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.
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.
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
SENTENCING — Child sex offences, 11 counts — Sentence following jury trial — Elderly offender — Offences committed by offender between his late 60s to early 80s — Two complainants — No contrition or remorse for offences to which offender pleaded Not Guilty at trial — No prior criminal history — Abuse of position of trust between complainants and offender — Element of grooming — Offender paid one complainant for sexual acts — Offender provided other complainant with gifts — Significance of general deterrence for child sexual abuse offences.
CRIME – SENTENCE - Attempt import commercial quantity of border controlled drug - N,N-Dimethylamphetamine – Offender on tourist visa – Impact of language and cultural differences on whether incarceration onerous.
COSTS — Appeals — Appeal from a costs assessment – question of whether the defendant was entitled to legal fees – was the costs agreement an entire contract
COSTS – application for costs, including indemnity costs, following rejection of an oral “walk away” offer made on the morning of the hearing – no issue of principle
TORT – assault, battery, trespass to the person and false imprisonment - plaintiff buys house from defendant – defendant asserts there was an oral agreement the plaintiff would split the profits from a subsequent resale with him, which the plaintiff denies – plaintiff and defendant have a chance encounter in the street and come to blows - police called to the scene charge plaintiff and defendant, who both plead guilty – no conviction recorded for plaintiff but defendant is fined - plaintiff brings proceedings for damages for assault, battery, trespass to the person and false imprisonment – claim for damages including aggravated and exemplary damages - nominal and derisory damages
PRACTICE AND PROCEDURE – Pleadings – Cross-claim – Is it necessary to seek by way of cross-claim relief claimed under remedial legislation or is it sufficient to plead such relief in a Defence – Are the cases that hold no requirement of a cross-claim limited to proceedings under the Building and Construction Industry Security of Payment Act 1999 (NSW), which precludes the filing of a cross-claim
CRIME – SENTENCE – Larceny – Circumstances of aggravation – Offensive weapon – Foreign national – Disadvantage due to language and cultural differences while incarcerated.
CRIME – Evidence – Proper construction of s 138 of the Evidence Act 1995 (NSW) – Causation between identified contravention/impropriety and evidence – Limitation on “but for” test – Objective expectation of subsequent offending the subject of evidence required as outer limit of “but for” enquiry
CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation CRIME — Violent offences — Offensive weapon CRIME — Domestic violence — Intimidation MENTAL HEALTH — Criminal proceedings —Defence of mental illness — Special verdict of not guilty by reason of mental illness — Referral to Mental Health Review Tribunal
CRIME — Appeals — Firearms offences — Appeal against sentence — Sentence appeal dismissed CRIME — Domestic violence — Stalking or intimidation CRIME — Property offences — Break, enter and steal — Take and drive a conveyance CRIME — Firearms offences — Possess unregistered / unauthorised firearm in a public place — Possess loaded firearm in a public place SENTENCING — Aggravating factors — Record of previous convictions SENTENCING — Guidelines for sentencing — Role of guidelines SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Form 1 offences — Moral culpability — Multiple offences — Totality — Objective seriousness SENTENCING — Subjective considerations on sentence — Identifies as Indigenous — Drug addiction — Mental health — Childhood trauma — Childhood sexual assault
Sentence – access of child abuse material – access child abuse material – state and federal offending – “Bugmy factors” – causal connection between “Bugmy factors” and offending – whether exceptional circumstances are made out in respect of federal offending
CRIME — Fraud — Victim a Commonwealth entity – Crime of submitting false claims to the NDIA purporting to be legitimate claims under NDIS – Total attempted financial gain of $214,973.93 – Total lost to Commonwealth of approximately $30,000 – Objective seriousness of crimes of fraud against the Commonwealth – Strong subjective case
CRIME — drug offences — supply prohibited drug — indictable quantity SENTENCING — relevant factors on sentence — Form 1 offences SENTENCING — subjective considerations on sentence — drug addiction — personal use CRIME — summary offences — custody of knife in public place or school
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
CRIME – SENTENCE – Forgery – Two charges – Investment manager in financial world – Forged auditor’s reports of his investment scheme used by his principal to entice its customers to invest with the principal – Sums invested by customers (over $14 million) reimbursed by offender within one month of offender’s principal’s learning of the forgeries – Crimes caused offender severe personal hardship – Aggregate sentence – ICO.
