TORT – negligence – thirteen-year-old intellectually disabled student first groomed and then sexually assaulted by an older student – prior knowledge and foreseeability of harm following earlier complaint and concerns of the child’s parents to the school – whether reasonable precautions taken – breach of duty of care – causation - quantum
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 SENTENCING PRINCIPLES - no record of previous convictions – good character - good prospects of rehabilitation - remorse - plea of guilty
NEGLIGENCE – Motor Vehicle Accident – Assessment of damages – Motor Accidents Compensation Act 1999 – Lost earning capacity – attendant care services – buffers
CRIME — Drug offences — Supply prohibited drug — Commercial quantity — Objective seriousness —THC — Medicinal use CRIME — Money — Dealing with proceeds of crime — Financial gain
PRIVATE INTERNATIONAL LAW – entitlement of a worker to damages for work-related injury – injury suffered in Victoria – choice of law ESTOPPEL – workers compensation benefits paid by employer’s insurer to worker under NSW law – whether reasonably arguable that conventional estoppel lies to prevent employer relying upon Victorian law to govern rights of worker to commence and have determined right to damages WORKERS COMPENSATION – employer omitted to raise defence that Victorian law is the substantive law governing rights to bring action for damages in its pre-filing defence – whether employer should have leave to rely upon defence CIVIL PROCEDURE – whether worker’s action for damages should be summarily dismissed or struck out
CRIME - use a carriage service to access child abuse material – physical and intellectual disabilities - impact of the offender’s poor health - previous offending for same offence – breach of previous recognisance release order – mandatory minimum term
APPEALS – claim for unpaid invoices by accountancy practice against former corporate and personal clients – appeal from decision of Small Claims Division of the Local Court of New South Wales – attempt to rely upon fresh evidence – whether the Court’s jurisdiction to hear appeal enlivened – whether clients’ complaints, individually or in combination, constitute complaints about a denial of procedural fairness
CRIME – section 11A of the Crimes (Appeal and Review) Act 2001 (NSW) – application for annulment – where leave to apply for second annulment refused in the Local Court – whether the District Court has jurisdiction to entertain an appeal STATUTORY INTERPRETATION – considering the context and legislative purpose of provisions
CONTRACT –– Application of s 127 of the Corporations Act - Execution of a document where there is more than one director – Where a director is also the company secretary – Ratification of a contract
PROCEDURAL RULINGS – Interlocutory – Costs appeal – s 89(4) Legal Profession Uniform Law Application Act – application for leave to put on fresh, additional or substitute evidence – comment that such applications are best serviced by parties identifying the dispute in a schedule identifying evidence said to be fresh, additional or in substitution and, if in substitution, then the evidence substituted for.
CIVIL PROCEDURE – notice of motion filed by applicant defendant pursuant to either UCPR r 13.4 or r 14.28 seeking dismissal or alternatively striking out of respondent plaintiff’s proceedings – whether applicant defendant has established an Anshun estoppel to preclude the respondent plaintiff from further pursuing its claim – refusal of the relief sought
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 hit pedestrian worker at depot – inadequate traffic management plan – no separation of pedestrians and forklifts
CRIME — Aggravated Break Enter and Commit Indictable Offence Intimidation — Common Assault — Destroy or Damage Property SENTENCING — Relevant factors on sentence — Sentence after judge alone trial — Domestic violence related — Breach of parole — Institutionalised — Long history of offending — Childhood deprivation and abuse — Mental illness — Accumulation and totality — Assistance with the course of justice during the pandemic — Contracts COVID-19 while in custody — Other impacts of COVID-19 considered
CIVIL – WORKERS’ COMPENSATION – COAL MINING – REDEMPTION – Claims for total right knee replacement and arthrodesis of the metatarsophalangeal joint of the great left toe – Prospects of success.
QUANTUM MERUIT – RESTITUTIONARY CLAIM for works done by plaintiff for defendant in connection with a rice crop which was found by the Court to belong to defendant and for other work done / materials provided for other work done by plaintiff for benefit of defendant.
Leave sought to withdraw ADMISSIONS made by defendant’s Counsel in Court without any explanation as to why the admissions were erroneous – Leave refused – Defendant sought to adduce further affidavit evidence in chief relating to quantum – Leave granted.
CRIME – SENTENCE – Causing grievous bodily harm – Being reckless as to causing actual bodily harm – Crimes Act 1900 s 35(2) and common assault – Glassing of a bar worker by a patron at a tavern – Offender was drunk – Long criminal history of alcohol related offences – Female victim left with a 6cm scar on left side of face.
SENTENCE – Drug trafficking offences – Dealing with the proceeds of crime ($10,950) – Offences between 8 February 2022 and 28 March 2022 – Dealings between offender and UCO on encrypted messaging platform – Offender was on an ICO during offending for past similar offending – Good prospects of rehabilitation.
