WORKERS COMPENSATION – Lump sum compensation under Table of Maims – Prior claim settled by the parties and Consent Award made by Court – Claim for additional lump sum compensation for impairment of back – Discussion of principles re impairment of back at [41] to [49]
CONTRACTS – insurance policy – whether the coverage provisions of insurance policy could be engaged in the absence of a judgment, arbitral award or reasonable settlement adverse to insured – whether the bodily injury alleged by plaintiff in action against the insured was “in connection with” the insured’s “business” – whether the insured establishes “events” constituting an “unintended and unexpected” “occurrence” pursuant to the Policy – whether insurer establishes that or such events were “intended or expected” by the Owners – whether the events alleged by plaintiff in action against the insured constitute an occurrence “arising” out a private lot – whether “claim defence expenses” include the expenses of enforcing judgment against unsuccessful plaintiff in action against insured
CONTRACTS — Breach of contract — Consequences of breach — Assessment of damages — where claim exceeds the monetary jurisdictional limit of the District Court NEGLIGENCE — allegations of common law negligence and of breach of statutory duty under the Design and Building Practitioners Act 2020 —Damages — Economic loss — Assessment of damages
BUILDING AND CONSTRUCTION — Design and Building Practitioners Act 2020 (NSW) — allegations of breach of s 37 in the course of constructing a house and in the course of performing remedial building work pursuant to an NCAT work order — whether breaches have been proven — assessment of damages — whether costs incurred in prior proceedings in NCAT can be claimed in these proceedings
SENTENCING – indecent assault – historical offending – where the offender made general admissions to the offending in 1971 – where the offender served a sentence for similar and related offending
Third-party fraud – interception of email account for purpose of requesting payment by electronic funds transfer Estoppel by representation – ostensible authority – whether Plaintiff bound by representation of authority – whether reliance on representation reasonable – whether Defendant put on inquiry Contract – Failure to mitigate – whether claim for recovery of monies was an action in debt – assessment of date of breach of contract – whether failure to alert Defendant amounted to a failure to mitigate Estoppel by representation – silence – whether failure to respond to Defendant’s emails was a representation that contract had been complied with – whether reliance on Plaintiff’s conduct reasonable
CONTRACT – accord and satisfaction – agreement by parties for payment by instalments to Plaintiff – whether subsequent agreement partly oral and partly in writing amounts to accord and satisfaction of claim under earlier agreement for payment LIMITATION OF ACTIONS – whether claim in contract statute barred – Limitation Act 1969 (NSW), s 54 – confirmation – whether acknowledgment in writing – authenticated signature fiction rule CONTRACT – whether Plaintiff not entitled to payment by reason of the Property Stock and Business Agents Act 2002 (NSW), s 55 – whether Plaintiff acted as buyer’s agent for commission – whether discretion under s 55A available and should be exercised
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.
CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Multitude of circumstances of aggravation — Vulnerable victim — Offences committed while victim at home — Take and drive a conveyance SENTENCING — Objective seriousness — vulnerable victim — Property stolen of significant sentimental value — Subjective factors — Balund-a program as quasi-custody — Offender has history of substance abuse and mental health conditions — Bugmy principles
TAXATION – director penalty liabilities – PAYG withholding amounts – assessed net amount under the A New Tax Systems (Goods and Services Tax) Act 1999 (Cth) –where the Taxation Administration Act 1953 (Cth) provides that allegations in certain documents are prima facie evidence of certain matters – where the defendant did not challenge the quantum of primary tax due – where the defendant did not plead a defence but gave evidence as to reasons why he should not be liable
SENTENCING — Commonwealth crime — Drug offence — Attempted possession — Joint attempt — Commercial quantity — Lower end of objective seriousness — Different drugs — Dry run — Concealed in a pump — Bottom of the hierarchy — Highly supervised — Controlled delivery — Limited role — To take delivery — Drug debt and payment — Low moral culpability — Strong subjective case — Punishment — Deterrence — Harm to the community — Severe harm to third party arising from incarceration — Drug addiction — Risk of reoffending considered — Low risk of reoffending — Rehabilitation — No prior record — Genuine remorse — Family in crisis — Counselling and psychological treatment — Future imprisonment would jeopardise treatment — Leniency justified
TORTS – work injury damages claim DAMAGES – compensatory damages assessed at $871,284 – judgment for plaintiff in the assessed net sum of $315,438.30 after offset of past weekly workers’ compensation payments of $555,845.70
CIVIL – Injurious falsehood – Australian Consumer Law – Allegation of forgery of signature on guarantee for finance of property – Context of marriage breakdown between P and D – Not open on balance of probabilities that D, as opposed to another, forged P’s signature – P and D not in trade or commerce – No apparent loss suffered by P
CIVIL PROCEDURE – settlement approval of settlement involving an elderly man with brain injuries – whether settlement is in best interests of plaintiff
LEASES AND TENANCIES – where Plaintiff leases premises to First Defendant for a term of 5 years – where Second Defendant guarantees the performance of the First Defendant’s obligations under the lease LEASES AND TENANCIES – rent and outgoings – where validity and execution of lease is not in issue – where Defendants put Plaintiff to proof as to the amounts said to be owing under the Lease
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 – gate fell on worker – worker opened gate manually – end stop had recently broken – gate ran beyond the vertical guideposts – informal and undocumented system for manual gate operation – no system to ensure gates were regularly inspected by a competent person SENTENCING – relative culpability of “conduit entities” – where each company has an identical capacity to “influence and control” – each company is a separate legal entity which enjoys rights and is subject to duties and obligations – WHS duties are not transferrable and multiple persons can concurrently hold the same duty –– companies should not be able to benefit from the separate legal entity doctrine but disavow it when it operates to their disadvantage SENTENCING – whether “double punishment” arises when two corporate defendants have common ownership and control – each company has a non-delegable duty SENTENCING – whether CSP Act s 10 dismissal is appropriate where an offender has an unblemished record and exemplary character but the circumstances of the case are not extraordinary or exceptional
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 – defence costs OTHER – person struck by moving plant – person walking on walkway struck by a reversing reach stacker – failure to conduct adequate risk assessment – failure to develop, implement, and enforce a traffic management plan
Application to extend time to appeal against order of Children’s Court – where plaintiff explains delay in filing appeal of more than twelve months – where defendant does not assert prejudice if time to appeal extended – whether children subject of proposed appeal would be prejudiced if time to appeal extended – whether plaintiff has fairly arguable case on appeal
SENTENCE – use a carriage service to transmit communications to recipient under 16 years of age, with the intention of procuring the recipient to engage in sexual activity – transmitting, accessing or soliciting child abuse material
CRIME — Drug offences — Supply and manufacture prohibited drug cannabis and cannabis oil — Firearm offences — Possession of replica pistol — Unrelated to drug offending SENTENCING — Supply of cannabis and manufacture cannabis oil mostly for personal use but with some supply — Indictable quantity — Low objective seriousness — Strong subjective case
CRIME — child sex offences — persistent sexual abuse of a child — sexual intercourse with child >14 <16 — circumstances of aggravation — under special care — special care — sexual intercourse with child >16 CRIME — child sex offences — persistent sexual abuse of a child — sexual touching of a child older than 10 and younger than 16 CRIME — sex offences — attempted sexual intercourse with person under care older or equal to 16 and younger than 17 CRIME — child sex offences — child abuse material — production /possession CRIME — child sex offences — repeated abuse over several years — increasing depravity in offending SENTENCING — aggravating factors — abuse of position of trust or authority in relation to the victim SENTENCING — mitigating factors — plea of guilty — no record of previous convictions SENTENCING — further reduction in penalty for facillitation of the course of justice — applicability of s 22A of the Crimes (sentencing procedure) Act 1999 where facts for sentencing are agreed SENTENCING — principles of totality in determining aggregate sentence EXPERT EVIDENCE — absence of evidence from the offender — weight to be attached to expert opinion absent evidence from the offender — expert’s overriding duty to the court
