WORK ACCIDENT - work injury damages - former police officer's claim for damages for psychiatric injuries arising from exposure to traumatic incidents and workplace conflict - content of scope of admitted duty of care - whether breach of duty - whether causal link established between breach of duty and asserted psychiatric injuries established - assessment of damages - whether and to what extent events and circumstances in respect to which the State is not legally responsible contributed to plaintiff's psychiatric injuries - whether and to what extent contributory negligence defence made out to reduce damages TORTS - intentional tort - claim for damages for psychiatric injuries partly based upon alleged harassment and bullying - mental element required to sustain the tort PRACTICE AND PROCEDURE - application for leave to commence proceeding nunc pro tunc - proceeding commenced in March 2017 - leave application adjourned separately in 2018 and 2019 following absence of legal representation for the plaintiff - appropriateness of leave application being heard concurrently with trial in the circumstances – obligations upon parties and legal representatives to assist with dispatch of leave applications
CRIMINAL LAW – sentencing – supply of a prohibited drug – cocaine – importation of marketable quantity of border-controlled drug – cocaine – importation through the ‘dark web’ – interaction in sentencing between federal and state offences
CRIME — Child sex offences — Historic — Indecent assault — Buggery SENTENCING — Aggravating factors — Abuse of position of trust or authority in relation to the victims — Breach of trust — Vulnerable victims — Substantial harm, injury, loss or damage — Victim impact statements SENTENCING — Multiple offences — Form 1 offences — Relevant factors on sentence — Deterrence — General deterrence — Specific deterrence SENTENCING — Subjective considerations on sentence — Hardship — 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 – 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 – previous convictions – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence
CRIMINAL LAW – prosecution – work health and safety – duty of person undertaking business – risk of death or serious injury PROCEDURAL – elements of offence – whether defendant owed a health and safety duty – whether there was a failure to comply with that duty – whether that failure exposed workers to the risk of death or serious injury PROCEDURAL – reasonable practicability – likelihood of the risk – knowledge of the risk – what the defendant ought reasonably to have known OTHER — drill string and drill head containing stored energy broke free from earth and struck fatal blow to worker – need for exclusion zone, observation of whether worker positioned in danger zone, personal protective equipment
Criminal Law- Practice and procedure – Juries – Juror raised issue about capacity to serve following empanelment – Consensus between parties that jury should be discharged– Where court not satisfied that there would be a risk of a substantial miscarriage of justice if the trial proceeded with 11 jurors
CRIMINAL LAW – costs in criminal cases – certificate – where after commencement of trial, Director of Public Prosecutions directs for no further proceeding to be taken – whether reasonable for prosecution to institute proceedings
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 – inappropriate method used to transport heavy piece of plant – unqualified workers operating forklifts – maintenance work conducted on excavator bucket whilst it was suspended from the forklift tines – worker launched into the air when his foot came into contact with the front edge of excavator bucket when it slid off tines – gaps in existing WHS systems – inadequate risk assessment – absence of Safe Work Method Statement or safe operating procedure relevant to task at hand
CRIMINAL LAW – Sentence – Armed robbery – Assault with intent to commit serious indictable offence – In company – On Conditional liberty at time of offending – Carry in conveyance without consent of owner – Admissions – Forms 1 – Vulnerable victims – Offender had dysfunctional upbringing.
