Recent decisions for Multiple courts

• Court of Appeal
• Court of Criminal Appeal

Catchwords:

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

Catchwords:

CRIME – appeals – appeal against sentence –appeal out of time – extension granted – significant volume of child abuse material – bestiality material – prohibited firearms – prohibited weapons – State and federal offences – whether error in accumulation of State aggregate sentence on federal aggregate sentence – whether State aggregate sentence manifestly excessive – special circumstances – recognizance release order SENTENCING – aggregate sentences – State and federal offences – cumulation – complexity – frustration and unnecessary public cost – punishment exacted should reflect what an offender has done – effect of other offences on appropriate penalty

Catchwords:

CRIME – appeals – appeal against sentence – where the applicant pleaded guilty to one count of intentionally causing grievous bodily harm at a super call-over – where the applicant struck the victim in the eye causing permanent damage – where the sentencing judge combined discounts under ss 22A and 25D of the Crimes (Sentencing Procedure) Act 1999 – whether the sentencing judge erred in rounding down the discount to even months – where the rounding down of the discount reduced the discount – where the sentencing judge was obliged to provide the stipulated discount in s 25D – ground of appeal upheld – where it was still necessary to resentence the applicant – error not an arithmetical or date error CRIME – appeals – appeal against sentence – objective seriousness – whether the sentencing judge erred in assessing objective seriousness – where the onus was on the applicant to show that a lack of planning should be a mitigating factor – where the offence was typified by jealousy – where there was a history of domestic violence – where the lack of planning was insignificant – ground rejected CRIME – appeals – appeal against sentence – where the applicant was diagnosed with PTSD and alcohol/substance abuse disorder – where submission made that applicant was not a suitable vehicle for general deterrence - where the sentencing judge did not engage with the effect of the mental health issues on deterrence – where the sentencing judge erred by not referencing general deterrence – ground upheld

Catchwords:

CRIME — Appeals — Appeal against conviction — Liberato direction — following altercation between two groups of men in two vehicles, one man was killed by a shotgun discharged by a man in the other vehicle — man who discharged shotgun gave evidence that shot was accidental — other aspects of his evidence implausible or incorrect — trial judge made reference in summing up to competing evidence — joint application for Liberato direction refused by trial judge — whether error in failing to give direction — whether proviso applicable

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

Crime – Appeals – Appeal against sentence of 48 years’ imprisonment – Application for leave to appeal – multiple child sexual offences – sexual offending against biological daughters – offending that is “heinous, depraved and appalling” – asserted failure of sentencing judge to take into account the applicant’s own history of child sexual abuse –asserted error in finding the applicant’s mental health issues increase the need for specific deterrence and protection of the community – manifest excess – appeal allowed – applicant resentenced

Catchwords:

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

Catchwords:

CRIME – appeal against sentence – child sexual assaults – whether additional evidence of sexual assaults against the applicant should be admitted – characterisation of the additional evidence as “fresh” or “new” evidence – evidence admitted – appeal allowed – applicant resentenced

Catchwords:

CRIME – appeals – appeal against sentence – alleged error in finding transgender applicant did not have difficult and dysfunctional early life and difficulties which wreaked havoc on her life – sentencing judge did not set criteria to be established prior to considering applicant’s transgender status – no miscarriage of justice or unfairness established by not finding facts which findings had not been sought

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

CRIME – Bail – show cause test – conspiracy to import a border controlled drug – aid and abet the attempted importation of a border controlled drug – AN0M devices – strength of prosecution case – longer delay – cause shown – unacceptable risk test – stringent conditions – bail granted

Catchwords:

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Offence of aggravated indecent assault – Where complainant accepted difficulties in memory and recall of events – Whether internal discrepancies and inconsistencies present in complainant’s evidence – Whether complainant’s memories of sexual intercourse and lack of consent reliable – Whether complainant credible – Strong corroboration of complainant’s evidence – Inconsistencies immaterial to credibility and reliability – Jury’s verdict reasonable – Leave to appeal granted – Appeal dismissed CRIME – Appeals – Appeal against conviction – Miscarriage of justice – Where complaint witness not called by Crown – Where trial judge did not give direction after brief enquiry from counsel – Where Crown opening indicated that witness would not be called – Whether Mahmood direction required – No expectation for Crown to call complaint witness – Complaint witness not essential or material – Absence of Mahmood direction to the benefit of the applicant’s submission to the jury – No requirement for Mahmood direction – No miscarriage of justice – Leave to appeal granted – Appeal dismissed

Catchwords:

CRIME – appeals – appeal against convictions – sexual offences – distinction between second and third limbs of s 6(1) of the Criminal Appeal Act 1912 (NSW) – wrong decision on any question of law – miscarriage of justice – leave to appeal granted – appeal allowed in part – convictions quashed – whether Court should enter verdicts of acquittal or order new trial – verdicts of acquittal entered – resentenced for pervert the course of justice offence CRIME – appeals – appeal against sentence – successful conviction appeal – aggregate sentence quashed – not necessary to determine sentence appeal EVIDENCE – admissibility – tendency – whether trial judge erred by admitting tendency evidence – whether miscarriage of justice occasioned – tendency to intentionally touch body of unconscious female – where tendency suffered from degree of generality – where Crown relied on significantly less serious conduct alleged by tendency witness to prove offence – where evidence did not directly support tendency – weighing of probative value against prejudicial effect EVIDENCE – tendency directions to jury – whether omission to direct jury occasioned miscarriage of justice – whether direction involved error – where jury directed to make anterior findings as to charged and uncharged conduct – standard of proof undermined – real risk jury deflected from fundamental task

Catchwords:

SENTENCING — appeal against sentence — general principles — instinctive synthesis — where sentencing judge failed to adopt the ‘instinctive synthesis’ approach to sentencing SENTENCING — appeal against sentence — where applicant sentenced in 2015 — extension of time to appeal — not opposed SENTENCING — relevant factors on sentence — objective seriousness — parity — hardship to applicant’s family SENTENCING — relevant factors on sentence — discount on sentence — plea of guilty — cooperation with law enforcement agencies in the investigation of the offence

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

CRIME – appeal against sentence – child sex offences – finding of special circumstances – grounds were age of offender, first period of imprisonment, mental condition and rehabilitation – adjustment to non-parole period from the statutory ratio refused because no need for extended period of rehabilitation – other grounds remained – error in not adjusting non-parole period – offender resentenced

Catchwords:

CRIME – appeals – appeal against conviction – where the applicant and co-accused were charged with murder – where the Crown case was that the deceased died because one or other or both of the applicant and co-accused injected the deceased with drugs – where jury initially directed that if deceased self-injected the applicant was not liable – where trial judge permitted Crown to broaden its case after jury sent out to deliberate – whether trial judge erred by permitting the jury to find the applicant guilty of manslaughter in circumstances of a self-killing – where jury redirected inconsistently with IL v The Queen - where there can be no liability for the applicant for manslaughter in accordance with IL – conviction and sentence quashed – new trial ordered