CRIME — Child abuse offences — Soliciting child abuse material — Possessing child abuse material — Transmitting indecent material to a child — ADJOURNMENT — Application to adjourn sentencing hearing to allow Offender to participate in treatment program refused — SENTENCING — Commonwealth child sexual abuse material offences — Objective seriousness — Strong subjective case — s 17A threshold satisfied — Period of full-time custody appropriate to be released after a period on a Recognizance Release Order to promote rehabilitation and therefore community safety
CIVIL PRACTICE AND PROCEDURE — application to further amend — whether application concerns additional causes of action that are statute-barred DEFAMATION — concerns notices — whether proposed amended pleading relies upon ‘matters’ not referred to in concerns notice
CIVIL PROCEDURE – Stay of proceedings – application made under s 20 of the Service and Execution of Process Act 1992 (Cth) and r 12.11(1) Uniform Civil Procedure Rules 2005 (NSW)
CRIMINAL LAW — Bail — release application pending determination of appeals against conviction and sentence — whether special or exceptional circumstances established — consideration of merit of proposed grounds for severity appeal — whether unacceptable risks — consideration of prospect whether substantial part of non-parole period will be served prior to determination of appeals — consideration of bail conditions
Crime – Judge alone trial – Verdict - Discharge firearm with intent to cause grievous bodily harm - Fire firearm at a dwelling-house with reckless disregard for the safety of another person
CRIME — SENTENCING — Child sexual abuse material — Possession of child sex dolls — Creation and possession of AI generated child sexual abuse material — History of previous similar offending — Diagnosis of paedophilic disorder and autism spectrum disorder — Discussion of objective seriousness of offending — Subjective case includes mental health issues with a nexus to the offending — Paedophilic disorder is not of itself a mitigating factor for child sexual abuse offending — Approach to sentencing for a combination of Commonwealth and State offences
CRIME — Multiple offences involving threats, robbery and assaults, some involving knives — Mini crime spree in lower Clarence valley area over a period of approximately one month in 2025 involving various victims and circumstances SENTENCING — Significant objective seriousness of offending — Subjective case deprived upbringing mental health and drug addiction strong — Those same factors mean Offender’s prospects of rehabilitation are low and prospect of reoffending significant — Protection of the community paramount
DEED — deed of settlement of litigation — failure to pay amount due under the deed on the basis of an alleged breach of a confidentiality provision — whether provision breached — entitlement under deed
DEFAMATION — procedure for determination of serious harm element — whether special circumstances exist which justify postponement of the determination of the serious harm element to a later stage of the proceeding
CIVIL PROCEDURE – Summary dismissal – strike out of pleadings – Allegation of various torts against police officers – Discussion of principles – Rare case where on the evidence the Plaintiff’s case is bound to fail on the facts notwithstanding honest belief as to what occurred – The phrase “No cause of action disclosed” not limited to an analysis of the pleadings but extends to circumstances where it can be demonstrated claim has no basis in fact COSTS – Usual rule is costs follow the event – Fact that the party self-represented and involved in multiple cases in various Courts no reason to depart from usual rule
COSTS — Gross sum costs orders COSTS — Security for costs — Legal nature of the plaintiff — Plaintiff is a company COSTS — Security for costs — Relevant factors — Strength of claim – Timing – Impecuniosity COSTS — Security for costs — Quantum and form JUDGMENTS AND ORDERS — Enforcement —Stay of proceedings on judgment
CRIMINAL LAW – Fraud – Commonwealth offences – Use position as officer of company to dishonestly gain advantage/cause detriment – Offender was liquidator, voluntary administrator and/or deed administrator of five separate companies –Transferred funds beyond agreed or reasonable remuneration for administration of companies – Transfer from administration accounts to personal and business accounts not for benefit of companies – Total of approximately $2,518,483.31 dishonestly obtained by offender – Offending over the course of several years from 2016-2022 – Offending detected by ASIC after offender failed to lodge relevant returns – Offender to attend examination pursuant to s 19 of the Australian Securities and Investments Commission Act 2001 (ASIC Act) – Some transfers at the end of the period made by the offender after giving an undertaking to ASIC not to deal with funds of companies – Offender used false descriptors of transfers – The amounts transferred significantly exceeded any amounts which could have been charged or agreed for unremunerated work. SENTENCING – Sentence after pleas of guilty – Subjective factors on sentence – Significant assistance to authorities – Early plea of guilty – General deterrence very important for white collar crime – Mental health issues – Extra curial punishment – Reputational damage – Loss of marriage – Suicide attempts – Excellent prospects of rehabilitation but overall sentence too high for ICO – Only full time custody appropriate with low 50% NPP.
