Recent decisions for Multiple courts

• Court of Appeal
• Court of Criminal Appeal

Catchwords:

CRIME – appeals – appeal against conviction – historical sexual offending – six complainants – where offender was a teacher and swimming coach – admission of evidence at trial – whether warrants authorising the recording of the conversations containing admissions were defective – whether there is a miscarriage of justice occasioned by the Crown not calling witnesses – whether emotional outbursts and unresponsive answers caused a substantial miscarriage of justice – whether documents relied on by Applicant amount to “fresh evidence” – whether the jury verdict was unreasonable – special advantage enjoyed by the jury of seeing and hearing witnesses – where there are discrepancies in accounts between or among witnesses CRIME – appeals – appeal against conviction – forensic disadvantage – whether delay in prosecution caused offender to suffer an irreparable forensic disadvantage – whether offender received a fair trial – application for permanent stay of proceedings at trial – where direction was issued by trial judge about delay – competing considerations in exercise of judicial discretion – public interest – presumptive prejudice caused by delay – where forensic disadvantage did not significantly or adversely affect conduct of the defence CRIME – appeals – appeal against sentence – whether the COVID-19 pandemic was a matter which the sentencing judge was required to deal with in sentencing – where offender was sentenced before commencement of the pandemic

Catchwords:

CRIME – Appeal – unreasonable verdict – applicant convicted on two counts of detaining and occasioning actual bodily harm – where two complainants – when second complainant was herself involved in detention and assault of first complainant – whether any inconsistency between evidence of complainants incapable of resolution by a properly instructed jury – jury’s advantage when both complainants cross-examined at length – whether any material inconsistency between evidence of complainants – whether verdicts in respect of both complaints were open to the jury.

Catchwords:

CRIME — complicity — accessory before the fact — joint indictment — two persons to stand trial on one count of attempt to possess unlawfully imported border controlled drug — Crown alleged both accused persons were liable as principals — alternative Crown case that one accused procured the conduct of the other in attempting collect package at post office and that her conduct was attributed to the first accused as a proxy under s 11.3 of Commonwealth Criminal Code — whether s 11.3 applied to proxy who was charged as a principal — whether Crown could advance alternative cases — whether alternative case required amendment to indictment or further particulars — whether Commonwealth Director of Public Prosecutions v Brady [2016] VSC 334; 346 FLR 1 should be followed — whether s 11.3 confined to proxies who lack sufficient knowledge

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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:

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

Catchwords:

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

Catchwords:

CRIMINAL LAW - Evidence - admissions made by accused to police - whether admissible - not tape recorded or referred to in subsequent video recorded interview - accused not a suspect at the time - whether he could reasonably have been suspected - lies - not relied on as showing consciousness of guilt - whether Zoneff direction necessary or desirable - Rule 4 - proviso - whether miscarriage of justice - CRIMINAL LAW - Sentencing - 2 murders and 3 other offences involving attempt to murder - life sentences for murder - whether excessive - whether other offences relevant in considering sentences for murders

Catchwords:

SENTENCE - asserted inadequacy of a number of non-custodial sentences in relation to objective seriousness of the offences

Catchwords:

CRIME – appeals – crown appeal – offences of specially aggravated break and enter and commit the serious indictable offence of intimidation in company and armed with a dangerous weapon and specially aggravated kidnapping with intent to hold for ransom in company and occasioning actual bodily harm – whether the offender’s subjective case warranted the sentence – where the sentence was clearly lenient but was not an affront to the administration of justice and did not risk undermining public confidence in the criminal justice system – no manifest inadequacy

Catchwords:

CRIME – appeals – crown appeal – offences of specially aggravated break and enter and commit the serious indictable offence of intimidation in company and armed with a dangerous weapon and specially aggravated kidnapping with intent to hold for ransom in company and occasioning actual bodily harm – whether the offender’s subjective case warranted the sentence – where the sentence was clearly lenient but was not an affront to the administration of justice and did not risk undermining public confidence in the criminal justice system – no manifest inadequacy CRIME – appeals – appeal against sentence – where applicant diagnosed with PTSD – whether sentencing judge failed to engage with contention that there was a link between diagnosis and the offending – where primary judge rejected this contention SENTENCING – appeal against sentence – co-offenders – where co-offenders received the same sentence – where there was comparable criminality between co-offenders – no basis for interference with sentences

Catchwords:

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

Catchwords:

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

Catchwords:

CRIME – bail – release applications – murder – where convictions had been appealed – where orders made quashing convictions and ordering retrial – show cause – unacceptable risk – strong Crown case – display of significant violence in CCTV footage – previous membership of Rebels Outlaw Motorcycle Gang – where applicants had served in excess of half of non-parole period imposed – where retrial eight years after events in question – strong bail proposal – bail granted with conditions

Catchwords:

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

Catchwords:

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

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – whether jury’s verdicts in relation to specific counts on the indictment were unreasonable and inconsistent – whether unreasonableness of verdicts for those specific counts renders the verdict for a separate count unreasonable

Catchwords:

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

Catchwords:

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:

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

Catchwords:

CRIMINAL LAW – sentencing – reckless infliction of grievous bodily harm – appeal against sentence – uncontested evidence of frontal lobe damage, cognitive impairment and post-traumatic stress disorder and/or depressive illness – submissions made on relevance to moral culpability and general deterrence – robust exchange but submissions not withdrawn – where sentencing judge found on balance that mental health issues played some role in commission of the offence – absence of engagement with relevant principles conspicuous – appeal upheld and offender re-sentenced

Catchwords:

SENTENCING – appeal against sentence – co-offenders – parity principle - disparity between sentences – where the applicant pleaded guilty to aiding and abetting the importation of a commercial quantity of a border controlled precursor – where a co-offender was sentenced by a different judge in respect of a related offence of attempting to import a commercial quantity of border controlled precursor – whether there was error in the sentencing judge’s sentence having regard to parity principles – where his Honour made appropriate findings about the applicant's offending and circumstances – where those findings were compared to the offending and circumstances of the co-offender – where the imposed undiscounted starting point took into account the differences between the applicant and the co-offender – where the applicant received a lower sentence than the co-offender – no error in his Honour’s sentence having regard to parity principles

Catchwords:

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

Catchwords:

CRIME – appeals – appeal against sentence – dishonestly obtain financial advantage by deception – contravention of section 192E(1)(b) Crimes Act 1900 (NSW) – whether breach of De Simoni principle – where advantage particularised was the obtaining of loan facilities – where sentencing judge assessed objective seriousness by reference to quantum and period of drawdowns of facilities – whether objective seriousness assessed by reference to criminality comprising a more serious offence CRIME – appeals – appeal against sentence – whether sentencing judge failed to take into account “risk management” – whether sentencing judge failed to take into account absence of loss – where applicant sought to rely on loan facilities as security for the amount drawn down CRIME – appeals – appeal against sentence –whether sentence manifestly excessive

Catchwords:

