or application for disqualification made at trial TORTS – Trespass to the person – Battery – Whether stopping and detaining of the Respondent was an unlawful exercise of power pursuant to s 21 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – Whether Respondent was “stopped” – Where small period of time between initial “stopping” and time at which the Respondent was told she would be searched – Where Respondent was not physically constrained and had a limited ability to walk around – Whether police had a suspicion on reasonable grounds that any of the circumstances in s 21 existed – Where primary judge made adverse credit findings in relation to police officer’s evidence as to the matters that informed his suspicion TORTS – Trespass to the person – False imprisonment – Wrongful arrest – Whether Respondent’s arrest was an unlawful exercise of power pursuant to s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – Whether police officer suspected on reasonable grounds that the Respondent had committed an offence – Where a person other than the Respondent was carrying a bag which contained a knife – Where primary judge made adverse credit findings in relation to police officer’s evidence as to his belief that the Respondent was carrying the bag TORTS – Trespass to the person – False imprisonment – Whether s 43A of the Civil Liability Act 2002 (NSW) applied to exclude any liability arising from the conduct of the Appellant – Whether s 3B(1)(a) applied to exclude the operation of s 43A – Whether there was an intentional act done with intent to cause injury or death – Whether deprivation of liberty falls within the definition of “injury” TORTS – Malicious prosecution – Whether charges were brought against the Respondent without reasonable and probable cause and with malice – Where police officer made repeated references to his previous interactions with the Respondent and omitted exculpatory material from the Facts Sheet including that the Respondent was not holding the handbag in which a knife and various items of new male clothing were found TORTS – Malicious prosecution – Damages – Whether award of damages included compensation for custody that was not a natural and probable consequence of the prosecution – Whether causal connection between the charges laid against the Respondent and the Respondent’s detention severed by the refusal of the Respondent’s bail application or by the revocation of her parole TORTS – Damages – Whether award of exemplary damages excessive – Whether primary judge took into account damages and aggravated damages awarded under each head of damage

Catchwords:

CRIME – Appeals – Appeal against sentence – Application for leave to appeal – Whether the sentencing judge mistook facts in finding aggravating circumstances for a Form 1 offence – Whether the sentencing judge erred in admitting on sentence, and having regard to, the applicant’s criminal history for offences committed as a child.

Catchwords:

CRIME – appeals – appeal against sentence – manslaughter – where applicant drove motor vehicle towards victims acting in defence of her daughter – whether sentencing judge failed to take into account relevant considerations when assessing objective seriousness – relationship between objective seriousness and moral culpability – identifiable error in the sentencing exercise – applicant re-sentenced.

Catchwords:

ADMINISTRATIVE LAW — judicial review of “serious corrupt conduct” findings made by Independent Commission Against Corruption against former Premier — where Commission’s report adopted findings of credibility made by person who presided at public inquiries — where the appointment of the person who presided at public inquiries as an Assistant Commissioner expired after conclusion of those public inquiries and that person appointed as a consultant and accordingly officer of Commission prior to report being finalised — whether assistance of presiding officer as consultant in preparation of report outside limits of her authority — whether Commission could adopt credibility assessments made by presiding officer after her appointment as Assistant Commissioner had expired ADMINISTRATIVE LAW — judicial review of “serious corrupt conduct” findings made by Independent Commission Against Corruption against former Premier — whether “no evidence” to support finding applicant influenced by her private interest in maintaining close personal relationship — whether non-pecuniary personal relationship capable of being “private interest” giving rise to conflict of interest and public duty — whether applicant as parliamentarian and Minister of the Crown had legally enforceable positive duty to act only according to what she believed to be in public interest — whether Commission made findings about merits of funding proposals — whether s 7 of NSW Ministerial Code and cll 10-12 of Schedule to code applies to Premier — whether applicant’s conduct in relation to funding decisions constrained by duty to act impartially — whether finding of partial conduct requires finding that but for unacceptable reason conduct would not have occurred — whether finding of partial conduct requires comparative exercise — whether Commission reached illogical or irrational result by making “serious corrupt conduct” finding but also refusing to recommend advice be sought as to whether to prosecute applicant — whether “dishonest” in s 8(1)(b) of Independent Commission Against Corruption Act 1988 (NSW) requires person to realise his or her conduct dishonest according to standards of ordinary people

Catchwords:

CRIME – appeal – interlocutory order – Crown appeal pursuant to Criminal Appeal Act 1912 s 5F(3A) – appeal relating to ruling about admissibility of tendency evidence and severance of counts – where primary tendency asserted in notice did not comprehend certain alleged sexual acts of the respondent – where circumstances of tendency notice strictly confined to complainants indicating that sexual touching and/or digital penetration “unwelcome” – decision by trial judge that counts 16 and 17 pertaining to third female complainant were to proceed separately – ground whether trial judge erred in determining there were exceptional circumstances pursuant to s 97A(5) Evidence Act 1995 that overcame statutory presumption of significant probative value – whether error in in determining that the probative value of the evidence did not outweigh the danger of unfair prejudice – correct decision for different reasons – even assuming counts 16 and 17 had significant probative value as tendency evidence, decision to sever was appropriate due to extreme prejudice in light of specificity of tendency notice – appeal dismissed