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 – parity COSTS – prosecution costs OTHER – copper pipes passed up the exterior of a building by inexperienced, unsupervised workers – worker suffered serious injuries when the pipes came into contact with energised overhead power lines – risk of contact with power lines foreseeable – initial precautions and safety systems in place – failure to consider continuing risk once scaffolding removed – gaps in the documentation – gaps in induction processes
COSTS – Whether costs should ordinarily follow the event – Where the Defendant argues it was successful on discrete issues and percentage costs order should be made- Where Plaintiff asserts the issues were interrelated- Where the Plaintiff asserts that the Defendant did not act reasonably with a view to resolution of proceedings
FALSE IMPRISONMENT – Where the Plaintiff is a passenger on a cruise ship operated by the Defendant – Where the Plaintiff is detained in a cabin on the cruise ship following alleged sexual assault– Whether the Captain was justified at common law to detain the Plaintiff for that time – Whether the Captain was contractually justified in detaining the Plaintiff DAMAGES – Aggravated and exemplary damages Claim– Civil liability claim – Whether the Plaintiff suffered psychological/psychiatric injury
WORK ACCIDENT – work injury damages – former police officer’s claim of damages for psychiatric injury – admissibility of supplementary expert reports – whether plaintiff should be precluded from having reports admitted because of failure to include them in pre-filing statement – whether reports constitute ‘material not reasonably available’ – whether leave should be granted – whether substantial prejudice if reports not admitted PRACTICE AND PROCEDURE – supplementary expert reports not served in accordance with Court rules – no prior notice to defendant or application to court to adduce expert evidence – whether leave should be granted to plaintiff to rely on reports
COSTS ASSESSMENT – Summons and Cross-Summons - Review Panel fails to provide certificates conformably with Wende v Howarth (NSW) Pty Ltd (2014) 86 NSWLR 674 or to accord the parties procedural fairness in relation to the indemnity principle – adequacy of reasons – whether errors identified in the Cross-Summons were errors of law – whether remitter should be made to the Manager Costs Assessment in circumstances where the appointment of one member of the Review Panel had lapsed during the appeal
CHILD WELFARE – care and protection of children – contact orders – appeal from Children’s Court to District Court – application for leave to bring application for contact orders by mother of children –whether appropriate to grant leave sought – relevance of views of children – utility of granting leave
TORTS — Malicious prosecution — Elements — 3 elements in dispute — Malice — Reasonable and probable cause — Whether OIC still prosecutor after proceedings taken over by DPP — Whether Crown Prosecutor briefed only to conduct trial could be a relevant prosecutor.
CRIME — Federal offences MEDIA AND COMMUNICATIONS — Telecommunications services — Offences — Threat by telephone SENTENCING — Federal offenders — Relevant considerations SENTENCING — Federal offenders — Sentence by State court for offence against Commonwealth law SENTENCING — Non-parole period — Power to refrain from specifying non-parole period — Federal offender dealt with by State court SENTENCING — Penalties — Imprisonment SENTENCING — Penalties — Recognisance SENTENCING — Plea of guilty — Committal for sentence SENTENCING — Relevant factors on sentence — General principles SENTENCING — Relevant factors on sentence — Moral culpability SENTENCING — Relevant factors on sentence — Objective seriousness SENTENCING — Sentencing procedure — Agreed facts SENTENCING — Sentencing procedure — Pre-sentence reports SENTENCING — Sentencing procedure — Pre-sentence reports — Use of hearsay material SENTENCING — Sentencing procedure — Pronouncement of sentence SENTENCING — Sentencing procedure — Reasons for sentence SENTENCING — Subjective considerations on sentence — Drug addiction SENTENCING — Subjective considerations on sentence — Health issues SENTENCING — Subjective considerations on sentence — Intoxication
CRIME – sentence –intimidate with intent to cause physical and mental harm – common assault – use or threaten unlawful violence towards another by conduct that would cause a person of reasonable firmness present at the scene to fear for his or her personal safety – contravene apprehended violence order – on conditional liberty at the time of the offences – same victim – domestic violence – course of conduct – victim blaming - late pleas of guilty – dysfunctional upbringing – lack of insight or empathy – lack of contrition – purposes of sentencing
CRIME — Drug offences — Supply prohibited drug — Knowingly take part in supply CRIME — Drug offences — Supply prohibited drug — Large commercial quantity CRIME — Money laundering — Dealing with money suspected of being proceeds of crime SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Form 1 offences