CRIMINAL PROCEDURE — Sexual assault communications privilege — Applications for leave CRIMINAL PROCEDURE — Subpoena — Objection to production of material — Sexual assault communications privilege — Applications for leave under section 299D of the Criminal Procedure Act 1986 (NSW) CRIMINAL PROCEDURE — Sexual offence proceedings — Admissibility of evidence related to sexual experience — Applications for leave to cross-examine under section 294CB(4) of the Criminal Procedure Act 1986 (NSW)
CRIME – CRIMINAL TRIAL BY JUDGE ALONE – Indictment containing 8 counts (see [92]) against 2 accused – Charges included manufacture of a commercial quantity of cocaine; knowingly take part in the manufacture (supply precursor); supply of drugs; and failure to inform police of serious indictable offence – Crown case on all counts purely circumstantial – Assessment of the evidence adduced by the Crown.
CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation CRIME — Sexual offences — sexual intercourse without consent
CRIME — Violent offences — Reckless wounding CRIME — Public order offences — Affray CRIME — Summary offences — Custody of knife in public place or school CRIME — Violent offences — Assault occasioning actual bodily harm
WORKERS COMPENSATION – Hospital and medical treatment – whether proposed surgery “reasonably necessary” as a result of compensable injury – Meaning of “reasonably necessary” – Tests to be applied – As a result of work injury Plaintiff developed COMPLEX REGIONAL PAIN SYNDROME affecting her left leg – Symptoms of CRPS to just above left knee – Proposed amputation of left leg above the knee and transfemoral osseointegration.
CRIMINAL LAW – sentence – assault occasioning actual bodily harm – fact finding after jury acquittal on a more serious offence – dispute over extent of victim’s injuries and the offender’s responsibility for them – consideration of offender’s motive – whether offender remorseful – relevance that offending could have been dealt with summarily – whether hardship
CIVIL PROCEDURE – alleged partnership dispute – applications for summary dismissal and (alternatively) strike out of an amended pleading – amended pleading filed out of time directed – whether leave to amend should be granted retrospectively
CRIMES – sentence – deal with proceeds of crime CRIMES – sentence – knowingly take part in the supply of a prohibited drug – methylamphetamine - non-exculpatory duress – substantial drug debt – post traumatic stress and depression – aggregate sentence - Form 1 matters
TORT – intentional tort – whether Plaintiff proves disputed allegations – credibility of parties – whether conduct proved by Plaintiff constitutes trespass to the person, assault on Plaintiff and/or battery of Plaintiff on the occasions alleged by her – whether tortious conduct of Defendant was intended to cause injury to the Plaintiff within the meaning of s 3B(1)(a) of the Civil Liability Act 2002 – whether damages to which the Plaintiff establishes an entitlement are assessed pursuant to the Civil Liability Act or the common law – nature, seriousness and likely duration of any injury from which Plaintiff suffers – whether tortious conduct of Defendant caused any injury, loss or damage suffered by Plaintiff – whether any injury, loss or damage suffered by Plaintiff caused by or referable to any pre-disposition of Plaintiff to suffer injury, loss or damage – whether later attack on Plaintiff by third party aggravated Plaintiff’s condition or extended its likely duration – whether Plaintiff has suffered any past or present economic loss or will suffer such loss in future as a result of tortious conduct of Defendant – remoteness from tortious conduct of Defendant of any past, present or future alleged economic loss suffered by Plaintiff – quantum of any general damages to which the Plaintiff entitled – whether Plaintiff entitled to aggravated and/or exemplary damages – quantum of aggravated and exemplary damages – costs
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
JUDGMENTS AND ORDERS – excavating company starts to demolish wrong house – plaintiffs obtain default judgment – application to set aside judgment pursuant to UCPR r 36.15 on the basis of typographical errors and lack of English comprehension by the deponents in the plaintiff’s application for default judgment – whether the proposed defence revealed any defence on the merits – defendant’s notice of motion dismissed – indemnity costs ordered
CRIMINAL LAW – Sentence – Attempt to possess commercial quantity of border-controlled drug – Commonwealth offence – Offender drug addict – Good prospects of rehabilitation – Recommend as to the treatment plan when on parole – Longer period than usual on parole
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 – manufacturer of corrugated cardboard – powered mobile equipment - corrugator machine – trolley car – worker crushed between corrugator and trolley car – serious injury – amputation – failure to control risks – inadequate risk assessment – inadequate safe work procedure – no physical barrier to separate worker from machinery – no markings
CRIME — Child sex offences — Sexual intercourse with person 10 or over & under 16 years CRIME — Child sex offences — Sexual intercourse with person under the age of 10 years CRIME — Child sex offences — Assault with intent to have sexual intercourse – person under 10 CRIME — Aggravated indecent assault – Victim under the age of 16 years
CRIME — Violent offences — Assault occasioning actual bodily harm CRIME — Sexual offences — Sexual intercourse without consent CRIME — Violent offences — Take person intend serious indictable offence
CRIME — Firearms offences — Use/Possess prohibited pistol/firearm - operation of s 4A of the Firearms Act 1996 CRIME — Money laundering — Dealing with money suspected of being proceeds of crime CRIMINAL PROCEDURE — Trial — Judge alone
Criminal Law – Sentence – Two counts of sexual misconduct – Aggravated sexual intercourse with act of indecency – Victim 14 years old – Position of trust – Prospect of reoffending – Special circumstances.