CRIMINAL LAW – appeal – conviction – where the trial was conducted with a judge sitting alone – where the trial judge failed to adequately direct himself – where the trial judge failed to observe the requirements of s 133 of the Criminal Procedure Act – where the conviction is quashed – where a new trial is ordered

Catchwords:

CRIME – Appeals – Appeal against sentence – whether sentencing judge failed to take into account mitigating factor of provocation on sentence – findings of fact open to sentencing judge – no error established CRIME – Appeals – Appeals against sentence – whether offender was entitled to discount for the facilitation of justice pursuant to s 22A Crimes (Sentencing Procedure) Act 1999 (NSW) – factors said to facilitate justice not identified by defence counsel at hearing – no further discount beyond 25% for guilty plea warranted – no error established

Catchwords:

CRIMINAL LAW - bail - Crown appeal - s 45(1)(b)

Catchwords:

CRIMINAL LAW - appeal - conviction - sexual offences - Judge alone trial - whether verdicts inconsistent - time an essential element of the offences - difference in verdicts rationally explained and not inconsistent

Catchwords:

CRIMINAL LAW – sentencing – aggravated sexual intercourse with a child – two counts – whether aggregate sentence manifestly excessive – penile/vaginal intercourse – offender of good character – findings of remorse and prospects of rehabilitation – early pleas of guilty – comparison with past sentencing cases – use of statistics – helpful and thorough submissions – sentence imposed not manifestly excessive – sentence not plainly wrong or unjust

Catchwords:

CRIME — appeals — appeal against sentence — application for leave to appeal — whether the sentencing judge erred in the determination of objective seriousness — whether the sentencing judge erred in her determination that the s 17A threshold was crossed thus necessitating the imposition of a full-time custodial term of imprisonment — whether the sentencing judge erred in the application of the parity principle — whether the overall sentence was manifestly excessive — Commonwealth and State offences — appeal allowed — applicant resentenced

Catchwords:

CRIME – appeals – appeal against sentence – where the applicant and co-accused drove a stolen vehicle in a police pursuit whilst in possession of a firearm – where the vehicle was abandoned and set on fire – whether the sentencing judge failed to properly assess the applicant’s role in the offending – where the sentencing judge made no distinction between being liable for an offence as part of a joint criminal enterprise and the culpability of a participant by reason of that person's role – where, as a result, the applicant’s moral culpability was not given consideration – where the sentencing judge rejected the submission that there was a reasonable possibility that the co-offender started the fire – where a finding against the applicant needed to be made beyond reasonable doubt – where there was a reasonable possibility that the co-offender lit the fire – where the submission should not have been rejected to the applicant’s detriment

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – where applicant found guilty of murder as an accessory before the fact – whether it was open to the jury to be satisfied of the guilt of the applicant beyond reasonable doubt on all the evidence – circumstantial Crown case – where the appeals of the co-accused have been allowed – whether certain inferences can be drawn from communications between the applicant and the co-accused where evidence of the content of those communications is unavailable or limited – whether other reasonable possibilities remain available – whether the applicant ‘procured’ the assault to cause really serious injury to the deceased – leave to appeal granted – appeal allowed – verdict quashed – applicant acquitted

Catchwords:

CRIME — Bail — Release application — Where two previous bail applications have been refused — Shooting with intent to murder and discharging a firearm with intent to cause grievous bodily harm as the alternative charge — Show cause provisions — Whether the applicant has shown cause why his detention is not justified — Youth, first time in custody, 15 months on remand, no record of prior convictions and delay — Where co-accused was granted bail — Dispute as to whether the Crown case has inherent fatal weaknesses — Whether proposed conditions of bail mitigate bail concerns to an acceptable level

Catchwords:

CRIMINAL APPEALS – sentence appeal – miscarriage of justice – asserted conflict of interest in counsel acting at first instance – no evidence to establish conflict – no rule that the same advocate cannot appear for two offenders in sentencing proceedings – fact that a different submission conjured by appellate counsel “could” have been made establishes little or nothing – invariably the case – no waiver of privilege – reliance on record of court below – no evidence tendered on appeal – no merit in ground – no evidence of practical injustice – appeal dismissed

Catchwords:

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

Catchwords:

CRIME – appeals – appeals against sentence –Commonwealth offences of transmitting soliciting and possessing child pornography – alleged failure to assess objective seriousness – alleged statement of agreed facts – alleged as application of s 16A(2AAA) of the Crimes Act 1914 (Cth) concerning sentence of sufficient duration to permit a rehabilitation program – all grounds dismissed – no point of principle

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

CRIME – appeals – appeal against sentence – pleas of guilty - whether the sentencing judge erred by discounting the aggregate sentence rather than the indicative sentences or whether the sentencing judge’s remarks are insufficient in disclosing how the discount was applied – whether the sentence was manifestly excessive

Catchwords:

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

Catchwords:

CRIMINAL LAW – sentencing – totality – stated intention to depart from statutory ratio of non-parole period – need for adjustment in overall sentence – relationship between totality of criminality and totality of sentences.

Catchwords:

CRIME – appeals – appeal against conviction – miscarriage of justice – where the applicant pleaded guilty to the murder of his sister – where the applicant was under the influence of drugs at the time of the offending – where the applicant was diagnosed with schizophrenia – where the applicant entered his plea on the basis of advice that the applicant did not meet the definition of “mental health impairment” – whether the advice was wrong and thus constituted a miscarriage of justice – whether the applicant’s impairment at the time of the offending was “solely caused” by drug ingestion – where none of the expert evidence engaged with the “caused solely by” test – the advice given to the applicant was wrong – conviction set aside STATUTORY INTERPRETATION – whether the Crown bears the onus of demonstrating that s 4(3) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) applies – where s 4(3) provides an exception or a qualification to what is contained in s 4(1) – where the Crown asserts no mental health impairment by reason of ingestion of drugs or substance use disorder the Crown bears the onus of proof under s 4(3)

Catchwords:

CRIME — appeals — appeal against conviction — Liberato direction — application of proviso — trial judge made reference in summing up to competing evidence — appeal by co-accused upheld on the basis of failure to give Liberato direction — majority in co-accused’s appeal declined to apply the proviso — whether earlier appeal decision should be followed in relation to the Liberato direction and the proviso on the basis of the principle outlined in Kwu v R [2024] NSWCCA 199 — whether any evidence only applicable against applicant constitutes material distinction between applicant and co-accused’s case CRIME — appeal against conviction — extension of time in which to appeal — co-accused’s appeals not heard jointly — delays in preparing appeal — unnecessary judgments of the court — wastage of resources

Catchwords:

CRIMINAL LAW- appeals - appeal against conviction – fight in a bar between members of a group that entered a hotel and assaulted patrons and bar attendant- assault occasioning grievous bodily harm – CCTV of whole incident including views of the group entering and leaving the hotel tendered in evidence at the trial – where the issue of whether or not the appellant struck the blows that injured the victim remained unclear – whether appellant was a member of the group or associated with the person who appeared to have struck the blows that injured the victim – consequent alteration during trial to Crown case to add alternative count of joint criminal enterprise - whether appellant prejudiced by late change to Crown case – whether trial judge adequately summed-up to the jury on the defence case on the issue of the joint criminal enterprise – summing up did not explain the defence case on this issue – unfairness to the appellant – trial miscarried – new trial ordered.