Catchwords:

JUDGMENTS AND ORDERS – Amending, varying and setting aside – Court of Appeal – whether judgment should be set aside under Uniform Civil Procedure Rules 2005 (NSW), r 36.16 COSTS – Application to vary costs order – whether parties should be permitted to make further submissions on costs

Catchwords:

CRIME – appeals – sentence appeal – where applicant pleaded guilty to numerous property offences – where applicant on conditional liberty at time of offending – new aggregate sentence partly cumulative upon balance of parole – whether error in failure to consider the effect of the applicant’s balance of parole on the “statutory ratio” between total non-parole period and total head sentence – where special circumstances not found – no evidence of express intention to extend ratio beyond 75% – appeal allowed – discussion of issues arising from Kentwell v The Queen and Lehn v R – applicant resentenced afresh – lesser sentence warranted in law CRIME – appeals – sentence appeal – where applicant pleaded guilty to numerous property offences – one count of enter dwelling-house with intent to commit larceny – circumstances of aggravation – whether error in finding the offending was aggravated by the fact that it was committed in a home – discussion of complexities surrounding aggravating factors listed in Crimes (Sentencing Procedure) Act 1999 (NSW) – no error by way of double counting established – breadth of statutory definition of “dwelling-house” – authorities to the effect that concepts underpinning “dwelling-house” and “home” are different CRIME – appeals – sentence appeal – manifest excess – extensive criminal record – offending whilst subject to conditional liberty – history of disciplinary actions in custody – background of profound deprivation – mental illness – drug and alcohol dependence – whether sentence imposed failed to reflect appropriate consideration of the applicant’s disadvantaged upbringing and history of abuse – difference between satisfaction that sentence imposed is manifestly excessive and satisfaction that lesser sentence is warranted in law on resentence – sentence imposed not manifestly excessive

Catchwords:

CRIME – appeals – Crown appeal against sentence – manifest inadequacy – offence of aiding and abetting an attempt by others to possess a commercial quantity of unlawfully imported border-controlled drugs – where the sentencing judge erred by treating the respondent’s bail conditions as “quasi-custody” and backdated the sentence – respondent’s impressive and substantial progress towards rehabilitation – Court’s exercise of residual discretion not to interfere

Catchwords:

CRIME — appeals — appeal against sentence — failure to take into account a relevant consideration — whether sentencing judge failed to address matters raised in guideline judgments — whether sentencing judge erred in assessing objective seriousness CRIME — appeals — appeal against sentence — whether sentencing judge erred in assessing objective seriousness — where sentencing judge made an error of fact as to gravity of victim’s injuries CRIME — appeals — appeal against sentence — failure to take into account a relevant consideration — relevance of applicant’s prior offending — relevance of applicant’s history of domestic abuse and alcohol abuse — possibility of extra-curial punishment — whether sentencing judge erred in assessing subjective circumstances CRIME — driving offences — aggravated dangerous driving occasioning grievous bodily harm — intoxication — application of guideline judgments — where applicant lacks characteristics of the frequently occurring case referred to by guideline judgments

Catchwords:

CRIMINAL LAW – appeal – Crown appeal – s 5F(3A) of the Criminal Appeal Act 1912 – dangerous navigation causing death contrary to s 52B(1)(c) of the Crimes Act 1900 – where trial judge excluded evidence from experts concerning likely impairment caused by intoxication – exclusion of evidence of blood alcohol content and speed of jet ski – where rulings would substantially weaken Crown case – whether experts entitled to offer opinions of specialised knowledge based on training, study or experience – Evidence Act 1995 s 79

Catchwords:

CONTRACTS – Rectification by construction – whether primary judge erred in failing to find that properly construed, cl 5.1 of Business Sale Agreement provided for an earn-out calculation based on “average annual” earnings before interest and tax EQUITY – Rectification in equity – onus and standard of proof – whether respondents had shown by clear and convincing evidence that cl 5.1 of Business Sale Agreement did not correctly record the common intention of the parties – whether primary judge erred in ordering rectification of cl 5.1 EVIDENCE – Jones v Dunkel inference – whether primary judge erred in failing to draw Jones v Dunkel inferences in respect of respondents’ failure to call several witnesses involved in the transaction culminating in the Business Sale Agreement – whether primary judge erred in drawing Jones v Dunkel inference against the appellants for failing to call its solicitor to give evidence

Catchwords:

CONTRACTS – Formation – acceptance of offer – whether there was sufficient communication of acceptance – where the respondent Council had passed a resolution accepting the appellant’s offer during a Council meeting which was open to the public and livestreamed on its website and published a copy of the unsigned minutes of the meeting (which recorded that such resolution was passed) on its website the following day – where a rescission motion was lodged in respect of that resolution shortly after the meeting ended and the Council took no steps to notify the appellant that such resolution had been passed or to otherwise directly communicate its acceptance of the offer to the appellant – whether the legislative and regulatory framework affecting the Council’s operations were matters of context relevant to the objective assessment of whether there was effective communication of acceptance LAND LAW – Conveyancing – Requirements of Writing – whether the signed minutes of the Council meeting comprised a “memorandum or note” of a contract for sale for the purposes of s 54A of the Conveyancing Act 1919 (NSW) – whether the mayor and general manager who signed the minutes were lawfully authorised signatories pursuant to s 54A LOCAL GOVERNMENT – whether land acquired by resumption under s 532 of the Local Government Act 1919 (NSW) was “land subject to a trust for a public purpose” and therefore should be classified as “community land” for the purposes of cl 6(2)(b) of Sch 7 of the Local Government Act 1993 (NSW)