CRIME — Violent offences — Take and detain for advantage — In company CRIME — Property offences — Be carried in a conveyance SENTENCING — Aggravating factors — In company — Record of previous convictions SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment — Intensive Correction Order not appropriate SENTENCING — Relevant factors on sentence — Co-offenders — Parity — Deterrence — General deterrence — Specific deterrence — Form 1 offences — Objective seriousness SENTENCING — Sentencing procedure — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Age of offender — Immaturity — Drug use — Mental illness — Special circumstances
COSTS APPLICATION – Criminal Procedure Act 1986 (NSW) – applicant’s application for costs refused in the Local Court JURISDICTION - jurisdiction of District Court to consider appeal where substantive charges dismissed in the Local Court
CONTRACT – whether a contract was formed between plaintiff and defendant for offer to purchase motor vehicle – no intention to create legal relations – no offer and acceptance – no consideration – no breach RESTITUTION – failure of consideration – entitlement to recover value of defendant’s benefits from motor vehicle display MISLEADING OR DECEPTIVE CONDUCT – whether representations were made – whether representations were relied on – damages
TORT – workplace injury – system of work – “special” nurse allocated to dementia patient and other staff leave Emergency Department ward nurse by herself while the patient is agitated – nurse assaulted by dementia patient - breach of duty of care - damages
TORT – personal injury – Kmart customer in the self-service checkout section hit by a large and heavy trail bike box in another shopper’s trolley falling onto her from behind – duty of care – foreseeability – Kmart system for shoppers with outsize items - damages
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 – pallet making machine – worker underneath – struck while performing maintenance – fatal injuries – failure to conduct risk assessment – failure to electrically isolate – failure to guard
PROCEDURE – Civil – Interlocutory application – Medico-legal assessment – Motor vehicle accident – Defendant seeking order for psychiatric examination of Plaintiff – Refusal to attend medical examination – Where purpose of medical examination is not supported by medical evidence – Where application said to be credibility based – Fair and efficient conduct of litigation on the real issues
COSTS – (1) non-publication order cannot be lifted as this Court lacks power to do so: s 121 of the Family Law Act 1975 (Cwth) – (2) indemnity costs – grant of application by successful defendant for indemnity costs – (3) gross sum costs pursuant to s 98(4)(c) of the Civil Procedure Act 2005 (NSW) – assessment deferred pending quantification – (4) application for third party costs order against plaintiff’s former legal advisors deferred pending service of relevant documents
Crime – Sentence – State and Commonwealth offences - Sexual intercourse with child under 10 years – Use child under the age of 14 years to produce child abuse material – Possess child abuse material obtained using a carriage service – Use carriage service to access child abuse material – Use carriage service to transmit child abuse material
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 – maximum penalties COSTS – prosecutor’s costs
CHILD CARE APPEAL – Appeal from decision of the Children’s Court – application for adjournment under s 94(4) of the Young Persons (Child and Protection) Act 1988 (NSW) – delay in proceedings generally
CRIMINAL LAW – Sentence – State and Federal offences – Supply prohibited drug not less than large commercial quantity – Import a commercial quantity of a border-controlled drug – Maximum penalty for each life imprisonment – Criminal history – Long term drug addict – Prospect of rehabilitation – Subjective case.
CRIME – Judge alone trial – s 53 of the Crimes Act 1900 (NSW) – meaning of “other misconduct” STATUTORY INTERPRETATION – statutory words – considering context and legislative purpose – eiusdem generis rule – consolidating legislation
CRIME – driving offences – dangerous driving occasioning death – failure to stop and assist after vehicle impact causing death – where two young people died – strong subjective factors – accepted into Balund-a Program but denied opportunity to attend by Police action – special circumstances – totality – moral culpability – remorse – need for rehabilitation – disqualification period
CRIME — Apprehended violence orders — Contravene apprehended violence order CRIME — Sexual offences — Aggravated sexual intercourse without consent — Sexual intercourse without consent CRIME — Public justice offences — Do an act with intent to pervert course of justice CRIME — Violent offences — Assault Occasioning Actual Bodily Harm — Choking SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Assessing the seriousness of each offence — No need for abstract descriptors — Specific deterrence — General deterrence — Totality — Objective seriousness — Aggregation SENTENCING — Sentencing procedure — Instinctive synthesis SENTENCING — Subjective considerations on sentence — No finding of special circumstances given length of sentence — Controversial aspects of psychologists report unable to be proved SENTENCING — Aggravating factors — Domestic violence offences — In the family home — Presence of child — Pregnant complainant — Subject to bail – Subject to ADVO — Persistent offending SENTENCING — Mitigating factors — Prosocial support — Family history SENTENCING — Sentencing procedure — Use of character references — Some assertions contradicted by other evidence — Victim impact
Admissibility of evidence - bank investigation – interview without caution – conversation recorded covertly – improper recording – fairness of use of recording
COSTS – consideration of unsuccessful defendant’s monetary offers for settlement – successful plaintiffs obtain award for damages exceeding amount monetary offers – whether Court can look beyond a bare comparison of defendant’s monetary offer and ultimate award for damages when considering whether or not plaintiffs obtained a judgment ‘no more favourable’ than what the defendant offered
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of serious injury – injury to workers SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors - appropriate penalty SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty
WORKERS COMPENSATION — Common law remedies — Three-year time limit after date of injury to commence proceedings for damages – application under s 151D Workers Compensation Act 1987 for leave to commence proceedings out of time.
