CRIMINAL LAW — prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE — objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay –appropriate penalty – Work Health and Safety project order COSTS — prosecution costs OTHER — drill string and drill head containing stored energy broke free from earth and struck a fatal blow to worker – no guidance material identifying the risk available – whether or not the likelihood of risk occurring was low – whether level of culpability is lower when risk is not generally known to industry
MOTOR ACCIDENTS – whether plaintiff brings a claim for damages in respect of injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle – whether plaintiff not entitled to commence proceedings by reason of s 108 of the Motor Accidents Compensation Act 1999 (NSW) – whether proceedings should be dismissed because no reasonable cause of action is disclosed
Coal Miner’s Workers Compensation – Lump sum compensation claims after 42 years work as an underground electrician/multi-skilled coal miner – Further disarticulation of limbs where a disease of gradual process is alleged – Consideration of the nature of osteo-arthritis especially of the hands – Criticism of expert’s providing opinions outside their expertise where no relevant history is recorded and no relevant examination is performed.
CRIMINAL LAW - procedure - application for directed verdict - whether defect in evidence present - whether absence of evidence of essential element in offence STATUTES - interpretation - words and phrases - s 37(1A) of the Crimes Act 1900 (NSW) - meaning of the word 'chokes' - significance of purposive construction - relevance of tenet of construction that ambiguous penal provisions should be interpreted in favour of accused
EVIDENCE – aggravated kidnapping and strangulation offences – objection to cross-examination on credibility of witness called by accused – whether witness’ criminal history and driving record substantially affect assessment of credibility
Criminal Law – Criminal Code Act 1995 (Cth) s 474.17(1) – Use Carriage Service in a way that a Reasonable Person would regard as Menacing, Harassing or Offensive – Sentencing – General Sentencing Principles
TORTS – professional negligence – architect – damages – breach of contract - false and misleading representations – reliance on representations – loss and damage – concurrent wrongdoer
Re-trial; Finding of guilt by Jury; Alternative charges; Aggravating circumstances; Offending in home of Complainant by invitation; Lack of remorse; Hardship; Loss of employment
CRIME - Drug offences - Supply prohibited drug –Large commercial quantity – MDA CRIME - Drug offences - Supply prohibited drug - Commercial quantity - Cocaine CRIME – Personal violence offences - Aggravated take and drive motor vehicle with assaults CRIME - Criminal Groups - Direct criminal group - instructing, guiding, counselling, overseeing, commanding and leading their subordinates towards the accomplishment of organisational goals of their supply operation CRIME - Confiscations - Forfeiture order - Proceeds of crime order CRIMINAL PROCEDURE - Back up and related offences - Procedures CRIMINAL PROCEDURE - related offences - determination of guilt CRIMINAL PROCEDURE - Sentencing - contested facts SENTENCE - Drug offences - Supply prohibited drug - Large commercial quantity- MDA SENTENCE - Drug offences - Supply prohibited drug - Commercial quantity - Cocaine SENTENCE - Criminal Groups- Direct criminal group- SENTENCING - Relevant factors on sentence -Multiple offences - Forms 1 - Aggregate sentences SENTENCING - Relevant factors on sentence - Factual basis for sentence - Multiple offences - COVID 19 - Drug use - Parity SENTENCING - Subjective considerations on sentence - Youth and immaturity - Solid prospects for rehabilitation - childhood exposure to domestic violence - strong family support - Special circumstances
TORTS — Trespass — General principles – Where the Plaintiff brings proceedings in respect of a claim for trespass to his property (being a letterbox in a strata title) against the Defendant (a real estate agency) whom had deposited what were described as “unwanted real estate pamphlets” – Where the Defendant responded that his monthly newsletter was not “junk mail” – Where the Defendant made attempts to ameliorate deliveries to the Plaintiff’s mailbox but the Plaintiff would not provide his address or place a more specific sign – Where the Plaintiff contended that he had a right and exclusive possession of the letterbox – Where the Court finds that exclusive possession not established and any implied licence granted by the Plaintiff has not been withdrawn DAMAGES –– Where the Plaintiff did not address general damages before addressing exemplary damages – Where the Court in any event would have declined to award exemplary damages
CRIMINAL LAW –– Child sex offences – Maintaining an unlawful sexual relationship with a child SENTENCE –– Aggravating factors – Offences committed in position of trust and vulnerability of victims considered – Mitigating factors – No prior convictions – Prior good character – Offender’s moral culpability reduced in line with the principles in R v Bugmy – Offender’s time in custody is more onerous due to his mental and physical health – Offender at low risk of reoffending and has good prospect of rehabilitation notwithstanding his denial of offending – Finding of special circumstances by reasons of the Offender’s health and favourable prospects of rehabilitation SENTENCE –– Where the interpretation of section 66EA of the Crimes Act 1900 (NSW) is distinguishable from that found for section 50 of the Criminal Law Consolidation Act 1935 (SA) in Chiro v R [2017] HCA 37
CRIME – sentencing – use carriage service to transmit indecent images – use carriage service to solicit child abuse material – internet based social networking applications - assumed online identity as 14 year old girl - general deterrence
CONTRACTS — formation – whether an oral contract was formed between the plaintiff and the defendant for the provision of motor vehicle assessment reports –– post-contractual conduct considered as relevant to proof of the existence of a contract and its terms CONTRACTS — performance – damages – whether the plaintiff is entitled to recovery of fees charged in outstanding invoices EVIDENCE — whether the defendant’s failure to call its claims manager as a witness warrants the making of a Jones v Dunkel inference
MEDIA AND COMMUNICATIONS — Telecommunications services — Offences — Use of carriage service to send indecent material to person <16 EVIDENCE — Admissions — Criminal proceedings
DEFAMATION – interlocutory injunctions – defendant continues to publish matter concerning the plaintiff after proceedings commenced and an application for interlocutory injunctive relief is made – defendant fails to file defence or attend court to oppose the making of the orders – application for interlocutory injunction concerning the first matter complained of granted.
