CIVIL – Notice of motion – Application by to set aside subpoena - Held valid forensic purpose to subpoena, integral to claim, essentially for personal injury
PRACTICE AND PROCEDURE – non-compliance by plaintiff with a guillotine order for service of evidence in response to the defendant’s stay application – plaintiff wishes to read evidence prepared shortly before hearing of stay application – inevitable that the consequence of granting leave to rely upon evidence will be vacation of hearing of stay application – consideration of discretionary considerations
CRIME – SENTENCE – meet/travel to meet child groomed for sexual activity – 2 x aggravated sexual intercourse child >=14 & <16 years - registerable person order
CIVIL – COMPENSATION – Coal mining – Claim for weekly payments – Whether need for right knee replacement arising out of or in course of employment with defendant – Finding that need for surgery resulted from aggravation or acceleration of osteoarthritis made worse by work conditions.
CRIME – sentencing – assault of frontline health workers in hospital mental health unit – assault nurse s 60AE(2) of the Crimes Act – assault security officer s 60AE(2) – occasion actual bodily harm to security officer s 60EA(4) – recklessly wound security officer s 60AE(6) – use of knife – offender in state of drug-induced psychosis – risk of institutionalisation – 84% of adult life spent incarcerated – deprivations of early life – adjustment of parole to non-parole ratio s 44 CSP Act – backdate commencement of sentence where parole revoked on account of offences ss 47(2)(a) and (3) of CSP Act
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of worker SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine - appropriate penalty SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - assistance to law enforcement authorities
CRIME – sentencing – robbery armed with offensive weapon – police pursuit – not stop – drive dangerously – take & drive conveyance without consent of owner – where Offender's motivation for offending was to be returned to prison – where Offender has been institutionalised since a young age – reduced moral culpability – special circumstances
BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — Residential building work — allegations of defective work and incomplete work — whether builder abandoned the site or was excluded from it by the owner
CIVIL LAW – Building and Construction Industry Security of Payment Act 1999 – whether plaintiff contracted to withdraw payment claim – whether parties objectively evinced an intention to withdraw a payment claim – where defendant did not serve a payment schedule – where plaintiff did not forfeit statutory rights but rather made a commercial accommodation for minor reduction of sum claimed in payment claim
APPEALS AND COSTS — Appeal pursuant to s 89 of the Legal Profession Uniform Law Application Act 2014 (NSW) from decision of the Costs Assessment Review Panel – Nature of appeal APPEALS AND COSTS — Applications for leave to rely on additional evidence pursuant to s 89(4) of the Legal Profession Uniform Law Application Act 2014 (NSW) – Proper construction of s 89(4) – Appropriate approach to be taken on applications for leave to rely on additional evidence PRACTICE AND PROCEDURE — Application to revoke earlier decision of the Court to grant leave to rely on additional evidence pursuant to s 89(4) – Proper approach to applications to revisit earlier interlocutory decisions made in the same proceedings COSTS – Solicitor/Client costs – Costs disclosure – Proper construction of s 174 of the Legal Profession Uniform Law 2014 (NSW) – What are the mandatory requirements of s 174(1) of a disclosure provided by a legal practitioner – What are the consequences of failing to make such a proposal – Proper construction of “as soon as practicable” APPEALS AND COSTS – Some errors of fact and law identified – What are the consequences? – Appropriate orders
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 — Driving offences — Dangerous driving occasioning death JUDGE ALONE TRIAL — s 132 Criminal Procedure Act — Findings beyond reasonable doubt that driving dangerous and caused death — Central issue was the accused the driver EVIDENCE — No direct evidence as to who driver of vehicle was as between deceased and accused — Inferences — Intermediate facts need to be proved beyond reasonable doubt — Totality of facts proved beyond reasonable doubt accused as driver — Alternative explanation that deceased was the driver not a reasonable or rational conclusion from totality of proven facts
WORKERS COMPENSATION — s 151D Workers Compensation Act 1987 (NSW) — Extension of time — Undesirability of application for leave being heard at the same time as final hearing — Such an approach to be discouraged NEGLIGENCE — Duty of care — Vicarious liability — Employment health and safety — Claim by former NSW Police officer against NSW Police Force for psychiatric injury being PTSD caused by repeated exposure to traumatic incidents — Scope and context of duty of care — One breach established — Finding that breach did not cause injury
PROCEDURAL – amendment of Summons – whether Summons fails to disclose an offence known to the law – defendant to know the charge it has to meet – consideration of entire Summons including particulars required – whether there was a slip or clumsiness in drafting – costs of seeking an indulgence necessary as a result of need to amend