Detain for psychological advantage – meaning of psychological advantage – includes vigilante conduct – detaining person mistakenly believed to have sexually assaulted sister – Judge Alone Trial – finding of guilt.
TORTS – negligence - motor vehicle accident -liability admitted - assessment of damages -substantial inconsistency in the medico-legal reports - pre-existing conditions including multiple sclerosis and psychological conditions - whether plaintiff had any, or any significant, loss of salary or earning capacity
CRIME — Child sex offences — Indecent assault person under 16 years of age — Multiple counts —Three complainants CRIMINAL PROCEDURE — Judicial directions — Tendency — Complaint evidence – Long delay — Absent witnesses — Significant disadvantage because of delay and incapacity — Good character — Assessment of evidence — Application of principle MENTAL HEALTH — Criminal proceedings — Person unfit to be tried — Special hearing — Mental impairment —Defendant aged 89 — Suffers significant cognitive impairment — Dementia — Alleged offences against three children — Accused too ill to be present and excused — Defendant unfit to be tried — Principles to be applied
SENTENCING – cognitive impairment – sexual offences – moral culpability – breach of conditional liberty – aggravated sexual assault – aggravated indecent assault – aggravated incite sexual touching – assault occasioning actual bodily harm – sexual intercourse with a person with a cognitive impairment – steal property in a dwelling house – armed with intent to intimidate – use offensive weapon with intent to steal from dwelling – demand property with menaces – common assault – damage property
CRIME — Child sex offences — Intentional incite child >=10&<16 do sex act to them CRIME — Child sex offences — Aggravated - sexual intercourse child >=10 & <14 yrs CRIME — Child sex offences — Intentionally sexually touch child >=10yrs & < 16yrs CRIME — Child sex offences — Groom child under 14 years for unlawful sexual activity
CRIME — Apprehended violence orders — Contravene apprehended violence order CRIME — Drug offences — Supply prohibited drug — Less than commercial quantity of methylamphetamine CRIME — Firearm offences — Possess pistol — Possess ammunition — Possess pistol contrary to firearms prohibition order CRIME — Property offences — Break and enter with intent to commit serious indictable — Circumstances of aggravation CRIME — Violent offences — Aggravated robbery — In company — With corporal violence — Dangerous weapon SENTENCING — Aggravating factors — Home of victim — In company — Record of previous convictions SENTENCING — Guidelines for sentencing — Role of guidelines — Application of guideline judgment SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Co-offenders — Parity — Form 1 offences — Role of offender — Objective seriousness SENTENCING — Sentencing procedure — Instinctive synthesis SENTENCING — Subjective considerations on sentence — Drug addiction — Offender’s impoverished background — Impact of multiple traumas — Special circumstances — Totality
APPREHENDED VIOLENCE ORDERS – appeals and reviews – appeal against APVO WORDS AND PHRASES – applicant to adduce fresh evidence – whether in “interests of justice” – Crimes (Appeal and Review Act) 2001 (NSW), s 18(2)
PRACTICE AND PROCEDURE – enforcement of alleged settlement agreement – stay sought due to proposed proceedings in the Federal Circuit and Family Court of Australia between the parties who were alleged to have been in a de facto relationship – principles applicable
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 – forklift hit pedestrian worker at depot – inadequate traffic management plan – no separation of pedestrians and forklifts OTHER – due diligence – work health and safety systems, processes and resources – verification – delegation – compliance officer
Suppression and non-publication orders – protecting information published in a previous judgment – prevent undue stress and embarrassment – protect the safety of applicant and complainant
CRIMINAL LAW – Sentence – Indecent assault – Special Hearing – Penalty pursuant to s59(1) Mental Health and Cognitive Impairment Act 2020 NSW – Offender suffering from Alzheimer disease causing dementia – Proper construction of s65(2) “may make orders”, “place of detention” – Court has power to order detention at nursing home facility.
