TORT – defamation – prolix and repetitive statement of claim - full text of all three publications not provided – confusing pleading of republication – requirement for proper pleading before claim can proceed – use of Gen AI material in the pleadings – statement of claim struck out with leave to replead
EVIDENCE – pretext phone calls from complainant to accused arising from execution of surveillance device warrant – accused’s application for exclusion of evidence of sound recordings of phone calls –whether complainant acted as an ‘agent of the State’ – whether admissions and the circumstances in which they were made were not influenced by oppressive conduct – whether admissions improperly obtained and if so, whether the desirability of admitting them outweighs the undesirability of admitting them – whether probative value of admissions outweighed by the danger of unfair prejudice – whether it would be unfair to admit the evidence of admissions having regard to the circumstances in which they were made CRIMINAL PROCEDURE – admissibility of evidence of sexual reputation – complainant identifies herself in a witness statement as being a virgin as a temporal reference for when alleged acts of penile-vaginal intercourse commenced to occur – whether evidence relevant – whether evidence should be excluded
PRACTICE AND PROCEDURE – alleged sexual battery of a school student – application to vacate hearing date where plaintiff personally not at fault – relevant factors
INSOLVENCY – application by liquidator of company against former director for breach of statutory directors’ duty to prevent insolvent trading pursuant to s 588G of the Corporations Act 2001 (Cth) - whether reasonable grounds to suspect insolvency – date of insolvency – whether date of insolvency gave rise to “safe harbour” protections under s 588GAAA
CONSUMER LAW – misleading or deceptive conduct – whether statements made – whether misleading or deceptive - assessment of damages for breach of s 18 of the Australian Consumer Law
TORTS – negligence – work injury damages claim by former police officer injured in the course of a cannabis eradication operation in a State forest – claim of defective system of work – claim of inadequate consideration and instruction by employer on safety issues – provision of unsuitable police vehicle for assigned task of transporting large quantity of culled cannabis plants – single vehicle accident – vehicle fishtailed out of control under excessive load whilst negotiating a downhill bend on a gravelled mountain dirt road – vehicle slid off the road and rolled multiple times 175m down the ravine of a steep embankment – finding of negligence – rejection of claim of contributory negligence DAMAGES – plaintiff sustained multiple physical injuries to head, neck, right shoulder and fracture of right wrist – plaintiff also incurred psychological injuries – development of intractable complex regional pain syndrome ultimately leading to surgical amputation of dominant right arm below the elbow – permanent unfitness for work – causation of damages established – assessment of economic damages
CRIME – costs – application for certificate under Costs in Criminal Cases Act 1967 (NSW) – whether a certificate should be issued in circumstances where no further proceedings directed by DPP – whether the prosecution of the applicant was reasonable – where Crown case relies heavily on account of complainant – application dismissed
SEVERITY APPEAL – high range drink driving – full term imprisonment – inappropriateness of refusal of bail pending de novo appeal against severity of sentence
WORKERS’ COMPENSATION – COAL MINING – Whether previous redemption with previous employer prevents plaintiff from bringing proceedings against subsequent employer for same symptoms / injuries.
CRIMINAL LAW – Possess child abuse material - Application to supress offender’s identity - Self-harm – reputational damage to extended family – Interim suppression and non-publication orders made by Local Court - Conviction appeal incompetent – Court having no jurisdiction – Severity appeal within Court’s jurisdiction.
CONTRACT – construction of commercial contract for purchase of a business – implied terms- implied term to act reasonably -duty to co-operate – loss of opportunity – causation
CRIME - SENTENCE - supply prohibited drug not less than the large commercial quantity - supply prohibited drug more than the indictable quantity but less than the commercial quantity.
CRIME – Notice of Motion for trial by judge alone – Alleged prejudicial evidence and need for interpreter cited as reasons in support of motion – Insufficient evidence to support application.
CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation MENTAL HEALTH — Criminal proceedings — Defence of mental illness — Offender elected criminal jurisdiction SENTENCING — Aggravating factors — Home of victim or any other person SENTENCING — Mitigating factors — Good character — No record of previous convictions — Not fully aware of the consequences of his or her actions because of the offender’s age or any disability — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Moral culpability — Objective seriousness — Mental illness — Dangerousness — Assistance to law enforcement authorities considered SENTENCING — Subjective considerations on sentence — Drug addiction — Severe mental health issues — Schizophrenia
CRIME — Drug offences — Commonwealth offences — Import/Export border-controlled prohibited plant or drug — Commercial quantity SENTENCING — Objective seriousness — Offenders came to Australia for the purpose of picking up some drugs in exchange for AUD$20,000 — Objective seriousness towards bottom end of range SENTENCING — General deterrence important factor to be understood by people in other countries tempted to come to Australia to commit serious crimes SENTENCING — Subjective considerations on sentence — Difficult upbringing — Alcohol abuse — Financial difficulties — Mental health — Prospects of rehabilitation — Effect on Offenders’ families — Time in custody — Custody more onerous than usual SENTENCING — Parity — No relevant difference between objective and subjective cases — Same penalty appropriate
CRIME — Robbery in company — Assault occasioning actual bodily harm — Violent offences — Stalking or intimidation SENTENCING — Relevant factors on sentence — Discussion of guideline in R v Henry — Motivation of Offender — Youth — Remorse/contrition — Extremely disadvantaged childhood engaging “Bugmy” principle — Mental health in part cause of offending — Time spent in custody — Prospects of rehabilitation and reoffending — Totality — Intensive Correction Order — Safety of community paramount
SENTENCING – Fraud offences – Obtain a financial advantage by deception – Defrauding the Commonwealth – Defrauding the Medicare Benefits Scheme – Offender abusing position as a healthcare provider and physiotherapist – Submitting false claims for services never provided – Initial offending unsophisticated – Initial offending involved over-claiming for patients under his care – Later offending more sophisticated – Later offending involved claiming on behalf of other practitioners at other practices for patients he had never seen – Obtained HICAPS terminal to continue conduct – Began “cloning” HICAPS terminal identifications at other practices by using a “rolling password” – Obtained counterfeit Medicare numbers online – Offending occurred over a period of 3 years – Total amount dishonestly obtained of $2,215,351 SENTENCING – Subjective factors on sentence – Offender on conditional liberty at the time of offending – History of dishonesty offences – Offender’s comparative youth at time of offending – Offender’s ongoing conduct motivated by drug and gambling addiction – Extensive expenditure on luxury car rentals and restaurants overseas – Drug rehabilitation prior to sentence – Delay due to disputed facts negotiations and changes in representation
CRIME - COSTS - Judge Alone Trial - Verdicts of Not Guilty - whether, if the prosecution had, before the proceedings, been in possession of all the relevant facts, it would not have been reasonable to institute the proceedings.