SENTENCING – sentence following guilty verdict CRIME — violent offences — recklessly cause grievous bodily harm — defence of self-defence rejected SENTENCING — relevant factors on sentence — circumstances of offence – street violence – lack of regard for victim’s wellbeing — substantial harm, injury, loss or damage suffered by victim — traumatic brain injury suffered by victim SENTENCING — mitigating factors — insignificant record of previous convictions — offender’s submissions on remorse not accepted by court – mental health – impact of upbringing — quasi custody SENTENCING — subjective considerations on sentence — drug addiction
PRACTICE AND PROCEDURE – Application for an advance ruling on admissibility of evidence under s. 192A Evidence Act, 1995 – application would involve determination of complex fact and law – not appropriate to give ruling
SENTENCING – Commonwealth offence – use carriage service to transmit communications to a child under 16 with intention of making it easier to procure the child to engage in sexual activity – imprisonment
TORT – defamation – application for leave under s 23 of the Defamation Act 2005 (NSW) to commence fresh proceedings against the same party for the same subject matter – leave granted
PRACTICE AND PROCEDURE – claim for negligence pursuant to s 177 of the Conveyancing Act 1919 (NSW) for failure to take reasonable care not to damage the adjoining property – subpoenae issued by defendants to the plaintiff and council for work carried out by plaintiff on his own property many years beforehand – whether parties entitled to issue subpoenae against each other as opposed to seeking discovery or issuing Notice to Produce – whether subpoenae fishing in nature – subpoenae set aside
Participate in a criminal group whose activities were organised and ongoing; deal with proceeds of crime; by deception did 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
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 roof – failure to install fall prevention devices around the perimeter of the roof – failure to properly assess anchor point requirements and develop and document an anchor point plan – failure to develop, implement and enforce a site-specific Safe Work Method Statement
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 – joint trial does not give rise to injustice or forensic unfairness – separate trials increase inconvenience to witnesses – separate trials increase costs upon the prosecutor and court – competing considerations of cost and inconvenience to defendants – separate trials are not required in the interests of justice
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury CRIMINAL LAW – prosecution – work health and safety – duty of officers – due diligence – risk of serious injury or death OTHER – sunken yacht salvage – crane lift failed – mast struck worker on head – failure of director to exercise due diligence – director put in place no appropriate processes – director provided no appropriate resources – failure to verify PPE was in use
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
COSTS — WHS criminal prosecution —When a prosecutor has withdrawn charges — Application of principles concerning costs in WHS prosecutions from Nash v Resource Pacific Pty Ltd (No 4) — Defendants filed and then abandoned Motions arguing that the proceedings were brought outside the limitation period — Defendants subsequently pleaded guilty — Prosecutor and defendants continued litigation on a common erroneous understanding of the law — Not just and reasonable for the prosecutor to pay all of the defendants’ costs
CRIME — Drug offences — Supply prohibited drug — More than indictable quantity less than commercial quantity — More than commercial quantity — Participate in criminal group — Deal with property reasonably suspected of being the proceeds of crime SENTENCING — Aggravating factors — Breach of conditional liberty — Planned or organised criminal activity — Record of previous convictions SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Co-offenders — Joint criminal enterprise — Parity SENTENCING — Relevant factors on sentence — Form 1 offences — Form 1 assessment intrinsic to offences for sentence — Moral culpability — Objective seriousness — Purposes of sentencing SENTENCING — Sentencing procedure — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Drug addiction — Mental disorders —Refugee — Childhood sexual assault – Multiple childhood traumas — Strong family support TRAFFIC LAW AND TRANSPORT — Traffic law — Offences — Drive vehicle with menaces CRIME — Appeals — Appeal against sentence
Contracts – oral contracts – terms of contract - Australian Consumer Law - misleading or deceptive conduct – unconscionability – breach of consumer guarantees
CRIME – property offences – aggravated break and enter commit serious indictable offence - aggravated break and enter with intent to commit serious indictable offence - enter land with intent to commit serious indictable offence - enter building with intent to commit serious indictable offence SENTENCE – multiple offences over a number of properties – juvenile co-offenders – past brain injury – no overt evidence of an intellectual disability, but deficits in executive functioning – principles in Bugmy enlivened – parity has little work to do in this case
CRIME — drug offences — supply prohibited drug — indictable quantity SENTENCING — relevant factors on sentence — Form 1 offences SENTENCING — subjective considerations on sentence — gambling addiction — personal use