CRIME – Reckless grievous bodily harm SENTENCING — Relevant factors on sentence —guilty plea to alternative count not accepted in Local court but accepted in District Court - friends and neighbours fall out - a wrestle and then a stabbing- offender realises seriousness and offers assistance- serious injury - weapon used - sister prepares victim impact statement - victim impact- victim has intellectual disability
CRIME – sentence – multiple counts – charges on Form 1 (x 3) – where offending occurred while in psychotic state – whether moral culpability reduced by reason of drug-induced psychosis – where underlying mental condition
CRIME — Child sex offences — Indecent assault person under 16 years of age- A domestic violence offence - Aggravated sexual intercourse - Victim <16 years - procure a child for unlawful sexual activity SENTENCING — Relevant factors on sentence — act of indecency with a child with a disability
CIVIL PROCEDURE — summary disposal — judgment for plaintiff — no defence CIVIL PROCEDURE — pleadings — striking out — no reasonable cause of action or defence CIVIL PROCEDURE — pleadings — amendment – recovery of rates – rates levied prior to defendant becoming owner – statutory entitlement of Council
CRIME – Assault occasioning actual bodily harm - aggravated enter dwelling knowing people there - Armed with intent to commit indictable offence – multiple victims SENTENCING — Relevant factors on sentence — multiple victims - domestic violence offences against former partners - utilitarian value of guilty pleas - former law enforcement officer going into custody - mental state at the time of the commission of the offence - treatment will be disrupted by custody
CRIME — Robbery in company – co-offenders SENTENCING — Relevant factors on sentence — Henry guidelines – Bugmy factors – The offender’s brain injury – Institutionalisation – COVID-19 considerations not appropriate to be brought into account in the sentencing task – Appropriate sentence date to take into account time spent in custody
CRIME — Drug offences – Ongoing supply of drugs – Indictable quantity – Less than commercial quantity – Methylamphetamine CRIMINAL PROCEDURE — Back up and related offences — Procedures SENTENCING — Commencement – Complicated matrix of factors in relation to pre-sentence custody and an appropriate start date – Offender on four Intensive Correction Orders at the time of offending
TORTS – negligence – accident at worksite – plaintiff often visited the site and did tasks of his own choosing – usually received money - whether plaintiff a worker – whether plaintiff a deemed worker – whether a contract between plaintiff and defendant – whether agreement uncertain – whether intention to create legal relations – contributory negligence - damages
Sentence -Fail to comply with reporting obligation – Grooming - Possess child abuse material– Cybersex relationship - Normalising extreme sexual depravity- registered child as slave - Similar criminal history of child sexual offending – Guarded prospects of rehabilitation - No offender is irredeemable
CRIMINAL LAW – sentencing – - fraud offences – solicitor misappropriation of clients’ monies in trust – multiple offences – additional offences on Form 1 – significance of offender’s Bipolar Disorder (1) which was undiagnosed at time of offending – whether causal nexus to offending – weight to usual sentencing considerations for offences of this kind, being general and personal deterrence – whether’ special circumstances’ arose
SENTENCING — Aggravating factors — Record of previous convictions — Use of weapon SENTENCING — Mitigating factors — Not part of a planned or organised criminal activity — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — General principles — Objective seriousness SENTENCING — Subjective considerations on sentence — Drug addiction — Intoxication — Special circumstances
CRIME – Sexual Assault & commit act of indecency - sexual intercourse with person 10 or over & under 16 - aggravated sex assault victim under the age of 16 years- three complainants SENTENCING — Relevant factors on sentence — three complainant’s – course of conduct- period were he did not offend- offences against younger brother- offences against female children - exploitation of relationships between offender and child complainants - grooming – sexual assault after assuming parental responsibilities - ill-health can mitigate punishment – unsworn statements to psychologist carry little weight- opinion of professional psychologist still of value- stale crimes but no progress toward rehabilitation - principle of totality- impact on complainants - victim vindication.
CRIME - child sexual assault sexual intercourse – proposed joint trial - three complainants. EVIDENCE – admissibility of tendency evidence - temporal difference between counts - different genders - nature of relationship between accused and complainant. CRIMINAL PROCEDURE - pre-trial rulings - separate trial application - admissibility of tendency evidence.