CRIME – possess prohibited firearm while subject to firearms prohibition order - Use unregistered firearm-prohibited firearm - Deal with property proceeds of crime under $10,0000- possess ammunition CRIMINAL PROCEDURE — Back up and related offence – not guilty plea- Deal with property proceeds of crime under $10,0000 - what is a reasonable suspicion - guilty verdict- reasonable grounds to suspect that the property was the proceeds of crime SENTENCING — Relevant factors on sentence — late guilty plea- offer to plea to similar facts rejected by prosecution in local court- level of utilitarian discount determined - underlying purpose of the early guilty plea scheme- related offence defended- application of sentencing principle- purposes of sentencing - need for individualised sentence – time in custody- evidence about the offender’s background uncontroversial- unsworn evidence going to the objective circumstances of the offending of little value- offender’s medical condition and problems obtaining treatment in custody - ill‑health can mitigate punishment - assistance by facilitating surrender of pistol SUMMARY HEARING:- Deal with property proceeds of crime under $10,0000 - guilty verdict
CONTRACT – deed of settlement – compromise of multiple legal proceedings involving company debtors and guarantors and creditor – construction of release – applicability of Grant v John Grant equitable doctrine CONSUMER LAW – credit contract – National Credit Code – standing requirement in application to re-open contract PRACTICE AND PROCEDURE – summary dismissal application
COSTS— application by successful cross-claimant for indemnity costs following service of rules offer and Calderbank offer — whether offer valid pursuant to the UCPR or alternatively Calderbank principles
Crime – Sentence – Commonwealth and State offences – Use carriage service to solicit child pornography – Engage in conduct what exposed indecent material to a child under the age of 14 years with the intention of making it easier to procure her for unlawful sexual activity - Grooming
JUDGMENTS AND ORDERS - liberty to apply in relation to dispositive orders relating to multiple interlocutory applications - application by plaintiff to set aside or vary orders - whether applications feature attempt to reargue decision or amount to fresh applications for further amendments and joinder applications previously rejected by the Court
CRIMINAL LAW - costs in criminal cases - certificate - Crown decision to 'no bill' proceeding after applicant's representations - offences constituted by alleged sexual assaults - representations followed delayed disclosure of Cellebrite analysis of data on complainant's mobile phone - whether it would not have been reasonable to institute proceeding if prosecution had in its possession all relevant facts
CRIME – work health and safety – risk of death or serious injury – duty of persons undertaking a business or undertaking PROCEDURAL – reasonably practicable – likelihood of risk – knowledge of risk – what the defendant ought reasonably have known SENTENCE – 5% reduction for the utility of the plea.
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of worker SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – appropriate penalty SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty – capacity to pay a fine – WHS undertaking
SENTENCING – Robbery whist armed with an offensive weapon – in company – Parity – Special circumstances – breach of conditional liberty – drug use - remorse
CONSTITUTIONAL LAW — Commonwealth Constitution — General principles — legislative capacity of the State of NSW to make laws applying to Aboriginal/indigenous people CRIME - Constitutional Law — Commonwealth Constitution — General principles — Nature of common law CRIME – Summary Offences - Driver use mobile phone when not permitted- Assault police officer in the execution of his duty - Hinder police CRIME - Appeals - Appeal against conviction - Wrong decision on a question of law – appeal dismissed - no error in magistrate’s decision APPEAL - Jurisdiction of appellate court — District Court APPEALS — Nature of appeal - challenge to jurisdiction of the court.