Catchwords:

BANKING AND FINANCE – standby letter of credit issued by Chinese bank to secure lender’s/builder’s obligations under construction contract – receivers appointed to beneficiary – receivers made demand on standby letter of credit on behalf of beneficiary – payment by issuing bank stopped by order of Chinese court – whether breach of contract by beneficiary with lender/builder rendered demand invalid – obligations of issuing bank independent of contract between lender/builder and beneficiary – standby letter of credit subject to Rules on International Standby Practices ISP 98 – whether appointment of receivers engaged rule concerning transfer by operation of law – whether interlocutory order made by Chinese court preventing payment a bar to entry of judgment – whether parallel proceedings in Australia and China an abuse of process

Catchwords:

APPEALS – crime – appeal against conviction – unreasonable verdict – sexual intercourse without consent – whether inconsistent complainant testimony – whether deficiencies in complainant testimony – evidence of lawfully recorded conversation – whether verdicts cannot be supported having regard to the evidence APPEALS – crime – appeal against conviction – unreasonable verdict – possess child abuse material – circumstantial case – absence of direct evidence – whether Crown failed to exclude the reasonable possibility that the applicant was not knowingly in possession of child abuse material

Catchwords:

CRIME – appeals – appeal against conviction – applicant convicted of assault occasioning actual bodily harm against stepson – acquitted of common assault – whether verdict unreasonable having regard to the evidence CRIME – appeals – appeal against conviction – aggravated sexual intercourse without consent against twelve-year-old stepdaughter – evidence of particular long-standing sexual arrangement between applicant and wife – evidence that applicant knew his wife was not home at the time of offending – whether sufficient evidence to establish an honest subjective belief – whether any such belief could be reasonably held – whether failure to leave the defence of honest and reasonable mistake of fact caused a miscarriage of justice

Catchwords:

CRIME – appeals – appeal against sentence – severity appeal – ongoing sexual offending by applicant against his stepdaughters – extremely serious offending – totality considerations – principles in Mill v The Queen – whether aggregate sentence is affected by erroneous sentence indicated for particular count – whether error had the capacity to influence the aggregate sentence – where not possible to conclude error could not have affected the aggregate sentence – sentencing discretion exercised afresh – regard to conditions experienced by persons in custody – applicant’s subjective case – extremely deprived upbringing – lengthy criminal history – where applicant on conditional liberty at the time of offending – where no lesser sentence other than that imposed by the sentencing judge is warranted – leave to appeal granted – appeal dismissed

Catchwords:

APPEAL – whether argument sought to be run on appeal was outside the pleadings – whether the trial had been in part run outside of the pleadings such that the argument was available to be run on appeal CONTRACTS – breach of contract – damages – whether Appellant proved that it had or would suffer losses as a result of the breach – where some past costs of rectifying the breach were paid by family companies on the Appellant’s behalf – restitution – whether Appellant was legally obliged to reimburse the family companies for the costs paid such that it could be said to have incurred losses – where other past costs of rectifying the breach were paid by a real estate agent from a trust account in the Appellant’s name EVIDENCE – proof of loss – where no evidence led from principals of family companies – where documentary evidence of alleged understanding between family companies as to reimbursement for various payments lacking – whether a promise to repay could be implied – evidentiary inferences available RESTITUTION – third party payment of another party’s debts – whether implied request to pay – whether implied promise to reimburse – evidence and drawing of inferences

Catchwords:

ASSOCIATIONS AND CLUBS — meetings — validity — where members of association were issued debentures — whether certain debenture holders are no longer members on the basis of unpaid fee — whether debenture holders who are no longer members are able to vote at a general meeting

Catchwords:

CRIME – sentencing – finding of special circumstances – “very minor adjustment” of non-parole period intended – no adjustment downwards, but slight increase in default ratio of non-parole period to head sentence – need to re-exercise sentencing discretion – manner of re-exercising discretion where parties do not challenge aspects of sentencing judge’s findings

Catchwords:

CRIME – appeal against conviction – leave to appeal– challenge to jury directions – no objection taken at trial to proposed directions – no redirection or further direction sought – whether miscarriage of justice – application of Supreme Court (Criminal Appeal) Rules 2021, r 4.15 CRIME – miscarriage of justice – tendency evidence – context evidence – single count indictment – evidence of uncharged incident admitted as tendency and context evidence – jury directed to disregard evidence of uncharged incident if not satisfied it occurred – whether jury required to be directed that doubt as to uncharged incident should be considered in assessing complainant’s evidence as to charge – inconsistency between Markuleski direction and proper consideration of tendency evidence and context evidence