CRIMINAL LAW — trial by judge alone — accused solicitor acted for a neighbour whose property adjoined a deceased’s (who died in 1995) real property and who was interested in claiming a debt against the deceased estate — solicitor’s retainer includes searches for beneficiaries and next of kin — solicitor unable to locate next of kin despite inquiries — solicitor’s legal services to neighbour cease following death of client (in 2003) — the solicitor’s (co-accused) wife sets about improving, maintaining and leasing the property — some years later the solicitor’s (co-accused) son (and his partner) enter occupation of real property — co-accused wife and co-accused son of the solicitor apply for title by adverse possession — primary application granted — whether statements in documents made in support of the application for title by adverse possession were deceptive — whether mental element of deception established — whether the accused obtained property belonged to deceased estate — whether the property was obtained by dishonesty CRIMINAL LAW — fraud offence — whether property obtained ‘by deception’ — consideration of causal connection where identified decision-maker gives evidence — relevance of decision-maker belonging to agency of government — whether in case where multiple deceptions are relied upon, it is necessary to prove causation for each individual deception CRIMINAL LAW — joint criminal enterprise — foundational offence of fraud — significance of the scope of the agreement as alleged by the Crown
SENTENCING — offence of fraud following verdict of guilty – joint claim by co-offenders of adverse possession of real property — real property belonged to a deceased estate with the executrix and beneficiaries unable to be located — co-offenders learnt about the property since a family member acted as solicitor for neighbour to the deceased — objective seriousness — absence of proof of value of property obtained — consideration of whether State was a victim, or whether this was a ‘victimless’ crime — hardship to third parties
COSTS — claim for damages for personal injury for intentional torts in respect of institutional sexual abuse by a primary school teacher — plaintiff successful in obtaining substantial monetary judgment against the teacher — teacher ceased attending the hearing after admitting torts, whilst disputing causation and raising other defences — plaintiff’s application for costs to be awarded as a gross lump sum COSTS — cross-claim — State successful in recovering order for full indemnity for its liability to the plaintiff and its own claim for damages for breach of employment contract for costs of defending that proceeding — State’s application for indemnity costs — non-acceptance of an offer to contribute — asserted unreasonable conduct by cross-defendant in defence of litigation — State’s application for costs to be awarded as gross lump sum
CRIMINAL PROCEDURE — sexual assault communications privilege — application for leave — meaning of “protected confidence” — meaning of “protected confider”
Crime – Sentence – Break enter and steal – Enter land with intent to commit indictable offence – Steal from dwelling and break out – Drive under influence of drugs – Police pursuit – Possession of taser – Possess child abuse material
Crime – Sentence – Aggravated sexual intercourse with child 10-14 years – Under authority – Incest – Intentionally record intimate image without consent
BANKING AND FINANCE — Banks — Bank accounts — what, if any, duty does a bank owe to an account signatory — allegation of breach of contract by a bank with respect to an account signatory BANKING AND FINANCE — Banks — Liabilities — Negligence — did the defendant owe a duty of care to an account signatory, and, if so, was it breached
RESTITUTION — nature of restitutionary liability — quantum meruit — express or implied request — failure to establish on the evidence CONTRACTS — Construction and interpretation —method of calculation of Service Fee due under a contract — meaning of “cost of products”