TORTS – negligence – Civil Liability Act 2002 (NSW) claim – work accident – whether the plaintiff’s claim was properly a claim brought under the Civil Liability Act 2002 (NSW) or the Workers Compensation Act 1987 (NSW) – whether the plaintiff had a contract of service or a contract for services – whether the plaintiff was a “worker” or “deemed worker” - whether tree felling and pruning company was vicariously liable for person working with the plaintiff on the day of the accident or such person was the company’s agent – whether breach by company of duty of care EMPLOYMENT LAW – whether the plaintiff had a contract of service or a contract for services – whether plaintiff was an employee of the second defendant – indicia of employment – control – uniforms – supply of equipment – concentration of work for one entity
SENTENCING — Aggravating factors — Home of victim or any other person SENTENCING — Mitigating factors — Plea of guilty – Remorse SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences CRIME — Child sex offences — Sexual intercourse with child >10 <14 — Circumstances of aggravation
PRACTICE AND PROCEDURE - plaintiff's claim for unpaid fees from services agreement relating to management of the supply of water and sewerage services on development sites - claim defended on the basis of inadequacy of manager’s services - defendant part of corporate group whose role was to manage payroll within the group - plaintiff's application to join developer and Chairman of corporate group - plaintiff's application to amend pleading - whether joinder and amendments futile - discretionary considerations COSTS - security for costs - applications for security by both defendant and plaintiff (as cross-defendant) - whether plaintiff's claim stifled by order for security - Cross-Claimant as trustee of trust - whether jurisdictional ground for order established - whether Cross-Claimant's claim is essentially defensive - general discretionary considerations
CRIMINAL LAW – Judgment – Manslaughter -Application for permanent stay of proceedings – Reversal of plea – Abuse of process – Crown case incapable of establishing criminal negligence – Doomed to fail
CONSUMER LAW — misleading or deceptive conduct – whether conduct is “in trade or commerce” CONSUMER LAW — whether representations inducing the plaintiff’s decision to invest in boating business venture were misleading or deceptive within the meaning of s 18 of the Australian Consumer Law – whether or not the plaintiff suffered loss in reliance upon the representations CONTRACT LAW — whether there was a breach of an investment agreement – whether there was a breach of a loan agreement DAMAGES — assessment of damages – comparison between the position which the person who suffered loss or damage is in and the position they would have been in had there been no contravention
CRIME - Supply prohibited dug - cannabis CRIME - Confiscations - Forfeiture order - Proceeds of indictable offence SENTENCE - Relevant factors on sentence - early plea - agreed facts not adhered to – contested facts - finding against offender - reduction of utilitarian discount – parity - role of offender - subjective case
CHILD CARE APPEAL ON COSTS – appeal from decision of Children’s Court refusing appellant’s application for costs where the Secretary, Department of Communities and Justice failed to meet the establishment criteria in proceedings in the Children’s Court – whether exceptional circumstances have been shown by the costs appellant: s 88 of the Children and Young Persons (Care and Protection) Act 1998
CRIME - SENTENCE - aggravated sexual assault with a victim under 16 years - intentionally sexually touching a child - inciting the commission of aggravated sexual assault with a victim under 16 years of age.
CRIME – sentence – knowingly take part in manufacture of a prohibited drug not less that indictable quantity – not involved in manufacture but allowed it to take place on his premises – lack of co-operation with police – prior good character – special circumstances – totality of criminality.
CRIMINAL – Sentence – all 3 offenders: aggravated robbery, being armed with a dangerous weapon – Nolan & Kwu: drive or be carried in a conveyance – Ilievski: 2 offences of aggravated break and enter and commit a serious indictable offence in company, to wit larceny – circumstantial Crown case – history of trial - 3rd retrial of offences in re armed robbery & be carried in conveyance – delay – roles of offenders – context – background & association between offenders – police surveillance – forensic evidence - alibi – seriousness of offences – firearms offences - parity –ceiling principle re past sentence - impact of armed robbery and effect on those present – specific deterrence – subjective matters
CRIME – Detain for advantage in company with intent to commit serious indictable offence - occasion actual bodily harm SENTENCING - Relevant factors on sentence – sentence after trial – victim impact –– untested evidence going to objective circumstances of offence not accepted - professional opinions about subjective circumstances accepted - history of mental disorders and domestic violence - remorse - role of offender - parity principles - differing roles of co-offenders - drug use – on an ice “bender” - good progress on remand - harsh custodial environment will have a negative impact on rehabilitation - special circumstances.
SENTENCING – Indecent assault – attempt sexual intercourse father and daughter aged 11 or 12. SENTENCING – Relevant factors on sentence – late guilty plea – delay in complaint – representative counts – Form 1 – assessment of objective seriousness – relevant factors – Victim Impact Statement considered – application s 25AA Crimes (Sentencing Procedure) Act – relevant principles – retribution and deterrence – delay in sentencing given delay– offender’s complex history – history of deprivation – offender’s father an abuser – expressions of remorse – impact of imprisonment – accumulation concurrence – totality principle applied – special circumstances found.
CRIME – sentence – drive manner dangerous causing death x 2 – low moral culpability – no prior significant criminal or traffic history – prior good character – remorse and contrition – absence of usual aggravating factors – ‘exceptional circumstances’ – totality of criminality
CRIME – sentence – robbery whilst armed with offensive weapon – criminal history but no juvenile history – dysfunctional and disadvantaged upbringing – special circumstances – remorse – plans for the future – COVID-19 – need for rehabilitation once released
CRIME – sentence – manslaughter by gross negligence – failing to stop and assist – take and drive without consent of owner – drive while disqualified – vehicle driven on wrong side of road at speed - on conditional liberty at time of offence – no aggravating factors in his criminal history – no remorse or contrition – attempts to blame others for his conduct – not a momentary period of reckless driving but a course of reckless driving over an extended period – totality of criminality – special circumstances – aggregate sentence – partial accumulation on existing sentence.