COSTS – defendants were unsuccessful on a number of issues – Calderbank offers were made by successful defendants – appropriate costs order – whether failure by the plaintiff to accept Calderbank offers was unreasonable in the circumstances
PRACTICE AND PROCEDURE – stay – whether notices of motion including one to vary a costs order should be stayed due to allegation of bias against the trial judge – desirability of costs order being determined by the trial judge rather than Court of Appeal
CRIME — Drug offences — Supply prohibited drug CRIME — Sexual offences — Aggravated sexual assault CRIME — Firearms offences — Unauthorised use/possession of firearm
NEGLIGENCE – professional negligence – purchasers acquire residential property – property is subject to unauthorised works – purchasers claim against their conveyancer – conveyancer’s alleged failure to disclose special condition in contract concerning unauthorised works – whether special condition was disclosed – whether breach of duty – whether s 5O of Civil Liability Act 2002 (NSW) determines standard of care and, if not, whether it remains relevant – conveyancer recommended purchasers obtain building inspection report – building inspector omits reference to defective nature of the works on the property – purchasers claim estimated rectification costs for defects – whether harm sustained – whether factual causation established – consideration of scope of liability DAMAGES – proportionate liability – whether conduct of two tortfeasors caused the same damage – whether reinstatement costs appropriate measure of damages – whether failure to mitigate
CRIME – Bankruptcy Act offences – disposing of assets with intent – defraud creditors – purpose of bankruptcy regime – general deterrence – important for public confidence in bankruptcy law – first offence – strong subjective case
STRATA PLANS - Operation of Car Park contrary to development application - Whether the tort of unlawful interference with trade forms part of the common law of Australia
CRIMINAL LAW – elements of offence – whether defendant engaged in discriminatory conduct – whether for a prohibited reason – whether reason was the dominant reason – alternative charges CRIMINAL LAW – prosecution – work health and safety – discriminatory conduct – alter position of worker to worker's detriment – what constitutes a threat – health and safety representatives – power to direct cessation of unsafe work – whether there was a reasonable concern that the work would expose workers to a serious risk, emanating from an immediate or imminent exposure to a hazard – whether there was consultation and attempt to resolve issue – legal consequences of direction to cease unsafe work where there had been no required consultation OTHER – health and safety representative directed workers to cease cleaning planes arriving from China – risk of contracting COVID-19 from surfaces – health and safety representative stood down because he gave direction to cease unsafe work
Crime – costs – not guilty verdict – hypothetical prosecutor – possessed of all of the relevant facts – residual discretion – no reasonable prospect of securing a conviction
CRIME — Drug offences — Supply prohibited drug — Commercial quantity SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Objective seriousness — Maintenance of innocence SENTENCING — Sentencing procedure — After jury trial — Fact finding consistent with jury verdict SENTENCING — Subjective considerations on sentence — Childhood deprivation — Drug addiction good prospects if he engages in treatment — Solid work history — Special circumstances
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty COSTS – prosecution costs OTHER – hard rock quarry – blast – flyrock landing in vicinity of others – exclusion zone – inadequate notice of blast delay
CRIME — Drug offences — Supply prohibited drug — Knowingly take part in supply — Proceeds of Crime SENTENCING — Mitigating factors — Intellectual disability — Good character — No record of previous convictions — Strict bail — Plea of guilty — Remorse or regret— Acceptance of responsibility SENTENCING — Penalties — Intensive correction order — Community safety SENTENCING — Relevant factors on sentence — Objective seriousness SENTENCING — Subjective considerations on sentence — Drug addiction — Intellectual disability — Demonstrated progress toward rehabilitation
PERSONAL INJURY CLAIMS – application by plaintiff for leave to commence proceedings to claim work injury compensation in the District Court – Personal Injury Commission unable to exercise federal jurisdiction – s 26 of the Personal Injury Commission Act 2020 (NSW)
CRIMINAL LAW – sentencing – offence of indecent assault – historical offence committed in mid-1980s – offence committed when offender was himself a child
CRIMINAL – sentence – aggregate - multiple offences of supply prohibited drug, more than indictable quantity methylamphetamine – Form 1 matters, deal with property suspected to be proceeds of crime - possess prohibited drug - supply more than indictable but less than commercial quantity of cannabis leaf – possess shortened firearm, not pistol, without authority – supply prohibited drug, 1,4-Butanediol – s166 Certificate matters - police pursuit not stop, drive dangerously - drive motor vehicle during disqualification period, second offence - subjective matters
CARE APPEAL – construction of s 90A of the Children And Young Persons (Care and Protection) Act 1998 (NSW) – erroneously made prohibition order by Children’s Court set aside – Children’s Court had no statutory power to make that order after the proceedings had been finalised
CIVIL PROCEDURE – self represented parties – unsuccessful application by plaintiff for summary judgment pursuant to UCPR r 13.1 – misguided alternative application by plaintiff for dismissal of his own proceedings for claimed want of due despatch on defendant’s part pursuant to UCPR r 12.7 – plaintiff’s applications determined to be untenable – arguable justiciable defence pleaded – parties met on Sugar Daddy / Sugar Baby dating website and entered into an agreement for sexual and related benefits – alternate dispute resolution suggested
CRIMINAL - sentence - supply a prohibited drug, more than a large commercial quantity - a significant quantity of methylamphetamine – objective seriousness - findings in re remorse and contrition – “a plea of guilty in itself does not necessarily indicate remorse” - “hierarchy” – role of offender – 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 – maximum penalties COSTS – prosecutor’s costs
CRIMINAL PROCEDURE — Adjournment Application — Sentence proceedings — Application of offender, opposed by Crown — Sentence following verdicts of guilty for 8 counts of sexual touching of children between 10 and 16 — Maximum penalty of 10 years imprisonment — Full-time custody inevitable for most offences — Crown Detention Application following trial previously dismissed in Supreme Court — Possibility of sentence adjournment disclosed in those proceedings — Adjournment of sentence sought for offender to undergo cancer surgery and further cancer testing both scheduled to occur soon — Delaying surgical treatment will likely have adverse impacts on offender’s health — Reference to disruptive impact of COVID-19 pandemic on the NSW Correctional system including the provision of medical services to prisoners — Finding that planned cancer surgery unlikely to occur on or before scheduled date if offender in custody — Victims desire for closure and finalisation considered — Need for Court to have proper evidence about the offender’s health status and prognosis at sentence — On balance in the interest of justice to allow the adjournment.