CONTRACTS – loan agreement – construction of guarantee under deed – whether term ought be implied in relation to extent of guarantor’s liability – unjust enrichment – restitution – money had and received
CRIME — Sexual offences — Bestiality — Production/Dissemination bestiality material SENTENCING — Mitigating factors — Good character — No record of previous convictions — Plea of guilty — Past and future assistance — Rehabilitation — Remorse — Unlikely to re-offend SENTENCING — Penalties — Intensive correction orders SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Form 1 offences — Moral culpability — Objective seriousness — Voluntary disclosure of offending — Assistance to prosecution of others SENTENCING — Subjective considerations on sentence — Extra curial punishment — Mental illness and disorders
CRIMINAL LAW – prosecution – work health and safety- duty of persons undertaking business – risk of death or serious injury – maximum penalty COSTS – prosecutor’s costs
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty ADVERSE PUBLICITY ORDER – reference to the circumstances of the offence – significant steps taken after the incident – potential impact on the defendant’s reputation in the industry CAPACITY TO PAY – onus on the defendant to satisfy the court on the balance of probabilities as to the current financial circumstances of the defendant COSTS – prosecutor’s costs
CONTRACTS — non-party seeking to sue on a deed – alleged oral contract or implied contract or contract by agency RESTITUTION — claim for unjust enrichment and quantum meriut
CRIME — Child sex offences — Child abuse material — Use child for production — Produce — Possession — Procuring or grooming child for unlawful sexual activity — Sexually touch child >10 <16 — Incite child >10 <16 to sexually touch — Assault with intent to have sexual intercourse with child >10 <16 — Sexual intercourse with child >10 <14 — Sexual act towards child <14 SENTENCING — Mitigating factors — No record of previous convictions SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Multiple offences — Accumulation, concurrency and totality — Objective seriousness — Sentence after judge alone trial
SECURITY FOR COSTS – plaintiff brings proceedings for defamation claiming to reside at an address in Sydney, New South Wales – plaintiff’s solicitors concede in correspondence that he resides in the United States – whether security for costs should be ordered – quantum of security – no issue of principle
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 – Drug offences – Supply prohibited drug – Large commercial quantity – Co-offenders operating small scale drug supply business – Involving various types of illicit drugs – Charged matters – Cannabis and psilocybin (“magic mushrooms”) SENTENCING – Aggravating factors – Prior criminal history – Offences committed whilst on conditional liberty – Offences committed for financial reward SENTENCING – Mitigating factors – Contrition and remorse – Prospects of rehabilitation – Significantly deprived upbringing engaging “Bugmy principle” SENTENCING – Co-offenders – Parity – Co-offenders charged with same offences – Explanation for different sentences
Sections 111(2) and 154F Crimes Act 1900; joint criminal enterprise; suitability of an intensive corrections order; consideration of De Simoni principles; aggravating factors at s 105A of the Crimes Act 1900
CRIME — sentencing — sexual offences against children — juvenile at the time of offending— aggravated sexual assault — victim <16 years — deprivation of victim’s liberty — infliction of actual bodily harm CRIME – sentencing — multiple victims — sexual intercourse with person above 10 years and under 14 years — intentionally sexually touch child above 10 years under 16 years — take or detain person with intent to commit serious indictable offence — indecent assault of person under 16 years CRIME – sentencing — offending spanning over years — Form 1 offences CRIME — sentencing — subjective considerations on sentence — age of offender — mental health – deprived upbringing - special circumstances
TORT – defamation – three podcasts imputing the plaintiff is the world leader of a paedophile murder and blood-drinking ring of criminals - defendants seek trial by jury – form 23A Election for Trial by Jury filed and served – plaintiff’s Notice of Motion to refuse application for trial by jury – practical difficulties, logistical problems and the need for prolonged examination of documents and podcasts – Notice of Motion granted – second defendant’s application for a second pro bono lawyer pursuant to UCPR r 7.36 – whether “special reasons” made out – hearing date already set and amount of work involved would be very substantial - application refused
CRIME — Violent offences — Robbery with wounding — Common assault CRIME — Property offences — Steal from the person CRIME — Fraud — Dishonestly obtain property by deception — Attempt to dishonestly obtain property by deception SENTENCING — Aggravating factors — Breach of conditional liberty — Home of victim or any other person — In company — Record of previous convictions SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — Moral culpability — Objective seriousness — Proportionality SENTENCING — Sentencing procedure — Disputed facts — Findings of fact — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Drug addiction — Mental illness and disorders — Childhood trauma, abuse, neglect and sexual abuse — Institutionalisation — Limited remorse
CONTRACTS — Breach of contract — assessment of damages arising from the repudiation and termination of a building contract RESTITUTION — Nature of restitutionary liability — Unjust enrichment — Grounds of restitution COSTS — basis for award of costs – gross sum costs order
BUILDING AND CONSTRUCTION – Breach of residential building contract – Delay – Where building was to be completed within a specified time period – Defective works – Where both parties claim to have validly terminated building contract – Whether monies awarded under an Adjudicator’s Determination and registered as a judgment debt can be recovered pursuant to s 32 of the Building and Construction Industry Security of Payment Act 1999 (NSW) – Consequential loss incurred from renting alternative accommodation – Correct measure of damages for breach of building contract – Whether sole director of building company is necessarily liable under the Design and Building Practitioners Act 2020 (NSW)
TORTS – Negligence – Personal injury – Ankle ligamentous injury caused by massage – Where masseuse did not hold professional qualification – Masseuse not called to give evidence – Where anticipated remedial surgery likely to significantly reduce need for future damages
CRIMINAL LAW – Fraud – Commonwealth offences – Use position as officer of company to dishonestly gain advantage/cause detriment – Offender was liquidator, voluntary administrator and/or deed administrator of five separate companies –Transferred funds beyond agreed or reasonable remuneration for administration of companies – Transfer from administration accounts to personal and business accounts not for benefit of companies – Total of approximately $2,518,483.31 dishonestly obtained by offender – Offending over the course of several years from 2016-2022 – Offending detected by ASIC after offender failed to lodge relevant returns – Offender to attend examination pursuant to s 19 of the Australian Securities and Investments Commission Act 2001 (ASIC Act) – Some transfers at the end of the period made by the offender after giving an undertaking to ASIC not to deal with funds of companies – Offender used false descriptors of transfers – The amounts transferred significantly exceeded any amounts which could have been charged or agreed for unremunerated work. SENTENCING – Sentence after pleas of guilty – Subjective factors on sentence – Significant assistance to authorities – Early plea of guilty – General deterrence very important for white collar crime – Mental health issues – Extra curial punishment – Reputational damage – Loss of marriage – Suicide attempts – Excellent prospects of rehabilitation but overall sentence too high for ICO – Only full time custody appropriate with low 50% NPP.