CRIME — domestic violence — sexual intercourse without consent — choking, suffocation or strangulation — stalking or intimidation — armed with intent to commit indictable offence — common assault CRIME — sexual offending — where offending took place in the context of a highly sexual consent-no-consent relationship SENTENCING — where crimes committed against one victim over extended period — victim impact statement SENTENCING — aggravating factors — in the presence of infant — armed with a weapon - where offending took place in victim’s home — where offending aggravated by being in the victim’s home notwithstanding that the offender and victim lived in the home together CRIME — offences on s 166 certificate found to be proven by the Court
CRIME — common assault – intimidation CRIME – accused found guilty at jury trial – where Court is to determine whether the accused is guilty of related offences on s 166 certificate before sentence hearing – consideration of evidence of accused and complainant at trial – complaint evidence – accused’s evidence not accepted – complainant found to be a reliable witness – accused found guilty of related offences on s 166 certificate
CRIME – sentencing – guilty plea – child sexual offences – two female victims – offences occurring 20 years apart – offender the uncle of one victim – offender the grandfather of one victim – no prior criminal history – victim impact statements – position of trust – principle of totality – partial accumulation - aggregate sentence
CRIME – SENTENCE – Engage in dishonest conduct in relation to a financial product while carrying out a financial services business – Approximately $10,000 taken from each of 12 victims’ superannuation accounts – Offender submitted Change of Account Fees forms to administrator of superannuation fund, known by him to be not genuine – All victims paid back (only 2x wholly by offender) – Little evidence as to financial standing of offender, fine of $20,000 imposed in addition to a suspended sentence of imprisonment.
CRIME — Break, enter and commit serious indictable offence — Offence being robbery SENTENCING — Aggravating factors — $100,000 stolen — Elderly victim at home alone — Unnecessary and gratuitous violence — Significant planning and premeditation — Offender a serving New South Wales Police officer — Used information gained during execution of search warrant to commit offence — Breach of trust — General deterrence a weighty factor — Reaction of people on social media caused harm to victim over and above what ordinarily expected — Taken into account as aggravating facto under s 21A(2)(g) SENTENCING — Subjective considerations on sentence — Special circumstances — Offender suffers serious mental issues — PTSD from trauma exposed to during career as police officer — Root cause of offending
CRIME — Sexual offences — Aggravated sexual assault — Victim <16 years — Victim under authority — Sexually touch without consent SENTENCING — Penalties —Sentencing after trial — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Moral culpability — Multiple offences — Aggregate sentences — Objective seriousness — Proportionality — Extra-curial punishment considered SENTENCING — Subjective considerations on sentence — Age of offender — Good character — First time in custody — Impact of custody on physical or mental health — Protective custody — Mental disorders and trauma — Pro-social family support — Unlikely to re-offend
SENTENCE – Supply commercial quantity of a prohibited drug – Supply more than indictable, less than commercial quantity of a prohibited drug – Methylamphetamine, heroin, cocaine – Offender travelled from Sydney to Perth – Offender purchased various items to repackage and disguise drugs – Offender posted drugs to Perth from Sydney SENTENCE – Subjective circumstances – History of drug use and drug related offending – Assault in custody – Non-exculpatory duress – Rehabilitation prior to arrest
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 from height – slip while climbing down the outside of scaffold – inadequate risk assessment – unprotected edges – no site-specific SWMS – failure to provide adequate supervision, training and instruction – failure to verify components of scaffold were correctly installed and remained in place – unsafe entry to roof – access to roof without appropriate safety measures in place
Crime – Sentence – Indecent assault of a child under 10 years – Indecent assault of a child under 16 years – Intentionally sexually touch child 10-16 years
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 by forklift – worker on foot using forklift door – failure to enforce forklift door being in “automatic” mode – failure to enforce personnel door as the only means for workers on foot to enter – failure to provide adequate supervision – failure to undertake inspections and audits to verify adequate controls of the risk were implemented
CRIME — sentencing — Commonwealth and State offences — offence under the Criminal Code Act 1995 (Cth), s 474.22(1) — use a carriage service to transmit child abuse material — offence under the Crimes Act 1900 (NSW), s 91H(2) — possess child abuse material — objective seriousness — Bugmy considerations — motivation for offending — offender’s mental health
CIVIL – COMPENSATION – COAL MINING – Injury to neck allegedly caused by driving haul truck over hole in haul road – Onset of symptoms about 17 hours after event alleged to have caused injury – Court not satisfied of causation on balance of probabilities of exacerbation, by alleged event.