CRIME – SENTENCING – Providing material support to a criminal organisation – Section 390.4(1) Criminal Code Act 1995 (Cth) – Criminal organisation involved in conspiracy to the knowledge of the offender involved in a conspiracy to import border‑controlled drugs into Australia – Discussion as to the mental element of offence – Discussion as to the proper approach to sentencing for the offence of providing material support to a criminal organisations in circumstances where the offender is not charged with being a party to the conspiracy or aiding and abetting the conspiracy – Proper approach to sentencing where the agreed facts disclose offender involved in a “drug related crime” – Approach to be taken to sentencing to determine objective seriousness in circumstances where there is no judicial guidance SENTENCING – Federal offence offenders – Objective seriousness – Delayed caused by AN0M appeals – Strong subjective case – Remorse – Rehabilitation – Prospects of reoffending low RECOGNIZANCE RELEASE ORDER – Appropriate that term of imprisonment be served in the community pursuant to a Recognizance Release Order which will promote the offender’s prospects of further rehabilitation and thus reduce the chances of reoffending to the benefit of the community
CRIME — SENTENCING — Convicted at trial by jury of 19 offences against four victims over a period of approximately 20 years — Offending occurred within the home of the offender and of the victims — Abuse of trust and abuse of authority of step-parent and step-grandparent role — Varying degree of objective gravity in offending — Application of approach taken in R v RJ [2023] NSWCCA 273 where section 5 Crimes (Sentencing Procedure) Act 1999 threshold not crossed for some offences — Subjective factors — Application of Bugmy principles — No mitigation on account of the offender's self-induced intoxication — Aggregate sentence of imprisonment imposed
COSTS — appeals — appeal from decision of costs review panel — costs order in favour of self-represented litigant law firm — whether costs review panel misapplied principles for quantification of costs orders for self-represented law firms — whether good and sufficient cause shown to depart from presumption that the costs that would have been allowed if an independent solicitor was engaged protected the indemnity principle
CIVIL – WORK INJURY DAMAGES – TORT OF NEGLIGENCE – Worker at distribution centre. Slip and fall on spilt milk. Milk could only have been spilt by an employee or employee pro hac vice of the defendant – Contributory Negligence: plaintiff did not act as his instructions required him to act (to identify and report the spillage) but continued his usual job leading to his slip and fall
CIVIL – WORK INJURY DAMAGES – Application for leave to file and serve Amended Statement of Claim in Court – Particulars of negligence materially different from those in original statement of claim in pre-filing statement
CIVIL – WORK INJURY DAMAGES – Application under s 318 of Workplace Injury Management and Workers Compensation Act 1998 – Plaintiff objecting to reports not included in pre-filing defence
CIVIL – WORK INJURY DAMAGES – Application under s 318 of Workplace Injury Management and Workers Compensation Act 1998 – Defendant sought to call worker on shift at time of injury to Plaintiff
DAMAGES – assessment of damages after judgment for liquidated claim entered – principles of assessment – no appearance by defendant – error in calculation of loss of bargain damages – claim for loss of rent, outgoings and marketing levy
CIVIL PROCEDURE – Where judgment has been given for damages to be assessed – Trial for assessment of damages TORTS – Trespass to person – Assault – Assessment of Damages
COSTS — defamation proceeding — application for indemnity costs — some offers made by parties prior to commencement of proceeding, including purported offer by the defendant to make amends — applicant relies upon Defamation Act 2005 (NSW), s 40
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 – appropriate to consider medical evidence in relation to whether injury was “substantial” per s 21A(2)(g) of Crimes (Sentencing Procedure) Act 1999 (NSW) COSTS – prosecution costs OTHER – bucket elevator conveyer maintenance – conveyer went into an uncontrolled free run – fluid coupling failed – explosion of metal debris – debris stuck worker on head – failure to confirm instructions were being followed – failure to make reasonable enquiries that an adequate risk assessment was taken after changes to work process – failure to confirm whether mechanical engineer was consulted about relevant job features