Catchwords:

CRIME – Appeals – appeal against sentence – sentencing for state and federal offences – whether the total effective sentence is manifestly excessive – consideration of manifest excess in the absence of comparative cases – totality – leave to appeal granted – appeal upheld – resentenced

Catchwords:

CRIME — appeals — appeal against conviction — unreasonable verdict — whether each or either verdict of guilty in relation to two counts of sexual intercourse without consent cannot be supported having regard to evidence CRIME — appeals — appeal against sentence — application for leave to appeal out of time — application not opposed CRIME — appeals — appeal against sentence —miscarriage of justice — whether discrepancies between the sentencing judge’s findings and evidence — where no objection taken at trial — whether errors of fact capable of influencing sentencing discretion — whether lesser sentence warranted in law

Catchwords:

CRIME – Appeals – Crown appeal – offences of dangerous driving occasioning grievous bodily harm and failing to stop and assist after vehicle impact occasioning grievous bodily harm – whether the sentencing judge took into account self-induced intoxication as a mitigating factor – whether the sentencing judge erred in his approach to imposing an ICO – manifest inadequacy – exercise of the residual discretion

Catchwords:

CRIME — appeal against sentence — whether error in applying discount for guilty pleas — whether error in failing to have regard to offender’s mental illness — whether additional evidence of historical sexual abuse should be admitted on appeal — no challenge to such evidence and its effect on offender’s later life — evidence admitted appeal allowed and offender resentenced

Catchwords:

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

Catchwords:

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

Catchwords:

CRIME – appeal against sentence – conviction for being accessory after the fact to murder – offender said to have acted out of “misguided sense of loyalty” to brother – lengthy criminal history – risk of institutionalisation – low objective gravity – manifest excess EVIDENCE – sentencing on basis of agreed facts – agreed facts in relation to sentencing of co-offender tendered on issue of parity – agreement in that case that brother shot victim not accepted as a fact – rules of evidence not applicable – no error in refusing to rely on facts agreed in other case except on parity

Catchwords:

CRIME – appeals – appeal against conviction –miscarriage of justice – jury directions – tendency directions – content of tendency directions and standard of proof – potential for impermissible circular reasoning by jury – on summing up viewed as a whole jury not deflected from proper task – no miscarriage of justice CRIME – appeals – appeal against sentence– aggregate sentence – obligation to indicate sentences that would have been imposed if aggregate sentence not imposed – indicative sentences where s 5 Crimes (Sentencing Procedure) Act threshold may not be crossed for offences in isolation – no error in indicating sentences of imprisonment for those offences in the circumstances CRIME – appeals – appeal against sentence– sentencing considerations – interaction of non-parole period and life expectancy of offender – where trial judge considered life expectancy in determining non-parole period but did not apply a mechanical formula – no error

Catchwords:

CRIME– appeals – appeal against conviction – directions to jury – tendency evidence – allegation that accused had sexual interest in complainant and tendency to act on it – whether directions were adequate – whether directions must have incorporated warning as to reliability of evidence sought to establish relevant tendency CRIME – appeals – appeal against conviction – directions to jury – tendency evidence – where tendency notice is expressed in the precise terms as the offending behaviour alleged by Crown – where jury directed to make findings in respect of charged conduct – whether jury were directed to consider the conduct ‘collectively to decide what conduct occurred’ to establish tendency – whether trial judge’s directions invited impermissible mode of reasoning – application of s 161A(3) of the Criminal Procedure Act 1986 – whether miscarriage of justice

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

CRIME – appeals – appeal against a special verdict of act proven but not criminally responsible – where trial judge considered accused presented unusually on complainant’s account of acts charged, on body worn police camera and in court – where accused expressly and repeatedly disavowed potential mental health defence – where both accused and Crown opposed to special verdict at trial – where accused gave evidence of historical brain injury – where no expert evidence about effect of any potential impairment on accused’s brain and cognitive functioning – where special verdict entered

Catchwords:

CRIME – appeals – appeal against sentence – armed robbery – where co-offender’s sentence successfully appealed – parity – where disparity between applicant and co-offender – whether justifiable sense of grievance – appeal dismissed

Catchwords:

CRIME – appeals – appeal against sentence – by Crown against inadequacy – where the respondent pleaded guilty to an offence of dangerous driving occasioning death – where the bus driven by the respondent collided with a kerb and continued forward in an area with school children – where the bus collided with a tree and struck a student before coming to a standstill – whether the sentencing judge erred in his assessment of objective seriousness – where there was no misapplication of principle – where a custodial sentence was appropriate – where the sentence imposed bears out the finding of objective seriousness CRIME – appeals – appeal against sentence – by Crown against inadequacy – whether the sentencing judge erred in finding that the respondent “mistakenly put her foot on the accelerator instead of the brake and grappled to no avail with the handbrake” – where CCTV footage and the respondent’s evidence meant the finding was open to the sentencing judge CRIME – appeals – appeal against sentence – by Crown against inadequacy – whether the sentence pronounced is manifestly inadequate – where the sentence fell within the range of sentences contemplated in the guideline judgment – where nothing suggested a sentence within the guideline judgment was not appropriate – where the offender did not have a high level of moral culpability – where the respondent’s subjective case was strong – where there was a finding of special circumstances – where it cannot be said that the sentence lies so far outside the range of appropriate sentences that there must have been an error – appeal dismissed

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

SENTENCING – Appeal against sentence – Severity – Sentence manifestly excessive – Relevant factors on sentence – Objective seriousness – Sentencing statistics – Aggravating factors – Where actual bodily harm is inflicted – Where the aggregate sentence falls within the discretionary range allowed to a sentencing Judge CRIMINAL PROCEDURE – Sentencing proceedings – Whether comparable cases are relevant in determining duration of imprisonment and non-parole period – Whether comparable sentences fix an outer limit for the imposition of rational sentences

Catchwords:

CRIME – meaning of the phrase “mental illness within the civil law of the State or Territory” in s 20BQ of the Crimes Act 1914 (Cth) – whether this is to be determined with reference only to the definition of "mental illness" in s 4 of the Mental Health Act 2007 (NSW)

Catchwords:

CRIME — fraud — dishonestly cause financial disadvantage by deception — directions as to elements of offence — whether a further mental element applies to financial disadvantage outcome element — where point not raised below CRIMINAL PROCEDURE — trial — judge alone — character evidence — whether sufficient consideration given to own directions about character evidence — impact of prior good character on likelihood of offending CRIMINAL PROCEDURE — trial — judge alone — witness evidence — warnings — unreliable evidence — whether trial judge had proper regard to own directions as to reliability of witnesses — where witnesses may have been involved or culpable in offending conduct CRIME — appeals — appeal against conviction — unreasonable verdict — whether crown proved elements of offence beyond reasonable doubt CRIME — appeals — appeal against conviction — miscarriage of justice — whether charged conduct described differently in indictment, crown case, and trial judge’s directions — whether applicant “submitted” falsified documents to bank — whether sufficient that applicant caused falsified documents to be submitted to bank CRIME — appeals — appeal against sentence — taking into account an irrelevant consideration — misapplication of principle — fraud — whether corollary deception and breach of trust relevant CRIME — appeals — appeal against sentence — misapplication of principle — specific deterrence — whether error in conclusion that specific deterrence not mitigated by prior good character and lack of subsequent offending