CRIME — Driving offences — Dangerous driving occasioning grievous bodily harm CRIME — Public justice offences — Escape police custody TRAFFIC LAW AND TRANSPORT — Traffic law — Offences — Drive motor vehicle during disqualification period SENTENCING — Aggravating factors — Breach of conditional liberty — Record of previous convictions SENTENCING — Guidelines for sentencing — Role of guidelines SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Specific deterrence — Multiple offences — Totality — Moral culpability — Objective seriousness — Proportionality SENTENCING — Subjective considerations on sentence — Drug and alcohol addiction — Mental health — Antisocial — Childhood deprivation — Childhood trauma and sexual abuse
BUILDING AND CONSTRUCTION – building works on a large residential apartment building – Owners of strata plan, as successors in title, rely upon entitlements to sue on statutory warranties against the builder and developer – Home Building Act 1989 (NSW), ss 18B, 18C, 18D – determination of whether defects were ‘major’ defects – Home Building Act 1989 (NSW), s 18E(4) BUILDING AND CONSTRUCTION – whether District Court empowered to make a ‘work order’ where the alternative claim for relief, a money claim, exceeds the monetary jurisdiction of the New South Wales Civil and Administrative Tribunal – Home Building Act 1989 (NSW), ss 48A, 48K, 48L, 48MA, 48O CIVIL PROCEDURE – exercise of power to make directions for parties to take specified steps and the time for such steps to be completed by – directions for further reports on issues concerning rectification costs
CORPORATIONS – Capital raising – Information memorandum and other documents issued to plaintiff – Relied upon by plaintiff to purchase shares – Alleged misleading or deceptive conduct s 12DA ASIC Act / s 1041H Corporations Act – Found to be misleading or deceptive conduct engaged in by the corporation and its directors – What is level of conduct by directors or officers to justify finding of engagement by officer of corporation so as to find primary liability for contravention of the misleading or deceptive conduct provisions
TORTS – negligence – fall of six years old plaintiff from three metres high diving board platform onto surrounding concrete – precise circumstances of fall – whether preventative measures should reasonably have been taken by defendant and/or cross-defendant – cause of fall – reliability of witnesses – precise injury caused – extent of disabilities due to accident - appropriate damages to be awarded – legal status of persons contracting to manage pool with the cross-defendant LIMITATION OF ACTIONS – torts – negligence – personal injury – discoverability - tutor initially acting for plaintiff EMPLOYEE – whether person was an employee or independent contractor and consequences of status LEASE – construction of lease – applicable contractual principles - whether indemnity and insuring obligation placed on cross-defendant by lease
Judgment of
Dicker SC DCJ at Albury (20-23 May 2023) and Sydney (14-16 October 2024; 6-8 November 2024; 27-28 November 2024); 16 December 2024 (plaintiff’s written submissions in chief); 17 January 2025 (defendant’s written submissions); 10 February 2025 (cross-defendant’s written submissions); 28 February 2025 (plaintiff’s reply submissions)
COSTS — Security for costs — Legal nature of the plaintiff — Plaintiff is a company COSTS — Security for costs — Quantum and form COSTS — Security for costs — Relevant factors — Other factors
CRIME – sentence – alleged plea traversal said to be a Machiavellian attempt to manipulate the facts for sentence PRACTICE AND PROCEDURE – adjournment and Mosely stay – Crown fault conceded – not need abuse of process - ultimately a test of unfairness PRACTICE AND PROCEDURE – Crown granted indulgence on condition of Mosely stay – it does not lie in the teeth of the Crown to then seek to overcome the effect of a Mosely stay by charging a different offence COSTS – assessment by Court of Mosely stay costs – appropriate matter for senior counsel
CIVIL PROCEDURE — Pleadings — Amendment – application to amend Statement of Claim – proposed joinder of additional defendant where claim may be statute barred
CRIME — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material — Production/Dissemination/Possession SENTENCING — Mitigating factors — Good character — Plea of guilty — Rehabilitation — Remorse — Unlikely to re-offend SENTENCING — Penalties — Recognisance SENTENCING — Relevant factors on sentence — Deterrence — Establishing relevant matters — Factual basis for sentence — s 16BA schedule offences — General principles — Objective seriousness SENTENCING — Subjective considerations on sentence — Age of offender — Extra curial punishment — Health issues
PRACTICE AND PROCEDURE – pleadings – whether Statement of Claim should be struck out because of alleged non-compliance with s.318 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW)
CRIME – SENTENCE – Multiple offences – Major offence: commit indictable offence in a dwelling house and break out: Crimes Act 1900 s109(2). Long history of drug addiction, flowing from self-treatment following abuse when a child – Offender also having a “life crisis” at time of offending, following breakdown of a relationship.
CRIMINAL LAW – sentencing – firearms offences – significance of good character – whether it is material that late plea of guilty delayed because of earlier legal advice
CRIMINAL LAW – Sentence – Postal worker - Significant breach of trust – Need for general deterrence - Dishonest misappropriation – Proceeds of crime – Possess border controlled drug –– Money laundering - Previous good character – Exaggerated claim of hardship to others.