CRIME — Violent offences — Common assault — Unauthorised use of a Prohibited Weapon — intentionally communicate protected information — Body-Worn Video — Vulnerable Victim — Authorized use of Force — Unlawful Acts SENTENCING — Aggravating factors — Gratuitous cruelty — Denunciation — Position of Trust or Authority — Police Offenders
SENTENCE – Stalk/intimidate intend fear physical etc harm – Assault occasioning actual bodily harm in company of others – Aggregate sentence – Intensive Correction Order
SENTENCE – Stalk/intimidate intend fear physical etc harm – Assault occasioning actual bodily harm in company of others – Aggregate sentence – Intensive Correction Order
CONTRACTS – unexecuted loan agreement – factual dispute – whether plaintiff intended to gift or loan monies to the defendant – weighing competing evidence
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 from height – roofing work – fall through unprotected skylight – unauthorised access to roof – no measures to prevent unauthorised access to roof
CRIME – Accessory to murder – Crimes Act 1900 (NSW) s 349(1) - Accessory after the fact to murder SENTENCING – relevant factors on sentence – totality – complex history of pre-sentence custody
SENTENCING — Commonwealth crime — Drug offence — Importation of a commercial quantity of a border-controlled drug — Maximum penalty of life imprisonment — Offender attacked in custody
CIVIL PROCEDURE – application to set aside subpoena issued to third party – where subpoena for production of documents held by regulator – whether subpoena amounts to a “fishing expedition” – whether subpoena lacks a legitimate forensic purpose – subpoena set aside
CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employer – risk of death or serious injury – injury to worker WORK HEALTH AND SAFETY – use of mobile plant - likelihood of risk occurring – whether defendant had knowledge of risk - whether risk reasonably foreseeable – workers not given adequate training
CRIME – Admissibility of evidence – Photograph of accused not wearing wig sought to be adduced by Crown to show that accused was wearing wig at relevant time for purposes of concealing her identity – Many purposes for wearing of a wig – Not relevant – Did not in fact conceal her identity to persons who might be thought to be those she might wish to deceive.
CRIME – EVIDENCE – Application by Crown to adduce evidence of unavailable witness – Probative value of evidence outweighs any potential prejudice to the Accused.
CRIME – EVIDENCE – Application to set aside bench warrant issued by list judge – s 194 of Evidence Act 1995 witness failed to attend proceedings – Attempt to serve subpoena in person - rules must be interpreted to give them effect ut res magis valeat quam pereat.
CRIME — Child sex offences — Maintaining an unlawful sexual relationship with a child — Father sexually abused daughter over period of 8 or 9 years from when she was about 6 or 7 years old — No remorse or contrition — Impact on victim — Ripple effect on family — Specific and general deterrence together with protection of community CRIMINAL PROCEDURE — Registrable Persons Order — Proper construction of amended Act — How required procedure is to be implemented in a practical way
DISQUALIFICATION FOR APPREHENDED BIAS – application for recusal arising from fact finding in previous sentence judgment – agreed statement of facts in previous sentence judgment – nature of the decision and the context in which it was made
CRIME — Break and enter with intent to commit serious indictable offence — Violent offence — Intimidation — Circumstances of aggravation — In company SENTENCING — Relevant factors on sentence — Deprived upbringing engaging Bugmy principle — Mental health — Drug and alcohol addiction — Extensive criminal record including similar offences — General deterrence — Need for deterrence of “vigilante justice” — Special circumstances found —Non-parole period lower than standard
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 – Detention application – Application made after guilty finding of jury – Not “inevitable” that full time custodial term of greater than three years will be imposed – Application for revocation of bail refused – Stricter bail reporting conditions imposed.