Catchwords:

CRIMINAL LAW - interlocutory appeals - appeal by accused under s 5F Criminal Appeal Act - application to sever assault charges from indictment charging accessory after the fact to manslaughter

Catchwords:

CRIME — Appeals — Appeal against sentence — Manifest excess — where no indicative sentence was excessive — where sentence required to reflect significant criminal history, maximum penalties, general deterrence and form 1 matters — where sentence demonstrated no immunity from prosecution for providing assistance to authorities — where aggregate sentence not manifestly excessive

Catchwords:

CRIME — Appeals — Appeal against conviction — whether trial judge erred in failing to take into account evidence relevant to the issue of the date sexual intercourse occurred other than with respect to the credibility of the complainant — where trial judge did not so err CRIME — Appeals — Appeal against conviction — whether trial judge erred regarding application of burden and standard of proof — where trial judge was satisfied beyond reasonable doubt of the applicant’s guilt — where trial judge did not so err CRIME — Appeals — Appeal against conviction — Unreasonable verdict — whether verdict of guilty of one charge of carnal knowledge by a teacher following trial by judge alone was reasonable — where evidence as a whole sufficient in nature and quality to eliminate any reasonable doubt as to the applicant’s guilt — where verdict not unreasonable

Catchwords:

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

Catchwords:

CRIME — appeals — appeals against convictions — offences of publishing or broadcasting the name of a child with respect to whom proceedings before the Children’s Court were brought — posts uploaded to Facebook referring to child by name — self-represented appellants — whether indictment invalid — whether failure to leave alleged defences to jury — whether error in instructing jury of effect of removing Facebook posts — whether error in directions to jury about time of the offences — whether failure to dismiss matter where no harm to child allegedly shown — whether failure to allow the appellant Katelaris to inform jury of right to acquit even if offence had been proved — where grounds 1, 2 and 7 raised a question of law alone and did not require leave — leave to appeal on grounds 3, 4, 5 and 6 granted — appeal dismissed

Catchwords:

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

Catchwords:

CRIME — Appeals — Appeal against conviction — miscarriage of justice — where Crown concedes breach of prosecutorial duty of disclosure — consideration of appropriate orders to be made CRIME — Appeals — Appeal against conviction — fresh evidence — nature of task to be undertaken by appellate court — whether fresh evidence establishes innocence of applicant or a reasonable doubt as to his guilt such as to warrant the entry of a verdict of acquittal in accordance with the principle stated in Ratten — consideration of probative value of fresh evidence

Catchwords:

CRIMINAL LAW – appeal – appeal against conviction – persistent sexual abuse – whether verdict of guilty unreasonable – whether trial judge erred by failing to direct jury regarding the requirement for an “unlawful sexual relationship” in the s 66EA offence

Catchwords:

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

Catchwords:

CRIME – appeals – appeal against sentence – offence of supply prohibited drug not less than commercial quantity – offence of deal with property reasonably suspected to be proceeds of crime – self-represented applicant – complaints with respect to backdating, cumulation, parity – further issues – manifest excess – failure to specify non-parole period in indicative sentence for offence with standard non-parole period – grounds of appeal not established – leave to appeal granted – appeal dismissed

Catchwords:

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

Catchwords:

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

Catchwords:

CRIME – appeals – appeal against sentence – whether sentencing judge erred by not providing reasons for how onerous bail conditions were taken into account – whether sentencing judge erred by not backdating the sentence to account for pre-sentence quasi-custody – whether the sentence imposed was manifestly excessive

Catchwords:

CRIME — Appeals — Appeal against sentence — Where applicant convicted of supply a large commercial quantity of methylamphetamine —Whether sentencing judge erred in assessing the seriousness of the applicant’s conduct — Whether assumptions about criminal organisations unrelated to the offence in question were made — Whether a denial of procedural fairness CRIME — Appeals — Appeal against sentence — Where applicant convicted of supply a large commercial quantity of methylamphetamine — Prospects of rehabilitation — Whether sentencing judge failed to take into account that applicant had good prospects of rehabilitation — Resentencing exercise

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

CRIME – appeals – appeal against sentence – penetrative child sexual assault – sentence after trial – [REDACTED] – whether assessment of objective seriousness was incorrect – impracticality of plotting precisely objective seriousness along spectrum – whether error was made in failure to find special circumstances – discussion of role of sentencing statutes in finding or not finding special circumstances – whether aggregate sentence was manifestly excessive – discussion of current sentencing patterns for repeated offences of penetrative child sexual assault – appeal dismissed

Catchwords:

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

Catchwords:

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

Catchwords:

CRIME — Crown appeal against sentence — respondent pleaded guilty to dealing with funds reasonably suspected of being proceeds of crime under s.1 93C(1) Crimes Act 1900 (six counts), attempt to obtain financial advantage by deception under s.192E(1)(b) Crimes Act 1900 (one count) and dealing with money reasonably suspected of being proceeds of crime under s.400.9(1) Criminal Code (Cth) (one count) — two further s.193C(1) offences taken into account on sentence — aggregate sentence imposed for s.193C(1) and s.192E(1)(b) offences — total effective sentence of imprisonment for five years and six months with minimum term of two years and eight months — offences involved total of about $103 million over 15-month period — first ground asserted error by failing to assess individually the objective seriousness of each of the s.193C(1) offences — same indicative sentences nominated for four offences despite very significant differences between amount of money and number of transactions involved in each count — each s.193C(1) charge a rolled-up count—approach to assessment of objective seriousness of rolled-up counts - capacity to consider challenge to indicative sentences as components of aggregate sentence — first ground of appeal established — second ground asserted that overall sentence manifestly inadequate— error concerning s.193C(1) indicative sentences contributed to imposition of manifestly inadequate sentence — significant objective gravity of offences — combined 40% discount for pleas of guilty and assistance to authorities — other strong subjective factors — held overall sentence manifestly inadequate — consideration of residual discretion — substantial ongoing assistance to authorities in new areas since imposition of sentence in District Court — earliest release date imminent — function of Crown sentence appeals — exceptional and unusual case — held Court should not resentence — Crown appeal dismissed

Catchwords:

CRIME – appeal against conviction – unreasonable verdict – whether open to jury to accept Crown case that applicant contemplated use of knife to cause death or really serious injury – verdict not unreasonable – breach of prosecution’s duty of disclosure – conceded materiality of breach – appeal allowed, conviction quashed and retrial ordered

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

CRIMINAL PROCEDURE – Costs – Costs in Criminal Cases Act 1967 – where applicant’s defence largely funded by legal aid – whether a legally aided applicant can recover costs pursuant to the Costs in Criminal Cases Act 1967 CRIMINAL PROCEDURE – Stay of proceedings – where applicant sought a Mosely stay during proceedings – whether a legally aided applicant can seek a Mosely stay where the Crown was at fault in relation to matter that led to termination of proceedings