COSTS – application for indemnity costs for the whole of the proceedings - departing from the general rule that costs follow the event - conduct of the parties - whether the second defendant/cross-claimant's fraud justifies the award of indemnity costs for the whole of the proceedings
SENTENCING — Sentencing procedure — Findings of fact after jury trial — Offender convicted of 17 of the 29 counts at trial. CRIME — 17 counts of domestic violence offences — Sexual assault — Common assault — Assault occasioning —Intimidation. SENTENCING — Sentencing procedure — Continued denial of all offending — No remorse — Cannot find good prospects of rehabilitation. SENTENCING — Sentencing procedure — Impact of totality when offending occurred over a period of 20 years across two relationships. SENTENCING — Standard non-parole period for aggravated sexual assault applicable for mid-range offending.
COSTS – application for gross sum costs orders – no issue of principle – INJUNCTIONS – observations on status of injunctive orders after proceedings concluded
CRIMES - SENTENCE - providing personal identification information with the intention it would be used to commit, or facilitating the commission of, the offence of obtaining a financial advantage from a government entity by deception - assisting the commission of the offence of, by a deception, dishonestly obtaining a financial advantage from Services Australia by supplying personal identification information - assisting the commission of the offence of receiving money reasonably suspected of being proceeds of crime - misconduct in a public office.
CIVIL PROCEDURE – interlocutory applications by defendants to strike out and dismiss proceedings – whether proceedings disclose a reasonable cause of action – whether proceedings are clearly statute-barred – whether proceedings are an abuse of process – whether plaintiff attempting to relitigate or circumvent prior determinations – grant of limited leave to replead
CRIMINAL LAW – sentencing – drug offences – manufacturing and supply of methylamphetamine in amounts greater than the large commercial quantity for that drug – additional offences of possession of precursors – sentencing of co-offenders – parity principle – [redacted]
CRIMINAL LAW – appeals and reviews – convictions of domestic violence offences in the Local Court – whether Mahmood directions should have been made – whether Liberato directions misapplied – significance of absence of Markuleski direction CRIMINAL LAW – denial of procedural fairness – whether, for assault charge, prosecutor departed from its case – whether, for intimidation charge, it was unfair for Magistrate to convict appellant on the basis that on his version of conduct, he engaged in “intimidating” conduct STATUTORY INTEPRETATION – intimidation offence – construction of physical element of offence, being ‘intimidating’ conduct – Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 7(1)(c)(iv) whether mental element satisfied to requisite standard – proof of ‘knowledge’ – Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 13
CRIMES – Aggravated Sexual Intercourse Without Consent – Assault Occasioning Actual Bodily Harm - Common assault – domestic violence related – Pervert the Course of Justice - Use Offensive Weapon to Commit Indictable Offence SENTENCE – plea of guilty - form 1 offences – cognitive impairment – causal connection - subject to the ICO at the time of the offending – likely to reoffend
CRIMINAL PROCEDURE – Suppression and non-publication orders – application by offender to anonymise published sentence remarks – submission that publication of identity may create risk of suicidal ideation – opposed by Crown - “calculus of risk” approach – medication and observation in custody, psychological report sent to Department of Corrective Services
Sentence – Aggravated Break Enter and Commit Serious Indictable Offence – Steal Firearms – Use Offensive Weapon to Avoid Apprehension – issue of seriousness of s 33B charge – Whether “Bugmy” enlivened – totality – commencement date of sentence
CRIME — Child sex offences — Intentionally sexually touch child <10 — Intentionally carry out sexual act with child <10 — Intentionally incite child <10 to do sexual act to them SENTENCING — Aggravating factors — Breach of trust — Father offends against daughter — Age of child SENTENCING — Mitigating factors — Prior good character — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — General principles — Moral culpability Multiple offences — Totality — Objective seriousness SENTENCING — Sentencing procedure — Agreed facts — No traversal of pleas of guilty — Instinctive synthesis — Rejection of offender’s assertion about his motive — Psychological reports SENTENCING — Subjective considerations on sentence —Personal history — Mental health disorders
CIVIL – COSTS – APPLICATION FOR INDEMNITY COSTS – COSTS ON THE ORDINARY BASIS – Judgment was $966 less than the Plaintiff’s offer of compromise – No principle of propinquity.
TORTS – NEGLIGENCE – Fall in the auditorium of a playhouse during a band performance when house lights were turned off – Whether stairs adequately illuminated.
CIVIL PROCEDURE – Application to dismiss proceedings in whole UCPR 13.4 and 14.28 – Argument that contract sued upon had been mutually abandoned and replaced by a different contract – Not manifestly clear this had occurred – Plaintiff’s case arguable – Application to strike out collateral contract claim against 2D – Whether claim sufficiently pleaded – Whether claim arguable. SECURITY FOR COSTS – Order made that would not stifle proceedings.