CRIME – sentence – enter dwelling house with intent to commit serious indictable offence – people there – robbery with offensive weapon – little planning – not armed on arrival – no injury to victims – no threats with weapon - offences committed while on conditional liberty – extensive criminal history as a juvenile – first time in gaol as an adult – dysfunctional and disadvantaged upbringing – no experience of normal community living - remorseful – institutionalised – upon release will need help with drug counselling, pro-social living and employment – good prospects of rehabilitation CRIME – sentence – entering premises with intent to commit serious indictable offence - in company – larceny - robbery simpliciter – offences committed while on conditional liberty – unidentified co-offender – threatening and intimidating behaviour – pleas of guilty - totality of criminality
Crime – Sentence – Aggravate break and enter and commit serious indictable offence therein – Knowing that persons were present in the house – Drive unlicensed
Debt and cross-claim – Debt partially admitted by defendant – Cross-claim for unpaid rent and property damage – No appearance by plaintiff – Judgment given on pleadings.
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay – totality of sentence - appropriate sentence - parity OTHER – failure to notify SafeWork of a notifiable incident – failure to consult, co-operate and co-ordinate activities with other persons who had a duty under s 19(1) of the Work Health and Safety Act 2011 (NSW)
CRIMINAL LAW –– Firearm offences – Possess a prohibited firearm – Possess ammunition for a firearm without holding a licence or permit – Custody of one firearm part – Possess an unauthorised pistol CRIMINAL LAW –– Drug offences – Possession of testosterone, trenbolone, ephedrine and cannabis leaf SENTENCE –– Form 1 matters– Offender’s reason for possessing the firearms being protection was not a mitigating factor – Mitigating factors – early plea –remorse – Aggravating factors – prior record of possessing unauthorised or prohibited firearms SENTENCE ––Where principles in R v Bugmy apply –Offender is assessed at Medium-High risk of reoffending – Where the court has found that the Offender has made positive progress by engaging with various programmes – Special circumstances found in relation to the Offender’s young age, need for extended parole and risk of institutionalisation
COSTS – whether a limiting order should be made as to the plaintiff's costs of the proceedings – problem with pagination of the court bundle - general exercise of the court's discretion as to costs
CRIME – Sentence - C’TH – Insider trading – tipping - utilising three different brokers & seven different trading accounts during offending period – course of conduct – seriousness of offences - financial consequences – damage to market - general deterrence - self reporting and admissions – remorse and contrition - subjective matters
CRIME – PRACTICE AND PROCEDURE – Application for stay of proceedings – A charged initially with 617 counts on one indictment – Crown later presented 5 indictments containing in total 617 counts – A seeks stay until Crown presents indictment that is not oppressive or vexatious – Crown proposes to present 4 indictments containing 206 counts – Leave granted to Crown to present 4 indictments.
CRIME – sentence – aggravated robbery and inflict actual bodily harm – offence committed whilst on parole for similar offence – not planned – breach of conditional liberty - criminal history dating back to childhood – disadvantaged and dysfunctional upbringing – Aboriginality - ‘Bugmy’ principles– drug use – poor mental health – guarded prospects of rehabilitation – plea of guilty - contrition and insight – plans for the future – special circumstances – Bar Book Project.
CRIME - alleged wounding with intent to murder - joint application for special verdict under s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) - construction issue of what is the 'defence' that the Court needs to be satisfied is established in s 31(c) - consideration of onus of proof - whether act proven - whether defendant is 'not criminally responsible' - consideration of whether defendant had 'mental health impairment' at time of offending
Criminal law – domestic violence – blight on civil society – no man should strike a woman – abuse of relationship – obligation of the state to vindicate the dignity of the victim – community disapproval – protection of the vulnerable against violence – denunciation of domestic violence – repeat domestic violence offender – protection of the individual and the community.
CRIME — Appeal and review — Appeal from Local Court to District Court — By person sentenced against sentence CRIME — Fraud — Dishonestly obtain financial advantage by deception CRIME — Fraud — Dishonestly obtain property by deception CRIME — Property offences — Break, enter and commit serious indictable offence CRIME — Property offences — Receiving CRIME — Property offences — Take and drive a conveyance
CRIMINAL LAW – PROCEDURE – whether there is power to withdraw questions from a Stated Case – whether there is power to add questions to a Stated Case – whether questions in a Stated Case are questions of law
PRACTICE AND PROCEDURE – plaintiff allegedly victimised by local residents of Scotland Island – complaint against police force and local council in response to such victimisation – causes of action in negligence and intentional tort – application to join additional parties as defendants – whether proposed amendments to pleading comply with earlier Court orders – whether plaintiff’s separate proceedings against individuals should be consolidated – consideration of Council’s application to dismiss – whether reasonable cause of action alleged – whether any inadequacy of particulars warrants dismissal for want of despatch BANKRUPTCY – plaintiff is undischarged bankrupt – whether pleaded action or actions for property damage – whether action falls within “personal injury or wrong” exception under s 60(4) of Bankruptcy Act 1966 (Cth)
CRIME – SENTENCE – Cth Offence – 9 Counts of either attempting to export, aiding an abetting attempts to export or exporting regulated native animal species – Late guilty plea of great utilitarian value – 20% discount allowed – Malaysian born Chinese man who left school at age of 16 years to work in manual jobs. To Australia on a tourist visit but was working in Australia for a number of years – Consideration of what he did in the smuggling syndicate – Neither a principal or a mere courier – Motivated by desire for money – Married one week prior to arrest – No animals died or were injured.