SENTENCING — Federal offenders — Sentence by State court for offence against Commonwealth law SENTENCING — Relevant factors on sentence — Multiple offences — Accumulation, concurrency and totality CRIME — Child sex offences — Child abuse material — Using carriage service for child pornography material or child abuse material CRIME — Child sex offences — Procuring or grooming child for unlawful sexual activity
COSTS – plaintiff discontinues defamation proceedings on the last day of the trial, asserting health issues prevent him from continuing – two prior jury trials aborted because the plaintiff collapsed whilst in the courtroom - defendants’ application for indemnity costs of all trials – offers made by both parties – interaction of s 40 Defamation Act 2005 (NSW) with general costs principles – application for indemnity costs refused – fees outstanding under s 10 Civil Procedure Regulation 2017 (NSW) waived
CRIME – SENTENCING - child sex offences – adult maintain an unlawful sexual relationship with child under 16 – victim offender’s step-daughter – relationship of over five years - plea of guilty on day of trial – no subjective material tendered – above mid-range
CRIME — SENTENCING — Use carriage service to engage in sexual activity with a child against Commonwealth Criminal Code s 474.25A(1) — Taking other offence into account — Yardstick of mandatory minimum sentence — Consideration of offender's subjective case — Positive prospects of rehabilitation — Extended parole/supervision period appropriate — 25% discount on account of early plea of guilty — 8% discount on account of assisting authorities
CRIME — SENTENCING — Convicted at trial of offence against Commonwealth Criminal Code s 474.26(1) - Use carriage service to procure a person under the age of 16 for sexual activity — Communications to a police assumed online identity — Police assumed online identity SMS description of 14 years and photographs of aged 20 real female — Subjective factors — Cognitive deficits — Finding of significantly reduced moral culpability — Good prospects of rehabilitation — Sentence to term of imprisonment of 1 years and 4 months — Release on recognizance after 3 months
CRIME – Child sex offence proceedings – pre-recorded evidence – application for the complainant to give further evidence at trial – where the evidence is only relevant to the complainant’s credibility - where the evidence relates to a prima facie false complaint of an indecent nature about another person – application granted
ANIMALS – Companion Animals – Dogs – whether owner of dog liable in damages under s.25 of Companion Animals Act 1998 (NSW) – whether plaintiff’s bodily injury caused by the dog wounding or attacking the plaintiff – Held: owner not liable under s.25 NEGLIGENCE – Breach – Foreseeability of risk – whether owner of dog liable in negligence for personal injury to plaintiff – Held: owner not liable in negligence
TRAFFIC LAW AND TRANSPORT — Traffic law — Offences — Signs and road markings — Speed limits offence — Mistaken belief as to applicable speed limit is a mistake of law not fact — Defence of honest and reasonable belief as to speed limit is not available — No realistic prospect of authorities to the effect of being overturned by Court of Criminal Appeal or High Court of Australia — Camera recorded offences — Certificate of evidence prima facie proof of matters certified CRIME — Appeal and review — Stated case — Application to state a case refused
TORTS — intentional torts — institutional sexual abuse — whether child sexual abuse occurred by school teacher — causation — whether intervening acts severed causal connection EVIDENCE — certificate of conviction — whether facts sustaining essential elements of criminal offences rebutted — whether defendant in subsequent civil proceeding discharged evidential onus to prove convictions erroneous DAMAGES — aggravated damages — availability of exemplary damages when defendant has received a sentence of imprisonment NEGLIGENCE — cross-claims — institutional sex abuse — first defendant (State) claims indemnity or contribution from second defendant (teacher) who allegedly perpetrated abuse against the plaintiff — significance of settlement of plaintiff’s claim against the State — whether State is a tortfeasor liable — whether teacher is a tortfeasor who if sued by the plaintiff would have been liable to her for the same damage — reasonableness of settlement of plaintiff’s claim against the State — apportionment of liability as between tortfeasors DAMAGES — whether State’s claim against teacher for contribution apportionable under Civil Liability Act 2002 (NSW) — whether claim against teacher for damages for breach of contract apportionable CONTRACT — contract of employment — implied terms — damages — whether costs incurred in defending suit by third party recoverable in contract against a contract breaker