CRIME – SENTENCE Commonwealth offences – 4 counts of money laundering – Taking cash from undercover operatives to be converted into cryptocurrency – “Frontline” worker – Remunerated by 1% of each transaction – Syndicate collecting 6% of each transaction – Genuine remorse – Prior good character – Re-offending unlikely – Aggregate sentence of 3 years to be served by way of an Intensive Corrections Order. State offence – Crimes Act 1900 s192K, possession of identification information to deal with proceeds of crime – Fixed term of imprisonment for time served before being bailed.
CRIME — Violent offences — Recklessly cause grievous bodily harm SENTENCING — Mitigating factors — Good character — No record of previous convictions — Not fully aware of the consequences of her actions because of the offender’s age — Plea of guilty — Positive steps to rehabilitation — Limited remorse — Unlikely to re-offend — Strong subjective case SENTENCING — Penalties — Intensive Correction Order SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — General principles — Moral culpability — Objective seriousness — Consideration of imposing an Intensive Correction Order SENTENCING — Sentencing procedure — Staged approach to sentencing not permitted — A reduction for a guilty plea should not be expressed in days — Reading down a Victim Impact Statement — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Mental illness — Alcohol addiction — Childhood sexual, psychological and emotional abuse — Youth — Motherhood — Indigenous offender — Needs of the child
CRIME — SENTENCING – sentence following guilty verdict — child sex offences — sexual intercourse with child <10 — sexual intercourse with child >10 <14 — circumstances of aggravation — subjective considerations on sentence — special circumstances
CRIME – APPEAL FROM LOCAL COURT – Appellant went to Local Court to seek an adjournment because of revocation of legal aid – Local Court did not want to grant an adjournment – Prosecutor believed case settled, but Appellant always sought an order under the Mental Health Legislation – Even after Local Court recorded a conviction and made an Apprehended Personal Violence Order Appellant continued to seek orders under Mental Health Legislation – “Advice” given by Local Court was incorrect – Denial of procedural fairness – Convictions set aside – Orders made under Mental Health Legislation.
WORKERS COMPENSATION – COAL MINERS - Lump sum claim for permanent impairment of neck and back, the loss of efficient use of right leg, left leg and right arm – s 67 lump sum claim pain and suffering - Statutory norm applied to find 10% of each loss removed to account for underlying non‑compensable condition of disease of gradual process.
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty COSTS – prosecutor’s costs
CRIME – Sentencing – Dishonestly describing to Commonwealth officials the source of table grapes for export to New Zealand so as to avoid cold storage requirement on grapes from non-fruit fly pest-free-areas – Dishonestly influencing public official by false representations – Damage to national interest of Australia in context of Australian-New Zealand Bilateral Quarantine Arrangement – Real risk to both Australia and New Zealand growers – Significant objective seriousness – Need for general deterrence – Subjective case weak – Consideration of concepts such as character, remorse, and contrition in context of corporate offender – Penalties – Fines – “Financial circumstances” or “means” of Offender – Totality
POLICE – SUPERANNUATION – INCREASE OF BENEFITS – Application under s 10(1A)(c) – The Police Superannuation Advisory Committee made a decision under s 10(1A)(b) on 25 November 2021 and notified the Plaintiff on 9 December 2021, and backdated its decision to 14 June 2019 – On 16 December 2021 the Police Superannuation Advisory Committee made a decision under s 10(1A)(c) and certified the Plaintiff on 31 December 2021, repeating its decision to backdate the pension increase to 14 June 2019 – The Plaintiff commenced proceedings – Only issue to be litigated was date of commencement of the increased benefit – The Defendant argued that the Plaintiff was statute-barred as decision to backdate made on 25 November, notified 9 December and proceedings commenced more than 6 months later – Held: The Defendant had to make its decision under s 10(1A)(c) and decision under s 10(1A)(b) was otiose – Further letter of 25 November did not give adequate notice of decision to backdate.