Catchwords:

CRIME – appeal against sentence – s 66EA offence – jury trial – fact finding after trial – obligation to find facts consistent with the verdict of the jury – where sentencing judge accepted the evidence of the complainant as reliable – no basis advanced by applicant before sentencing judge to distinguish aspects of the complainant’s evidence – sentence imposed on the basis that whole of complainant’s evidence accepted – application raising a point not made at first instance – delay in bringing application significant and not fully explained – extension of time refused

Catchwords:

CRIME — Appeals — Application for leave to appeal against sentence — Persistent sexual abuse of a child — Sentence after trial — Fact finding on sentence

Catchwords:

LAND LAW – Indigenous land rights – Indigenous person charged under State law with possessing abalone without licence or permit – Section 211 of the Native Title Act 1993 (Cth) – Immunity from application of restrictive laws requiring licence or permit – Meaning of carrying on activity for the purpose of satisfying personal, domestic or non-commercial communal needs – Meaning of fishing, gathering or a cultural or spiritual activity EVIDENCE – Burden of proof – Criminal proceedings – Burden and standard of proof of a defendant who invokes s 211 – Statutory exception to general rule – Legislative intent for immunity to be capable of practical and ready exercise by native title holders – Legal burden on person seeking to make out claim against native title holder JUDGMENTS AND ORDERS – Court of Appeal – Decision of intermediate appellate court of another State interpreting Commonwealth legislation – Principles as to departing from such a decision – Whether previous decision of South Australian Court of Appeal plainly wrong

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Public sector – Crown and ministerial employees – Termination of a senior executive for alleged misconduct in failing to comply with directions ADMINISTRATIVE LAW – Unreasonableness – Obvious inquiry into critical fact – Fact in question not critical – No obvious inquiry – Claim that directions to employee unlawful for non-compliance with industrial award and for contravention of Anti-Discrimination Act 1977 (NSW) – No unlawfulness established – Delegation of power – Materiality where decision-maker not authorised to make decision – Relevance of materiality to discretionary grant of relief ADMINISTRATIVE LAW – Hearing rule – Notice – Adverse information credible, relevant and significant to decision – Substance of information already put – No requirement for running commentary upon decision-maker’s opinion about evidence – Remaking of first decision – Whether notice needed to be given of second decision – Notice was required of second decision

Catchwords:

NEGLIGENCE – workplace injury – occupier’s liability – plaintiff suffered jolt when descending elevator stopped without warning during planned power interruption – power testing conducted by other employees at the workplace – no steps taken to ensure lifts were not being used – no warnings given – litigation conducted on basis that plaintiff’s employer was not sued – plaintiff sued two related companies which owned the land and operated the business – whether related companies liable in negligence as occupiers – whether evidence capable of sustaining findings of breach attributable to related companies, as opposed to attributable to plaintiff's employer – appeal allowed and judgments entered in favour of defendants

Catchwords:

NEGLIGENCE – Personal injury – Causation – Physical and psychological injuries – Multiple possible causes of injury – Appellate intervention in the provisional assessment of damages COSTS – Indemnity costs – Offers of compromise Rule 42.15A of the Uniform Civil Procedure Rules 2005 (NSW) – Discretion to “order otherwise”

Catchwords:

CRIME – appeals – appeal against sentence – Commonwealth and State offences - whether a mathematical error made when considering or applying the totality principle – whether sentence for the State offence is manifestly excessive – leave to appeal granted – resentence

Catchwords:

CRIMINAL PROCEDURE – Indictment – where Crown case relied on multiple potential principals and several instances of alleged provision of financial advice in proof of a single count of contravening ss 911B(1) and 1311(1) of the Corporations Act – where trial judge had declined to quash or permanently stay indictment – whether the identification of multiple principals failed to allege an offence known to law – whether the identification of multiple principals was in contravention of the rule against duplicity – whether the identity of the principal is a factual matter that must be pleaded in order to avoid uncertainty in the charge – whether the number of potential principals and instances of provision of alleged advice was an abuse of process. CRIMINAL PROCEDURE – Indictment – where indictment did not address the exculpatory condition in s 911B(1)(e) – whether indictment fails to aver an offence known to law by failing to allege all of the necessary conditions to make out an offence.

Catchwords:

CRIME – Sexual offences – Sexual assault – Consent – Section 61HE of the Crimes Act 1900 (NSW) – Relevance of complainant’s substantial intoxication to issue of consent – Confusing drafting of statutory provision – Whether no free and voluntary agreement taking account of all circumstances – Not necessary to show what was said and done indicating consent was caused by intoxication APPEALS – From jury verdict – Misdirection – Real chance that the misdirections could have affected the jury verdict – Miscarriage of justice established

Catchwords:

CRIME — appeals — appeals against sentence — whether sentencing judge failed to make findings regarding mitigating factors under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) —— whether reasons inadequate — error resulting in re-sentence — no lesser sentence warranted

Catchwords:

CRIME – appeals – appeal against sentence – two drug and proceeds of crime offences – possess commercial quantity of cocaine – where primary issue before the sentencing judge was non-exculpatory duress – duress found in favour of the applicant – moral culpability reduced by reason of duress – whether sentencing judge required to separately consider mental health – applicant diagnosed with persistent depressive disorder and trauma/stress related disorder – connection between mental health and offending raised in applicant’s written and oral submissions – held sentencing judge overlooked evidence concerning mental health – failed to consider the issue of moral culpability by reason of mental health – direct nexus between applicant’s mental health and the offending – appeal allowed – applicant resentenced to a lesser sentence

Catchwords:

CRIME – appeals – appeal against conviction – murder – joint criminal enterprise – basic and extended relied upon by Crown – directions to jury – where Crown case at trial alleged that the applicant and co-offenders had accepted a contract to kill – person fatally shot – applicant not the shooter – where deceased not the intended target – where jury directed that necessary mental element for murder established even though someone other than the deceased was the intended target – whether error in failing to direct jury that the killing or serious injury of the deceased had to be agreed to or foreseen by the applicant – transferred malice – nothing further required to be proven beyond orthodox elements of murder and joint criminal enterprise – no miscarriage of justice occasioned CRIME – appeals – appeal against conviction –unreasonable verdict – murder – separate count of shoot with intent to murder – whether guilty verdicts were open on the evidence adduced at trial – circumstantial case – credibility of civilian witnesses – where applicant took steps to conceal his involvement – admissions – acceptance of circumstantial fact that applicant attended rear door of premises whilst armed after initial shots fired – well open to jury to return verdicts of guilty on both counts – appeal dismissed

Catchwords:

APPEALS – competency of appeal – where dismissal of contempt proceedings – whether proceedings for civil or criminal contempt – where criminal contempt not established – where finding of civil contempt but proceedings dismissed – whether appeal incompetent – characterisation of contempt proceedings – whether remedial or coercive, not punitive – time at which character of proceedings assessed CONTEMPT – breach of undertakings given to Court – whether civil or criminal contempt – whether error in characterising proceedings as criminal only – where statements of charge particularised breaches of undertakings as contumacious – whether allegation of contumacy determinative – where double aspect of contempt proceedings – whether procedurally unfair to find civil contempt

Catchwords:

CRIME — appeals — appeal against conviction — inconsistent verdicts — whether guilty verdict on count of aggravated indecent assault was inconsistent with acquittal on count of aggravated sexual assault — where sole evidence of both counts was that of the complainant — where the two counts allegedly occurred in sequence — whether there was a rational explanation for the different verdicts CRIME — appeals — appeal against conviction — unreasonable verdict — whether guilty verdicts could be supported having regard to the evidence — where large majority of the evidence was that of the complainant — where there were inconsistencies in complainant’s evidence — whether complainant’s evidence lacked credibility — whether it was unreasonable for the jury to accept the complainant’s version — where complainant was a 14-year-old indigenous boy

Catchwords:

MEDIA AND COMMUNICATIONS — Publication — Court Suppression and Non-publication Orders Act 2010 (NSW) – Informal application that appellant’s name appearing in a published judgment be replaced by pseudonym – Unwarranted assumption that Personal Injury Commission’s acceptance of pseudonym would be adopted – PTSD and major depressive order alone not sufficient to justify order – Criteria require more than that an order be “convenient, reasonable or sensible, or to serve some notion of the public interest” – No evidence of significant risk of harm

Catchwords:

APPEALS – leave to appeal – interlocutory judgment – application to appoint administrator pendente lite –executor granted probate in common form – application to prevent executor recovering costs from estate – application to recoup costs already paid – whether executor protecting personal interests – whether executor obliged to seek judicial advice - principles governing leave to appeal from interlocutory procedural orders – applicant was not joined by parties with prior interests

Catchwords:

CRIME – appeals – appeal against conviction –child sexual offences – judge alone trial – requirements in relation to reasons of the trial judge – Liberato direction – good character direction – whether error in failing to apply all aspects of directions – whether failure to explain how the second limb of each of the Liberato direction and the good character direction were taken into account in reaching the conclusion that the appellant was guilty on each relevant count – whether verdicts of guilty unreasonable – convictions set aside – new trial ordered

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:

JUDGMENTS AND ORDERS — Amending, varying and setting aside — Orders for costs of appeal and underlying proceedings — Where notice of motion not filed within 14 days of judgment being entered but notice given to Court and parties of that application — Whether Court can dispense with requirement to file and serve notice of motion — No basis to vary costs order

Catchwords:

PROFESSIONS AND TRADES – health practitioners – registration as specialist – practitioner formerly practised as specialist anaesthetist – practitioner deregistered following misconduct – practitioner subsequently registered as a medical practitioner – practitioner applied for specialist registration as an anaesthetist – Medical Board of Australia refused application – NCAT dismissed appeal – NCAT found applicant not a fit and proper person, and unable to practise as specialist anaesthetist competently and safely – whether material error of law in NCAT's decision – consideration of Health Practitioner Regulation National Law – consideration of Medical Board of Australia and NSW Board of Medical Board of Australia

Catchwords:

ENVIRONMENT AND PLANNING – Development consent for the adaptive reuse of existing commercial building – judicial review – building exceeds height standard – whether consent authority satisfied of cl 4.6 of Willoughby Local Environment Plan 2012 before granting development consent – whether consent authority satisfied building had active street frontage – whether development for permissible use of shop top housing – whether consent authority failed to consider if land is contaminated LIMITATION OF ACTIONS – Whether proceedings time-barred – time limit of three months after public notice in accordance with regulations published – earlier notifications not notices in accordance with regulations

Catchwords:

CRIME – Appeals – Appeal against sentence – Application for leave to appeal – Whether the sentencing Judge erred in finding aggravation by reason of the age of the victims – Whether the sentencing Judge erred in his consideration of the age of the victims – Whether the sentencing Judge erred in not giving reasons for finding aggravation.

Catchwords:

CRIME – Appeals – Interlocutory appeal – By accused against interlocutory judgment made during trial – Appeal made under Criminal Appeal Act s 5 F following conviction – Where accused had agreed to a plea bargain then successfully sought for his conviction to be set aside – Where Crown then brought more serious charges resulting in a conviction – Where primary judge declined to grant a permanent stay on the basis that the proceedings brought the administration of justice into disrepute –Whether the interlocutory decision had merged into the conviction – Whether leave to appeal should be granted – Whether the subsequent proceedings were oppressive

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:

CRIME – appeals – appeal against sentence – two charge sets comprising seven counts – assault occasioning actual bodily harm, sexual intercourse and record an intimate image without consent – influence witness, aggravated detain and intentionally choke – where applicant reported traumatic childhood characterised by domestic and sexual violence – where applicant diagnosed with drug use disorders, PTSD and anti-social and borderline personality traits – whether sentencing judge failed to consider mental health and Bugmy factors – where sentencing judge reduced moral culpability by reason of Bugmy factors – where sentencing judge made a finding of special circumstances – ex tempore judgment – sentencing judge is not obliged to refer to every part of a psychological report – no submission about a causal connection between mental health and the offending was made – sentencing judge did not err by giving weight to general and specific deterrence given the applicant’s criminal record – no error – ground rejected CRIME – appeals – appeal against sentence – where parties had previously agreed to film their sexual activity – where parties’ sexual relationship involved dominating and degrading behaviour – applicant filmed sexual activity whilst the complainant was unconscious – whether sentencing judge erred in finding of objective seriousness – whether nature of the parties’ sexual relationship ought to have reduced objective seriousness – sentencing judge’s findings of fact accorded entirely with agreed statement of facts – agreement to film sexual activity did not extend to sexual intercourse whilst the complaint was unconscious – sentencing judge did not err by finding that the sexual intercourse was accompanied by degrading and violent acts – determination open to his Honour – ground rejected CRIME – appeals – appeal against sentence – manifest excess – where applicant contends indicative sentences for sexual intercourse without consent were excessive – challenge can only be made to the aggregate sentence – indicative sentences open to sentencing judge – comparable cases of limited utility given number of offences and seriousness of present offending – offending involved serious domestic violence over a six month period – sentence not plainly unjust – ground rejected – sentence appeal dismissed

Catchwords:

CRIME – appeals – appeal against conviction – attempt to possess marketable quantity of border controlled drug – where appellant attempted to gain possession of consignment sent from the Republic of South Africa – parcel interior lined with cocaine – consignee name slightly different from that of the appellant – addressed to apartment block resided in by the appellant but different unit number – earlier uncharged consignment sent from the Republic of South Africa using same altered name and incorrect unit number admitted as coincidence evidence – whether miscarriage of justice occasioned by decision to admit coincidence evidence – where proceedings commenced prior to statutory test being amended – whether probative value “substantially outweighs” prejudicial effect – evidence correctly admitted – appeal dismissed

Catchwords:

CRIME – Appeals – appeal against sentence – where total effective sentence of 29 months ordered – where combined period of custodial sentence and recognizance release order exceeded 3 years – whether sentencing judge erred having regard to the proper construction of Crimes Act 1914 (Cth), s 19AC CRIME – Appeals – appeal against sentence –impact of any period of custody on the applicant’s rehabilitation – where custodial sentence imposed – whether the sentencing judge erred having regard to Crimes Act 1914 (Cth), s 16A(2AAA) CRIME – Appeals – appeal against sentence – whether manifest excess

Catchwords:

CRIME – appeals – appeal against conviction – miscarriage of justice – directions to jury – tendency evidence – where tendency alleged was constituted by charged and uncharged acts – where no objection to directions raised at trial – whether jury should have been directed that tendency evidence comprised of the complainant’s own allegations could not be used as tendency evidence for the very same count or for any of the counts concerning that complainant – whether jury should have been directed that lack of satisfaction of any of the counts at the tendency stage would mean that a not guilty verdict should be returned in relation to that count – whether circumstances warranted a direction pursuant to s 161A(3) of the Criminal Procedure Act 1986 (NSW) CRIME – appeals – appeal against conviction – miscarriage of justice – directions to jury – complaint evidence – whether jury should have been directed that complaint evidence could only be used for its credit purpose and not for its truth purpose – where no objection to directions raised at trial – where no limitation placed on use of complaint evidence pursuant to s 136 of the Evidence Act 1995 (NSW) CRIME – appeals – appeal against sentence – manifest excess – where Applicant sentenced in relation to 34 counts which varied in duration and seriousness and related to a wide range of vulnerable victims