CRIME – SENTENCE 1. Manslaughter by excessive self defence. 2. Assault occasioning actual bodily harm prior to death. 3. Accessory after the fact to manslaughter. GUILTY PLEA DISCOUNTS – Where all 3 offenders originally charged with murder, then manslaughter – Only one offender guilty of manslaughter – Operation of EARLY GUILTY PLEA scheme – 25% discount allowed to each offender – Belated acceptance by Crown of principal offender’s plea of guilty.
CRIME – prosecution – work health and safety – definition of person conducting a business or undertaking (PCBU) – risk of death or serious injury – injury to worker EVIDENCE – admissions – criminal proceedings - agents and employees – reliability WORK HEALTH AND SAFETY – fall from height – likelihood of risk occurring – risk of workers falling from a height - category 1 offences – recklessness – gross negligence – category 2 offences – strict liability – breach of s 19(1) and s 20 duty – duty owed by a worker s 28(b) – breach of s 28(b) duty – causation of exposure to risk of death or serious injury PARTNERSHIPS AND JOINT VENTURES – limited partnership – contract of partnership – liability of limited partner for criminal conduct of general partner – meaning of take part in business of the partnership
CRIME — Public justice offences — Threatening or intimidating victims or witnesses CRIME — Property offences — Destroying or damaging property — Aid and abet SENTENCING — Aggravating factors — Record of previous convictions SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment — Start date SENTENCING — Relevant factors on sentence — Form 1 offences — Maximum penalty — Moral culpability — Unsworn evidence in reports going to objective facts cannot be accepted — Objective seriousness — Deterrence — Specific — General — Rehabilitation must be fostered despite entrenched recidivism — Community Protection SENTENCING — Subjective considerations on sentence — Assessing reports where the offender’s history is uncontroversial — Professional opinions that do not rely on unsworn assertions as to motive can be accepted — Mental illness and multiple mental disorders — Drug addiction — Childhood neglect — Sexual abuse when a child — Impact of custody on non-association prisoner
SENTENCING — Application for deferral of sentence under section 11 Crimes (Sentencing Procedure) Act 1999 — Griffiths remand — Reasons for granting application and bail.
CRIME — Pre-trial ruling — Sexual offence proceedings — Admissibility of evidence related to sexually transmitted infection — Accused removed condom during consensual sexual intercourse — Accused infected with herpes virus — Application of Part 3 Division 10 Subdivision 1A of the Crimes Act — Change to circumstances in which consent was given — Whether complainant consented to removal of condom — Whether accused knew complainant not consenting — Recklessness — Reasonable belief
CONTRACTS – Construction – Proof of payment of monies owed under a contract – Question of liability for accountant’s fees – Construction of informal contract between sisters EQUITY – Trusts and trustees – Characterisation of fund of money held by solicitor
CRIME — Drug offences — Supply prohibited drug — Commercial quantity — Large commercial quantity — Indictable quantity — Recklessly dealing with money suspected of being proceeds of crime —Cannabis, cocaine, LSD and methylamphetamine SENTENCING — Mitigating factors — Plea of guilty — Treatment as no record of previous convictions — Significant steps towards Rehabilitation SENTENCING — Relevant factors on sentence — Objective seriousness — Delay — General deterrence — Form 1 offences — Multiple offences — What is a crushing sentence — Accumulation, concurrency and totality— Quasi custody — Co-offenders — Parity and proportionality — Purposes of sentencing SENTENCING — Subjective considerations on sentence — Drug addiction — Mental disorders — Gambling addiction — remarkable progress toward rehabilitation
CIVIL PROCEDURE – security for costs – plaintiff successful party at hearing – plaintiff applies for release of security – defendant resists release of security – defendant files a notice of appeal – the defendant does not bring any application for stay of monetary judgment in plaintiff’s favour – whether grounds of appeal are reasonably arguable – whether doubt whether plaintiff could pay defendant its costs at first instance if ordered to do so by the Court of Appeal – other discretionary considerations
CRIME – Commonwealth offences – Tobacco offences – Customs and excise – Proceeds of crime – General deterrence for offences concerning the possession of tobacco which has not been subject to excise duty – General deterrence is a significant factor
APPEALS – Appeal from Local Court decision under Dividing Fences Act – Appeal to criminal jurisdiction of District Court DIVIDING FENCES ACT – Proper construction of s 4 “sufficient dividing fence” in light of defined term “fence” in s 3 COSTS – Interrelationship between ss 7(1) and 14(c) of the Dividing Fences Act as to orders as to cost of building a fence
CRIMINAL PROCEDURE — Costs — Fixed costs order — Costs certificate — Prosecution unreasonably brought — Investigation was unreasonable and improper — Initiated without reasonable cause — Proceedings conducted in improper manner — Exceptional circumstances warranting a costs order — Just and reasonable to award costs