Catchwords:

CRIME – APPEALS – Crown appeal against sentence – persistent sexual abuse of a child – s 66EA of the Crimes Act – particularisation of individual incidents during the course of a sexually abusive “relationship” – where sentencing judge misapprehended that he had to be satisfied of each incident beyond reasonable doubt – resentencing where sentencing judge did not make an express finding as to reliability of a witness – remittal to sentencing judge

Catchwords:

CRIME – Appeals – Appeal against sentence – error by primary judge when backdating the commencement date of the sentence to the expiration of a non-parole period imposed for a separate sentence – whether error could be remedied by simple adjustment or whether the error required the court to re-exercise the sentencing discretion – whether error constituted a Kentwell error – principle of totality – re-sentencing required – Court not satisfied a lesser sentence warranted at law – sentence backdated to correct date of expiration of the non-parole period of the separate sentence

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

CRIME – Appeals – appeal against sentence – plea of guilty – willingness to facilitate the course of justice – failure to address submission – expert evidence re relevance of ADHD not challenged – denial of procedural fairness in rejecting expert evidence – challenge to finding of role in hierarchy – error established – applicant re-sentenced

Catchwords:

CRIME – appeal against convictions – judge only trial – dishonestly destroy property by fire – dishonestly obtaining financial advantage – dealing with proceeds of crime – applicant was convicted of destroying his own house by fire – applicant’s expert evidence not accepted – adverse credibility findings against applicant CRIME – appeal against convictions – incompetence of counsel – whether counsel unprepared and failed to obtain critical evidence – refusal to waive privilege CRIME – appeal against convictions – further expert evidence – motion to tender new evidence – whether applicant’s new evidence available at time of trial – application refused

Catchwords:

CRIME – appeals – appeal against sentence – whether there was a failure to consider hardship of incarceration – whether sentence manifestly excessive

Catchwords:

CRIME – appeals – appeal against conviction – whether miscarriage of justice occasioned as applicant could not in law have been convicted of the common law offence of escaping from lawful custody – whether common law offence of escaping is a continuing offence – where applicant was in the process of escaping from police – whether there is a temporal limitation to the offence – whether R v Tommy Ryan should no longer be followed CRIME – appeals – appeal against sentence – whether error in commencement date of aggregate sentence CRIME – appeals – appeal against sentence – whether incorrect maximum penalty applied for driving whilst disqualified offences – where maximum penalty of the offences was reduced following amendments made to the Road Transport Act 2013 (NSW) in 2017 – where error conceded CRIME – appeals – appeal against sentence – whether leave should be granted to advance further ground of appeal – whether error in the judge finding that applicant was not sexually abused in juvenile detention – where fresh and new evidence on appeal of applicant’s sexual abuse – where absence of that material during sentencing proceedings deprived the judge of fully appreciating and considering applicant’s sexual abuse – whether miscarriage of justice

Catchwords:

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

Catchwords:

CRIME – appeals – appeal against sentence – where the applicant pleaded guilty to one count of sexual intercourse without consent – where the offence was aggravated by its occurrence in the victim’s home – where the sentencing judge incorrectly concluded that the applicant was on bail for other offences – re-sentence – whether a lesser sentence is warranted – where applicant comes from a deprived background – where applicant has low level cognitive intellectual capacity – where the applicant failed to express remorse – where prospects of rehabilitation are guarded – where there was a finding of special circumstances – where the original sentence was lenient – no lesser sentence imposed – appeal dismissed

Catchwords:

CRIME – Appeals – appeal against sentence – multiple prohibited drugs and firearms offences – aggregate sentence – manifest excess – totality

Catchwords:

CRIME – appeals – appeal against sentence – manifest excess – where the applicant was sentenced for 2 counts of supplying not less than a large commercial quantity of lysergide (LSD) – whether sentence was unreasonable or plainly unjust

Catchwords:

CRIME — appeals — appeal against conviction — application for leave to appeal — where applicant convicted of 3 sexual offences under authority — where application for complainant to give further evidence by way of cross-examination pursuant to s 306J of the Criminal Procedure Act 1986 (NSW) refused by trial judge — where further evidence only relevant to credibility of complainant — whether further cross-examination of complainant “could substantially affect the assessment of the witness” (s 103(1) Evidence Act 1995 (NSW)) CRIME — meaning of “good character” — positive (good works) and negative aspects (absence of prior convictions or lack of history of criminal or blameworthy conduct) — depends on context SENTENCING — appeals — appeal against sentence — application for leave to appeal — mitigating factors — good character — where applicant had prior criminal history but no convictions — where trial judge ruled applicant not entitled to leniency on sentence otherwise available to person of good character because of criminal history

Catchwords:

CRIME — Appeals — Appeal against sentence — Manifest excess — whether failure to apply correct principle with respect to the quantification of a discount for the applicant’s pleas of guilty — s 16A(2)(f) of the Crimes Act 1914 (Cth) — contrition involving facilitation of the course of justice — no lesser sentence warranted

Catchwords:

CRIME – Appeal – appeal against sentence – error in having regard to Form 1 in assessment of objective seriousness for principal offences – where error conceded - resentence

Catchwords:

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

Catchwords:

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

Catchwords:

CRIME – appeals – appeal against sentence – assistance to authorities – discount under s 23 Crimes (Sentencing Procedure) Act 1999 (NSW) – where the sentencing judge failed to consider the applicant’s assistance to authorities while on remand – negligible connection between the applicant’s offences and the offending in respect of which the applicant is said to have provided assistance – exercise of discretion to decline to provide a discount on re-sentence

Catchwords:

COSTS – leave to appeal – no question of principle

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

CRIME – appeals – appeal against conviction – judge alone trial - where the applicant was convicted of 11 counts of sexual intercourse with a child and 1 one count of indecent assault – whether the applicant did not have a trial according to law due to the trial judge reversing the evidentiary and persuasive burdens of proof – where the judgment was effectively an ex tempore judgment – where the posing of rhetorical questions did not insinuate that there was an onus on the applicant – where the trial judge clearly stated the correct principles regarding onus and burden of proof – ground of appeal rejected CRIME – appeals – appeal against conviction – whether the trial judge erred by failing to expose his reasoning linking the relevant legal principles to the findings – where applicant highlighted four areas where directions were not given or were said to be inadequate – where the trial judge’s reasons made clear that reliance on an alibi does not shift the burden of proof – where the trial judge was not obliged to direct himself how character evidence was to be used – where a Liberato direction was not required – where no occasion arose to apply the Markuleski direction because complainant’s evidence not found unreliable on any count – ground of appeal rejected – appeal dismissed