Catchwords:

CONTRACTS – Construction – Context – where the parties entered into four separate oral contracts – whether the contracts provided for the transfer of ownership of four cars – where transaction documents indicated that a security interest in the vehicles was required – whether trial judge’s construction of contract was uncommercial CORPORATIONS – Contracts – financial statements – s 1305(1) Corporations Act 2001 (Cth) – whether information within financial statements held significant probative value in determining the terms of a contract – where signatory to financial statements not a party to proceedings

Catchwords:

CRIME – appeal – appeal against conviction – unreasonable verdict – murder – accessory before the fact – where Crown case was that the applicant and his brother had procured the assault on the deceased – where the jury’s advantage in having seen and heard the evidence was “slight” – circumstantial case – question as to whether the Crown has excluded any inference consistent with innocence that was reasonably open – combined effect of the evidence to be considered – capacity of the evidence to prove the particularised acts of assistance – finding of doubt as to the guilt of the applicant – leave to appeal granted – appeal allowed – verdict of acquittal entered

Catchwords:

CRIME – appeals – appeal against sentence – initial suspended sentence in the Drug Court of New South Wales – where Drug Court Program terminated due to further offending – whether final sentence affected by errors relating to parity, totality and delay – whether sentence manifestly excessive – appeal dismissed

Catchwords:

NEGLIGENCE — professional negligence — advice about settlement and cost consequences — breach — causation

Catchwords:

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Child sex offences – Sexual intercourse with child <10 – Procuring or grooming child for unlawful sexual activity – Where applicant was the complainant’s grandfather – Where offending occurred over a period of four years – Whether inconsistencies between complainant’s account and objective evidence were sufficient that jury should have had reasonable doubt as to applicant’s guilt

Catchwords:

CONTEMPT – Civil contempt – Breach of orders – Non-production – whether charges drafted with sufficient particularity to provide the Appellants with a fair hearing – whether findings of civil contempt proven beyond a reasonable doubt – whether documents existed or were in the custody, power or possession of the Appellants – whether primary judge erred in making findings that did not reflect the Statement of Charge – power of the Court to make any order which ought to have been made pursuant to s 75A(10) of the Supreme Court Act 1970 (NSW)

Catchwords:

APPEALS – Further evidence – whether the appellants should be granted leave to rely upon further evidence on the appeal VALUATION – Compulsory acquisition – market value – where freehold interest in land acquired by the respondent for Coffs Harbour Bypass Project – where appellants objected to compensation awarded by primary judge – whether primary judge erred in applying s 56 of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) in determining market value of the acquired property EVIDENCE – Witness evidence – adversarial bias – whether the evidence of the respondent’s hydrology and valuation expert witnesses should have been inadmissible due to adversarial bias APPEALS – Procedural fairness – whether appellants denied procedural fairness by conduct of their case by counsel below – whether appellants denied procedural fairness by conduct of the Valuer Conclave – whether appellants denied procedural fairness by apprehended bias of the primary judge EVIDENCE – Witness evidence – valuation experts – supervision of the expert valuation conclave VALUATION – Valuer – comparable sales – where expert valuers disagreed as to location adjustment for Corindi Property – whether primary judge erred in accepting the respondent’s expert valuer’s location adjustment VALUATION – Valuer – comparable sales – where comparable sale of Shepherds Lane Property relied on by appellants’ expert valuer – whether primary judge erred in disallowing Shepherds Lane Property as a comparable sale on the basis it was a compulsory acquisition VALUATION – Compulsory acquisition – disturbance – where primary judge awarded compensation under s 59(1)(f) of the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) for stamp duty on a replacement property which was not for “relocation” – whether primary judge’s award for disturbance erroneous as a matter of legal principle in light of the Court of Appeal’s findings in Sydney Metro v G&J Drivas Pty Ltd [2024] NSWCA 5

Catchwords:

NEGLIGENCE — breach — foreseeability of risk — whether height differential between surfaces in a playground gave rise to a reasonably foreseeable risk of harm — whether height differential was readily discernible — where the Australian playground maintenance standards applied — where council was independently advised to take steps to mitigate risk — where council did not take reasonable precautions advised NEGLIGENCE — breach — obvious risk — whether height differential between different surfaces in a playground was obvious — assessment to be made in all the circumstances — where it was foreseeable that playground users would be distracted by children NEGLIGENCE — causation — factual causation — whether council’s failure to top up mulch in playground to even out the surfaces caused the respondent’s injury NEGLIGENCE — duty of care — formulation of risk — whether primary judge erred in identifying the risk of harm as the risk of falling and sustaining injury when walking between two surfaces in a playground — whether the risk of harm could be reformulated on appeal — necessary specificity of formulation of risk of harm APPEALS — point not taken below — where matters raised on appeal were not raised before the primary judge — where council’s case on appeal differed substantially from the way in which it was conducted at first instance — extent to which parties are bound by the way in which their case was conducted at first instance