CRIME — Child sex offences — Sentence following guilty verdicts — Eight counts of sexual touching three children aged between 10 and 16 years old — Two counts fall in the bottom of the range of objective seriousness — Five counts slightly below midrange of objective seriousness — One count falling in the midrange of objective seriousness — Offences took place in the Bega area and in the Kosciuszko National Park area — Offender was 64 at the time of the offending — Victims were friends with offender’s daughters — Offending behaviour was opportunistic and occurred when the victims were either visiting one of the offenders daughters at offenders home or when victims attended camping trips with the offender and one of his daughters — Offender has lack of significant convictions on criminal record — Victim impact statements received and impact on victims considered — Offender has good prospects of rehabilitation and little likelihood of reoffending — Extra Curial punishment per public opprobrium via disproportionate and sensational media reporting — Some hardship to family likely after incarceration being increase of current hardship to teenage daughters.
CRIME — Bail — Detention application – Oral Detention Application immediately after guilty verdicts — Ex Tempore Judgment — 3 child complainants — 8 counts of sexual touching — Verdicts of not guilty for 2 other complainants — On bail since arrest in October 2020 — Strict conditions and no breach — Not Show Cause offences — Gaol term highly likely or inevitable — Offender had moved away from the area where offences committed — Only additional identified risk was risk of flight because of conviction — No evidence to indicate increased risk of flight but any such risk alleviated by additional conditions being surrendering passport and not approaching points of international departure — No other evidence led by Crown to support detention application — No demonstrated risk to other children — Sentence date 5 August 2022
NEGLIGENCE — Breach – Driver and other users of the road – Duty to following vehicles - Truck vs motor vehicle – Failure to keep a proper lookout NEGLIGENCE — Defences — Contributory negligence – Proportionate liability for apportionable claims
NEGLIGENCE – work injury common law damages claim – worker employed to dismantle motor vehicle for parts – worker injured when struck by torsion bar of a motor vehicle DAMAGES – dispute about current and future earning capacity – whether defendant has evidential burden to adduce evidence of work opportunities and income likely to be produced – whether greater discount for vicissitudes should be made beyond the conventional allowance
EXPERT EVIDENCE – Plaintiffs in defamation proceedings serve a medico-legal report 28 days before the hearing without first having obtained leave for service of expert reports under UCPR r 31.19 – whether UCPR r 31.28(1)(c) permits service without such leave as long as the report is served 28 days beforehand – whether failure to comply with UCPR r 31.19 is a mere irregularity – whether failure to seek leave “promptly” has been satisfactorily explained – prejudice to defendants – application for leave refused
TORTS – intentional torts – claim by plaintiff of historical child sexual assault by defendant stepfather – denial by defendant – consideration of conflicting evidence – verdict and judgment for the defendant
CRIME - SENTENCE - wound with intent to cause grievous bodily harm - contravene AVO - young offender - serious Children's indictable offence - special circumstances for sentence to be entirely served in a (Juvenile) detention centre - special circumstances to reduce the statutory non parole period.