COSTS — Costs on appeal — Appeal against dismissal of application for apprehended personal violence order — Appeal allowed — Fair and reasonable — Complex matter — Constitutional questions — Need for counsel — Public interest in pro bono or conditional costs arrangements for legal assistance
TORT – False Imprisonment – Malicious Prosecution – Misfeasance in Public Office – Armed Robbery Charge – Whether police officer remained as prosecutor following DPP assuming carriage – Where judicial act of refusing bail breaks chain of causation
TORT – Medical Negligence – Alleged failure to warn of risks associated with total hip replacement – Alleged negligent surgical technique in revision surgery – Alleged negligence in post-operative care
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 – forklift servicing and maintenance – forklift fitted with a device bypassing seat safety system – gear lever able to be engaged without driver being seated in driver’s seat – hydraulic functions able to be operated without driver being seated in driver’s seat – risk of being hit or struck or crushed or otherwise come into contact with a driverless forklift
CRIME — Violent offences — Reckless wounding — In company SENTENCING — Aggravating factors — Breach of conditional liberty — In company — Planned or organised criminal activity — Presence of child — Record of previous convictions SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Co-offenders — Joint criminal enterprise — Assessing objective seriousness where offender’s role was less than the co-offender — General and specific deterrence — Maximum penalty and standard non-parole period — Moral culpability — Purposes of sentencing SENTENCING — Subjective considerations on sentence — Aboriginal offender — Prior offending — Mental disorders — Drug addiction — Deprived childhood
Appeal against decision of the Local Court – junior counsel seeks to revisit forensic decisions made by experienced Senior Counsel in the Local Court – multiple counts of allegations of domestic violence -tendency evidence – child giving evidence – whether child compellable – court asked to “unscramble the egg” in respect of whether child compellable – question of inconsistent verdicts – reasons for some acquittals obscure - application of Liberato and Markuleski – cruelty to animal in presence of child
CRIME – sexual offences – sexual intercourse without consent – three counts – reckless as to consent SENTENCING – plea of guilty at trial – finding of remorse – unlikely to reoffend – pro social supports in community – good chance of rehabilitation – delay – aggregate sentence
CRIME – sentencing – sexual intercourse without consent subsequent recording offender agreed victim had said no –– trial verdict of guilty on one court - offence occurred in the victim’s home - Bugmy factors
CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employer – risk of death or serious injury WORK HEALTH AND SAFETY
CONTRACTS – interpretation – supply of aviation fuel and services to acquirer’s aviation aircraft – aircraft utilised for firefighting – termination for convenience provision conferring entitlement in supplier to liquidated fee – interpretation of the termination for convenience provision – relevance of acquirer’s contractual arrangements with third party to construction CONTRACTS – whether termination for convenience provision partially void for uncertainty – penalties – whether same provision unenforceable, to the extent it confers entitlement in the supplier to a fee that is unenforceable as a penalty CONTRACTS – whether implied term to give business efficacy that the supplier must not supply services when it is ‘insolvent’ CORPORATIONS – assertion that the supplier was ‘insolvent’ – effect of a contractual provision dealing with acquirer’s right to terminate upon supplier’s insolvency or entry into external administration – Corporations Act 2001 (Cth), s 451E EVIDENCE – admissibility of administrator’s report prepared for company’s creditors – whether falls within ‘business records’ exception to the hearsay rule – whether contents constitute admissions – whether contents of report infringe opinion rule – whether report admissible under s 1305 of the Corporations Act 2001 (Cth) – whether discretion to exclude or limit evidence should be exercised
CRIME — Drug offences — Commonwealth offences — Aiding and abetting the importation of a commercial quantity of border-controlled precursor CRIME — Drug offences — Supply prohibited drug SENTENCING — Aggravating factors — Record of previous convictions — Breach of conditional liberty SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Form 1 offences — Moral culpability — Maximum penalty — Objective seriousness — General principles — Crushing sentence — Deterrence — General deterrence SENTENCING — Subjective considerations on sentence — Drug addiction — Strict upbringing —Serious accident when a young adult
SENTENCING - knowingly taking part in the manufacture of a commercial quantity of a prohibited drug – possessing instructions to manufacture a prohibited drug - intensive correction order - fine