Catchwords:

APPEALS – Leave to appeal – where applicant brought concurrent appeal and judicial review proceedings in relation to decisions of NSW Civil and Administrative Tribunal – where judicial review proceedings stayed – whether exercise of discretion to refuse to conduct judicial review pursuant to s 34(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) miscarried – whether primary judge misapplied principle in Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8 – insufficient prospects to warrant grant of leave to appeal

Catchwords:

REAL PROPERTY – caravan park with entitlement to exclusive long-term sites through share in company which owned the land – at first instance, claim by purchasers of shares to equitable interest in sites – no challenge to finding that no equitable interest in the sites was acquired – challenge to rejection of allegation that alleged representations made that the purchasers were buying sites as land, as well as shares – claim for specific performance – company placed into liquidation caravan park sold to company – indefeasibility of title CORPORATIONS – oppression – company placed into voluntary administration and caravan park land sold to company owned by same directors – where primary judge found that certain other conduct of affairs of company was oppressive – whether primary judge failed to find sale of caravan park itself amounted to oppressive conduct – whether relief ordered was sufficient to remedy oppressive conduct CONSUMER PROTECTION – misleading or deceptive conduct – where appellants did not challenge primary judge’s finding that there had been no reliance on the representations said to constitute misleading and deceptive conduct – whether primary judge erred in failing to find misleading or deceptive conduct by the making of representations as to sale of sites as land – whether misleading or deceptive conduct in relation to assurances that caravan park could not be sold without shareholder approval and/or as to whether cabins were fixtures – whether adequate reasons CONSUMER PROTECTION – unconscionable conduct – where alleged unconscionable conduct was constituted by a “course of conduct” of disparate acts – alleged failure of primary judge properly to address the pleaded claim – adequacy of reasons CONSUMER PROTECTION – harassment or coercion – whether correspondence following sale of caravan park amounted to harassing or coercive conduct – where primary judge had found that no damage had resulted from the alleged misconduct

Catchwords:

CRIMINAL LAW - Bail - Where applicant charged with murder and refused bail - Where application made for review of bail determination - Whether exceptional circumstances justified grant of bail - Where Crown relied upon circumstantial case along with confessions made by applicant to an undercover operative - Where Crown case not properly described as weak - Exceptional circumstances not made out

Catchwords:

ADMINISTRATIVE LAW — Procedural fairness — Whether the adjudicator afforded parties procedural fairness under the Building and Construction Industry Security of Payment Act 1999 (NSW) — Where necessary provision of procedural fairness attenuated in the context of the statute — Need for a substantial departure from the general requirements of procedural fairness ADMINISTRATIVE LAW — Procedural fairness — Where conversion factor from weight to volume that was applied was not explained in terms by claimant — Where conversion factor was readily calculable — Where party is aware that some conversion factor was applied — Whether reliance made on contractual document which had not been foreshadowed was a denial of procedural fairness — Whether reliance on industry standards not provided by either party was a denial of procedural fairness — No substantial denial of procedural fairness constituting jurisdictional error

Catchwords:

APPEALS – employment and industrial law – work health and safety – time limit for SafeWork NSW to commence prosecution under s 232 Work Health and Safety Act 2011 (NSW) – whether proceedings commenced in time – when SafeWork NSW had notice of the offence in s 32 Work Health and Safety Act 2011 (NSW) – the meaning of the phrase “exposes an individual to a risk” in s 32(c) Work Health and Safety Act 2011 (NSW)

Catchwords:

SENTENCING — procedural fairness — where parties proceeded on basis that the applicant had made frank admissions to his own offending conduct in an ERISP — whether sentencing judge failed to provide an opportunity to the applicant to address adverse findings made about his responses in the ERISP SENTENCING — relevant factors on sentence — remorse and contrition — whether sentencing judge failed to consider the applicant’s early guilty plea and unchallenged evidence of remorse and contrition

Catchwords:

CRIME — appeals — appeal against conviction — alleged significant forensic disadvantage by reason of delay in prosecution — where applicant convicted of murder four decades after offending conduct — whether trial judge erred in failing to direct himself pursuant to s 165B of the Evidence Act 1995 (NSW) CRIME — appeals — appeal against conviction — application of proviso — whether trial judge’s erroneous use of lies as evincing a consciousness of guilt gave rise to a substantial miscarriage of justice — whether applicant’s guilt was proved beyond reasonable doubt on admissible evidence notwithstanding error CRIME — appeals — appeal against conviction — lies as evidence of consciousness of guilt — where Crown at trial identified five lies it intended to rely on for such purpose — whether trial judge erred in relying on other lies — whether trial judge’s reasons why lies supported a consciousness of guilt were inadequate — application of Edwards v The Queen (1993) 178 CLR 198 — use of lies in criminal proceedings CRIME — appeals — appeal against conviction — unreasonable verdict — whether verdict of guilty of murder following trial by judge alone was unreasonable — where Crown case was wholly circumstantial — whether hypothesis consistent with innocence was excluded beyond reasonable doubt