CRIMINAL LAW – prosecution – work health and safety- duty of persons undertaking business – risk of death or serious injury – maximum penalty COSTS – prosecutor’s costs
CRIMINAL PROCEDURE – alleged offences committed by two accused persons arising out of the same circumstances – whether there should be separate trials or a joint trial
TORTS – negligence – work injury damages claim – s.151D extension application – plaintiff has serious psychiatric conditions – whether application should be heard by the trial judge
Trial by judge alone – expert evidence – whether the expert for the accused is qualified to give the opinion he purports to give – driving under the influence occasioning grievous bodily harm – BAC at time of impact
CONTRACTS — Construction — Interpretation – contract with local Chamber of Commerce & Industry for the provision of accounting and management consulting services – scope of services – provisions regarding fees
CRIME – Violent offences – Domestic violence – Substantive Offence – Wound with intend to cause grievous bodily harm – Stabbing – Injuries to victim requiring surgery – Serious weapon – 20cm knife Form 1 Offences – Reckless wounding – Serious domestic violence offence against partner – Almost amputated finger Contravene apprehended domestic violence restriction x 3 – 2 related to main offences and 1 later – Phone calls to victim from gaol in contravention of non-contact order EAGP scheme negotiations criticised – contravene ADVO involving same facts and 2 main offences unnecessary – but very serious Form 1 offence of reckless wounding means no proper sentence able to be imposed for that offence SENTENCING — Extensive criminal history – Largely break and enter type offending – History of violence against same victim – General deterrence – On conditional liberty at the time of offending SENTENCING – Subjective considerations on sentence – Childhood sexual abuse in juvenile custody – Poor education – Disrupted employment history – Frequent incarceration – Substance abuse issues
LAND LAW — Strata title — Owners corporation — Contributions by owners – Recovery of unpaid contributions and interest – Unpaid strata levies – Notice of Levy
WORKERS COMPENSATION – work injury damages – negligence – psychiatric injury – bullying and harassment – scope and content of employer’s duty of care – whether employer vicariously liable for conduct of superior officer – whether duty breached – whether breach causative of injury DAMAGES – competing causes of incapacity – whether tortious injury causative of loss of earning capacity – proper approach to the assessment of damages – discount to be applied to take account of unrelated causes of incapacity STATUTORY INTERPRETATION – whether loss of superannuation benefits subject to cap under s 151I Workers Compensation Act 1987 (NSW)
CIVIL PROCEDURE — Stay of proceedings — application to amend statement of claim - whether the home owner’s proceedings claiming damages should be stayed until payment of the judgment debt in favour of the builder obtained by filing an adjudication certificate under s 25 of the Building and Construction Industry Security of Payment Act 1999 (NSW) – application for a freezing order– whether the payment of security for costs should be required
CRIME — Sentence – Child sex offences — Child abuse material — Using carriage service to solicit, access, and transmit child abuse material CRIME – Sentence – Bestiality material – Possession or dissemination of bestiality material an offence under s 547E of Crimes Act 1900 (NSW)
CRIME - Judge Alone trial - robbery whilst armed with a dangerous weapon - robbery whilst armed with an offensive weapon - deal with proceeds of crime.
CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of PCBU to other persons – risk of death or serious injury – injury of worker SENTENCING – objective seriousness – aggravating factors – mitigating factors – parity COSTS – vacation of hearing date – preparation of expert report
CRIME — Sexual offences — Sexual touching CRIME — Violent offences — Assault occasioning actual bodily harm — In company — Detain for advantage SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions SENTENCING — Mitigating factors — Late plea of guilty — Considerable steps towards rehabilitation SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — General principles — Moral culpability — Objective seriousness SENTENCING — Sentencing procedure — Findings of fact — Extent of reduction for guilty plea SENTENCING — Subjective considerations on sentence — Drug addiction — Mental illness — Mental disorders — Significant progress on remand
Crime – Sentence – Indecent assault – Sexual intercourse without consent – Attempted sexual intercourse without consent – Act of indecency towards – Dissociative Identity Disorder
TORT – defamation – plaintiff brings application for default judgment when defendant fails to comply with timetable orders for filing a defence – whether default judgment available where serious harm is a jurisdictional requirement - defendant brings application for summary dismissal for plaintiff’s failure to provide particulars of serious harm in the concerns notices and in the statement of claim, failure to set out the text of the matters complained of and attach copies and errors in pleading the imputations – statement of claim struck out and dismissed with costs
PROCEEDS OF CRIME – serious offences other than drug trafficking offences – fraud offences – application for pecuniary penalty order – assessment of value of benefits the offender derived because of having committed the offences – whether defendant’s payment to the New South Wales Crime Commission as part of a settlement of another proceeding arising from different charges operated as a release or discharge from further liability following his conviction of the index charges
CONTRACTS — Remedies — Damages — Assessment DAMAGES – goods and services tax (GST) – whether an award of damages should include the amount of GST that is part of the price of services acquired to make good the damage
EMPLOYMENT AND INDUSTRIAL LAW — Contract — Termination — Termination on notice ESTOPPEL — Anshun estoppel — Decisions to which applicable ABUSE OF PROCESS – Settlement of proceedings
CRIMINAL LAW – prosecution – work health and safety- duty of persons undertaking business – risk of death or serious injury – maximum penalty COSTS – prosecutor’s costs
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 – no extra-curial punishment COSTS – prosecution costs OTHER – sunken yacht salvage – crane lift failed – mast struck worker on head – failure of director to exercise due diligence – director did not put appropriate processes in place – director provided no appropriate resources – failure to verify PPE was in use
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 – sunken yacht salvage – crane lift failed – mast struck worker on head – failure to conduct an adequate risk assessment – failure to develop and enforce a Safe Work Method statement – failure to prohibit workers from exceeding safe working limits of the crane – failure to prohibit workers from using inadequate load lifting points – failure to provide adequate training, instruction and supervision – PPE not in use
NEGLIGENCE – Fire in a refrigerator – Duty of care owed by an importer and distributor to the end-consumer – Civil Liability Act 2002 (NSW) – Breach of duty – Causation – Damages
CRIME – sentencing – driving at a dangerous speed occasioning death – victim impact statements – whether appropriate to treat harm to deceased’s family members as an aspect of harm to the community – significance of offender’s asserted childhood sexual abuse – significance of traits of PTSD after offending – offender’s injuries from collision as extra-curial punishment
CRIMINAL LAW – Application for further and better particulars – Application to quash indictment – Application for permanent stay of proceedings – Negligent manslaughter -Dangerous driving causing death – Drive manner dangerous – Accessory before the fact to the offence of dangerous driving causing death - Aid and abet- failure to take reasonable care – Criminal negligence – Recklessness – Negligent loading – Securing load
CRIME — Sentence – Child sex offences — Child abuse material — Using carriage service to solicit, access, and transmit child abuse material CRIME – Sentence – Bestiality material – Possession or dissemination of bestiality material an offence under s 547E of Crimes Act 1900 (NSW)
CRIME — child sex offences — child abuse material — using carriage service for child pornography material or child abuse material — possess bestiality material SENTENCING — federal offenders — sentence by State court for offence against Commonwealth law SENTENCING — penalties — recognisance
CRIME – Proper construction of s 110(c) LEPRA and s 139(2) of Evidence Act – Meaning of “the person has been informed that they are free to leave” for the purpose of s 110(c) of LEPRA and “an investigating officer who does not have the power to arrest” for the purpose of s 139(2) of the Evidence Act – s 99 LEPRA – s 138 Evidence Act – Evidence obtained in contravention of improprieties – Admissibility – Balancing exercise
COSTS — defendant seeks the imposition of a cap on costs after judgment has been entered – defendant seeks an issue by issue approach to be applied to the costs order
CIVIL PROCEDURE — Time — Extension of time – application to extend the 12 year long-stop limitation period – ascertaining the date on which the cause of action was discoverable – matters relevant to the exercise of discretion
CRIME – SENTENCE – Found guilty by jury – Attempt to possess border controlled drug – Marketable quantity of heroin – Package containing drug intercepted and substituted – Accepted by offender from UCO posing as delivery man – Whether offender knew drugs in delivery – Inferences to be drawn from electronic evidence (mobile phones and computer tower) – Prior conviction in New Zealand – Claimed need to care for elderly parents – Whether further attempts at education (university degree) realistic.