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

CRIME – appeals – appeals against sentence – one count of dishonestly obtain by deception a financial advantage – where applicant is self-represented – where applicant has raised eight grounds of appeal – alleged error in the backdating of sentence to account for pre-sentence custody – alleged errors in weight afforded to various factual matters – no error by sentencing judge established – leave to appeal granted – appeal dismissed

Catchwords:

CRIME – appeals – appeal against conviction – whether unreasonable verdict – where the accused was found guilty of manslaughter – where the deceased was found tied up upside down partially submerged in water in a wheelie bin – where the autopsy could not determine the cause or manner of death - where the jury were told they had to exclude any independent causes of death before returning a verdict of guilty – where the tendency evidence of violence by applicant towards deceased was very strong – where admissions made to two witnesses -where the forensic evidence included the applicant’s DNA and fingerprints at the crime scene - where there was limited evidence pointing to any motive or opportunity for other suspects – where it was not a reasonable possibility that the deceased died of a drug overdose – where evidence supported the conclusion that the applicant caused the deceased’s death – where no unanimity direction was required as to which act caused death – evidence supported the jury’s verdict of guilty

Catchwords:

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

Catchwords:

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

Catchwords:

EVIDENCE – Hearsay – exceptions – admission – where hearsay evidence of representations by third parties in the absence of the applicant was admitted against the applicant under s 87(1)(c) of the Evidence Act 1995 (NSW) – where the applicant objected to most of this evidence being admissible against him – whether error in admitting evidence pursuant to s 87(1)(c) of the Evidence Act CRIME – Appeals – appeal against conviction – miscarriage of justice – application of proviso APPEALS – From jury verdict – misdirection or non-direction – whether the trial judge failed to direct adequately – whether the trial judge erred in his Honour’s directions as to the use which could properly be made of representations made in the absence of the applicant and admitted pursuant to s 87(1)(c) of the Evidence Act CRIME – Appeals – appeal against conviction – unreasonable verdict

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:

STATUTORY INTERPRETATION – Drug Misuse and Trafficking Act 1985 (NSW), s 25 – supply of a large commercial quantity of a prohibited drug – level of knowledge required to establish charge under s 25(2) CRIMINAL LAW – appeal against conviction – where applicant convicted of supply of a large commercial quantity of a prohibited drug – applicant convicted of supply of fentanyl – where applicant gave evidence of mistaken belief as to the particular prohibited drug in his possession – whether applicant had requisite mental knowledge with regard to quantity of prohibited drug CRIMINAL LAW – appeal against sentence – supply of a prohibited drug – whether sentencing judge erred in assessment of objective seriousness of offending – where sentence appeal was previously abandoned and subsequently raised without leave

Catchwords:

APPEALS — Procedure — Stay pending appeal

Catchwords:

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

Catchwords:

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

Catchwords:

CRIME – appeal against interlocutory order – Crown appeal under s 5F Criminal Appeal Act 1912 (NSW) – offence of attempting to possess a marketable quantity of an unlawfully imported border control drug – preliminary question of jurisdiction – whether exclusion of evidence “substantially weakens” Crown case – evidence excluded by trial judge as tendency evidence – where Crown does not rely upon evidence as tendency evidence - whether evidence goes to the respondent’s state of mind – whether evidence relevant for other uses – evidence available to rebut defence case – question of unfair prejudice – capacity for directions to cure unfairness

Catchwords:

CRIMINAL APPEAL – unreasonable verdict – circumstantial case – correct approach to review on appeal – armed robbery of private poker game – Texas Hold’em – whether trial judge erred in refusing to direct acquittal – relevance of trial judge’s “inclination” expressed in argument that prosecution case not strong – joint criminal enterprise – where applicant alleged to be “inside man” – participation in card game a ruse – evidence that applicant entered the building with robber – Honda Jazz – analysis of prosecution’s case on appeal – forensic evidence and timing of events – erroneous piecemeal approach to circumstantial evidence – unwarranted criticism of concessions made by trial counsel – whether inferences consistent with non-participation excluded beyond reasonable doubt CRIMINAL LAW – “in company” – joint criminal enterprise – proper direction to jury – where no objection to directions at trial – where directions fashioned to issues litigated at trial – sole issue whether applicant joined and participated in joint criminal enterprise – where enterprise alleged was to commit armed robbery in company – no error in circumstances of the case – leave granted but ground not sustained CRIMINAL LAW – requirements of summing up – whether trial judge failed to explain elements and legal principles – whether trial judge failed to summarise cases of the parties – no complaint at trial – no substance in ground of appeal – leave to rely on ground refused

Catchwords:

Crime – appeals – appeal against sentence – manifest excess

Catchwords:

CRIME – Appeals – appeal against conviction – sexual intercourse with a child – whether Crown case implied a lack of past sexual experience or activity of the complainant – whether exclusion of evidence relating to child’s sexual experience under s 293 of the Criminal Procedure Act resulted in a miscarriage of justice – whether failure to permanently stay the trial resulted in a miscarriage of justice – whether convictions unreasonable having regard to significant change between complainant’s allegations in JIRT interviews and pre-recorded evidence – appeal allowed – conviction on counts 1 and 4 quashed

Catchwords:

CRIME — appeals — appeal against conviction — inconsistent verdicts — where applicant convicted of 11 sexual offences against two children — where applicant was acquitted of one count charged — whether there was rational explanation for the acquittal — where complainant’s evidence of acquitted count was uncertain compared to her evidence of other counts CRIME — appeals — appeal against conviction — unreasonable verdict — where applicant convicted of 11 sexual offences against two children — whether alleged implausibility of complainants’ versions (because the conduct was so brazen) resulted in an unreasonable verdict — where offending conduct was committed in plain sight or when others were nearby — whether disparities between complainants’ versions and evidence of complaint witnesses resulted in unreasonable verdict CRIME — appeals — appeal against conviction — miscarriage of justice — application of proviso — where applicant convicted of sexual intercourse without consent contrary to s 61D(1) of the Crimes Act 1900 (NSW) — where complainant was under 16 years old — where Crown was required to prove the complainant did not consent to sexual intercourse — where trial judge misdirected jury as to consent element of offence — where defence counsel agreed to direction as given — whether misdirection resulted in substantial miscarriage of justice — whether proviso ought be applied

Catchwords:

CRIMINAL LAW – sentence appeal – sexual intercourse with a child aged between 14 and 16 years – whether trial judge erred by making findings of fact concerning counts on which the jury returned not guilty verdicts – whether trial judge erred in failing to find that offender’s alcohol abuse and post traumatic stress disorder reduced moral culpability – whether aggregate sentence manifestly excessive – manifest excess established – appeal allowed – sentence reduced on re-sentence