COSTS – Where Plaintiff was successful at first instance – Outstanding calculations to be determined by the parties – Not in dispute that the Defendant is to be credited for past payments of workers’ compensation benefits and medical expenses – Where Plaintiff served an offer of compromise on the Defendant before the trial – Costs in dispute – Whether UCPR 42.14 was engaged – Whether Plaintiff’s offer was a genuine compromise – Whether the time allowed for acceptance was reasonable in the circumstances –– Whether it was unreasonable for the Defendant to reject the offer
COSTS – Judgment for the First Defendant – Indemnity Costs – Sandersons Order – whether costs payable by Insurer or unsuccessful defendant – cross-claim – whether contingency of cross-claim relevant to availability of adverse cost order – Calderbank Offer – whether award for partial indemnity costs available
SENTENCING — Subjective considerations on sentence — Special circumstances – Intoxication – Mental illness SENTENCING — Relevant factors on sentence — Circumstances of offence — General and specific deterrence CRIME — Violent offences — Assault causing death
CRIMINAL – conviction appeal – domestic violence offence – contravention of apprehended violence order – stalking and intimidation – proof of service of Interim AVO – whether service of AVO could be waived by accused’s subsequent court appearance – whether charges for contravention of AVO bad for duplicity – whether multiple commission of offence duplicitous EVIDENCE – statement of service under Local Court rule – hearsay rule – whether document admissible as business record
CRIME – Misconduct by a holder of public office - serving police officer SENTENCING - Relevant factors on sentence – conviction after trial - common law offence- jury found crimes deserving of criminal punishment – fact finding- reckless behaviour by serving police officer- four counts - factors relating to objective seriousness– penalty at large - corresponding statutory offence considered – other cases considered- work induced Post Traumatic Stress Disorder – media reports of offending not unfair and not extra curial punishment
CRIME – Supply prohibited drug not less than the commercial quantity – Deal with proceeds of crime. SENTENCING — Relevant factors on sentence — police expert on drug codes - commercial supply of cannabis - proceeds of crime order
CRIME - SENTENCE - using an offensive weapon - assault occasioning actual bodily harm - intimidation - contravening an apprehended violence order - possessing or using a prohibited weapon without a permit
CRIME – sentencing after jury trial – approach to determining facts for sentence – effect of Chiro v The Queen  260 CLR 425 – attempting to pervert the course of justice – s43 Crimes Act 1914 (Cth) – coaching witness to give false evidence in Federal Court Proceedings
CRIMINAL LAW – historical child sexual offences – procedure – no case application by accused on one Count on the indictment – Count was alternative to a Count which was subject to directed verdict – whether unfair to the accused to permit Crown to maintain count on indictment CRIMINAL law – tendency evidence – application by Crown to adduce evidence not contested – whether evidence has significant probative value
CRIMINAL LAW – historical child sexual offences – alleged sexual offences against accused’s daughter – evidence – admissibility of verbal admissions of accused to police officer in course of attempted self-harm – whether admissions made in response to “questioning” by police – written admissions contained in notebook seized by police as part of, or incidental to, ‘suicide note’ by the accused – whether probative value of admissions outweighed by danger of unjust prejudice CRIMINAL LAW – expert opinion evidence – evidence of forensic psychologist regarding behavioural patterns of victims of child sexual abuse, including incest – relevance of evidence – whether ‘specialised knowledge’ – whether opinion evidence is exception to ‘credibility rule’ – whether appropriate to limit use of evidence – whether evidence must be excluded having regard to danger of unfair prejudice
CRIME - detain a person with intent to obtain an advantage aggravated by causing actual bodily harm SENTENCING – relevant factors on sentence - early guilty plea - mentally ill offender - prior failures to deal with mental health and substance abuse problems - background of disadvantage – treatment plan available
CRIME – trial by Judge – manslaughter – failing to stop to offer assistance – steal motor vehicle – driver – circumstantial evidence – consciousness of guilt – circumstances of aggravation at time of impact – expert evidence
TRIAL BY JUDGE – knowingly take part in manufacture of large commercial quantity of prohibited drug – supply cannabis – consciousness of guilt – circumstantial evidence – admissions – prior inconsistent statements – recent inventions
CRIME – sentence – break enter and steal- special circumstances – offence committed while on conditional liberty – extensive criminal history – fled interstate to commit further offences – institutionalised – deprived upbringing – “Todd” principles
CRIME – sentence – aggravated sexual intercourse with child aged between 10-14 years – child with cognitive impairment - no prior convictions – no breach of trust – significant age difference – no psychiatric or psychological factors.
CRIME – sentence – use carriage service to procure person under 16 years for sexual activity – solicit child pornography – transmit indecent communication to person under 16 years – refugee – likelihood of deportation – no prior criminal convictions – time served sufficient.
CRIME — Appeals — Appeal against sentence — Re-sentence — application under s 32 Mental Health (Forensic Provisions) Act 1990 (NSW) — application under s 20BQ of the Crimes Act 1914 (Cth) — charges dismissed
POLICE SUPERANNUATION P in receipt of hurt on duty pension since 8 May 2005 – It was increased to 83.29% of the salary of his office on 10 September 2010 – He made a further application to increase his pension on 14 January 2019 – Pension was increased to 84.46% from 31 January 2019 – SOC filed 13 March 2020 – That decision held to be reasonable – P argued that since that decision he was totally incapacitated for work and entitled to 85% - Court of the view that P was totally incapacitated since 1 August 2020 - Had that Court had no power to make a decision that defendant was unable to make at the time of its decision to increase pension to 84.46% (20 September 2019) – De minimis submission rejected.