CRIME – SENTENCE – Import commercial quantity of border controlled drug – 4.618kg pure methamphetamine – Foreign national – Offender elected not to give evidence to explain discrepancies in subjective evidence – Consideration of effect of sentence on family and dependents – Good prospects of rehabilitation.
CRIME – Appeal from Local Court – Charges under s 58 Crimes Act 1900 – Whether first stop unlawful under LEPRA – Whether evidence flowing from stop should be excluded if stop was unlawful – Whether first search classified as strip search.
CRIMINAL LAW – interpretation – fraud and dishonesty offences – offence of fraudulent embezzlement by clerk of servant – whether ‘fraudulent’ is equated to the test for dishonesty in s 4B of the Crimes Act 1900 (NSW) – significance of earlier High Court authority on offences concerning fraudulent conduct which do not have dishonesty as an essential element of the offence
CRIME – SENTENCE – PLEAS OF GUILTY Commonwealth Offences: Furnish authority with document containing false or misleading statements – Mid-range objective seriousness. Obtain travel documents dishonestly – Low-range objective seriousness. Conceal had been known by any other name and had been convicted of offence – above mid-range objective seriousness. Minimal criminal history – Historical crimes – Low risk of reoffending – High prospects of rehabilitation – Remorse. Effect of sentence on child in kindergarten – Offender sole parent.
STATUTORY INTERPRETATION – Companion Animals Act 1998 (NSW) – whether bodily injury within the meaning of s 25(1)(a) includes psychological injury caused by trauma of witnessing attack on the plaintiff’s dog at the time of the attack on the plaintiff – damages for psychological injuries limited to the sequelae of physical injuries suffered by the plaintiff and the trauma of the attack on her ASSESSMENT OF DAMAGES – approach to be applied to an interrelated but not compensable causal factor – evidentiary onus to disentangle contributing causes – unrealistic on the evidence to dissect components of a psychiatric injury suffered in one event – quantification of buffer for economic loss
CRIME – appeals and reviews – appeal against refusal to annul convictions entered in Local Court – accused person is deliberately disruptive in proceeding – the judicial officer determined that he was not ‘present’ and proceeded to hear the matter in his absence CRIME – interpretation – whether accused person ‘present’ – Criminal Procedure Act 1986, s 196
GUARANTEE AND INDEMNITY — Actions to enforce guarantee — Guarantors liability – Guarantor’s awareness of charges due under the contract the subject of the Guarantee and Indemnity
CRIME – aggravated break and enter and specially aggravated break and enter. CRIME - Judge Alone hearing - verdicts “act proven but not criminally responsible” - consequential orders MENTAL HEALTH - Criminal proceedings — Special hearing – defence of cognitive impairment established – orders finding conditional release appropriate in light of current medical evidence – referral to the Mental Health Review Tribunal.
CRIME — Citizenship and migration offence – Furnishing false and misleading information to a migration official in connection with entry into Australia and application for a visa – Arrival on tourist visa with intention of staying – False personal details provided for both protection visa and citizenship application – Failure to declare relevant matters for both protection visa and citizenship application – Previous denial of protection visa SENTENCING — Penalties – Recognisance SENTENCING — Unexplained delay – Stale offences – Offences committed 10-14 years previously SENTENCING — Subjective considerations on sentence – Childhood hardship – Poverty – Abuse – Arrest and abuse in China for violation of One Child Policy
PROCEDURAL – Motion to dismiss because the proceedings were brought out of time – past alleged offences were observed outside limitation period – new, distinct and different alleged offences were observed within limitation period – defendants are not immunised from risks and breaches of duty because they are guilty of an earlier alleged offence – object of the WHS Act would be defeated – present proceedings brought within limitation period
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 – fall through void – failure to undertake adequate risk assessment – failure to enforce defendant’s control to use scissor lift – inadequate information, training and instruction to workers about hazards and controls – failure to provide adequate supervision to ensure compliance with SWMS – failure to prohibit work near voids and penetrations through which a person could fall
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 - parity COSTS – prosecution costs OTHER – fall from height – roofing work – worker fell through roof soffit – no fall prevention system – worker had no qualification or experience working at height – inadequate training, instruction and supervision
CRIMINAL LAW – appeals and reviews – appeal against conviction – sexual offences – carrying out sexual act without consent – domestic violence offences – stalking or intimidation offence – whether the accused knew that the complainant was likely to suffer physical or mental harm
CRIME – SENTENCE – Knowingly take part in supply of prohibited drug – Large commercial quantity of cocaine (3.164kg) – Remorse shown – Good prospects of rehabilitation – Low to moderate prospects of recidivism – Special circumstances found.