CRIME – sentencing – robbery in company – application of R v Henry guidelines – offender’s role in planning robbery – whether reduced culpability because of victim’s sexual harassment of her and/or mental disorder – whether extra-curial punishment suffered because of social media posts consequential to newspaper articles – whether risk of re-offending more appropriately addressed by intensive corrections order or full-time detention
CRIMINAL LAW – interlocutory application pseudonym and non-publication order – whether order is necessary to protect applicant’s safety – substantial commentary about offender on Facebook following publication of newspaper articles
CRIME – Firearm offences – Possess Prohibited Weapon (Taser and knuckledusters) - Possess Prohibited Weapon in Contravention of Weapons Prohibition Order CRIME – Drug offences - Possess Prohibited Drug with Intent to Supply CRIME – Property offences – Goods in custody (prescription medication) SENTENCING – Relevant factors in sentencing – General deterrence – Form 1 matters – s 166 matters – breach matters
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – worker injured SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – appropriate penalty SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities
Crime – Sentence – Manufacture methylamphetamine – Fail to keep firearm safely – Supply methylamphetamine – Possess precursor with intent to use them in the manufacture of prohibited drug
CONTRACTS – contract for supply of vocation and education training services to Registered Training Organisation (‘RTO’) – payment to supplier based on funding separate funding schemes for State and federal government – money claim by supplier for unpaid invoices – construction of contract – funding paid to RTO based on proportional amounts to plaintiff – whether amounts which RTO had to ‘recredit’ federal government taken into account when identifying amount to be paid to supplier PRACTICE AND PROCEDURE – unsolicited written submissions supplied to Court after judgment reserved – whether leave should be granted to party to rely upon them
CRIME – SENTENCE – Cth offence – Public servant engaged in conduct with the intention of dishonestly obtaining an advantage for himself and other – Misuse of computer system of DAWR to obtain data relevant to importing formwork plywood to give an advantage to others involved in that trade and in the expectation of personal gain – No actual benefit obtained for himself – Offending over 18 months period – Guilty plea – Late – Significant utilitarian value – Discount of 15% allowed – Prior good character – Nearly 12 years service in Army, including active service overseas – Unlikely to reoffend.
TORTS – Negligence – Sexual Assault TORTS — Trespass to the person — Battery TORTS – Breach of Duty of Care by Foster Carers LIMITATION OF ACTIONS — Suspension of time — Plaintiff under disability TORTS — General principles — Damages
Civil Practice & Procedure – Defence Objection to Cross‑Examination of its Witness – Objection on the Basis of Relevance – Admissibility of Oral Evidence under ss 55‑56 of the Evidence Act 1995 (NSW)
Civil Practice & Procedure – Admissibility of Evidence – Allegations of Sexual Assault – Defence Objection to Evidence of Complaint – Hearsay – Credibility – Leave Pursuant to s 192 of the Evidence Act 1995 (NSW)
Practice & Procedure – Application to Amend the Statement of Claim at the Commencement of Hearing Pursuant to s 64 of the Civil Procedure Act – Opposition by the Defendants – Duty of Care – foster carer for Child
CRIME - SENTENCE - assault occasioning actual bodily harm - intentionally choke etc person with recklessness - sexual intercourse without consent (DV) - reckless wounding (DV) - attempt sexual intercourse without consent (DV).
ADMINISTRATIVE LAW – what must be disclosed by a payment schedule under the Building and Construction Industry Security of Payment Act 1999- the requirements of a payment schedule- identification of the payment claims – indication of the amount of the payment- reasons for withholding payment
TORTS – Negligence – pedestrian fell when a temporary ramp he walked upon moved – proper construction of s 45 of the Civil Liability Act 2002 (NSW) – proper construction of the Roads Act 1993 (NSW) – nature of council’s duty of care WORDS AND PHRASES – “particular risk” – Civil Liability Act 2002 (NSW) s 45
CRIME – work health and safety – risk of death or serious injury – duty of persons undertaking a business or undertaking PROCEDURAL – reasonably practicable – likelihood of risk – knowledge of risk – what the defendant ought reasonably have known SENTENCE – 25% reduction for the utility of the plea.
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay – totality of sentence - appropriate sentence - parity OTHER – failure to notify SafeWork of a notifiable incident – failure to consult, co-operate and co-ordinate activities with other persons who had a duty under s 19(1) of the Work Health and Safety Act 2011 (NSW)
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty COSTS – prosecution costs OTHER – defendant involved in the manufacture of ink products – blockages affected the operation of an ink holding tank and mill – onslow mixer and mill remained in operation while tank was being cleaned – access hatch was removed before anchor blade was electrically isolated – contractor’s leg became trapped between side of the tank and anchor blade – other workers suffered injuries when they entered the tank to assist – electrical isolation system inadequate – absence of an external isolator switch or emergency stop – confined space entry permit had only been partially completed – inadequate audit procedure to ensure job safety analysis and confined space entry permit were being utilised – safety documents on electrical configuration of the tank were inadequate
CRIMINAL LAW – supply prohibited firearms – possess firearm part – manufacture prohibited firearm – stalk or intimidate – dealing with proceeds of crime.