Catchwords:

EVIDENCE – Tendency evidence – Significant probative value – Evidence of tendency of conduct and tendency of state of mind of the accused – Whether the tendency evidence has a significant probative value that substantially outweighs the risk of prejudice

Catchwords:

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

Catchwords:

CRIME – appeals – application for leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) – application for separate trials – alleged home invasion – where case against each applicant is weak – where not established that there will be any evidence led at a joint trial which will be inadmissible as against the applicants – leave granted – appeal dismissed

Catchwords:

APPEALS — CRIME — appeal against conviction — sexually touching a child — 16 offences against 5 complainants — guilty verdicts returned in respect of 12 counts against 3 complainants — unreasonable verdict — whether it was open to jury to be satisfied of the applicant’s guilt in respect of those counts — discrepancies and conflicts in evidence of complainants — open to jury to resolve evidentiary issues — counts proved beyond reasonable doubt

Catchwords:

CRIMINAL LAW – appeal against conviction – tendency evidence – proper directions – where accused relied on tendency of the alleged victim – jury wrongly directed it should exercise caution in drawing inferences that tendency established – jury directed to enquire where it ”more likely than not” that the alleged victim had the tendency alleged – directions apt to reverse onus or proof – where prosecution concedes error in directions – appeal grounds sustained CRIMINAL APPEALS – whether no substantial miscarriage occurred despite erroneous directions – application of proviso – nature of error – assessment of prosecution case – case rebutting self-defence not overwhelming – accused case not “glaringly improbable” – where appellate court did not see witnesses – conflict in evidence – proviso should not be applied – appeal allowed – re-trial ordered

Catchwords:

CRIME — Appeals — Appeal against conviction — Historical sex offences — Application for permanent stay — whether trial judge erred in refusing to permanently stay proceedings due to delay — forensic disadvantage — whether forensic disadvantage directions were inadequate CRIME — Appeals — Appeal against conviction — Judge alone trial — Tendency evidence — whether trial judge erred in holding evidence of complainants had been corroborated CRIME — Appeals — Appeal against conviction — Judge alone trial — Coincidence evidence — whether trial judge erred in using coincidence reasoning when not relied on by prosecution CRIME — Appeals — Appeal against conviction — Judge alone trial — Evidence — whether trial judge erred by taking into account excluded evidence — whether trial judge erred in assessing demeanour of accused in the dock — whether evidence of complainants and tendency witnesses contaminated — whether trial judge reversed onus of proof for contamination of evidence

Catchwords:

EVIDENCE — Tendency evidence — Multiple complainants — Significant probative value — Need for a sufficient link between distinct events — No need for link to be peculiar — Evidence of tendency of accused to adopt particular kind of persistence in the pursuit of his sexual interests — Whether relevant evidence is proposed tendency evidence upon which primary judge ruled or evidence as actually admitted CRIME — Appeals — Appeal against conviction — Unreasonable verdict — No issue of principle CRIME — Appeals — Appeal against sentence — Failing to make any proper assessment of the objective seriousness of the offending

Catchwords:

BAIL – release application – breaches of ESO – s 17 bail risks – unacceptable risks – bail refused

Catchwords:

BAIL – application for bail pending appeal and for pending trial in the District Court – applicant convicted of perjury and perverting the course of justice – appeal against conviction and sentence from judge-alone trial pending in Court of Criminal Appeal – necessity to demonstrate “special or exceptional circumstances” – show cause requirement applicable for charges at pending trial – special or exceptional circumstances not demonstrated – burden of showing cause not discharged – history of non-compliance with bail conditions – significant bail concerns – bail refused

Catchwords:

CRIMINAL PROCEDURE – application for leave to appeal from decision refusing to vacate trial – whether decision was a judgment or order within the meaning of s 5F of the Criminal Appeal Act 1912 (NSW) – where applicant unrepresented due to his withdrawal of instructions from Legal Aid funded senior counsel and solicitors shortly before trial – where neither submitted nor shown that conduct of legal team was incompetent or otherwise warranted termination of services – whether refusing to vacate trial in the circumstances was “relevantly unfair” to the applicant – consideration of Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57

Catchwords:

CRIMINAL LAW – Procedure – permanent stay – stay granted by court below on basis of unfairness and oppression to the accused – whether primary judge misapplied the correct test – where third trial on two counts after jury in second trial unable to agree but delivered not guilty verdicts on two other counts – exceptional nature of jurisdiction – whether permanent stay should be set aside

Catchwords:

CRIMINAL LAW – sexual assault – appeal against conviction – alleged incompetence of counsel – whether significant possibility that incompetence affected outcome of trial – failure to adduce good character evidence before jury – failure to seek direction as to good character – good character evidence shown to be available – no explanation for course taken – concessions by Crown accepted – appeal allowed, conviction quashed and retrial ordered

Catchwords:

CRIMINAL LAW - sentencing - appeal against sentence - challenge to discount for plea and assistance - no question of principle - appeal dismissed.

Catchwords:

CRIMINAL LAW AND PROCEDURE - Evidence - Complaint more than three months after last alleged sexual offence - Insufficiency of reasons for finding complaint was "fresh in memory" - Admission by offender to medical practitioner - Challenge to admissibility rejected - Testimony by offender - Failure to put material contradicted by offender to witness - Direction by trial judge concerning credibility of offender - Evidence by Crown explaining failure to call witness - Need for warning against impermissible inference by jury concerning offender not calling that witness - New trial ordered - Crown appeal against sentence not needed to be considered

Catchwords:

CRIMINAL LAW – appeal against conviction – multiple counts of sexual assault and indecent assault on complainants who were detained at Reiby Juvenile Justice Centre at the relevant time – where the accused was a youth worker at Reiby when offences allegedly committed – where Crown relied on evidence of Dr Lennings to buttress credibility of complainants – where evidence of Dr Lennings extended beyond evidence of behavioural responses by children under orders to sexual assault – where evidence of Dr Lennings included opinion about qualities attributed to youth workers in detention centres – whether the evidence was relevant and admissible pursuant to s 108C of the Evidence Act – whether Dr Lennings’ evidence was within his area of specialised knowledge – where trial Counsel failed to object to evidence of Dr Lennings in its entirety – where the evidence in so far as it related to opinion about youth workers was irrelevant and highly prejudicial – requirement of material irregularity – whether the irregularity could realistically have affected the reasoning of the jury to the verdicts of guilty – whether admission of the evidence occasioned a miscarriage of justice – appeal allowed

Catchwords:

CRIME – Appeals – appeal against sentence – child sexual offences – where child was under the applicant’s authority at a care home – domestic violence offences – whether sentencing judge erred in application of Bugmy principles – whether sentencing judge erred in failing to take into account the applicant’s own history of child sexual abuse – correct approach to application of Bugmy principles – childhood deprivation – moral culpability – purposes of sentencing – giving “full weight” to background of deprivation – appeal allowed – applicant re-sentenced