Catchwords:

CRIME – appeals – appeals against sentence – disparity between sentences –– whether justifiable sense of grievance by reason of sentence imposed on co-offender – ground not made out

Catchwords:

CRIME – Bail – bail pending appeal – attempt to reopen the Court’s dismissal of application – no question of principle

Catchwords:

CRIME — Appeals — Appeal against sentence — Juvenile offender — Mental health — Moral culpability — General deterrence — Bugmy v The Queen — Youth — Where applicant subject to conditional liberty at time of offence — Manifest excess

Catchwords:

CRIMINAL LAW – bail – application to vary bail by deleting all bail conditions – where bail was granted in the Supreme Court and subsequently varied in the Local Court – Court had jurisdiction to hear the application where the bail decision in the Supreme Court remained operative – application determined on merits

Catchwords:

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

Catchwords:

CRIME – appeal against aggregate sentence – steal from the person and fraud offences – sentencing judge erred in considering conditional liberty in assessment of objective seriousness – submission made on resentencing that conflicted with concession in court below – applicant held to concession – no lesser sentence warranted

Catchwords:

CRIME – Appeals – aggravated enter dwelling with intent – steal property from dwelling house – larceny – whether there was a miscarriage of justice arising from the failure of the applicant’s legal representatives to place important evidence relevant to the applicant’s subjective case – respondent’s concession that it is open to the Court to find the ground of appeal established – the absence of the material deprived the sentencing judge of a full consideration of the applicant’s circumstances – miscarriage of justice established – ground upheld – resentence

Catchwords:

CRIMINAL LAW — Appeals — Crown appeal against sentence — Manifest inadequacy — Aggregate sentence — Totality — Aggregate sentence not reflecting the totality of the criminality — Appeal dismissed.

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

SENTENCING — appeal against sentence —arithmetical error by sentencing judge when calculating commencement date SENTENCING — appeal against sentence —discretion of sentencing judge to direct sentence to commence from date prior to that upon which it is imposed — whether sentencing judge erred in their exercise of this discretion — whether sentencing judge failed to take into account all of the applicant’s pre-sentence custody pursuant to s 24 of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Catchwords:

CRIMINAL PROCEDURE – Costs – Costs in Criminal Cases Act 1967 (NSW) – Whether it would not have been reasonable for the Crown to institute proceedings if the prosecution had been in possession of evidence of all the relevant facts.

Catchwords:

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

Catchwords:

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

Catchwords:

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Child sex offences – Where offending occurred over a period of four months – Whether complainant’s lack of credibility and inconsistencies in evidence were such that jury should have had reasonable doubt as to applicant’s guilt – Appeal allowed CRIME – Appeals – Appeal against conviction – Inconsistent verdicts – Where logical basis to find applicant not guilty on counts where date essential element – Where no logical basis to distinguish other verdicts – Appeal allowed

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

CRIME — appeal against sentence — manifest inadequacy — where offender convicted of 12 counts of child sex offences which occurred over a period of 15 years against four child victims — where the offending involved a significant age disparity, skin-on-skin contact with the genitals, sexual intercourse, planning, use of a position of trust, persistence, and escalation in seriousness over time — where the offender’s subjective case focused on his good character, experience in custody, and mental health history — whether the indicative sentences and non-parole periods failed to reflect the objective seriousness of the offending CRIME — appeal against sentence — residual discretion — relevance of the offender’s experiences in custody — whether maintenance of public confidence in the administration of justice required re-sentencing

Catchwords:

CRIME - sentencing - aggregate sentences - parity - where sentence imposed on co-offender very lenient and (by majority) erroneously so - application of principles stated in R v Green; R v Quinn

Catchwords:

SENTENCING – objective seriousness – whether judge erred in finding that offender was a “trusted middle-man” in a hierarchy in the absence of details of the hierarchy – sentencing judge’s finding open on evidence SENTENCING – whether aggregate sentence manifestly excessive – whether indicative sentences were individually excessive leading to the aggregate sentence being manifestly excessive – indicative sentences not individually excessive – aggregate sentence reflected totality of criminality involved and was not unreasonable or plainly unjust – aggregate sentence not manifestly excessive

Catchwords:

CRIMES – appeals – appeal against conviction – trial not according to law – majority verdict – failure to examine juror under oath on the likelihood of reaching a unanimous verdict pursuant to s 55F(2)(b) Jury Act 1977 (NSW) – appeal allowed

Catchwords:

CRIME – Appeals – Appeal against conviction – Incompetence of counsel – Where applicant charged with single count of sexual intercourse without consent – Where sole issue in trial was whether the sexual intercourse was consensual – Where applicant’s trial counsel consented to the admission of inadmissible evidence contained within the body worn videos of police and ERISP – Unfair prejudice to the applicant through admission of evidence contained in body worn video established – Slight forensic advantage to the applicant outweighed by significant forensic disadvantage – Miscarriage of justice established – Conviction and sentence quashed

Catchwords:

CRIME — appeals — appeal against sentence — by Crown against inadequacy — two unrelated sets of offences — where no patent error in sentencing remarks — indicative sentences did not reflect objective seriousness — accumulation of sentences — aggregate sentence manifestly inadequate — respondent re-sentenced

Catchwords:

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

Catchwords:

CRIME – application for leave to appeal against sentence – appeal against sentence – casting upon a person an explosive substance, namely petrol, with intent to burn, maim, disfigure or disable the person – whether sentence manifestly excessive – ground not made out – appeal dismissed

Catchwords:

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

Catchwords:

CRIME – bail – bail pending conviction appeal – unrepresented applicant – where Court heard full argument on application for leave to appeal prior to application for bail – not a course routinely taken – whether the applicant has established special or exceptional circumstances – length of sentence – prospects of success on appeal – personal circumstances – health concerns – particular concerns with respect to the applicant’s children and grandchild – personal circumstances weighed against all matters – application refused

Catchwords:

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

Catchwords:

CRIME — appeals — appeal against conviction — miscarriage of justice — where trial judge allowed witness to refresh memory in court in the absence of jury — where witness was in custody prior to hearing and did not have opportunity to read his statement — where applicant’s counsel did not oppose this course — whether this process was so irregular that it constituted a miscarriage of justice — whether witness was pressured to give evidence in accordance with his prior statements — whether applicant was prejudiced — whether outcome of trial was capable of being affected CRIME — appeals — appeal against sentence — error in commencement date — commencement date backdated to reflect all of applicant’s time in custody

Catchwords:

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

Catchwords:

CRIMINAL LAW – SENTENCE APPEAL – Commonwealth offence – mandatory requirement to take into account prospects of rehabilitation – Crown concession error established – Kentwell error – appeal allowed – resentence – mid-range objective seriousness – subjective value of guilty plea – moderate prospects of rehabilitation.