Crime – Sentence - Commit act of indecency with or towards a person under the age of ten - Incite person under ten years of age to commit an act of indecency - Sexual intercourse with person under the age of ten years - Sexual intercourse with person of or above the age of ten but under the age of 14 years in circumstances of aggravation (under authority)
CRIME – sentence – supply prohibited drugs on an ongoing basis – drive motor vehicle during disqualification period – small quantity of drugs – modest financial gain - plea of guilty and cooperation with police – expression of regret - drug free – parity
CRIME – sentence – breach call-up – Commonwealth and State offences – use carriage service to transmit child pornography material – possess child abuse material – breached conditional liberty by committing similar offence - intellectual cognitive disability – fails to acknowledge paraphilic disorder – needs intensive treatment program in the community
Crime – sentence – knowingly take part in cultivation commercial quantity cannabis – equal culpability – no prior criminal convictions – minor but important roles – prior good character - pleas of guilty – COVID-19 Thang – not a user of drugs – took casual work for cash – special circumstances –remorse – good prospects of rehabilitation – deportation Dang – low risk of re-offending
CRIMINAL LAW – sentence following jury verdict – multiple counts – administering intoxicating substance with intent to commit indictable offence – sexual intercourse without consent – possession of unregistered and unauthorised firearm
CRIME- robbery while armed with a dangerous weapon SENTENCING - relevant factors on sentence - early guilty plea - on parole – prior offending of similar type - background of disadvantage – substance abuse problems - multiple mental health issues - crossroads case - special circumstances - release to parole must be earned
CRIME – APPEAL FROM LOCAL COURT – A conviction of common assault of a bicycle rider and of recklessly damaging his bicycle – Inconsistency between evidence adduced by the prosecution and evidence given by the appellant – Magistrate had the advantage of hearing and seeing the witness – Minor inconsistencies of no substance – Inconsistencies between prosecution witness and appellant make appellant’s evidence implausible – Appeal dismissed.
CRIME – APPEAL FROM LOCAL COURT – SEVERITY OF SENTENCE – Midrange PCA offence – Exceptional case – Mandatory interlock order substantially inhibits appellant from his work which was valuable for community – Order made under Crimes (Sentencing Procedure) Act 1999 s 10(1)(b).
CRIME – sentence – supply prohibited drug – possess prohibited drug – poly drug use – substance dependence – pleas of guilty – remorse – no prior convictions – good character – attempts to reform since being charged – family responsibilities – promote rehabilitation.
CRIMINAL LAW – Sentence - Cultivate cannabis greater than the indictable quantity and less than the commercial quantity – Take part in supply prohibited drug greater than the commercial quantity – In company – Limited sophistication - No exceptional circumstances
POLICE SUPERANNUATION – W medically discharged from NSW Police for chondromalacia patellae – PTSD subsequently diagnosed – Order previously made for separate trial on issue tendered by plea numbered 10 in Defence – After two days of hearing issue too complex to be dealt with other than after a full trial – Order for separate determination of issue revoked.
CRIMINAL LAW – Sentence – Aggravated sexual intercourse with a child of 10 years of age – Complainant under the authority of offender at time of offending – Breach of trust – Genuine remorse – Extra curial punishment
TORTS – Assault and Assault and Battery – Torts occurring on two occasions 26 September 2017 and 20 February 2018 – Assessment of Damages only – Domestic Violence – As a result of 20 February 2018 torts P. suffering Post Traumatic Stress Disorder and unable to work.
Evidence – Audio recording of the interaction of the plaintiff and the defendant two and a half years previously – Whether it was reasonably necessary for the plaintiff to make the recording for the protection of her lawful interests – Reason identified in evidence was not a “lawful interest” in accordance with the authorities – Evidence was obtained in contravention of an Australian law – In exercise of court’s discretion under Evidence Act 1995 s 138(3), evidence admitted.
TORT – defamation – WeChat group publication comments over a one-day period - adequacy of particulars of identification, downloading and extrinsic facts – seventh iteration of pleadings over three years of case management in the Supreme and District Courts – particulars still in need of revision – whether leave to amend should be granted
CRIME – Appeal against severity of sentence – Local Court imposed CCOs for breaches of an ADVO – Appellant sought CRO – Long history of domestic difficulties between complainant and appellant – Appellant needs assistance to comply with his legal obligations – Supervision under CCO will provide such assistance – Last breach of ADVO serious – CRO would not adequately reflect criminality concerned – Appeal dismissed.