TORTS – negligence – occupiers’ liability – plaintiff suffered jolting axial injury to her lumbar spine whilst standing in a descending elevator which stopped suddenly without warning following implementation of a planned power interruption to test the functionality of an alternative power supply; EXPERT EVIDENCE – resolution of conflicting opinions by medical experts where not all experts gave oral evidence; DAMAGES – assessment of claimed heads of damage
CRIME — Property offences — Break, enter and commit serious indictable offence — Circumstances of aggravation — Offences committed while on parole — Failure to keep to conditions of s 11 bail SENTENCING — Penalties — Imprisonment — Intensive Correction Order not imposed — Community safety SENTENCING — Mitigating factors — Pleas of guilty SENTENCING — Subjective considerations on sentence — Age of offender — Childhood deprivation — Abused in juvenile custody — Long history of offending — Institutionalisation — Mental illness — Special circumstances SENTENCING — Relevant factors on sentence — Form 1 offence — Serious offending but near bottom of range
CRIME — Federal Offences CRIME — Manufacture a controlled drug cocaine —Conspiracy to import a marketable quantity of a controlled drug SENTENCING — Mitigating factors — Good character — No record of previous convictions — Plea of guilty – Remorse SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence —Federal offences — Impact of COVID-19 — Motive to offend SENTENCING — Sentencing procedure — Instinctive synthesis — Findings of fact
CIVIL PRACTICE & PROCEDURE – application for summary dismissal CORPORATIONS – asserted action by an assignee against directors or officers of a deregistered former corporate debtor and an asserted accessory
CRIMINAL PROCEDURE – costs – application for certificate under the Costs in Criminal Cases Act 1967 (NSW) – joint trial of four co-accused – whether Crown witness very substantially lacking in credit – whether costs are apportionable under the Costs in Criminal Cases Act 1967
CONSTITUTIONAL LAW - federal jurisdiction – Workers Compensation Act 1987 – statutory benefits – plaintiff worker resident of South Australia – defendant employer State of NSW – application under s.26 Personal Injury Commission Act 2020 – whether Commission exercising judicial power when determining issue under s.4(b) Workers Compensation Act 1987
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of officers – 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 – roof sheet not properly secured – worker fell through roof
EVIDENCE – expert evidence – pre-trial objection to tender of expert report prepared by police officer in relation to outlaw motorcycle gangs – whether police officer has “specialised knowledge” of outlaw motorcycle gangs – whether putative expert report should be excluded as unfairly prejudicial to the accused
CRIMINAL – sentence - use child aged 14 or above and under 16 years for production of child abuse material - aggravated sexual intercourse with a child of/above 14 years and under 16 years of age - intentionally sexually touch a child ten years of age and less than 16 years of age – victim diagnosed with ASD & significant intellectual limitations, slightly above the range of mild intellectual disability – objective seriousness - continuous sequence of offences, “opportunistic & predatory”, a breach of trust, taking place within the home of the victim’s aunt – subjective matters
CRIMINAL – sentence after trial – 9 counts of indecent & sexual assault between 2003 & 2009 on 3 “particularly vulnerable” victims all under the age of 16– offender in his 40s - ongoing & deliberate conduct – offender took advantage of his close friendship with children’s mother to gain access & trust – significance of age gap - degree of exploitation – seriousness of offences –impact of offending – subjective matters – indicative and aggregate sentences
CRIME – Sentence – Knowingly take part in supply of prohibited drugs – Butanediol – Large commercial quantity – Indictable quantity – Mental health – Drug addiction – moral culpability – low level retailer of drugs
CRIMINAL – sentence - cause grievous bodily harm with intent to cause grievous bodily harm – gaol attack by group of inmates occasioning substantial injuries to victim, recorded on CCTV – parity – role of this offender – “the central cause or flashpoint of the incident” [who] “engaged in a concerted attack of considerable ferocity on a victim who became defenceless while being similarly attacked by others “– joint criminal enterprise – subjective matters.
COSTS – application for gross sum costs order pursuant to s 98(4) of the Civil Procedure Act 2005 (NSW) and for additional interest on the costs orders the subject of appeal – no issue of principle
CRIMINAL – sentence - possess or use a prohibited weapon without permit, a taser-type device - supply prohibited drug, more than commercial quantity - supply prohibited drug, more than an indictable quantity but less than a commercial quantity – role of offender as operator of drug supply syndicate and employer/supervisor of his associates – subjective matters
CRIME – appeal from Local Court Magistrate – severity of sentence – 19-year-old Corrections Officer attempts to supply drugs to her boyfriend in custody at his request – first offence – remorse – first time in custody – protective custody - good prospects of rehabilitation
CRIME — Drug offences — Manufacture prohibited drug — Large commercial quantity CRIME — Drug offences — Supply prohibited drug — Large commercial quantity CRIME — Drug offences — Supply prohibited drug CRIME — Drug offences — Possess pre-cursor – Intended to be used in manufacture SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentence SENTENCING — Relevant factors on sentence — Form 1 offences
TORT – defamation – concerns notice for one of two plaintiffs fails to provide particulars of serious harm for that plaintiff – particulars of serious harm not proffered until more than 28 days later – whether failure to provide particulars of serious harm rendered the concerns notice ineffective – whether the particulars proffered more than 28 days later were permissible or sufficient – claim brought by that plaintiff dismissed - whether the particulars provided on behalf of the other plaintiff were sufficient – particulars related to impact on his business, political activities and health – particulars held to be sufficient
CIVIL – PRACTICE AND PROCEDURE – Amendment to Statement of Claim to add Defendant’s vicarious liability for alleged wrongdoing by the Office of the Director of Public Prosecutions – If allowed, necessary to adjourn 7 days – Fixed for hearing in near future – If amendment not made, Plaintiff might be unsuccessful in his claim for malicious prosecution – Amendment necessitated a change of solicitors for Defendant because of Government policy – Costs of motion and adjournment granted to Defendant as application made very late.
CRIME – ALL GROUNDS APPEAL – Offence against failure to comply with obligations of officer in Corporations Act 2001 to deliver books in the officer’s possession – No evidence that such documents existed.
CIVIL – BUILDING CONTRACT – Were certain progress payments made? – Was the Defendant entitled to terminate the contract – Interpretation of contract re taking the deposit into account.
CIVIL – WORKERS’ COMPENSATION – SPECIAL STATUTORY COMPENSATION LIST - PRACTICE AND PROCEDURE – Application for disqualification – Apprehended bias – Whether pre-judgment has been made in this matter – Allegations made by the Applicant’s solicitor in respect of unrelated matters which were attributed to handling of the present case.