NEGLIGENCE – risk was foreseeable – risk was not insignificant – reasonable person in the position of the council would have taken precautions – significant probability that the harm would occur – serious harm could result – minimal burden to take precautions – social utility – factual causation established – scope of liability extends to the harm so caused DAMAGES – non-economic loss – past and future out of pocket expenses – future domestic assistance OTHER – trip in hole in nature strip – council had actual knowledge
CRIME – Appeal and review – Appeal from Local Court to District Court – By person convicted against conviction – Conviction by Local Court Magistrate – From finding of fact – Credibility of witnesses – Failure to give appropriate directions of law – Weight to be given to medical opinions tendered by the Crown without objection – Onus of proof – Undesirability of rhetorical questions as to why a witness may give false evidence
CONTRACTS – Construction and interpretation – Commercial setting known to both parties at the time of contract – Proper construction of liquidated damages provision – Does it apply to Goods and Services Tax not expected or able to be paid on completion – Construction of contract that provides sensible commercial outcome to be preferred CONTRACTS – Remedies – Damages – Purpose of liquidated damages provision is to provide agreed mechanism for proof of damages for breach of contract – Only has work to do in circumstances of breach
CRIME – Drug offences – Manufacture prohibited drug – Large commercial quantity – Alleged non-exculpatory duress – Weight to be given to untested assertions by offender on contested matters of fact to third parties and by letter to the Court – Objective seriousness of offender coming to Australia for sole purpose of manufacturing large quantity of methamphetamine – Subjective case – Deprived childhood in Iran – Bugmy principles – Payment of gambling debt motivated offending – Opinion of psychologist as to clinical diagnosis of C-PTSD – Drug and gambling addictions
CRIMINAL LAW – 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 SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – injury to worker SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine - penalty SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities
CRIME — Child sex offences — Child abuse material — Possession CRIME — Bestiality material — Possession SENTENCING — Mitigating factors — Good character — No record of previous convictions — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — Objective seriousness SENTENCING — Sentencing procedure — Instinctive synthesis — Advanced age — Health issues — Time in custody onerous
CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employer – risk of death or serious injury WORK HEALTH AND SAFETY
CRIME – SENTENCING – five counts of embezzlement by clerk – offender was manager of a community bowling club and embezzled funds over a period of five years through fake invoices and unsupported expenses – total amount embezzled was $1,788,805 – offender made admissions when confronted by club board – offender suffered from gambling addiction – offender disputed total amount embezzled on sentence – late guilty plea – assessment of objective seriousness of fraud-like offences – breach of trust – strong prospects of rehabilitation – offender subsequently employed as counsellor with Lifeline and assisted others with gambling addiction – remorse and contrition – finding of special circumstances – need for general and specific deterrence in cases of white collar crime – sentence of full-time imprisonment warranted
SENTENCING - aggravated dangerous driving causing death – application of Whyte guideline - fulltime custody – history of alcohol abuse – no remorse or insight. Tension between a reduction of moral culpability for cognitive impairment and mental health issues and s 21A(5AA) of the Crimes (Sentencing Procedure) Act 1999 for intoxication.
CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation — Assault occasioning actual bodily harm knowing that people were there SENTENCING — Aggravating factors — Home of victim — In company — Planned or organised criminal activity SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Relevant factors on sentence — Co-offenders — Joint criminal enterprise — Care not to impose a crushing sentence — Deterrence — Form 1 offence — Moral culpability — Objective seriousness — Proportionality SENTENCING — Subjective considerations on sentence — Drug addiction — Mental disorder — Childhood trauma
CRIME – Special hearing – previous trial – retrial ordered by Court of Criminal Appeal – subsequent finding of unfitness – Director elected special hearing – historical allegations said to have occurred between 1973 and 1991 – tendency evidence – allegations that the accused in part used hypnosis (or relaxation therapy involving massage) on complainants – expert evidence on memory and hypnosis – accused gave evidence in original trial – three further complainants subsequent to grant of re-trial
NEGLIGENCE – motor vehicle accident – remitter from Court of Appeal relating to liability only – dispute as to factual matters relating to liability - no expert report evidence - principles applicable – credit and reliability in issue
PRACTICE AND PROCEDURE – plaintiff commences proceedings for malicious prosecution against his former wife shortly before expiry of limitation period – long history of litigation between plaintiff and defendant in other courts - plaintiff fails to comply with timetable orders including guillotine orders – plaintiff diagnosed with inoperable cancer and seeks to explain his defaults as being health-related – plaintiff ordered to show cause and continues to fail to comply with orders – orders to serve amended pleadings and evidence not complied with despite imminent hearing date – certainty that the 4-day-plus hearing date will have to be vacated – proceedings dismissed with costs. COSTS – defendant seeks gross sum costs order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) – whether sufficient information before the court – whether court should inquire into the nature of the costs agreement where a party’s lawyers are acting pro bono – application refused.
CONTRACT – loan of $300,000 by the plaintiff to the defendant – whether money advanced was a loan or a gift – whether the terms of the contract were varied – quantum – no issue of principle
CRIME – sentencing – specially aggravated break and enter – larceny – two co-offenders and third unidentified co-offender – joint criminal enterprise – youth – mental health and disability – deprived background
SENTENCING - drive manner dangerous causing death – drive manner dangerous causing grievous bodily harm - application of Whyte guideline - fulltime custody required for a drive manner dangerous - availability of ICO when Offender in custody on other matters bail refused
DEFAMATION – three lengthy social media podcasts and X posts over a 10-day period – imputations that the plaintiff engaged in criminal activity including paedophilia and abuse of children, was the leader of an international criminal and paedophile cult and had perjured himself in legal proceedings – application by second defendant for preliminary rulings on serious harm – evidence of thousands of listeners and readers – matters remained on the social media site for an extended period – evidence of grapevine effect in the form of publications on other podcast and social media sites – whether serious harm findings should be the subject of a ruling now, at a later interlocutory stage, or at the trial – parties with limited financial means – desirability of early trial – serious harm findings made in the context of an early trial hearing date being set PRACTICE AND PROCEDURE – impact on case management of second defendant’s submissions referring to non-existent and/or misstated judgments and legal principles, in breach of District Court General Practice Note 2 Generative AI Practice Note
SENTENCE- cannabis supply SENTENCE- relevant factors on sentence -courier- multiple transactions- first time in custody- strong pro-social support- used time on remand to advantage- - excellent prospects of rehabilitation - intensive correction order appropriate and in community interest
SENTENCING - Juvenile offender - To be dealt with “according to law”. SENTENCING - Non-parole period - special circumstances – principles to be applied. SENTENCING - Relevant factors on sentence – youth – immaturity – deprived background – long history of offending – drug use – intellectual disability – serious offending - aggravated break and enter – aggravated take and drive vehicle- knife used – on parole – aggregate sentence – totality – parity adult and child.