CRIME – BAIL – Detention Application – Charge of Manslaughter – Accused granted bail on 7 May 2020 because of COVID-19 on very strict conditions – Bail breached by Accused leaving his home at Wardell and going to Ballina in the middle of the night and being in the vicinity of a material Crown witness who feared intimidation – Joint trial to be heard at Lismore on 15 March 2021 – Detention application successful – Bail revoked.
COAL MINERS WORKERS COMPENSATION EFFECT OF A REDEMPTION W worked for E for about 20 years in an open cut coal mine. His last day of work was 17 November 1999 - On 20 March 2001 Bishop CCJ approved a lump sum redemption of $100,000, which sum was paid to W shortly thereafter – On 7 April 2020 W made a claim for lump sum compensation for 5% severe bodily disfigurement, caused by solar skin damage – On the same day he applied for a medical panel to assess his claim – E, by summons, moved the Court to strike out the application for a medical panel – Question before the Court was whether the redemption redeemed the employer’s liability to W for solar skin damage which he was not aware of at the time of the redemption. Held: the redemption had redeemed the employer’s liability for a latent injury to W’s skin, an organ of his body – Application for Medical Panel struck out.
CRIMINAL LAW – Sentence – Form 1 – Grievous bodily harm – Reckless wounding – Assault occasioning actual bodily harm – Resist officer in the execution of his duty – On conditional liberty at time of offending
CRIMINAL LAW – Sentence – Sexual assault without consent – Indecent assault – Incite act of indecency – Victim under authority of offender – Breach of trust – Opportunistic offending – Juvenile at the time of offending – Totality.
Context evidence – regular sexual abuse over an 8 year period, sometimes on a daily basis – pattern of abuse – unfair prejudice – sheer volume of context evidence – likely to elicit an emotional response – Crown case implausible in isolation – section 293 exiting relationship
CRIME - aggravated detain with intent to obtain an advantage SENTENCING- relevant factors on sentence - early guilty plea and cooperation - victim impact - young offender - child who must be sentenced at law - positive response to juvenile detention - background of deprivation - should be kept in juvenile detention
PRACTICE AND PROCEDURE – defendants bring application for gross sum costs order pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) after proceedings summarily dismissed – plaintiff brings application under UCPR r 36.15 to set judgment aside – application to set aside refused – gross sum costs orders made
TORT – defamation – whether a second challenge to particulars of identification amounted to an abuse of process – whether defendant should be permitted to file a defence following non-compliance with earlier orders
TORT – defamation - challenges to form and content of online publications – whether slang should be “translated” – whether an apology published online may be included as part of the matter complained of – whether apology for earlier publication extended to publications after the apology was published
CRIMINAL LAW – prosecution – work health and safety – duty of person undertaking business – risk of death or serious injury PROCEDURAL – reasonable practicability – likelihood of risk – knowledge of the risks – what defendant ought reasonably to have known
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
CRIME – work health and safety – risk of death or serious injury – duty of person undertaking business PROCEDURAL – reasonable practicability – likelihood of risk – knowledge of the risk – what the defendant ought reasonably have known OTHER – fall from height in unprotected void – risk of the dangers posed by the void were known – failure to adequately implement work health and safety management system plan – inadequate fall protection
CRIMINAL LAW – prosecution – work health and safety – duty of a person undertaking business – risk of death or serious injury PROCEDURAL – reasonable practicability – likelihood of the risk – knowledge of the risk – what the defendant ought to have known OTHER – unrestrained steel headstocks stored on barge – no adequate risk assessment of storing headstocks in an upright position unrestrained
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 sentence 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)
Sentence - aggravated sexual intercourse with a person above the age of 10 and below the age of 14 years – offender was the stepfather of the victim – use of a vibrator – occurred in the home of the victim – whether abuse of trust and abuse of authority different concepts - whether abuse of trust can be aggravating factor where abuse of authority is element of offence
CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – workers injured SENTENCING – objective seriousness – deterrence - aggravating factors – mitigating factors – good prospects of rehabilitation – plea of guilty – assistance to law enforcement authorities – remorse – Work Health and Safety Project Order