CONSTRUCTION OF INSURANCE POLICY – Home Owners Warranty insurance policies issued by insurer to a building company on basis that deeds of guarantee and indemnity would be executed – whether the first defendant entered into a valid deed of guarantee and indemnity CONSTRUCTION OF A GUARANTEE – Whether the first defendant is bound by first and/or second deeds of guarantee and indemnity – whether deeds of guarantee and indemnity are enforceable CONSTRUCTION OF DEED OF RELEASE – whether bringing of proceedings by the plaintiff against the first defendant was a breach of a covenant not to sue in release deed signed by the parties UNJUST CONTRACTS – whether guarantee is an unjust contract pursuant to s 7 of the Contracts Review Act 1980 (NSW) UNCONSCIONABILITY – whether an independent and adequate explanation of the legal effect of executing a guarantee was provided – whether the first defendant acted in reliance upon statements from her husband, family members and/or insurer UNCONSCIONABLE CONDUCT – equitable doctrine of unconscionable dealing – meaning and scope of unconscionability under s 21 of the Australian Consumer Law – whether the s 22 factors that assist in determining if a person has engaged in unconscionable conduct are relevant to the relationship between an insurer and a guarantor – whether the s 22 factors are restricted to the relationship between the insurer as the “supplier” and the insured business as a “customer” EVIDENCE – absence of handwriting expert evidence – no evidence presented that first defendant did not understand the purport and effect of the transaction
Police Superannuation – Abnormal risk benefit – Quantification of the benefit – Three certified infirmities: (1) left hallux rigidus (2) cervical spondylosis (3) sensorineural deafness – P was a member of Highway Patrol for most of his career and spent most of that time as a motorcycle rider – Extent of disablement apportioned as (1) 30% (2) 60% (3) 10% - Therefore of the 15% of salary of office available were (1) 4.5% (2) 9% (3) 1.5% - Allowed by Court was (1) 4% (2) 1% (3) nil – Base rate of 85% of salary increased to 90% of salary by findings of Court.
SENTENCING — Aggravating factors — Breach of conditional liberty — Use of weapon — Record of previous convictions SENTENCING — Mitigating factors — Plea of guilt — Remorse — Rehabilitation SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Factual basis for sentence — General principle — Maximum penalty — Objective seriousness — Purposes of sentencing SENTENCING — Subjective considerations on sentence — — Drug addiction — Special circumstances
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty COSTS – prosecution costs OTHER – gas system connected to a meat sealing machine was used to package food products for export – gas regulator allowed an outlet pressure greater than the system could handle – system reached its bursting limit causing an explosion – plastic filter housing fragments lodged into worker’s forearm – absence of risk assessment – no steps taken to ensure system compatibility with existing machine – gaps in standard operating procedure – training gaps – absence of appropriate safety relief valve
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty COSTS – prosecution costs OTHER – crane and grillage columns collapsed at a residential construction site – design of grillage was not adequate to support the intended load of a fully erected tower crane – joints and connection pins as designed were not adequate for the tensile forces that would apply to a large load
PRACTICE AND PROCEDURE – application to further amend pleading – application arises from findings of referee’s report objected to by defendant as beyond the scope of the plaintiff’s existing pleading – consideration of exercise of discretion to grant leave to amend
SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions — Without regard for public safety Mitigating factors — Plea of guilty — Rehabilitation SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Co-offenders — Deterrence — General principles — Maximum penalty — Moral culpability — Multiple offences — Objective seriousness — Purposes of sentencing SENTENCING — Subjective considerations on sentence — Drug addiction — Special circumstances
PERSONAL INJURY – motor accident – substantial period of delay– applications to dismiss and for leave to commence out of time – minor at time of accident – disadvantage – involvement of alcohol and joint illegal enterprise – serious injuries and disabilities.
CIVIL PROCEDURE — notice of motion – Where the Defendants argue that proceedings be either dismissed pursuant to UCPR 13.4 or that the Statement of Claim be struck out pursuant to UCPR 14.28 – Whether the Plaintiff was precluded from bringing the present proceedings where proceedings were previously dismissed in light of section 91 of the Civil Procedure Act 2005 (NSW). ESTOPPEL — whether issue or Anshun estoppel applies in light in of previous Supreme Court decision to which the Defendants were not parties.