CRIME - Sexual intercourse without consent - Intentionally record intimate image w/o consent (DV) SENTENCING - Relevant factors on sentence – late guilty plea- some early admission- no-consensual sexual intercourse during a relationship – sleeping victim - no” means “no” - offender expresses regret and remorse but has difficulty accepting the wrongness of his actions- strong subjective case – purposes of sentencing - rehabilitation and retribution considered - need for custodial sentence
CRIME — Property offences — Break and enter and steal — Larceny — Possess housebreaking implements — Take and drive a conveyance — Police pursuit — Use offensive weapon to prevent detention CRIME — Summary offences — Custody of knife in public place TRAFFIC LAW AND TRANSPORT — Traffic law — Offences — Failure to give particulars SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions SENTENCING — Guidelines for sentencing SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Specific deterrence — Form 1 offences — Moral culpability — Multiple offences —Objective seriousness — Purposes of sentencing — Proportionality SENTENCING — Subjective considerations on sentence — Drug addiction — Traumatic brain injury — Traumatic childhood — Poverty — Childhood sexual abuse — Institutionalisation —Motivation to rehabilitate — Avoiding a crushing sentence
CRIMINAL LAW - Conviction Appeal - Sentence Appeal - Possession of a knife (not a prohibited weapon) in Court premises – Dominion and control over the knife – Mental intent for possession
CRIME – Sentencing – Intentionally recording intimate images without consent – Creation of child abuse material – Later possession does not inform creation – Prosecutors must ensure not to lead a judge into error – Unusual case of reckless creation of child abuse material – Gross breach of trust of Airbnb guests
COSTS – plaintiff obtains award of nominal damages for breach of contract after abandoning claims for substantial damages for breach of contract (and in negligence) and compensation for non-compliance with consumer guarantees – plaintiff fails to obtain order for court-ordered apology under the Australian Consumer Law – characterisation of the ‘event’ for the purposes of r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) – whether ‘successful’ party should be wholly or partly disentitled to its costs
BUILDING AND CONSTRUCTION — Contract — Defects – Home Building Act 1989 (NSW) – Design and Building Practitioners Act 2020 (NSW) – liability of builder – liability of engineer
WORKERS COMPENSATION – s 151D Workers Compensation Act 1987 (NSW) – leave to commence proceedings more than three years after injury – presumptive and actual prejudice – availability of witnesses and evidence – whether plaintiff establishes the conduct of the trial will not cause the defendant significant prejudice such as to render the trial unfair – appropriate costs order
CIVIL PROCEDURE – Stay of proceedings – Application for permanent stay of proceedings based on the passing of approximately 54 years since the alleged events – Has the impoverishment of evidence caused by the passage of time resulted in a fair trial not being possible – Principles to be applied – Stay refused TORTS — Trespass to the person — Alleged sexual assaults in 1971 or 1972 when the plaintiff was 6 or 7 years’ old – Proof – Onus of proof – Assessing reliability or accuracy of evidence based on memory of events more than 50 years ago
CRIME – SENTENCE – supply large commercial quantity of methylamphetamine – where offender only participated in offence for one minute – strong subjective case – good prospects of rehabilitation and low risk of reoffending – whether Intensive Correction Order available – term of ICO adjusted to take pre-sentence custody into account
STAY – application to stay civil proceedings whilst active police criminal investigation relating to defendant’s main witnesses’ alleged conduct arising from the same facts ongoing – factors to be considered
SENTENCING — Sentence after Guilty pleas – Child sex offences — Procuring or grooming child for unlawful sexual activity – Fail to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000 – Child Exploitation Internet Unit – Prior similar offending –– Strong subjective circumstances
Crime – Sentence – Aggravated break and enter with intent to commit assault occasioning actual bodily harm – Reckless driving failing to stop in the course of a police pursuit – Driving whilst disqualified.
CRIME — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material — Fail to comply with child protection reporting obligations SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Maximum penalty — Moral culpability — Objective seriousness SENTENCING — Sentencing procedure — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Childhood sexual abuse and trauma — Mental disorders
CRIME – Sexual intercourse without consent - Assault with act of indecency SENTENCING — Relevant factors on sentence —sentence after trial - victim impact - young offender - strong subjective case
CORPORATIONS — Voluntary administration – Stay of proceedings – Does s 440D operate as a stay of an application by a defendant to a claim for a gross sum costs order against the company?