CIVIL – WORKERS COMPENSATION – Application to extend limitation period for commencement of proceedings – Delay of 1 year, 10 months and 12 days – No evidence of prejudice likely to cause unfair trial.
CIVIL PROCEDURE – commencement of proceedings – statement of claim – claim for damages arising out of historical sexual assault CIVIL PROCEDURE – pleadings – amendment of statement of claim – s 64 Civil Procedure Act 2005 – proposed amendment refused – pleading alleges cause of action not available at law – pleading does not inform defendant of case it has to meet TORTS – Part 1B Civil Liability Act 2002 – relevant amendments not retrospective – action based on vicarious liability at common law unaffected – common law claim not pleaded
CRIME – Appeal – Severity of Sentence. Stalk or intimidate, and torture or beat and cause death of animal – Unclear 10% discount for late guilty pleas taken into account before indicative sentences fixed. Period of 6 months and 29 days spent in custody prior to sentencing not taken into account – Place restriction overtly harsh due to geographical size and appellant’s living and working there most of his life.
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 – bucket elevator conveyer maintenance – conveyer went into an uncontrolled free run – fluid coupling failed – explosion of metal debris – debris stuck worker on head – failure to confirm there was a safe system of work – failure to prepare and enforce a SWMS for the maintenance task – failure to stop work and conduct an updated risk assessment when a change in work process was identified
CRIME — Drug offences — Supply prohibited drug on an ongoing basis — Firearms offences — Possess prohibited pistol — Use prohibited weapon to prohibition order — Knowingly deal with proceeds of crime — Supply prohibited drug greater than the indictable quantity, less than commercial quantity — SENTENCING — Relevant factors on sentence — Form 1 offences
CRIME – Break and enter dwelling and commit serious indictable offence – Assault occasioning actual bodily harm – Choking – Assault police officer in execution of duty – Home invasion – Choking with an electrical cord CRIME – Special hearing under s 56 of MHCIFP Act – Trial by judge alone – Special verdict of on the limited evidence available, the defendant committed the offence charged
CRIME – SENTENCE – Import of precursor pseudoephedrine in two consignments, pure amounts being 3.37 kg and 1.67 kg – Minor, unsuccessful role as receiver of goods to pass on to another – No knowledge of substance being imported, reckless – Prior good character – Financial hardship – Generalised anxiety disorder arising out of arrest – Genuine remorse – Good prospects of rehabilitation.
CRIME – sentencing – child abuse material – possession in contravention of s 474.22A(1) of the Criminal Code Act 1995 (Cth) – production in contravention of s 91H(2) of the Crimes Act 1900 (NSW) – where sentencing under both Federal and State legislation – where Offender was initially dishonest about motivation for offending
CIVIL – COMPENSATION – Redemption application - On balance of probabilities the condition of either of the plaintiff's hips not caused or made worse by type of work the plaintiff did as underground coalminer - From April 2013 plaintiff not required to work underground, most of work as maintenance planner / office worker.
CIVIL – COMPENSATION – COAL MINING – Claim for certain weekly payments and expenses arising out of incapacity due to a disc protrusion alleged to have occurred on 20 September 2022, also lump sum claim – Injury could not have occurred, as admitted by Plaintiff in evidence – Court unable to ascertain how and when disc protrusion occurred – A disc protrusion is an injury, not a disease – Use of “nature and conditions of employment” to be avoided.
CIVIL – Australian Consumer Law – Misleading and deceptive conduct – Business investment for purposes of obtaining 888 visa - 17 alleged misrepresentations – Test in Self Care not satisfied.
CIVIL – Application to amend statement of claim – Application made on final day of hearing, during reply submissions of plaintiff – Substantial changes to allegation – Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 principles applied.