DEFAMATION — Facebook posts — whether published by defendant — first and second plaintiffs operate real estate business (through the corporate vehicle of the third plaintiff) DEFAMATION — serious harm element — where a plaintiff is an excluded corporation — consideration of what is ‘serious financial loss’ DAMAGES — differentiation between individual plaintiffs and a corporate plaintiff CIVIL PROCEDURE — consequences for proof of plaintiff’s claim when defence struck out for want of due dispatch
CRIMINAL PROCEDURE — EVIDENCE — Tendency evidence — Tendency rule — Automatically cached material identified in Cellebrite download of accused's phone — Nothing of the Cellebrite download evidenced actions of the accused in relation to cached material — Evidence does not raise to significant probative value — Material highly prejudicial — Application to rely on tendency evidence rejected
CORPORATIONS — winding up — voidable transactions — uncommercial transactions — unfair preference payments — unreasonable director-related transactions — where sole director of insolvent company used company account to hold personal funds — whether such funds beneficially belong to the company — whether sole director’s transfer of such funds to his wife diminished company assets available to creditors on a winding up
CIVIL PROCEDURE – Application for separate determination of questions – whether defendant is indemnified by insurance policy – parties agree that resolution of their dispute before the primary proceedings is in the interests of justice but disagree about the form of the separate questions – separate questions to be answered involve questions of law, no contested evidence, and involve the construction of terms in the insurance policy – separate questions will facilitate the just, quick and cheap resolution of the real issues in the proceedings
CIVIL PROCEDURE – Application for proceedings to be dismissed because no reasonable cause of action is disclosed – where plaintiff alleged the defendant breached a duty of care owed to her when her child was removed from her care – safety, welfare and well-being of the child is paramount – interests of children and parents are diverse and irreconcilable – defendant had no duty of care to the plaintiff when carrying out its functions in relation to the care and protection of the plaintiff’s child – proceedings dismissed
CONSUMER LAW — misleading and deceptive conduct to induce the making of an investment in cryptocurrency DEED POLL – dealing with trust property by trustee in a manner inconsistent to undertakings by the trustee in a deed poll
WORKERS COMPENSATION – COAL MINING –Injury arising in the course of employment working in or about a coal mine – Injury to cervical spine – Contributory negligence – Assessment of damages
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty COSTS – prosecutor’s costs
TORTS – Trespass to the person – Assault – Battery – False imprisonment – child sexual abuse – where plaintiff alleged that sexual abuse took place between about 1980 and 1985 – where defendant denied abuse – credibility – abuse established TORTS – Damages – general, aggravated and exemplary damages
MENTAL HEALTH — Criminal proceedings — Person unfit to be tried — Ongoing highly treatment-resistant mental impairment — Special verdicts of act proven but not criminally responsible — Order made for the defendant’s detention under s 33(1)(b)
COURTS AND JUDGES — Bias — Apprehended bias — Recusal — Animus — Statements unrelated to the proceedings — Role of the Director — Role of the Solicitor — Role of Crown Prosecutors — Ordinary judicial practice — Attack on judicial independence — Ex parte communications — Accumulated factors — Need for logical connection