CRIMES — Child sex offences — Indecent assault — Sexual intercourse without consent — historic offences SENTENCING — Sentencing procedure — Disputed facts — Findings of fact – Question as to the age of the victim on the date of the offences – Where the date range of indictment encompassed periods at which the victim was 15 years of age and 16 years of age – Where different maximum penalties were available depending on the victim’s age under the now repealed s 61D(1) – The date range on indictment are particulars, not elements – no finding to be attributed to the jury – the evidence establishes the date of the offences beyond reasonable doubt SENTENCING — Sentencing procedure — Disputed facts — Findings of fact at sentence – Uncharged sexual acts not proven beyond reasonable doubt – Where the use of a knife is an integral part of the res gestae and therefore attributable to the jury’s finding of guilt beyond reasonable doubt SENTENCING — Aggravating factors — Use of weapon — Mitigating factors — No record of previous convictions — Prior good character — Not part of a planned or organised criminal activity — Unlikely to re-offend — Subjective considerations on sentence — Special circumstances
CRIME – Manufacture prohibited drug >= large commercial quantity - Take part manufacture prohibited drug >= large commercial quantity SENTENCING - Relevant factors on sentence - multiple offenders - early guilty pleas - one offender entered a late plea - a large commercial quantity illicit drugs converted into marketable form - role of each offender- reasons for distinguishing one from the other – all labourers for hire - short term role - critical to manufacture process - anyone could have done the job no special skills required – aware of nature of operation – parity - modest differences in one offender’s role - modest difference in offender’s subjective cases - differences reflected in findings of special circumstances - one offender changes version under cross-examination - all offenders have solid subjective cases - all are good prospects for rehabilitation - objective seriousness of offending requires adequate punishment despite offending occupying one day only
CRIME – Use carriage service to send indecent material to person <16 - Use carriage service to groom under 16 years for sex SENTENCING — Relevant factors on sentence — early admissions - early plea - use of Assumed Online identity - disclosure of other offences relating to real child – accumulation on state sentences
CRIMES - Fire firearm at dwelling-house with disregard for safety - use unauthorised pistol SENTENCING — Relevant factors on sentence — early guilty plea- immediate admissions - nature of pistol “BB gun” – minor injuries caused - BB guns are not toys- grievance – taking law into own hands - breach of community correction orders – remorse - youth and immaturity – need for supervision and guidance - dangers of associations made in custody - significant finding of special circumstances.
CRIME - Robbery armed with offensive weapon - Destroy or damage property SENTENCING - Relevant factors on sentence – first offender - young offender - a one-off aberrant event - strong subjective case - applicability of guideline judgment – parity - first time custody - ICO not appropriate to the objective seriousness of the armed robbery offence - special circumstances
CRIME – Take/detain person in company with intent to obtain advantage SENTENCING — Relevant factors on sentence — plea discount dispute – recourse to case conference certificate - relatively minor role – victim able to leave- no attempt to prevent him leaving - assaulted in custody –positive change on release to bail- long history of abuse –victim of violence- acquiescence to the demands of male co-offenders can be learned behaviour-no prior convictions - deprived background- youth and immaturity- solid process toward rehabilitation
Crime – Sentence – Indecent assault of child under 16 – Produce child abuse material – Possess child abuse material – Use carriage service to transmit child pornography – Commonwealth and State offences
TORT – defamation – application to strike out defences of justification and contextual truth on the basis of wholly inadequate particularisation – challenges to the form and capacity of the contextual imputations – application to “plead back” the contextual imputations – whether the court has power to grant leave to plead back but as a conditional nunc pro tunc order
Drug offences – illegal drug importation – commercial quantity – Dark Net – possession – supply – breach of bail – State and Commonwealth offences – disadvantage – addiction – cooperation with law enforcement agencies – mental health
PRACTICE AND PROCEDURE – Amendment of pleadings – Amendment complies with common sense and no evidentiary prejudice can be established – leave granted.
CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – workers injured SENTENCING – deterrence – aggravating factors – mitigating factors – good prospects of rehabilitation – remorse - parity
CONTRACT – dispute resolution clause – whether plaintiff unable to sue on agreed contractual debt due to alleged failure to comply with dispute resolution clause procedure – stay not sought PRIVATE INTERNATIONAL LAW – dispute resolution clause – whether New South Wales a clearly inappropriate forum to determine the proceedings – effect of dispute resolution clause on analysis – proper construction of clause – rights of party in breach of contract to enforce clause
CRIME – Supply prohibited drug >= large commercial quantity SENTENCING — Relevant factors on sentence — solid family and work background- drug user commences to supply-
CRIME – Supply prohibited drug > commercial quantity- rolled up quantity. SENTENCING — Relevant factors on sentence —early plea - role in criminal group - solid prospects for rehabilitation with strong family support
CRIME – Supply prohibited drug >= commercial quantity – Take part supply prohibited drug > indictable & < commercial quantity SENTENCING — Relevant factors on sentence — late guilty plea- two different drugs- Form 1 matters- role in criminal group - parity- solid prospects for rehabilitation-
DEFAULT JUDGMENT – UCPR rule 36.15, Irregularity; failure to plead material facts; whether debt or liquidated claim; judgment set aside ex debito justitiae; PERSONAL SERVICE- UCPR rule 10(21), whether violence prevented personal service