Catchwords:

CRIME — Appeals — Appeal against conviction — sexual assault — multiple complainants — whether Crown’s closing address on a recorded conversation required further directions from the trial judge — rule 4 of the Criminal Appeal Rules — no objection or request for further directions at trial — forensic choice by the appellant’s counsel — whether miscarriage of justice — whether verdicts in respect of counts concerning PW and JW unreasonable

Catchwords:

CRIMINAL LAW – release application – appeals bail – where previous applications dismissed by the Court of Criminal Appeal – statutory prohibition on multiple applications – whether grounds established for further application – whether material information to be presented that was not presented on earlier applications – whether circumstances relevant to the grant of bail had changed – self-represented applicant – indulgent approach to filing of evidence and submissions in contravention to Registrar’s directions and after the hearing – whether “more settled” grounds appeal amounted to grounds under s 74(3) of the Bail Act – changes to grounds cosmetic – whether imminence of applicant’s release a relevant change of circumstance – release date known on two previous release applications – provisional decision to grant parole – review hearing pending – relevance to release application where no outstanding charges – grounds for further release application not established – application dismissed – decision should not impact on decision of Parole Authority

Catchwords:

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

Catchwords:

CRIMINAL LAW — application seeking the leave of the Court to retry a person in respect of two charges of murder — respondent to application seeking orders to produce documents comprising legal advice to various Attorneys General — whether legitimate forensic purpose established for production of documents — no such purpose in relation to legal advices — reasons for decisions by Attorneys General relevant — letters setting out reasons should be produced.

Catchwords:

CRIME – appeals – appeal against sentence – child sexual offences – where offender pleaded guilty to two offences against s 66EA of the Crimes Act 1900 – where complainants are the offender’s cousins – guilty plea in District Court – where offender denied certain particularised unlawful acts – where disputed facts hearing proceeded before the sentencing judge – aggregate term of imprisonment imposed CRIME – appeals – appeal against sentence – whether the sentencing judge erred in determination of objective seriousness – where sentencing judge concluded objective seriousness of the offences was “towards the bottom” and “at the very lowest end” of the range for a s 66EA offence – assessment of objective seriousness for “new” s 66EA – assessment of “ingredient offences” – where sentencing judge expressly relies on sentencing factors set out in Burr v The Queen – whether focus on ingredient offences and Burr v The Queen factors was a limited approach – whether it can be inferred the sentencing judge did not consider “other matters” – whether use of the term “opportunistic” affected the assessment of the objective seriousness CRIME – appeals – appeal against sentence – whether the sentence is manifestly inadequate – where Crown submits aggregate sentence is “so far below the range of sentences” which could be imposed – where complaint about “weight” given to sentencing considerations does not assist in the resolution of the adequacy – where sentencing judge nominated indicative sentences – where sentence imposed was not plainly unjust

Catchwords:

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

Catchwords:

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

Catchwords:

CRIME – appeals – appeal against sentence – application for extension of time – constructive murder – joint criminal enterprise – assault with intent to rob in company while armed with a dangerous weapon – possession of a shortened firearm – agreed facts – whether departure from agreed facts – whether denial of procedural fairness – whether error in assessment of objective gravity of offence – whether failure to find special circumstances – cumulation and concurrence – parity – where difference between starting point of sentences of applicant and co-offender – whether justifiable sense of grievance – marked and unjustified disparity – re-sentence

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

CIVIL PROCEDURE – review of procedural decisions of Registrar – where applicant filed notice of motion seeking extension of time to file notice of appeal – extension refused by Registrar – where applicant filed notice of motion seeking access to unedited transcript – no demonstration why transcripts were required – application refused

Catchwords:

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

Catchwords:

BAIL – detention application by prosecutor – show cause offence – whether cause shown – whether respondent poses unacceptable risk

Catchwords:

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

Catchwords:

CRIME – bail – release application pending determination of applicant’s appeal against his convictions – whether there are “special or exceptional circumstances” under Bail Act 2013 (NSW) s 22

Catchwords:

CRIME – appeals – appeal against conviction – embezzlement by clerk or servant – statutory construction of ss 155 and 157 of the Crimes Act 1900 (NSW) – definition of “clerk or servant” – meaning of “employed” and “collector of moneys” – where complainant had contractual relationship with a company controlled by applicant CRIME – appeals – appeal against conviction – miscarriage of justice – closing address to jury by Crown Prosecutor – prohibition on comment on the accused’s failure to give evidence – references to “no evidence” or a lack of “explanation” – reversal of onus of proof – further improprieties – whether improprieties could be redeemed by trial judge’s directions – whether proviso to s 6(1) of the Criminal Appeal Act 1912 (NSW) applied

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

CRIMINAL LAW - application for leave to appeal under s.5F Criminal Appeal Act 1912 from refusal of Dietrich stay - applicant charged with tax fraud and money laundering - complex and lengthy trial - applicant failed to establish that he was indigent - whether error demonstrated in findings of primary Judge - no error demonstrated - whether interests of justice warranted - grant of leave to appeal - observations made concerning absence of provisions in Proceeds of Crimes Act 2002 (Cth) permitting release of restrained assets to fund a person’s defence - contrast with State confiscation legislation - leave to appeal granted - appeal dismissed

Catchwords:

Application for leave to appeal - Part 13 rule 5.

Catchwords:

CRIMINAL LAW – release application – show cause requirement – bail concerns mitigated by conditions

Catchwords:

CRIMINAL LAW – sentence appeal – supply a commercial quantity of prohibited drug – participate in a criminal group – domestic violence and common assault offences – shortened firearm and possess more than three unregistered firearms, including a prohibited weapon – indicative sentences set out and aggregate sentence imposed – whether the notional starting point for some of the indicative sentences was manifestly excessive so as to indicate error in the aggregate sentence – whether an appropriate discount allowed for assistance to authorities – two co-offenders sentenced after applicant – whether differences between indicative sentences proposed for co-offenders and applicant offended the parity principle – if so whether such a discrepancy demonstrated error in the aggregate sentence – leave to appeal granted but appeal dismissed.