LEASES AND TENANCIES – Failure to make good – Necessary to compare condition of premises at time of handover date of the sublease and the date of termination of the sublease – That comparison is different to the similar claim made by the landlord on the plaintiff in relation to the head lease DAMAGES – Proof of damages by reference to a settled claim – Where settled claim a different claim to that being made by the plaintiff
Criminal law — Sentencing — Sexual Offences — Aggravated Sexual Assault — Section 61J(1) of the Crimes Act 1900 (NSW) — Where complainant under the age of 16 years — Whether Offender was in a position of “authority” or “trust” — Whether Offender’s continuing claim of innocence prevents a finding of positive prospects of rehabilitation — Whether continuing claim of innocence affects assessment of recidivism risk
CRIME — Costs Application — whether to grant Certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) — application of s 3(a) of the Costs in Criminal Cases Act 1967 (NSW) — question of credibility of Complainant — whether an issue for determination by judge or jury
Criminal Law — Special Hearing — section 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) — Defendant unfit to be tried — judge alone trial — sexual Offences — section 66DC(a) of the Crimes Act 1900 (NSW) — sexual act towards a child under the age of 10 years — section 66A(1) of the Crimes Act 1900 (NSW) — sexual intercourse with a child under the age of 10 years — section 293A of the Criminal Procedure Act 1985 (NSW) — where Complainant states a lack of memory about alleged offending — where there are inconsistencies between Complainant evidence and complaint evidence
CONTRACTS – supply of services by aged care provider – action in contract for breach of express and implied terms relating to the care of a patient – construction of contractual duties – significance of regulatory context – standard of obligation to observe and act on rights in a Charter – whether alleged breach(es) of duty established CONSUMER LAW – services supplied to a deceased person in an aged care facility – characterisation of ‘services’ – whether non-compliance with care guarantee CONSUMER LAW – remedies – executor of deceased’s estate claims relief by way of public apology by the service provider– whether District Court has jurisdiction to make orders under s 237 and s 243 of the Australian Consumer Law – whether a court is empowered to grant the relief sought under s 237 to an individual applicant where the relief is not expressly available in s 243 – whether ‘loss or damage’ has actually or is likely to be sustained – consideration of the nature of the remedy of a court-ordered public apology informing the Court’s discretion to grant the relief
PERSONAL INJURY – scope of duty of care owed by Defendant/Council – whether Defendant/Council owed a duty of care – scope of Defendant/Council duty of care – whether Plaintiff pedestrian on a footpath exercised reasonable care – negligence of public authority Defendant/Council – fall on raised lip/edge of section of footpath in partial light – relevance of Defendant/Council’s footpath assessment and maintenance Policy – where Defendant/Council knew of the hazard – whether Defendant/Council breached its duty of care – ss 5B, 5C, 5D, 5E CLA – whether raised lip in footpath was an obvious hazard – ss 5F, 5H CLA – onus of proof of negative proposition that Defendant/Council failed to monitor the hazard where Defendant/Council had greater means to produce evidence – application of s 42 CLA – application of s 43A CLA – contributory negligence - DAMAGES – causation – assessment of damages for future loss where no expert medical opinion of natural course of progression of pre-existing advanced arthritis.
CRIME – Sentence – Pleas of Guilty – 4 offences of sexual intercourse with child under the age of 10 years, namely 8 and 9 years, against s 66A(1) Crimes Act 1900 (NSW) – 4 offences of sexual intercourse with child under the age of 14 years, namely 10 and 11 years against s 66C(2) Crimes Act 1900 (NSW) – 1 offence of common assault against s 61 Crimes Act 1900 (NSW) – aggravation of abuse of position of authority by action in breach of position of trust – principles – s 66C(2) – aggravation by abuse of position of trust or authority s 21A(2)(k) Crimes (Sentencing Procedure) Act 1999 (NSW) – Form 1 offences and uncharged acts – principles of approach – indicative sentences – aggregate sentence – where offender was victims’ mother’s partner and offended when she was absent
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – injury to worker SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine - appropriate penalty SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse
SENTENCING – Powers of court – Penalties - Intensive Correction Order (ICO) – No power to impose ICO if the offender resides outside NSW SENTENCING – Mitigating factors - Hardship to a third party – exceptional circumstances SENTENCING – Relevant factors on sentence - Relevance of a finding that the offence was committed while the subject of a coercive relationship
CONTRACT – Oral guarantee – Written contract purported to be a written guarantee – International contractual agreement – Where foreign law not pleaded – Where agreement lacks consideration
CIVIL – COMPENSATION – Application for closed period redemption – Not pleaded based on proper understanding of case law and evidence available – Compromise too great – Application refused.
CRIMINAL PROCEDURE — Trial — Judge-alone — Reasons of trial judge — 6 counts on indictment — Possession of commercial quantity of methylamphetamine; possession of .22 long rifle calibre cartridges; possession of prohibited firearms — Extended definition of possession in the deeming provision s 4A of the Firearms Act 1996 — Common law definition of possession.
CIVIL – CONTRACT – Order to deliver up goods not complied with – Referral of Plaintiff’s application for contempt against the Defendants to Supreme Court of NSW.
PRACTICE AND PROCEDURE – Application for adjournment – Failure to comply with earlier orders – Failure of defendant to serve any evidence – Alleged illness of defendant – Defendant’s solicitor still on record – Adjournment refused. CONTRACT – Repudiating conduct by defendant – Finance of 2021 Ferrari two door coupe – Failure to pay instalments – Orders that defendant deliver to plaintiff motor vehicle and authorising plaintiff to repossess vehicle and ancillary orders.
CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employer – risk of death or serious injury – injury to worker
CRIME – s21(2) CPA Application for severance of indictment into 5 different trials – 9 counts, including counts of larceny, break and enters and a take and drive conveyance without consent – Granted in part.
CRIME – SEVERITY APPEAL – 40 Offences in Local Court – Combined aggregate sentences amounting to 29 years and 3 months – Appellant sentenced to 5 years imprisonment with no parole period – Personal circumstances considered on appeal – Parole period fixed. SENTENCE – For 3 offences – Aggregate sentence on top of non-parole period fixed on Severity Appeal – Special circumstances.
CRIMINAL - SENTENCE - robbery in company - dishonestly obtain a financial advantage by deception - expert witnesses - non compliance the Expert Code of Conduct - consequences - Parity - Special circumstances.
CRIME — Historic child sex offences — Assault and act of indecency of a girl CRIME — Appeal and review — Appeal District Court to Supreme Court — Matter remitted to District Court for resentence RESENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Multiple offences — Totality — Not impose a crushing sentence SENTENCING — Subjective considerations on sentence — Chronic health issues — Advanced age — Mobility issues — Vulnerable in custody
Aggravated break and enter - robbery in company - stealing - carried in conveyance without consent of owner - assault occasioning actual bodily harm - joint criminal enterprise - legal and moral culpability - parity in sentencing co-offenders - "... it is in the highest degree desirable that co-offenders be sentenced by one judge…"
CRIMINAL LAW – prosecution – work health and safety- duty of persons undertaking business – risk of death or serious injury – maximum penalty COSTS – costs
CIVIL PROCEDURE – transfer of proceedings from Local Court to District Court pursuant to s 140 Civil Procedure Act 2005 (NSW) – plaintiff obtains default judgment in the Local Court – prior to assessment hearing being commenced plaintiff seeks transfer to District Court – defendant raises quantum and other discretionary matters in opposition to transfer – whether plaintiff has established sufficient reason for transfer