CRIME – SENTENCING – Historical child sexual abuse – Offender’s natural daughter – Two complainants – Aggregate sentence – Indecent assault (under 16) – Sexual intercourse (under 10) – Late guilty plea – Offences in “presence” of person under 18
CHILD CARE APPEAL – dismissal of appellant’s interlocutory application seeking judicial recusal -asserting actual and apprehended bias – dismissal of appellant’s further applications seeking discharge of the direct legal representative for the child the subject of the appeal, change of venue, setting aside subpoenas, and other interim relief
PRACTICE AND PROCEDURE – dispositive orders for claim for work injury damages – former police officer’s claim for psychiatric injury – whether interest pursuant to s 151M of the Workers Compensation Act recoverable – whether offer of settlement made prior to proceedings unreasonable COSTS – parties agree that costs of the proceeding generally are to be borne by each party – whether different costs order should be made for plaintiff’s application to extend time to commence proceeding under s 151D
CRIME — Commonwealth offences — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material CRIME — Commonwealth offences — Child sex offences — Using carriage service to groom person < 16 years for sexual activity
TORTS – negligence – occupier’s liability – trip and fall on a kinked wet weather mat located near the entrance to a shopping centre mall – findings of negligence against two occupiers – rejection of defences of obvious risk and contributory negligence – apportionment of liability between defendants; DAMAGES – consideration of conflicting medical evidence as to cause of plaintiff’s ongoing disabilities – assessment of claimed heads of damage
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – general deterrence – specific deterrence – substantial harm, injury, loss or damage – parity principle – victim impact statement – appropriate penalty COSTS – prosecution costs OTHER – Unrestrained steel headstocks fell on rigger working on a barge — no adequate risk assessment for landing headstocks on barge and working upon them — deck space not cleared to lay headstocks down — no visual inspection of barge despite contractual obligation
COSTS – whether any disentitling conduct by successful party to usual entitlement to costs – application by successful defendant – lump sum costs order
CRIMINAL PROCEDURE – historical sexual assault offence – pre-trial applications – application to adduce evidence regarding complainant’s sexual experience – Criminal Procedure Act (NSW) s 293 – application for trial by judge alone – concern about ‘unfair prejudice’ arising from apprehended disclosure of accused undergoing sexual reorientation after alleged offending – relevance of COVID-19 measures post lockdown EVIDENCE – criminal proceeding – tendency evidence – presumption that evidence of accused’s sexual interest in complainant, and/or young males has significant probative value – whether sufficient grounds for finding such evidence does not have significant probative value – whether exceptional circumstances arise so as to enable excluded matters proscribed by s 97A(5) to be taken into account – complaint evidence – whether evidence ‘fresh in the memory’
CRIMINAL LAW –– Child sex offence pursuant to s 61J of the Crimes Act –– sexual touching of a child SENTENCE –– aggravating factors – victim’s age significantly below threshold of under 16 years provided for in s 61(2)(d) of the Crimes Act – victim was under the Offender’s authority – Offending committed in the Victim’s home – mitigating factors – Offender’s actions not planned – Offender was of prior good character – no prior convictions – Objective seriousness found to fall towards the lower end of objective seriousness – Where the standard non-parole period has been departed from SENTENCE –– Offender resided in seemingly transient accommodation – Offender has been subjected to sexual abuse – Offender experienced learning difficulties from an early age – Where the principles in Bugmy v The Queen are invoked –Offender found to be Medium-High risk of reoffending
CRIMINAL PROCEDURE — Trial — Case management — Pre-Trial Judgement – objection taken by the accused to the admissibility of evidence found upon the search of a motor vehicle. The accused argues the evidence was obtained improperly or in contravention of an Australian law and that it should not be admitted.
CRIMINAL PROCEDURE — Trial — Case management — Pre-Trial Judgement - Police legally seized mobile phone from the applicant. The prosecution seeks to rely upon the contents of the phone. - Applicant maintains the phone may contain information material to his defence seeks an order to return the phone.
PROTECTED PERSON – uncontested application for approval of settlement of reserved funds management expenses – approval considered in the light of Supreme Court declaration that the plaintiff is incapable of managing his affairs and an order that his estate be subject to management under the NSW Trustee and Guardian Act 2009 (NSW)
CONTRACT – alleged manufacture and sale of goods said to be ordered on behalf of the first defendant company – alleged supply of part of the goods ordered – guarantee allegedly given by the second defendant director – whether second defendant liable pursuant to the alleged guarantee for goods said to have been ordered on behalf of the first defendant – identity of contracting parties AGENCY – authority of alleged agent to order goods on behalf of the first defendant – whether actual authority (express or implied) – whether ostensible authority COMPANY LAW – authority of sole director and secretary – whether holding out by director that agent had authority to order goods on behalf of the first defendant company
COSTS – plaintiffs make seven attempts to plead a defamation claim over a three-year period without being able to formulate their claims – two applications for summary dismissal, the second of which is successful – defendants seek indemnity costs on the basis of Calderbank offers and/or s 40 Defamation Act 2005 (NSW) – defendants alternatively seek indemnity costs on the basis of the plaintiffs’ asserted delinquent conduct of the litigation – indemnity costs awarded
CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury SENTENCING – objective seriousness – deterrence - aggravating factors – mitigating factors – good prospects of rehabilitation – plea of guilty – remorse