CRIME — Sexual offences — Sexual touching SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Objective seriousness — Should sentence be served subject to ICO — Community safety as the paramount consideration — Offence and purposes of sentencing require fulltime custody SENTENCING — Mitigating factors — Alcohol use — No previous convictions — Plea of guilty —Previously person of good character — Remorse — Unlikely to re-offend — Special circumstances SENTENCING — Sentencing procedure — Prosecution accept lesser count offered at Local Court — Facts initially in dispute — Guilty plea entered after arraignment — Full utilitarian discount for the guilty plea allowed
CRIME – sentence – one offence – sexual intercourse without consent – s61I Crimes Act 1900 – maximum penalty 14 years imprisonment – standard non-parole period 7 years – EAGP scheme – 25% discount on sentence – offender aged 20 and victim aged 16 – met through mutual friend – offender asked victim to be his girlfriend over FaceTime and they moved in together – engaged in consensual sexual intercourse on several occasions throughout course of relationship OFFENCE – continuation of penile/vaginal intercourse for about 1-2 minutes after initial consensual penile/vaginal intercourse – no force – offender wearing condom and ejaculated – victim said stop – admitted by offender in agreed facts that victim was not consenting and offender knew that she was not consenting – agreed fact that victim was not sure offender had heard her when she said stop – snapchat exchange day following offence indicated offender initially misunderstood reason for victim saying stop but then admitted fault and said that he had accidentally been caught up in the moment OBJECTIVE SERIOUSNESS – low – increased slightly by admission of actual knowledge – plea of guilty of high utilitarian value in addition to EAGP discount – victim spared cross examination and conviction ensured – reference to Court’s experience that similar trials often lead to acquittals – age difference found not significant and Crown submission that it increased objective seriousness rejected – offender and victim were equals – no evidence of vulnerability or naivety of the victim but offender somewhat naïve and unsophisticated FACTORS – no aggravating factors – several mitigating factors – no prior criminal convictions – early plea – not planned – genuine remorse – demonstrated prospects of rehabilitation – on bail 15 months without breach – any gaol term would be onerous because of family law enforcement connection SENTENCE – s3A purposes of sentencing addressed – s5 threshold not crossed – falls into category of rare case for S61I offence
COSTS – application for partial order for indemnity costs – losing party’s rejection of Calderbank offer – offeror’s explanatory reasoning in the Calderbank letter omitted reference to the dispositive point at the hearing
CRIME – Two counts of aggravated enter dwelling and steal motor vehicle – Significant criminal history – Drug use – Addiction – Accumulation – Totality – Special Circumstances
CRIME - SENTENCE - Unlawfully sell firearms 3 times or more within a 12 months - call up Community Corrections Order - unhelpful drafting technique in the Agreed Statement of Facts.
CRIME — Violent offences — Robbery — In company CRIME — Violent offences — Robbery in company with wounding CRIME — Public order offences — Affray CRIME — Property offences — Destroying or damaging property CRIME — Violent offences — Wound with intent to cause grievous bodily harm
CRIMINAL LAW – appeals and review – conviction appeal from Local Court – offences under the Children (Education and Care Services) National Law (NSW) and Education and Care Services National Regulations (NSW)
EVIDENCE — Criminal trial — Admissibility — Expert opinion evidence — no confirmatory tests undertaken — chemical sample used in presumptive testing destroyed — presumptive testing generated positive result for border-controlled pre-cursor — whether opinion evidence adduced from a forensic chemist of accuracy of presumptive testing is admissible — evidence from defence expert that false positive still possible
EVIDENCE — Tendency evidence — tendency to utilise chemical company to cover acquisition of substances used for an illicit purpose — tendency to possess pre-cursor drugs with the intention they be on-supplied to persons involved in the manufacture of prohibited drugs—probative value not outweighed by prejudicial effect.
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 – maximum penalties COSTS – prosecutor’s costs
CRIME – Child sex offences – Multiple offences – Aggravated indecent assault – Sexual intercourse without consent – Circumstances of aggravation – Victim under the age of 16 years – Sentencing following trial
CRIMES – enter building with intent - aggravated break and enter – destroy property by fire – drive conveyance without consent of owner – drive manner dangerous in a police pursuit – knowingly be carried in stolen conveyance SENTENCING – Bugmy factors – drug use - approaching institutionalisation – specific general deterrence – parity with co-offender
CRIME – assault occasioning actual bodily harm – intimidation – common assault on form 1 – need for general deterrence in domestic violence matters SENTENCE – subjective features – unenviable criminal history – breach of conditional liberty – Bugmy factors enlivened – significant history of drug abuse
CRIME – dishonestly obtain financial advantage – fraud and attempt on the Commonwealth – submit false information on business activity statement to obtain GST refund CRIME – appeal – knowingly take part in the supply of prohibited drug – methyl amphetamine SENTENCE – subjective features – unenviable criminal record – PTSD, major depressive disorder and substance abuse as causal connection - selling drugs to support own habit