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – two counts of sexual offences – where applicant found guilty on one count and acquitted on the other – whether on all of the evidence it was open to the jury to be satisfied of the applicant’s guilt beyond reasonable doubt – discrepancies and inconsistencies in complainant’s evidence – appeal allowed – conviction quashed.

Catchwords:

CRIME – Bail – bail pending appeal – where previous appeal bail applications refused by Court of Criminal Appeal – Bail Act 2013 (NSW) – ss 22 and 74 – whether change in circumstances since previous application – unrepresented applicant – strength of the proposed grounds of appeal – capacity to prepare appeal in custody – conditions in custody – whether the applicant has established special or exceptional circumstances – application dismissed

Catchwords:

CRIME — Appeals — Appeal against sentence — Where sentencing judge took into account applicant’s juvenile criminal record — Where sentencing judge erroneously took into account unproved allegations — Bugmy v The Queen

Catchwords:

CRIME — Appeals — Application for leave to appeal against convictions — Unreasonable verdict — Child sexual assault offences

Catchwords:

CRIMINAL PROCEDURE — intensive correction order for federal offender in NSW – Application of Crimes Act 1914 (Cth) STATUTORY CONSTRUCTION — whether in considering making intensive correction order for federal offender in NSW a court is required to apply s 16A of Crimes Act 1914 (Cth) or s 66 Crimes (Sentencing Procedure) Act 1999 (NSW) SENTENCE — gravity of offending — no lesser sentence warranted

Catchwords:

CIVIL PROCEDURE — Court of Appeal — application for pro bono referral — where no appearance by applicant

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:

COSTS – security for costs – release of security following successful appeal – whether security should be continued pending potential application for special leave – no application made within time – security released

Catchwords:

CIVIL PROCEDURE – appeal – purported appeal from District Court judgment on appeal from Local Court – no right of appeal – whether proceedings should be treated as seeking judicial review – no grounds to support reasonably arguable case for review – summons dismissed CIVIL PROCEDURE – appeal – costs – incompetent appeal – no notice of motion filed by respondent objecting to competency – no order as to costs

Catchwords:

CIVIL PROCEDURE – appeal – application for order for determination of issue by way of a separate question – application by respondent – grounds to be resisted – strength of appellants’ case not conceded – likelihood that other grounds will need to be addressed – separation likely to be neither efficient nor cost-effective

Catchwords:

CIVIL PROCEDURE – appeal – application for costs capping order – need to show reason to anticipate disruptive or obstructive conduct by other party – insufficient to seek to protection from reasonable costs of other party to unsuccessful appeal CIVIL PROCEDURE – appeal – requirements for leave – challenge to interlocutory orders and costs orders – challenge to orders in working out of final judgment interlocutory

Catchwords:

CRIME — Application for leave to appeal against convictions — Unreasonable verdicts — Black direction — Markuleski direction

Catchwords:

CRIME – appeals – appeal against conviction – miscarriage of justice – s 165(1)(d) of the Evidence Act 1995 (NSW) – where the Applicant contended that the Crown did not exclude the reasonable possibility his brother had committed the attack on the victim – whether the evidence of the Applicant’s brother was “evidence of a kind that may be unreliable” in the sense that it was given by a witness “who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding” CRIME – appeals – appeal against conviction – unreasonable verdict – whether there was a reasonable possibility that a person other than the Applicant was responsible for the attack on the victim – where the DNA of the Applicant, the victim and a third person found on nunchucks used in the attack which were located in the Applicant’s room – where the Crown case relied on a large body of circumstantial evidence CRIME – appeals – appeal against sentence – manifest excess – whether sentence was unreasonably or plainly unjust

Catchwords:

CRIME – appeal against sentence – aggregate sentence – sexual offending with minor – producing child abuse material – findings as to objective seriousness – whether sufficiently identified – whether sentence manifestly excessive

Catchwords:

ADMINISTRATIVE LAW — bias rule — actual or apprehended — apprehended bias — where bias alleged by reference to reasons for judgment — sole reliance on reasons inverts proper inquiry — transcript did not disclose bias ADMINISTRATIVE LAW — procedural unfairness — where applicant alleged denial of adjournment to obtain evidence — where primary judge informed applicant of relevant procedure — no application for adjournment made by applicant — procedural fairness did not require primary judge to independently adjourn hearing

Catchwords:

BAIL – application to vary conditions of bail granted by Court of Criminal Appeal – self-represented litigant – application to dispense with bail – submissions inviting the court to review the applicant’s original conviction – court lacking in jurisdiction – applicantion to bring to an end all extant prosecutions for breaches of child protection register – court lacking such broad reaching power – application to dispense with bail rejected BAIL – where Court of Criminal Appeal granted bail on conditions – where Local Court judge added a condition later that the applicant report to police each week – condition added days after this court settled on conditions – no explanation for Local Court’s decision to impose more onerous condition – statutory requirements as to conditions – necessary and appropriate – proportionate to circumstances of offence – reporting condition deleted

Catchwords:

APPEALS — leave to appeal — decision involving a matter of practice and procedure — orders setting aside subpoena and Notice to Produce served by the applicant — where applicant has failed to identify a principle of general application or a question of public importance or any substantial injustice — where leave to appeal is refused

Catchwords:

COSTS – Party/Party – exceptions to general rule that costs follow the event – whether issues based costs orders should be made

Catchwords:

CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Manifest excess — Whether sentence plainly unjust in all the circumstances of the case

Catchwords:

JUDGMENTS AND ORDERS – Appeal raising issue materially indistinguishable from co-accused’s earlier appeal – No compelling reason shown for departure from the earlier decision APPEALS – Procedure – Time limits – Delays not to be held against applicants in the circumstances

Catchwords:

PROFESSIONS AND TRADES — health care professional — psychologist — complaints referred to NCAT constituted by legally-qualified member, two psychologists and one lay member — “Stage 1” hearing found complaints of unsatisfactory professional conduct and professional conduct established — prior to “Stage 2” hearing, one psychologist member advised she was unable to participate further — Deputy President ordered inquiry to continue and determination made by the remaining three members — respondent appealed — whether s 165C of National Law empowered such an order — whether “inquiry” had completed for purposes of s 165C — whether if order not authorised by s 165C findings of unsatisfactory professional conduct and professional misconduct should be set aside

Catchwords:

STATUTORY INTERPRETATION – definitions – Child Protection (Offenders Registration) Act 2000 (NSW), ss 3 and 3A – “sentence” – where s 3A(1) provides that a person sentenced in respect of a “registrable offence” is a “registrable person” – where appellant convicted of an offence under Criminal Code (Cth) which constituted a “registrable offence” – where conditional release order made under s 20(1)(a) of Crimes Act 1914 (Cth) – whether that order was a “sentence” so as to render appellant a “registrable person”

Catchwords:

CRIMINAL LAW – Practice and procedure – Where applicant and co-accused jointly indicted for two counts of robbery in company – Where the evidence relied upon by the Crown against each of them essentially the same but for two telephone conversations between the co-accused and a witness – Where co-accused made admissions during those conversations – Where neither the co-accused or the witness implicated the applicant in the offending or made any reference to him – Where the applicant’s application for a separate trial was refused by the trial judge – Whether trial judge erred in the exercise of his discretion in refusing the application for a separate trial – No specific prejudice to the applicant by virtue of the admission of the conversations in a joint trial – Where jury would be directed not to have regard to those conversations when considering the case against the applicant – Appeal against the decision of the trial judge dismissed

Catchwords:

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

Catchwords:

NEGLIGENCE – causation – where appellant slipped on steps in respondent’s factory – where changes to case as pleaded and at trial – where cause of slip alleged to be either potato debris on steps or slipperiness of steps when wet due to wear and tear – whether primary judge erred in failing to be satisfied that appellant had established cause of slip

Catchwords:

CRIME – appeals – appeal against sentence – denial of procedural fairness – whether sentencing judge rejected applicant’s evidence of childhood abuse – whether any indication was given to applicant that issue was to be taken CRIME – appeals – appeal against sentence – denial of procedural fairness – where sentencing judge rejected applicant’s evidence in psychological report CRIME – appeals – appeal against sentence – re-sentence

Catchwords:

CONTRACTS – Interpretation – no question of principle – where right of rescission engaged if Environmental Report “indicates that the property does not fall within the NSW Environment Protection Authority guidelines in relation to the contamination levels in, on or under the property and which permits the property to be used as a Service Station” – whether necessary to engage right of rescission that there be indication in Environmental Report that land could not be used as a service station

Catchwords:

COURTS AND JUDGES – Supreme Court – Jurisdiction – Whether Supreme Court lacked jurisdiction to make declaration that condition of by-law unjust – Where statute conferred function of finding condition unjust on NSW Civil and Administrative Tribunal LAND LAW – Strata title – By-laws – Whether condition of by-law that exclusive use rights cease unless obligations complied with unjust – Whether condition harsh, oppressive or unconscionable – Whether respondents liable in damages under by-law for failure to comply with obligations under by-law – Whether respondents liable for reasonable costs and expenses incurred in recovering outstanding levies – Whether respondents liable for costs and expenses incurred in claiming damages under by-law

Catchwords:

CRIME — Appeals — Application for leave to appeal against sentence — Assault offence in custody by young offender — Previous sentence being served — Failure to provide reasons — Totality — Manifest excess — No point of principle

Catchwords:

JUDGMENTS AND ORDERS – gross costs order – stay of orders

Catchwords:

JUDGMENTS AND ORDERS – application to set aside orders under r 36.17 of the Uniform Civil Procedure Rules 2005 (NSW) – the slip rule – no basis established to set aside orders

Catchwords:

LEGAL PRACTITIONERS — Disciplinary proceedings — misappropriation of trust money — practitioners convicted of offences under s 192E(1)(b) of the Crimes Act 1900 (NSW) —declarations that practitioners not fit and proper persons to remain on the Roll of Australian Lawyers – practitioners’ names removed from roll

Catchwords:

CRIME – Appeals – interlocutory appeal – decision to refuse a permanent stay – whether the primary judge made interlocutory orders about the availability of defences – difference between indicative rulings and interlocutory orders – criteria for leave to appeal from interlocutory decision in criminal proceedings – whether there was an error of principle and possibility a likelihood of substantial injustice – leave to appeal refused

Catchwords:

CONTRACTS — Construction — parties agreed to restructure ownership of family business — parties intended to negotiate a longer form agreement — where agreement outlines how shares of the business may be sold — where applicants argues there is a right to buy out other owners — whether the terms of the agreement properly construed confer on the applicants a right to purchase — whether every term of a legally binding agreement must be capable of enforcement

Catchwords:

CRIME – Appeal against sentence – One count of cause grievous bodily harm with intent to cause grievous bodily harm – Whether sentencing judge failed to give legally sufficient reasons for declining to find that the applicant’s mental health conditions contributed to the offending – Where opinion of forensic psychologist is based upon facts favourable to the applicant not found by the sentencing judge – Whether sentencing judge erred in failing to find that the applicant was provoked and/or whether she provided legally sufficient reasons – Whether sentencing judge made “material factual error” – No error by sentencing judge established – Leave to appeal granted – Appeal dismissed

Catchwords:

JUDGMENTS AND ORDERS – Appeal raising issue materially indistinguishable from co-accused’s earlier appeal – Principles as to whether to depart from previous decision of this Court – Whether established “plainly wrong” threshold applies – Principle of equality before the law requires that differently constituted bench of the same court should follow the earlier decision unless compelling reason to depart APPEALS – Procedure – Time limits – Significant delay – Extension of time granted given reasonable explanations and merit in appeal

Catchwords:

COSTS – appeal costs – appellant partly successful – Calderbank offer of compromise by appellant – amount of offer substantial – whether reasonable compromise – whether offer unreasonably rejected COSTS – appeal costs – appellant partly successful – application by respondent to apportion costs – whether issue on which respondent succeeded dominant or separable – reduction to apply to portion of costs incurred before rejected offer of compromise COSTS – costs of trial where result varied on appeal – plaintiff (respondent on appeal) partly successful – extent to which conduct of defendant unreasonable – disentangling separable issues

Catchwords:

CIVIL PROCEDURE – application to strike out notice of appeal – parties self-represented – contents of notice of appeal – application to lift stay – application to lift stay in part

Catchwords:

PRACTICE AND PROCEDURE – Summary dismissal – Whether the plaintiffs’ claims for breach of statutory duty should not have been summarily dismissed – Where availability of action was a pure question of law involving no questions of fact and admitting of only one correct answer – Whether, in circumstances of particular case, there was utility in determining issue on a summary basis PRIVATE INTERNATIONAL LAW – Stay of proceedings – Exclusive jurisdiction clause – Where jurisdiction clause was elliptical in that its scope or extent was not spelt out – Where not all parties to proceedings bound by clause – Whether stay should still be granted – “Non-parties” and non-parties –Whether strong reasons not to give effect to exclusive jurisdiction clause through a stay of proceedings TORTS – Breach of statutory duty – Entertainment Industry Act 2013 (NSW), s 11 – Whether the legislature intended to create a private cause of action for breach of statutory duty – Where statute provided a range of remedies – No intention to create a private cause of action – Summary dismissal of claims for breach of statutory duty

Catchwords:

PRACTICE AND PROCEDURE – appeals –application to vacate hearing date – trial counsel briefed on appeal – dates fixed to suit applicants’ counsel – change of solicitors – dissatisfaction with legal representatives arose six months before change – delay unexplained – counsel unavailable – counsels’ obligation to appear if funds provided – unavailability likely due to parties not providing funds – earlier dates vacated where counsel available but not solicitor – loss of counsel no justification for vacation of dates

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:

APPEALS — leave to appeal — interlocutory orders setting substantive matter down for hearing — whether applicants have identified a principle of general application or a question of public importance or any substantial injustice — where leave to appeal denied

Catchwords:

CRIME – appeal against sentence – aggregate sentence – whether causal link between mental condition and offending – whether sentence manifestly excessive

Catchwords:

CRIMINIAL LAW – sentence appeal – sexual assault – Crimes Act s 61I – knowledge that victim does not consent to sexual activity – recklessness – whether error by sentencing judge in finding that the recklessness was to at least a moderate degree and objective seriousness of the offence fell below the mid-range but not at the bottom of the range – whether error by sentencing judge in not finding that a non-custodial sentence was available due to the offender’s idiosyncratic circumstances

Catchwords:

CRIMINAL APPEAL – miscarriage of justice – where evidence adduced concerning an allegation of which the applicant was found not guilty in a previous trial –where prosecutor not at fault – where police officer informed in conference not to refer to allegation – incontrovertibility of acquittal – immediate application for discharge of the jury – initial responses of those in the courtroom – whether judicial directions cured prejudice – short trial – whether proviso should be applied – case of word against word involving questions of credibility

Catchwords:

CRIME – exercise of summary jurisdiction – nature of appeal – Criminal Appeal Act 1912 (NSW), s 5AA – appeal “in the strict sense” – finding of error necessary for appellate intervention EMPLOYMENT and INDUSTRIAL LAW – scope of health and safety duty – risk assessment – adequacy of safe work procedures – adequacy of information, training and instruction – whether steps not taken were reasonably practicable – worker on livestock feed-lot – stacking of hay bales – moisture testing in vicinity of partly constructed stack – risk of injury from falling bale CRIME – penalty by way of fine – summary criminal proceedings – prosecution by agency of State – prosecutor not police officer – award of moiety of fine to prosecutor

Catchwords:

CRIMINAL LAW – appeal – sentence – aggregate sentence – principles concerning aggregate sentencing – ground concerning degree of accumulation between indicative sentences not supportable – whether error in dealing with aggravating circumstance – whether sentence manifestly excessive

Catchwords:

CONTRACTS — Oral contract — Where oral agreement admitted but characterisation of agreement disputed — Whether monies transferred as loan or equity investment — Where both parties’ accounts of conversation found unreliable — Whether actual persuasion as to words said giving rise to oral contract required — Where inferences drawn from contemporaneous documents, objective facts and surrounding circumstances — Where findings expressing conclusions on the evidence — Whether plaintiff satisfied burden of proof

Catchwords:

APPEALS — leave to appeal — where defence struck out for abuse of process without leave to replead — whether injustice in preventing applicants from raising defence — where applicant focus on merits — failure to challenge correctness of finding of abuse of process — failure to establish arguable error in exercise of discretion to refuse leave to replead

Catchwords:

CRIME – appeal – appeal against conviction – unreasonable verdict – single driving incident that resulted in a series of collisions that caused injury and death – driving in a manner dangerous – misconduct by driving – failure to stop and render assistance – where applicant’s vehicle did not come into contact with another vehicle – where evidence that other drivers avoided the applicant – whether the applicant was “involved in an impact occasioning death” within the meaning of s 52A(6) Crimes Act 1900 (NSW) – whether verdicts open on the evidence CRIME – appeal – appeal against conviction – inconsistent verdicts – acquittal on one count of misconduct by driving pursuant to s 53 Crimes Act 1900 (NSW) – inability to reach verdict on a separate count of misconduct by driving pursuant to s 53 Crimes Act 1900 (NSW) – where the facts of the misconduct charges were the same facts that led to a conviction for dangerous driving pursuant to s 52A Crimes Act 1900 (NSW) – whether verdicts inconsistent

Catchwords:

CRIME – appeals – appeal against sentence – murder – sentencing judge found intention to kill established beyond reasonable doubt – whether sentencing judge erred – whether sentencing judge should have found intention to inflict serious bodily harm – intention to kill open on the evidence CRIME – appeals – appeal against sentence – Crown submission at trial that the deceased was run down unexpectedly and without warning – submission accepted by sentencing judge – sentencing judge inferred from submission that the deceased was not aware of the imminent attack – where agreed facts silent on what exactly occurred – evidence of other people present at the location of the murder – no evidence of conversation or anyone shouting a warning – evidence of the deceased not facing the vehicle at the time of collision – finding open on the evidence CRIME – appeals – appeal against sentence – background of disadvantage – drug use – no finding of causal connection – sentencing judge found the applicant’s account of dysfunctional upbringing unsupported or contradicted by other evidence – finding open on the evidence

Catchwords:

CRIMINAL LAW – appeal –conviction – whether miscarriage of justice occurred –trial judge directed witness to not resume giving evidence –trial judge failed to direct jury of need to be unanimous as to possession of particular quantity of drugs.

Catchwords:

CRIMINAL LAW – appeals – appeal against conviction – common law offence – wilful misconduct in public office – whether misdirection that illegitimate purpose must be driving force of impugned conduct – whether direction given by primary judge disadvantaged applicant – whether difference between purpose and motivation – whether findings of guilt in judge-alone trial unsafe – appeal against conviction dismissed CRIMINAL LAW – appeals – appeal against sentence – whether error in determining objective seriousness – whether sentence manifestly excessive – appeal against sentence dismissed

Catchwords:

CRIME – Sentence Appeal – sexual touching and sexual intercourse with a child – plea of guilty at District Court “super call-over” – whether the sentencing judge should have found that the applicant facilitated the administration of justice – where s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) was not raised before the sentencing judge – failure by the sentencing judge to consider the principles relevant to sentencing youth – complex interplay between youth, mental illness and cognitive impairment – error established – applicant re-sentenced

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:

APPEALS — Leave to appeal — From interlocutory orders refusing to discharge injunctions and asset preservation orders and remove caveat — Where applicants proposed to pay into court a sum of money in lieu of existing injunctions and asset preservation regime — Where applicants alternatively sought removal of caveat to enable refinancing of real property — Where primary judge ordered temporary removal of caveat to permit refinancing to occur — Whether continued danger that prospective judgment debt will be unsatisfied — Whether interests of justice favour continuance of orders — Whether any arguable House v The King error

Catchwords:

CIVIL PROCEDURE — Court of Appeal — Application to vacate appeal

Catchwords:

CRIME – appeals – appeal against sentence – parity principle – whether fact that participants in the same criminal enterprise charged with significantly different offences precluded application of parity principle – despite differences in the charges and the inability of the Court to review exercise of prosecutorial discretion, parity principle applies but the effect to be given to it may vary – whether aggregate sentence gave rise to a justifiable sense of grievance – in the absence of a sufficient explanation of the application of the parity principle, there was a justifiable sense of grievance – the parity principle can require imposition of a sentence that would otherwise be less than adequate, provided that the sentence is not so low as to amount to an afront to the administration of justice.