PRACTICE AND PROCEDURE – plaintiff’s application to cross-vest defamation proceedings from the District Court to the Federal Court of Australia – District Court lacks jurisdiction to make such orders – Notice of Motion struck out with costs – defendant’s application to strike out proceedings for want of prosecution – delays by plaintiff in complying with timetables and in failing to approach the List Judge for a hearing date when directed to do so – proceedings now ready for hearing subject to updating evidence sought by defendant – parties both ready to take a hearing date but defendant concerned at the potential for future delay – hearing date allocated but case management orders for compliance by plaintiff made on a self-executing basis and motion for dismissal stood over to the trial
CRIME – Sentencing – administer intoxicating substance to enable offender to have sexual intercourse without consent (6 counts) – sexual intercourse without consent (13 counts) – indecent assault (3 counts) – intentionally recording intimate images without consent (17 counts) – 39 counts in respect of 5 victims over a period of 9 months – objective seriousness of offences – premeditated, elaborately executed, manipulative and highly predatory, displaying callous disregard for victims or the impact on his own family - sophisticated, researched, planned, orchestrated and recorded course of offending – “an egregious sequence of planned predatory conduct against young and vulnerable women over a significant period” - subjective matters
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – appropriate discount for the utility of the plea – general deterrence – specific deterrence – remorse and contrition COSTS – prosecutor’s costs
CRIMINAL LAW – prosecution – work health and safety– duty of persons undertaking business – risk of death or serious injury – maximum penalty SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – appropriate discount for the utility of the plea – general deterrence – specific deterrence – remorse and contrition COSTS – prosecutor’s costs COSTS – capacity to pay - s 6 of the Fines Act 1996 – onus of proof
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – appropriate discount for the utility of the plea – general deterrence – specific deterrence – remorse and contrition COSTS – prosecutor’s costs
CRIMINAL LAW – prosecution – work health and safety- duty of persons undertaking business – risk of death or serious injury – maximum penalty SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – appropriate discount for the utility of the plea – general deterrence – specific deterrence – remorse and contrition COSTS – prosecutor’s costs COSTS – capacity to pay - s 6 of the Fines Act 1996 – onus of proof
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 - assistance to law enforcement authorities WORK HEALTH AND SAFETY – worker not qualified to complete tasks
CONTRACTS – sale of motor vehicle – vehicle not as described – whether breach of express term of contract – s 18 Sale of Goods Act 1923 (NSW) – whether sale by description – whether breach of implied condition that goods will correspond with description
CRIME — violent offences — robbery in company SENTENCING — aggravating factors — vulnerable victim — mitigating factors — not part of a planned or organised criminal activity — plea of guilty — deprived upbringing – mental health — co-offenders — parity
ADMISSIBILITY OF EXPERT REPORT – delay in serving expert report – defendant facing criminal charge must know the case he has to meet – defendant facing criminal charge must have sufficient opportunity to prepare to defend charge
SENTENCING – Commonwealth offence –attempt to possess an unlawfully imported border-controlled drug – commercial quantity of methamphetamine – imprisonment – State offence - possess prohibited drug – s166 certificate – conditional release order
CRIME – appeals – appeal against conviction – child sex offence – leave to appeal – moderate intellectual disability – failure to comply with the provisions of s 13(5) of the Evidence Act 1995 – reliability of child complainant’s evidence
EVIDENCE — Find My Phone application — where screenshot of data produced by the Find My Phone application purports to show the location of stolen iPhone — absence of expert evidence — whether the statutory presumption is displaced — reliability — whether the operation of the Find My Phone application is “common knowledge” — ss 48, 69, 144, 146, 183 Evidence Act 1995
TORT – claims for defamation, assault and intimidation – application for summary dismissal of the defamation claims - whether a valid concerns notice was filed for the defamation claims – whether an extension of time should be granted for the claims, all of which were commenced more than 12 months after publication – all defamation claims struck out – remaining causes of action referred to the General List
APPLICATION FOR JUDICIAL DISQUALIFICATION – Allegation of apprehended bias – Special nature of the proceedings – The Court has power to cross-examine a witness.
CRIME - SENTENCE – Using offensive weapon to prevent lawful apprehension – Aggravated break, enter and steal – Driving recklessly, furiously or at a speed dangerous to public – Having face disguised with intent to commit indictable offence – Special circumstances – Referral to Drug Court of NSW.
CRIME – SENTENCE – Knowingly take part in supply of commercial quantity of methylamphetamine – Knowingly deal with proceeds of crime ($24,950) – Offender 70 years of age – Fulltime custodial sentence imposed.