SENTENCE – Dishonestly obtain financial advantage or cause financial disadvantage by deception – Knowingly deal with proceeds of crime – Aggregate sentence – Intensive Correction Order
COSTS – plaintiff in personal injury proceedings successful against first defendant but not second defendant – plaintiff and second defendant seek Bullock or Sanderson orders against the first defendant – Sanderson order made - plaintiff and second defendant seek indemnity costs orders – whether valid offers of compromise made – conflicting authority on the status of offers made by one defendant to a plaintiff were capable of being a valid offer of compromise - whether offers of compromise are also capable of being viewed at Calderbank offers – DISBURSEMENTS – hearing allocation fee not issued at the time of the hearing or at the time of judgment – potential personal liability of solicitor for the plaintiff to be addressed by appropriate orders.
CIVIL PROCEDURE – Service – where proceedings are commenced against an unregistered business name – ascertainment of true defendants – amendment of statement of claim
CIVIL PROCEDURE – application for injunction orders for intimidation– defamation – breach of privacy – ex parte proceeding – whether there is a serious question to be tried – balance of convenience – evidence of a “campaign of extortion” by the defendant to obtain financial advantage in exchange for ceasing to publish – interim injunction granted
CRIME - sexual offences - SENTENCING - relevant factors on sentence - plea of guilty - form 1 - subjective considerations on sentence - special circumstances
CRIME - child sex offences – child abuse material - use carriage service to access child abuse material – use carriage service to possess/control child abuse material
Crime – Sentence – Breaking and entering dwelling house with intent to commit larceny, knowing persons inside – Break and enter dwelling house with intent to commit larceny in company
CRIME – Appeal from Local Court – Domestic violence assault occasioning actual bodily harm – Notice of Motion to adduce new evidence – Report of doctor commenting on injuries shown in contemporaneous photograph of complainant – Doctor had sufficient expertise to comment – Report raises unnecessary issues and does not advance nature of appeal – Not in interests of justice to be admitted.
COSTS — Security for costs — Jurisdiction against natural person — Proper construction of UCPR rules 42.21 (e) and (f) — “Suing not for his or her own benefit but for the benefit of another person” — In context of solicitor agreeing to accept outstanding fees by instalment — Laith & Fadi Investments v Fogo Brazilia Holdings Pty Ltd [2024] NSWSC 1508; Tyneside Property Management Pty Ltd v Hammersmith Management Pty Ltd [2013] NSWCA 404; and Longjing Pty Ltd v Perpetual Nominees Ltd [2017] NSWSC 1690 explained and distinguished — No jurisdiction engaged — In any event application dismissed on discretionary grounds — Claim defensive in nature — Delay — Quantification — As to corporation — Application dismissed on discretionary grounds
CRIME — Multiple drug supply offences — Supply prohibited drug — Commercial quantity — Not less than large commercial quantity CRIME — Multiple firearms supply offences — Supply of illegal firearms — Supply pistol SENTENCING — Relevant factors on sentence — Balancing competing factors of high level of criminality as shown in maximum penalties against strong subjective case of Offender
CRIME – SENTENCE – Entering a dwelling house with intent to commit a serious indictable offence, AOABH, in circumstances of aggravation: armed with baseball bat – ABH was a small wound requiring 3 stitches – Disputed facts hearing – Disputed facts decided in favour of offender – Whether s 10 available to offender – 55 year old man of prior good character – No conviction recorded – 2 year CRO.
TORT – defamation – motion for summary dismissal - adequacy of concerns notice and statement of claim – plaintiff’s address for service not a place of business – whether costs should be awarded on an indemnity costs
COSTS – plaintiff fails to pay first tranche of payments for security for costs despite two adjournments – plaintiff leaves jurisdiction and refuses to give a full address for his place of residence overseas – application by defendants for dismissal of cause of action granted – costs – application for gross sum costs order – no issue of principle
CRIME – Appeals – Conviction Appeal from Local Court – whether Magistrate erred in finding that consent is not an available defence to assault occasioning actual bodily harm – whether Magistrate erred in admitting tendency evidence – whether tendency notified was too general to have significant probative value – whether Magistrate was entitled to rely on parts of central witness’ evidence despite rejecting other parts of the central witness’ evidence on the basis of credit.