Catchwords:

CRIMINAL PROCEDURE – trial – closing address to jury by Crown Prosecutor – where the applicant was found guilty of multiple counts of intimidation, sexual intercourse without consent, and assault occasioning actual bodily harm – where the complainant and the applicant were in a relationship and lived together – where evidence was led of the applicant threatening self-harm after the non-consensual sex – whether there was a miscarriage of justice due to the introduction of consciousness of guilt evidence by the Crown – where it was clear that the Crown was not relying on consciousness of guilt as past of its case – where the only rational inference left to the jury was that the self-harm behaviour was related to the applicant’s manipulation of the complainant – no miscarriage of justice from anything in the Crown’s closing address CRIMINAL PROCEDURE – trial – directions to jury – where the trial judge said in her summing up that the Crown submitted that the sexual activity was nonconsensual and was supported by what followed, being the breakup “coupled with” the threats of self-harm – whether there was a miscarriage of justice from any direction or failure to give a direction by the trial judge to the jury not to use this evidence as consciousness of guilt evidence – where r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 applied – where any decision by the applicant’s trial counsel not to object to the trial judge’s summing up was a forensic one – where a reading of the proceedings as a whole shows that consciousness of guilt from the self-harm incident was not contemplated by either side or the trial judge – where it would have been wrong of the trial judge to give a consciousness of guilt direction in the absence of its being sought – no miscarriage of justice

Catchwords:

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

Catchwords:

CRIMINAL LAW – conviction – substantial delay in complaint of alleged sexual offences – direction did not satisfy the requirements of Longman v the Queen.

Catchwords:

CRIMINAL LAW — Sentencing — Crown Appeal against sentence — solicit to murder — objective seriousness — combined discount for plea of guilty and assistance — double counting for discount for plea of guilty and assistance and for finding of special circumstances

Catchwords:

APPEAL AGAINST CONVICTION – appellant convicted of two counts of sexual assault under s.61I Crimes Act 1900 (NSW) – the trial concerned whether the sexual intercourse was consensual and whether there were two acts of sexual intercourse – accused did not give evidence – whether trial judge erred in failing to direct jury in relation to failure of accused to give evidence – the failure to give an Azzopardi direction in the circumstances of this case led to a miscarriage of justice – appeal allowed – retrial.

Catchwords:

s 5F appeal against refusal to grant temporary stay - risk of prejudice

Catchwords:

CRIMINAL APPEAL – applicant convicted of four offences of sexual slavery and two offences of money laundering – Crown contended that applicant enslaved two sex workers from Thailand – alleged to have seized passports and made them work off debt – whether jury direction concerning applicant’s prior good character inadequate because jury not told that good character made it less likely that applicant committed offences charged – error not established – whether miscarriage of justice occasioned by failure of applicant’s counsel to adduce good character evidence from various witnesses – miscarriage not established – failure to adduce evidence objectively justified – applicant’s good character peripheral to true factual dispute in the trial – tendency direction – alleged tendency corresponded with every particular alleged against applicant in relation to both complainants – direction misleading – miscarriage of justice established - proviso – critical part of complainants’ evidence challenged – proviso not capable of being applied – convictions set aside – new trial ordered.

Catchwords:

CRIME – Appeals – Crown interlocutory appeal – murder – robbery with wounding – 4 counts on indictment – severance of counts 3 and 4 – whether ruling substantially weakens Crown case – whether O’Leary principle applies – whether evidence in severed counts is relevant to facts in issue – whether evidence unfairly prejudicial – assessment of probative value – whether House v The King error

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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:

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:

CRIME – armed robbery – take and drive conveyance - successful appeal of co-offenders. EVIDENCE – tendency evidence – whether trial judge erred in admitting tendency evidence. CRIME – Appeals – Appeal against conviction - Extension of time in which to appeal.

Catchwords:

CRIMINAL LAW – Evidence – Propensity, tendency and coincidence – Evidence Act 1995 (NSW) ss 97(1)(b) and 101(2) – armed robbery – bank robbery committed with substantially same co-accused over 9 years ago – some differences and some similarities with charged conduct – whether single prior bank robbery is evidence of a tendency or propensity to commit bank robberies in a particular manner – whether evidence has significant probative value – effect of Hughes v The Queen [2017] HCA 20

Catchwords:

CRIME – Appeals – Appeal against conviction – armed robbery of bank – inadmissible and prejudicial material heard by jury – whether refusal to discharge jury a miscarriage of justice – whether substantial miscarriage of justice – test to be applied – appeal upheld.

Catchwords:

CRIME – appeals – appeal against conviction – where the appellant was found guilty of one count of using a carriage service to groom a person under 16 years of age – where the jury was directed that in the absence of evidence to the contrary it was established that the appellant believed the person to be under 16 years of age – where the jury was directed that it was a defence to the charges if the appellant established a reasonable possibility that he believed the recipient was at least 16 years of age – whether the trial judge erred in his directions to the jury – where s 474.28(3) of the Criminal Code (Cth) was found to be means of proof only in the event there is no evidence to the contrary – where the appellant gave evidence that he believed he was talking to someone over the age of 18 years – where the appellant’s evidence was held to be “evidence to the contrary” – where s 474.28(3) was found to involve a question of law to be determined by the trial judge not the jury – where the impugned directions should not have been given– where leave was granted under r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) due to the error resulting in a miscarriage of justice – appeal allowed, conviction quashed and new trial ordered

Catchwords:

CRIME – Appeals – interlocutory appeal – appeal from decision ordering temporary stay of proceedings – where order was conditional stay of potentially permanent effect – where only proper basis for ordering conditional stay of potentially permanent effect would be that the respondents’ trial would otherwise have been so unfair as to be inconsistent with the requirements of a fair trial – correctness standard of appellate review applies

Catchwords:

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

Catchwords:

CRIME – appeals – appeal against conviction – child sexual offences – tendency evidence – whether trial judge erred in admitting tendency evidence – whether miscarriage of justice EVIDENCE – tendency evidence – complainant 13 years old – no dispute that sexual intercourse took place – where applicant’s case was of an honest and reasonable belief that the complainant was 16 years or older – where applicant’s previous relationship with a female child aged between 9 and 10 and 13 and 14 admitted by the trial judge as tendency evidence to rebut the applicant’s case of an honest and reasonable mistake EVIDENCE – tendency evidence – where tendency evidence presented to the jury by way of agreed facts under s 191 of the Evidence Act 1995 (NSW) – where material difference between the evidence placed before the trial judge and the agreed facts – consideration of the relevant evidence for determination of the grounds of appeal EVIDENCE – whether s 97A of the Evidence Act applied – where applicant had made clear that sexual intercourse was not in issue – whether sexual intercourse remained a “fact in issue” – whether “fact in issue” includes all the elements of the offence EVIDENCE – whether error in admitting tendency evidence – adjectives “intimate” and “consensual” – whether error by trial judge in concluding that sexual relationship with other female child was of long-standing commencing when that child was aged between 9 to 10 years – whether description of previous relationship as “intimate” and “consensual” and “it is known” in agreed facts gave rise to a real risk that evidence would be used in an unfair way EVIDENCE – tendency directions to jury – whether direction required that relationship with the female child was not sexual before she turned 13 years old – whether the probative value outweighed the danger of unfair prejudice CRIME – appeals – appeal against conviction – where no objection made to tendency direction at trial – whether application of r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW) CRIME – appeals – appeal against conviction – where miscarriage of justice – whether proviso applicable

Catchwords:

CRIME – appeals – appeal against conviction – unreasonable verdict – where applicant found guilty of six sexual offences – whether it was open to the jury to be satisfied of the guilt of the applicant beyond reasonable doubt on all the evidence – whether the apparently ‘consistent’ evidence from the applicant should have been preferred by the jury – where knowledge of consent was the issue at trial – where the applicant sent suggestive and unrelenting messages to the complainant before and after the offending – where the complainant was affected by prescription medication and alcohol – where the complainant had no memory of the offending – where the complainant had established her ‘boundaries’ – leave to appeal granted – appeal dismissed

Catchwords:

CRIME - appeals - appeal against conviction - where the appellant was convicted of multiple counts of assault with the act of indecency – where the appellant was convicted of sexual intercourse in circumstances of aggravation (under authority) – where the appellant was convicted of common assault – whether the trial judge’s reasons on the subject of consciousness of guilt were inadequate and failed to comply with s 133(2) of the Criminal Procedure Act 1986 (NSW) – whether the trial judge erred by applying consciousness of guilt reasoning in relation to each count on the indictment when it was not open to do so. CRIME - appeals - extension of time in which to appeal – where the appellant seeks an extension pursuant to s 10(1)(b) of the Criminal Appeal Act 1912 (NSW) to appeal from his convictions – where the notice of appeal was filed six months after the expiry of the notice of intention to appeal

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – work health and safety – where employee may have contracted silicosis as a result of carrying out work for the Applicant – where SafeWork NSW brought prosecution for an offence under s 32 of the Work Health and Safety Act 2011 arising from breach of health and safety duty under s 19(1) – where Applicant plead guilty in District Court – where Applicant now contends SafeWork commenced prosecution outside of time limit under s 232 of the Work Health and Safety Act 2011 (NSW) – whether prosecution brought in time – when did SafeWork have sufficient information to infer the offence had been committed – prosecution commenced in time APPEALS – appeal out of time – whether leave should be granted to bring appeal out of time – appeal futile – leave refused

Catchwords:

CRIMINAL LAW – Appeal – Appeal against decision of primary judge to vacate the applicant’s trial on the application of the Crown – Where applicant had been in custody for a period of 19 months awaiting trial – Where vacation of the trial would likely result in the applicant being in custody for more than 2 years awaiting trial – Where applicant’s family and a witness had made arrangements to travel to Australia from Taiwan for the trial - Where Crown wished to serve further material in support of its case – Where primary judge exercised his discretion on the basis that the estimated length of the trial was now in excess of the estimate which was given at the time of setting the trial date – Where primary judge gave primacy to that fact over the consequences to the accused – Exercise of discretion unreasonable and plainly unjust - Error established – Orders of primary judge quashed - Observations as to the importance of the District Court having the capacity to finalise criminal cases in a timely manner

Catchwords:

CRIMINAL LAW – appeal against conviction under Criminal Code (Cth), s 307.2(1) – appeal against conviction on the basis of fresh evidence – whether miscarriage of justice such that conviction should be quashed and new trial ordered – whether “fresh” evidence available – whether evidence credible – whether the evidence would have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

CRIMINAL APPEALS – interlocutory judgment or orders – sexual assault communications privilege – leave to issue subpoena – whether material sought “will have substantial probative value” – where District Court failed to consider documents or make orders to facilitate production for that purpose – standard of review – “House error” or “correctness standard” – standard different depending on ground of appeal and power exercised – whether Judge applied the wrong test to decision to facilitate inspections – whether irrelevant considerations taken into account – directions to be provided to jury not relevant to evaluation of probative value of evidence – orders made in District Court vacated – orders facilitating production of documents to District Court made CRIMINAL LAW – constraints on lawyers appearing for protected confiders who lack capacity to consent or provide instructions – important questions raised – issue not raised in present case – largely questions of ethics – advisory opinions not provided by appellate courts

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:

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

Catchwords:

CRIME — appeals — appeal against sentence — statutory mandatory minimum sentence prescribed — proper construction of s 16AAC of the Crimes Act 1914 (Cth) — reduction of mandatory minimum where provisions in s 16AAC(3) apply — error by treating provision as capping maximum discount as a proportion of the mandatory minimum, as opposed to provision setting a minimum floor SENTENCING — federal offenders — sentence by State court for offence against Commonwealth law — whether aggregate sentencing under s 53A of Crimes (Sentencing Procedure) Act 1999 (NSW) can be applied to federal offences — whether s 53A is capable of being picked up by s 68(1) of the Judiciary Act 1903 (Cth) — whether there is a conflict between Pt 1B of the Crimes Act and s 53A(2)(b) — whether there is a conflict between s 16AAA of the Crimes Act and s 53A(2)(b) — s 53A is capable of being picked up as federal law and does not conflict with Pt 1B or s 16AAA of the Crimes Act

Catchwords:

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

Catchwords:

CRIME – Appeals – interlocutory appeal – sexual assault communications privilege – application for leave to appeal against a refusal of leave to the accused to access documents counsellors had produced to Court under subpoena – Criminal Procedure Act, Ch 6, Pt 5, Div 2 – whether trial judge erred by not determining the probative value of the documents to which access was sought – whether trial judge erred by not engaging in the weighing exercise required by s 299D(1)(c) of the Act

Catchwords:

COSTS – application for indemnity costs

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

SENTENCING — appeals — appeal against sentence — offence of having sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW) — plea of guilty – whether sentencing judge erred in providing a 10% discount as opposed to a 25% discount to reflect the applicant’s plea of guilty — Crimes (Sentencing Procedure) Act 1999 (NSW), s 25D — leave 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:

CRIME – application for request to sheriff for investigation of potential juror impropriety pursuant to s 73A of Jury Act 1977 (NSW) – application dismissed by judge – whether application could be renewed in appellate court on same basis – where judge who presided over trial had already investigated the matter – where previous investigation took place 18 months ago in immediate aftermath of incident – where previous investigation obtained evidence on oath – prospects of second investigation resulting in different evidence speculative – application refused JURISDICTION – nature of decision by Supreme Court judge to refuse application for request for sheriff to conduct investigation – nature of purported appeal from refusal of such application – availability of appeal under s 5F or s 22 of Criminal Appeal Act 1912 (NSW) – whether right of appeal under s 101 of Supreme Court Act 1970 (NSW) excluded by s 17 – whether decision judicial or administrative – whether decision amenable to judicial review

Catchwords:

CRIMINAL PROCEDURE – Indictment – Amendment – Appeal where application by the Crown to amend the dates on an indictment previously refused – Amendment to the dates specified on an indictment to capture a period of offending in which time all offences took place – Whether there is irreparable prejudice and, as a consequence of that prejudice, a fair trial cannot occur in circumstances where an amendment to an indictment is requested by the Crown – Where leave of the Court is required to amend an indictment where the accused has not consented – Whether an amendment to an indictment which provided a date range which encompassed the dates earlier pleaded constitutes a new Crown case

Catchwords:

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

Catchwords:

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

Catchwords:

CRIME – appeals – Crown appeal against sentence – federal offences of procuring or attempting to procure persons believed to be children to engage in sexual activity outside of Australia – federal offences of persistent sexual abuse of children outside of Australia – State offence of failing to comply with reporting obligations – guilty pleas – aggregate sentence less than 50 percent of mandatory minimum sentences – nominated indicative sentence less than 75 percent of mandatory minimum sentence for sequence 9 – manifest inadequacy – where respondent conceded all grounds of appeal were established – appeal allowed – resentence SENTENCING – resentence – where it appeared that the persons the subject of the offences were not in fact children – where the Director conceded that it could not be proved they were in fact children – where the concession was wrongly made with respect to certain sequences – respondent’s plea of guilty to some offences not admission of fact with respect to other offences – the Court should do no more than to act on the pleas – offences all objectively serious – offences committed remotely – respondent’s advanced age and health – aggregate sentence imposed pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) – discount for pleas of guilty – equal justice

Catchwords:

CRIME – appeals – Crown interlocutory appeal – sexual offences – whether trial judge erred in refusing Crown application to discharge jury – where discharge application based on directions given by trial judge – where trial judge relied on R v Wilkie, R v Burroughs, R v Mainprize [2005] NSWSC 794 – directions inconsistent with s 294B(7) of the Criminal Procedure Act 1986 (NSW) – directions carried real risk of elevating importance of demeanour – wrong principle – error in determination of application – appeal allowed – matter remitted to be determined according to law EVIDENCE – witness evidence – evidence in sexual offence proceedings – evidence given by alternative arrangements – impact of evidence given by audio visual link – judicial attitudes – research – not equivalent to testimony in courtroom – weaker standard of communication – may affect opposing or calling party – beneficial or detrimental to witness – Kennedy Nixon presidential debate – impact may not be ascertainable EVIDENCE – directions to jury – evidence given by audio visual link – directions in ordinary case likely to contravene s 294B(7) – s 294B(7) cannot convert poor evidence into clear evidence – available direction where impact of audio visual link capable of being identified – direction as to particular quality of evidence – example direction provided

Catchwords:

CRIME – SENTENCE – appeal against sentence – attempt to import commercial quantity of border-controlled drug – application for leave to appeal out of time – sole ground of appeal based upon Totaan v R [2022] NSWCCA 75 – sentencing judge did not accept hardship to family as exceptional – “Totaan error” - where resentence process undertaken, but no lesser sentence warranted in law – where structure of sentence did not comply with s 19AB of the Crimes Act – where sentence is to be served concurrently for each count

Catchwords:

CRIME – appeals – appeals against conviction – admissibility of tendency evidence – where matters in issue at time of pre-trial ruling not significantly different from matters in issue at close of evidence at trial – where tendency evidence still had significant probative value at close of evidence and probative value outweighed danger of unfair prejudice – where tendency direction given – no error established CRIME – appeals – appeals against conviction – miscarriage of justice – jury directions – tendency directions – content of tendency directions and standard of proof – where directions and summing up when considered as a whole would not deflect jury from their proper task of determining whether elements of offences proved beyond reasonable doubt – no miscarriage of justice EVIDENCE – tendency evidence – significant probative value – where asserted tendency is broad – where there is a gap in period where tendency is asserted – given matters in issue the tendency evidence had significant probative value – where probative value outweighed the danger of unfair prejudice – no error in pre-trial ruling STATUTORY INTERPRETATION – definition – definition of “under authority of” in s 61H(2) Crimes Act 1900 (NSW) – whether person receiving treatment from an osteopath is “in the care of” and thus “under the authority of” the osteopath – no error in so directing jury

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

CRIME – appeals – appeal against sentence – imprisonment by way of intensive correction order (“ICO”) – where applicant sentenced to term of imprisonment of 3 years and 6 months for drug and weapon offences – whether sentencing judge ought to have considered ICO as alternative to full-time detention – where ICO only available for aggregate term of imprisonment 3 years or less – whether aggregate ought to have been reduced by the period on remand rather than backdated to date of arrest so that aggregate less than 3 years – enlivening availability of an ICO not a relevant consideration in fixing duration and commencement date where a term of over 3 years is found appropriate CRIME – appeals – appeal against sentence – mitigating factors – whether sufficient weight given to applicant’s uncontested evidence of non-exculpatory duress

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

CRIMINAL LAW – procedure – adjournment, stay of proceedings or order restraining proceedings – application for temporary stay of proceedings on the indictment pending outcome of application for leave to appeal against refusal to grant permanent stay pursuant to Criminal Appeal Act 1912 (NSW), s 5F – whether applicant had arguable case that double jeopardy principles would be breached – temporary stay granted

Catchwords:

CRIME – Appeals – Appeal against sentence – Two offences of sexual intercourse without consent – Aggregate non-parole period greater than the sum of the two indicated non-parole periods – The totality principle applies to aggregate sentences – An aggregate non-parole period which exceeded the sum of the indicated non-parole period constituted error – Applicant resentenced

Catchwords:

CRIMINAL LAW – appeal – sentencing – whether manifestly inadequate – principles of Crown appeals – where sentencing young offender – where young offender acting under non-exculpatory duress

Catchwords:

CRIMINAL LAW – procedure – bail – applicant charged with robbery in company while armed with a dangerous weapon – applicant charged with aggravated robbery causing grievous bodily harm – applicant charged with dishonestly obtaining a financial advantage – bail refused by judge of Supreme Court – release application to Court of Criminal Appeal – assessment of bail concerns – failure to appear – commit further serious offences – endanger the safety of victims, individuals or the community – no prior criminal record – strong family ties to community – youth – delay before trial – identification of applicant – strength of Crown case – whether bail conditions met bail concerns – unacceptable risks – application dismissed.

Catchwords:

CRIME – appeals – appeal against sentence – importation of a commercial quantity of a border controlled drug – parity – “marked” disparity need not be “gross” or “glaring” – where the differences in roles and subjective cases warrant different sentences – whether the higher sentence imposed on the applicant gave rise to a justified sense of grievance – leave to appeal granted – appeal dismissed

Catchwords:

CRIME – Appeals – Appeal against sentence – Application for leave to appeal – Possessing a shortened firearm without authority – Possessing an unauthorised firearm – Supplying a prohibited drug – Dealing with suspected proceeds of crime – Whether sentencing judge erred in finding that the principles relevant to sentencing arising from a background of deprivation did not apply to the applicant – Bugmy v The Queen (2013) 249 CLR 571 SENTENCING – Subjective considerations on sentence – Positive and stable upbringing with mother and grandmother – Extended family environment where violence, heavy drinking and drug use and supply observed and normalised – Commencement of alcohol and drug abuse – Countervailing influences – Offender not required to establish “profound” childhood deprivation – No point of principle

Catchwords:

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

Catchwords:

CRIME – appeals – appeal against sentence – manifest excess – supply of firearms and prohibited weapons – possession and unlawful use of firearms – supply of illegal drugs – breaking and entering –totality and notional accumulation – where 50% discount was significantly eroded at the stage of aggregation – excessive accumulation – manifest excess established – applicant re-sentenced

Catchwords:

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