DAMAGES - FOR BREACH OF DUTY OF CARE, CONTRACT AND BAILMENT - Injury to a horse - Valuation of a chattel - Loss of a commercial opportunity - Mitigation
CRIMINAL – Sentence – after judge-alone trial - knowingly take part in the cultivation of not less than 1,000 cannabis plants – large commercial quantity – role of offender – remorse and contrition – subjective matters
NEGLIGENCE –Work Injury damages - Workers Compensation Act 1987 (NSW), s151D – three-year time limit after date of injury - leave to commence proceedings out of time
NEGLIGENCE – Duty of care owed by school to a school student – Civil Liability Act – Formulation of risk of harm – Alleged inappropriate sexual relationship between 16-year-old school student and 22-year-old teacher’s aide/administrative assistant – State alleged to be liable – Failure of other staff at school to report rumours to principal – Finding that sexual relationship did not occur – Observations as to breach of duty, causation, and damages EVIDENCE – Weight to be given to contested statements in business records when witnesses not called
TORT – defamation – two publications on Facebook about a search for the first defendant’s lost puppy – whether publication and downloading established - defences of common law and statutory qualified privilege, honest opinion and comment, justification, s 91 of the Broadcasting Services Act (Cth) and innocent dissemination - failure of plaintiffs to plead or particularise malice in relation to the qualified privilege and honest opinion defences – judgment for the defendants
CRIME — Child sex offences — Persistent sexual abuse of a child pursuant to s 66EA — Maintaining an unlawful sexual relationship with a child — — Film person in private act — Circumstances of aggravation — Under authority SENTENCING — Mitigating factors — Prior good character — No record of previous convictions SENTENCING — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — General deterrence — Moral culpability — Objective seriousness — What is a ‘crushing’ sentence — Special circumstances — Multiple offences — Totality SENTENCING — Subjective considerations on sentence — Indigenous offender — Mental disorders — Alcohol addiction — Childhood sexual abuse — Childhood trauma
INSURANCE – passenger injured in vehicle accident on rural property claims damages for personal injury – cross-claim by driver against the property’s insurer – whether the injury arose out of or in connection with the insured’s business – whether injury occurred during a recreational hunting trip - Firearms exclusion, Reasonable Precautions and Legality Condition clauses of the Policy considered – whether insurer entitled to deny indemnity on the ground of fraud – cross-claim dismissed
SENTENCING — Principle of totality — Backdating when offender previously sentenced for related offending and that sentence expired many years prior to charging, arrest and sentencing for index offences — Offender in continuous custody referable to two prior sentences for over 12 years at the time of sentence — Analysis of the Court’s ability to backdate a sentence to a date before the charging and arrest of the offender for the index offences — Court found the discretion in section 47 of the Crimes (Sentencing Procedure) Act 1999 allows for the imposition of an appropriate length of sentence, and to then backdate the commencement date into the pre-existing period of unbroken custody, notwithstanding the sentence previously being served was for a different offence and that the charge for the current matter had not yet been preferred.
Crime – Sentence – Commonwealth offences - Use carriage service with the intention of procuring a person under 16 years of age for sexual activity – Use carriage service to transmit child abuse material to self - Use carriage service to send indecent material to a person under 16
CRIMES – sexual offences – sexual intercourse with child over a number of years – family friend - finding of guilt after trial SENTENCE – general deterrence – limited criminal history – special circumstances – aggregate sentence - totality
PERSONAL PROPERTY – Gifts – Father to daughter - Intention to make gift – Intention to accept gift – Whether positive act established by transfer of moneys – Where transfer of moneys precedes intention to make gift CONTRACTS — Estoppel — Promissory estoppel – Reliance - Detriment
MERCANTILE LAW – contract for supply of goods – non-supply – failure of defendant to refund deposit as agreed following failure to deliver the goods – rejection of defence of a claim of agency by which defendant sought to avoid liability
Judge alone trial – one count of dishonestly destroyed by means of fire to make a financial gain – one count of attempt to obtain a financial advantage by deception – seven counts of obtaining a financial advantage by deception – one count of dealing with the proceeds of crime 2019/2020 Black summer bush fires – accused deliberately set fire to his house and claimed insurance which was paid – subsequent multiple dishonest claims upon charities and government agencies. Elements of offences – circumstantial evidence – competing expert opinion as to the cause of the house fire – competing expert evidence as to the accused’s state of mind at the time of the offending – evidence of the accused and adverse findings as to his credit – lies as consciousness of guilt – lies going only to credit. Failure of the Crown to establish the full quantum of the proceeds of crime count.
Judge alone trial – firearms and drugs found on unoccupied property – firearms, drugs and participation in criminal activity offences – joint criminal enterprise – circumstantial case – accused’s DNA and fingerprints found on various items within property – DNA of known and unknown persons found of various items within property – DNA and fingerprint evidence not challenged – defence case of “transference” – verdicts of guilty and not guilty.
CONTRACTS – Breach of contract – lease of premises – co-operation in export of scrap metal – allegations of breaches of lease and agreement – allegations of breach of duty as a bailee of goods
CONTRACT – Contract for sale of business – Alleged pre-contractual and post-contractual breaches of contract – Where no breaches established on the evidence – Where no warranty given as to business performance or ongoing supply arrangements with a third-party CONSUMER LAW – Misleading and deceptive conduct claim – Alleged breaches of ACL s 18 – Where ACL (Cth) pleaded against a natural person – Failure to plead ACL (NSW) as an application law – Where representations not misleading or deceptive