CRIME – Poison to injure person – Offence committed in custody – Cellmate’s drink spiked with drain cleaner – Alkaline burns to mouth, oesophagus, and stomach – Victim vulnerable due to old age and health issues – Offence potentially undercharged SENTENCING – Form 1 offence – Possess identification information to commit serious indictable offence – Maximum penalty for Form 1 offence greater than principal offence SENTENCING – Subjective circumstances – Plea of guilty – Guarded remorse and rehabilitation – Extensive and serious criminal history – Offender has spent most of adult life in custody – Offender institutionalised – Mental health issues – Obsessive Compulsive Disorder and Paedophilia
CRIMINAL PROCEDURE – whether questions can be submitted to the Court of Criminal Appeal – when questions submitted after delivery of reasons that the prosecutor had failed to establish elements of the relevant offences – whether surrogate right of appeal – whether questions proposed by the prosecutor to be submitted were questions of law within the meaning of s 5AE Criminal Appeal Act 1912
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 COSTS – prosecutor’s costs
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury death of worker SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine - appropriate penalty SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities
CRIME — Firearms offences — Enter dwelling with the intent to steal firearms in company — Offender already subject to firearms prohibition order — Aggregate sentence of imprisonment — Deprived childhood — Special circumstances found for longer period on parole — Prospects of rehabilitation tied to remaining drug-free
SENTENCE – Attempting to possess a commercial quantity of an unlawfully imported border controlled substance – Approximately 900g pure methamphetamine – Offender collected consignment – No evidence of earlier involvement with importation – Defence submitted he was not aware of the contents of the consignment – No alternative explanation put before the jury – Guilty verdict following brief jury trial – Offender reported to psychiatrist that he was asked to collect consignment in exchange for gambling money – Previous conviction for cultivating a commercial quantity of a prohibited plant – Offender emigrated to Australia from Vietnam as a young man
Crime – Sentence – Aggravated carry out sexual act with child 10-16 years – Sexual touching child 10-16 years – Sexual intercourse with child under 14 years – Sexual touching child under 16 years – Carry out sexual act towards child under 10-16 years – Sexual intercourse with child 10-14 years
CRIME — Child sex offences — Sexual intercourse with child >10 <14 — Circumstances of aggravation CRIME — Child sex offences — Indecent assault — Circumstances of aggravation CRIME — Child sex offences — Incite act of indecency child — Circumstances of aggravation SENTENCING — Mitigating factors — Prior good character SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Delay — Maximum penalty — Objective seriousness SENTENCING — Sentencing procedure — Sentence after trial — No evidence to support a conviction on one count — No power to stay proceedings after a jury verdict — No power to reject jury guilty — No facts to sentence for on count — Only remedy s 10 Crimes (Sentencing Procedure) Act 1999 (NSW) disposition SENTENCING — Subjective considerations on sentence — Drug use and mental health decline after the commission of offences
CRIME — Sentencing — Recklessly cause grievous bodily harm — Objectively serious unprovoked assault — Victim suffered significant injuries — Early plea — Mental health of Offender — Contested diagnosis of schizophrenia — Deprived childhood — Poor criminal history — Homeless — Prospect of appropriate treatment low — Protection of community given significant weight — Limitations in criminal justice system dealing with Offenders suffering mental health issues in an appropriate way
AVIATION — Crop dusting — Statutory liability — Damage caused by aircraft while in flight — Strict liability imposed by Damage By Aircraft Act applies to damage caused to crops by crop dusting using incorrect herbicide BREACH OF CONTRACT — NEGLIGENCE — Crop dusting — Allegation that Defendants sprayed Plaintiff’s cotton with herbicide contaminated with 2,4-D, which is toxic to young cotton, causing the Plaintiff loss and damage — Finding of breach of contract and liability under the Damage by Aircraft Act based on inferences — No breach of duty of care established DAMAGES — Proper measure of damages to be awarded for economic loss occasioned by damage to particular cotton fields
CRIME — Violent offences — Robbery in company CRIME — Complicity — Accessory before the fact CRIME — Property offences — Take and drive a conveyance 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 — General deterrence — Specific deterrence — Moral culpability — Objective seriousness SENTENCING — Subjective considerations on sentence — Aboriginal offender — Drug addiction — Mental health — Institutionalisation — Childhood deprivation and multiple traumas