TORT – defamation – award to plaintiff of $125,000 damages for Facebook post – interest at 3% awarded on judgment sum – application for indemnity costs – plaintiff successful on first but not on second claim – degree of overlap between the matters complained of - s 40 Defamation Act 2005 - defendant fails to respond to, or to make, any offers – whether defendant’s conduct of the proceedings warranted the making of indemnity costs orders – defendant ordered to pay 90% of the plaintiff’s costs on an indemnity basis
CHILD CARE APPEAL – interlocutory application by appellant father seeking interim orders pending determination of his substantive appeal from the final orders made by the Children’s Court allocating parental responsibility for his child to the Minister
COSTS – Plaintiff successful at hearing – Offer of Compromise by the Plaintiff – Offer open for 7 days prior to the commencement of hearing – Offer less than that obtained in judgment – Whether offer open for a reasonable time in the circumstances – Defendant did not request for an extension of time to consider the offer – Whether court should otherwise exercise discretion as to costs – Where the main contention at hearing was primary liability and contributory negligence
CRIMINAL LAW – historical sexual offences – accused’s application for permanent stay – alleged abuse of process on account of oppression to accused – delay in bringing charges – prospective fourth prosecution against accused since Royal Commission – accused fit to stand trial, but suffers impairment in short term memory – whether accused may obtain a fair trial
INSURANCE – strata insurance policy for damage to property – property damaged by fire – occupation of a unit within the strata by an “outlaw motorcycle gang” (‘OMCG’) for use as its clubhouse – proposal form for insurance referred to nature of occupation of the unit as an 'office' – whether fact of occupation by OCMG disclosed by Insured, by its insurance broker, to underwriting agent for Insurer prior to the policy being entered into – materiality of non-disclosure of occupation by OMCG – whether Insurer entitled to reduce liability to nil under Insurance Contracts Act 1984 (Cth), s 21(3) TORTS – negligence – whether insurance broker negligently failed to disclose fact of OMCG's occupation to Insurer’s underwriting agent – whether negligent failure to advise Insured of the risk of an unenforceable policy of insurance if OMCG's occupation not disclosed – whether broker’s negligent failure to advise client of alternative options – causation – scope of liability where only part of the loss claimed premised upon Insurer’s breach of contract of indemnity – proportionate liability defence – whether author of earlier proposal form and earlier broker were 'concurrent wrongdoers' TORTS – negligence – on contingent cross-claim whether insurance agent in breach of duty of care – whether negligence is said to be direct or vicarious DAMAGES – assessment of value of indemnity if insurer liable for breach of policy LIMITATION OF ACTIONS – Insurer's contingent cross-claim against underwriting agent – premise that OMCG's occupation was disclosed contrary to underwriter's representation to Insurer – concession that if OMCG's occupation was disclosed on the insured's behalf, there was breach by underwriter of strict contractual obligation – whether cause of action against underwriter in contract statute barred – whether cause of action fraudulently concealed – Limitation Act 1969 (NSW), s 55 – whether ordinary operation of s 14 may exclude period in which wrongful conduct prevents action being commenced ESTOPPEL – conventional estoppel EVIDENCE – common knowledge – whether occupation by OMCG of a tenancy was material fact requiring disclosure to Insurer PRACTICE AND PROCEDURE – Brokers and Insured argue that duty of disclosure waived or modified by disclosure of information – no pleading of the contention – Insurer and Agent argue Owners Corporation had no standing to claim for financial loss asserted by lot owners – no pleading of absence of standing – whether arguments should be considered by the Court
APPEALS — Jurisdiction of appellate court — District Court APPEALS — Nature of appeal — Functions of appellate court APPEALS — Right of appeal — Scope of right SENTENCING — Aggravating factors — Substantial harm, injury, loss or damage — Victim impact statement SENTENCING — Appeal against sentence — Powers of court SENTENCING — Appeal against sentence — Role of appellate court TRAFFIC LAW AND TRANSPORT — Traffic law — Licensing of drivers — Disqualification TRAFFIC LAW AND TRANSPORT — Traffic law — Offences — Negligent driving occasioning grievous bodily harm
PRACTICE & PROCEDURE – leave to proceed granted pursuant to s 4 to s 5 of the Felons (Civil Proceedings) Act 1981 (NSW); order for supply of particulars pursuant to UCRP r 15.10; order for witness statements pursuant to UCRP r 31.4; order for mediation pursuant to s 26 of the Civil Procedure Act 2005 (NSW)
EMPLOYMENT AND INDUSTRIAL LAW - work health and safety – statutory duty of person conducting a business or undertaking with management or control of plant to ensure health and safety of persons so far as reasonably practicable – exposure of worker to risk of death or serious personal injury SENTENCING – deterrence - aggravating factors – mitigating factors – deterrence – good character - good prospects of rehabilitation – assistance to law enforcement authorities – capacity to pay a fine – adverse publicity order