TORT – DEFAMATION – application to set aside jury requisition – whether requisition out of time – whether requisition filed irregularly – ‘case-splitting’ issues
CRIMINAL- Sentence - dishonestly obtaining a financial advantage by deception x 15 - knowingly deal with the proceeds of crime x1 – total sum obtained over 1 year - $500,052.42 - creation of profile for a fake contractor in program used by the victim company to manage payments – falsifying stocks, payments, moving money through accounts - considerable planning involved - breach of position of trust – subjective matters
PERSONAL INJURY – plaintiff injured while rolling a large oil container down a ramp, an interim system set up pending investigation and repair – liability of landlord and owner – applicability of s 151Z of the Workers Compensation Act 1987 (NSW) – damages PRACTICE AND PROCEDURE – adjournment of hearing due to ill health of medical expert – late application by first defendant to amend defence and bring a cross-claim against the second defendant – inability to hear application before the trial resumption date – application for leave to amend and file cross-claim refused
BUILDING AND CONSTRUCTION — Contract — Damages – claim by builder for cost of variations – alternative claim in quantum meruit BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — cross-claim by owner for damages for alleged defects and incomplete works – claim for restitution of money paid under the Building and Construction Industry Security of Payment Act 1999 (NSW)
EVIDENCE — Admissibility — Section 318 Workplace Injury Management and Workers Compensation Act 1998 (NSW) — Proper construction — Material not reasonably available
TORT - defamation – parents sued for signs placed by their small son pinned to his bedroom window and on the footpath outside – the first sign consists of the words “the Pooh Heads” chalked on the footpath and the second sign is a cartoon of a penis and terms of abuse (“cocksucker’; “mind your own business”) – whether publications were actionably defamatory or mere vulgar abuse – no evidence signs seen by third party – proceedings struck out with costs
TORT – defamation – three jury trials aborted, two of which resulted from the plaintiff’s ongoing health issues – whether a fourth trial by jury should be ordered or whether the current (third) trial should continue to completion – “other issue” – discretion – trial should continue before trial judge sitting alone
TORT – defamation – plaintiff requisitions a jury - proceedings set down for trial with a jury – trial adjourned after plaintiff suffers an atrial fibrillation episode during examination in chief – plaintiff’s cardiologist certifies plaintiff now fit to give evidence and be cross-examined in a jury trial - defendants bring application pursuant to s 21(1) of the Defamation Act 2005 (NSW) (“the Act”) for an order that the trial of these proceedings proceed without a jury – whether medical evidence satisfactory – whether, in the exercise of the unfettered discretion under s 21(1), there are other reasons why the court should order that the trial should proceed before a judge alone – application dismissed with costs
SENTENCE - Deal with proceeds of crime; by deception did dishonestly cause financial disadvantage; possession of false documents with intention to induce a person to accept them as genuine thereby causing financial disadvantage; deal with ID information to facilitate commission of an indictable offence; multiple offences; aggregate sentence
SENTENCING – Drug offences – Supplying less than a commercial quantity of a prohibited drug – Participating in a criminal group involved in supplying a prohibited drug – Dealing with proceeds of crime – Attempting to possess a large commercial quantity of a prohibited drug – Cocaine – Related offences – Possessing an anabolic or androgenic steroidal agent – Possessing ammunition without holding a licence, permit, or authority SENTENCING – No criminal history – Comparatively lesser role and length of time involved in criminal group than co-offenders – Acting under the direction of another – Parity – 10% discount for utilitarian value of plea – Rehabilitation during extended period on bail SENTENCING – Pre-sentence custody of 1 year and 7 months followed by 1 year and almost 5 months on bail – Head sentence of over 3 years – Consequent requirement for the State Parole Authority to make a parole determination, rather than automatic release to statutory parole on expiry of non-parole period (as with sentences under 3 years) – Offender required to enter into custody despite non-parole period expiring and intention that he be immediately released to parole