CRIME - Property offences - Break and enter dwelling house and commit serious indictable offence CRIME - Public justice offences - Threatening or intimidating victims or witnesses CRIME - Sexual offences — Sexual assault SENTENCING - Sentencing procedure - Aggregate sentences - Reasons for sentence SENTENCING - Relevant factors on sentence - Deterrence - Form 1 offences - Moral culpability - Multiple offences SENTENCING - Subjective considerations on sentence - Age of offender SENTENCING - Aggravating factors - Home of victim or any other person – presence of child
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 – worker struck and crushed by a masonry chimney that fell on her during demolition works ̶ failure to comply with the relevant demolition procedures – absence of a risk assessment or Safe Work Method Statement – failure to develop an exclusion zone – failure to provide workers with proper instruction, training or information regarding demolition work – lack of personal protective equipment – workers involved in demolition works had no prior demolition work experience – failure to request copies of contractors’ demolition licences – failure to implement or enforce a demolition plan
CRIME — Drug offences — Supply prohibited drug — Commercial quantity SENTENCING — Aggravating factors — Financial gain SENTENCING — Mitigating factors — Good character — Plea of guilty — Remorse SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Character of offence — Circumstances of offence — Co-offenders — Parity — De Simoni/double counting — Deterrence — Factual basis for sentence — Form 1 offences — General principles — Maximum penalty — Objective seriousness — Purposes of sentencing SENTENCING — Subjective considerations on sentence — Special circumstances — Drug addiction
CRIME — Child sex offences — Sexual intercourse with child <10 - Sexual intercourse with child >10 <14 - Sexual offences - Indecent assault - Circumstances of aggravation - Persistent sexual abuse of a child SENTENCE – Maximum penalty life imprisonment SENTENCE - Relevant factors on sentence – father and daughter- escalating abuse - age of child - period over which abuse occurred - abuse of position authority over the victim - breach of trust - need for care to double count aggravating features series of criminal acts – admissions on arrest - early guilty plea - impact of abuse on child – remorse or regret - COVID 19 not eligible for early release – impact of offender’s intellectual disability - special circumstances not required.
CRIME – Commit act of indecency with person 16 years or over - Assault with act of indecency - Sexual intercourse without consent- multiple acts. SENTENCING – Relevant factors on sentencing – early guilty plea - victim impact – background of deprivation - family support- an above average risk of re-offending on release - limited insight- need for intensive custodial‑based treatment
CONTRACTS — Whether there was breach of contract — Written terms — Oral terms — Implied terms — whether there were oral terms — whether there were terms implied by statute or other implied terms – Plaintiff agreed that the written agreement included everything she wished to be included – alleged oral terms necessarily superseded by express terms of the agreement – alleged implied terms not established – no breach by the defendant CIVIL PROCEDURE – Breach of overriding purpose pursuant to section 56 of the Civil Procedure Act
TORT – plaintiff suffers personal injury by incident when situated on defendant’s truck – whether duty of care – whether defendant in breach of duty of care – factual causation – assessment of damages – claim for loss of earning capacity where plaintiff derived income from corporate vehicle
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 – unsecured load fell on workers while being lifted by a crane ̶ absence of exclusion zone ̶ failure to provide sub-contracted workers with proper instruction, training or information regarding safely working near a crane ̶ failure to implement existing Safe Work Method Statement
PROCEDURE – blast at coal mine exposed workers to risk – allegations of breach of duty against each defendant in summonses were quite different – whether the court has jurisdiction to order proceedings commenced against two accused persons to be heard together – discretionary power under s 29 of the Criminal Procedure Act to make such an order in certain circumstances – power should not be exercised where it would not be in the interests of justice
CHILD WELFARE – care and protection of children – care and protection orders – appeal from Children’s Court to District Court by the plaintiff Secretary – whether the need for care and protection of the child has been established – general principles applicable - alleged sexual assault of other child – alleged perpetrator not clear – alleged drug and mental health issues – alleged lack of insight
PRACTICE AND PROCEDURE – default judgment entered into against defendant – defendant applied to set aside default judgment – whether defendant acted reasonably – whether suitable explanation of defendant’s delay