SENTENCING – Child sex offences – Possess child abuse material – Sexual intercourse with child >14 <16 – Procure child for unlawful sexual activity – Form 1 offences and uncharged acts SENTENCING – Offender on conditional liberty at time of offending – On parole for similar offences – Present offending an escalation in behaviour – Breach of Child Protection (Offenders Registration) obligations – Lack of insight into offending CRIME – Met child via encrypted social media and communications application – Sent child abuse material and pornography to child – Offered to purchase items for child – Arranged to meet child in person before school – Provided child with methylamphetamine immediately prior to assault – Sexual intercourse in public park toilet block – Filmed assault – Child in school uniform at time of assault
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury to worker SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine – parity - appropriate penalty SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities
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 - plea of guilty
CRIME — Violent offences — Detain for advantage while in company with intent to commit the serious indictable offence SENTENCING — Mitigating factors — Late plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Co-offenders — Parity — Deterrence — Specific deterrence — Form 1 offences — Moral culpability — Objective seriousness SENTENCING — Subjective considerations on sentence — Age of offender — Immaturity — Victim of domestic violence— Drug addiction — Mental disorders — Trauma in childhood — ICO not appropriate
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty DETERRENCE – general and specific deterrence DUTY HOLDERS – there may be more than one duty holder, but that does not exculpate a PCBU from the duty imposed by the legislation AGGRAVATING AND MITIGATING FACTORS – treatment of the injured worker after the incident COSTS – prosecutor’s costs
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty EXPARTE PROSECUTIONS – elements of the offence COSTS – prosecutor’s costs
BUILDING AND CONSTRUCTION — Residential building work — Claim by homeowner against builder for breach of statutory and contractual warranties CONTRACT — Proper construction of standard form of Master Builders Association Residential Building Contract STATUTORY CONSTRUCTION — Home Building Act 1989 (NSW) — Proper construction of s 18B and s 7E warranties as incorporated in contract STATUTORY CONSTRUCTION — Home Building Act 1989 (NSW) — Proper construction of “relates solely” in Schedule 2 cl 2(2) STATUTORY CONSTRUCTION — Home Building Act 1989 (NSW) — Proper construction of “specific purpose or result” for purpose of s 18B(1)(f) — Various defects the subject of the claim relating to leaking roof caused by and thus relating solely to defective design — Claim dismissed STATUTORY CONSTRUCTION — Home Building Act 1989 (NSW) — To what extent can builder be liable for failures caused by design — The Owners – Strata Plan No 66375 v King [2018] NSWCA 170 distinguished and explained
TORTS – trespass to goods – false imprisonment – whether the plaintiff consented to search – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 21 – whether police officer had reasonable grounds to suspect plaintiff had possession of prohibited drug DAMAGES – nominal damages – no entitlement to aggravated or exemplary damages
SENTENCING — Child sex offences — Using a carriage service to transmit child abuse material – Using a carriage service to access child abuse material – Using a carriage service to possess or control child abuse material – Strong subjective circumstances – Advanced age – Health issues – “exceptional circumstances”
Crime – Sentence – Cause person to take intoxicating substance with the intention of enabling him to commit the indictable offence of sexual touching without consent – Sexual touching without consent
TORTS – Trespass to person – False imprisonment, battery – Trespass to goods – Alleged unlawful search – Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 21 – power to stop, search and detain a person without a warrant if police officer suspects on reasonable grounds that the person has in their possession or under their control a prohibited drug
TORTS – alleged police negligence in looking for a person at night – vacation of hearing sought due to High Court appeal in another matter – factors to be considered
WORKERS COMPENSATION — Common law remedies — Discretion to grant leave to commence proceedings out of time for the purpose of Workers Compensation Act 1987 (NSW), s 151D — Relevant matters to be considered in context of broad discretionary power — Explanation for delay — Strength of proposed case — Detriment to Defendant — Leave granted
CIVIL – WORKERS COMPENSATION – DUST DISEASES – Appeal from decision of Workers Compensation (Dust Diseases) Authority – Quantum of lump sum payment to deceased worker’s dependent wife disputed – Insufficient evidence led by plaintiff to establish case.
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