COURTS AND JUDGES — Bias — Apprehended bias — Recusal — Animus — Statements unrelated to the proceedings — Role of the Director — Role of the Solicitor — Role of Crown Prosecutors — Ordinary judicial practice — Attack on judicial independence — Ex parte communications — Accumulated factors — Need for logical connection
COURTS AND JUDGES — Bias — Apprehended bias — Recusal — Animus — Statements unrelated to the proceedings — Role of the Director — Role of the Solicitor — Role of Crown Prosecutors — Ordinary judicial practice — Attack on judicial independence — Ex parte communications — Accumulated factors — Need for logical connection
COURTS AND JUDGES — Bias — Apprehended bias — Recusal — Animus — Statements unrelated to the proceedings — Role of the Director — Role of the Solicitor — Role of Crown Prosecutors — Ordinary judicial practice — Attack on judicial independence — Ex parte communications — Accumulated factors — Need for logical connection
CRIME — Sentencing — Firearm offences — Supply unregistered firearm — Two counts of possess unauthorised pistol — Form One matters — Consideration of backdating for partially referable time incarcerated and quasi-custody in rehabilitation centre — Adjustment of non-parole period/head sentence ratio — Aggregate sentence of incarceration imposed
CIVIL PROCEDURE — Default judgment — Setting aside — Irregularly entered — Existence of a settlement deed — Where lack of disclosure in ex parte application — Obligations of legal practitioners — Court unassisted by selective narrative in supporting affidavit — Applications for costs refused — Neither party to have costs
DEFAMATION — request for further and better particulars of defence CIVIL PROCEDURE — overriding purposes of case management — request for further and better particulars rolled up with request for documents — other party initially refuses to provide access to documents — importance of removing satellite disputes
SENTENCING – organise or facilitate entry of or receipt of person under 18 intending they would be used to provide sexual services or otherwise be exploited after entry or receipt into Australia – engage in conduct causing another person under 18 to enter into or remain in forced labour – facilitate transport of person under 18 intending person be used to provide sexual services – plea of guilty – parity – imprisonment
CRIMINAL LAW — sentencing — domestic violence offences — personal violence offences — wounding with intent to murder — consideration of moral culpability and application of De La Rosa principles — extra-curial punishment
TORTS – Malicious prosecution – Collateral abuse – criminal proceedings – Vicarious liability – where plaintiff worked at a childcare centre – where three employees allege witnessing plaintiff bind the hands of a disabled child on two separate occasions – where witnesses make allegations three years after alleged incidents – where no documentary record of incidents occurring – where witnesses provide statements to Second Defendant – where Second Defendant provides the statements to police – where witnesses give sworn police statements – where police relied on evidence of witnesses to charge and prosecute plaintiff – where criminal proceedings terminated in plaintiff’s favour – where plaintiff does not bring a claim against prosecuting authorities but against a company and two individuals TORTS – Malicious Prosecution – absence of reasonable and probable cause not established – Malice not established – Defendants did not commence or maintain prosecution EVIDENCE – Onus of proof – Standard of Proof – where part of the plaintiff’s case involved an allegation that three witnesses fabricated the allegations against her DAMAGES – Contingent assessment – Non-economic loss – Economic loss
CRIME – violent offences – wound with intent to cause grievous bodily harm – criminal proceedings – defence of mental health impairment – whether s 31 is engaged – whether agreement under s 31 is discretionary
JUDGMENT AND ORDERS – Application for stay of enforcement of judgment obtained under the Building and Construction Industry Security of Payment Act 1999 (NSW) COSTS – Security for Costs – Quantum and form
COSTS – Offer of Compromise – reasons to “otherwise order” per UCPR r 42.15A – defendant succeeded on only one of the separable issues – majority of documentary and oral evidence was evidence on two of the three issues litigated at trial, upon which the plaintiff succeeded and the defendant failed – requirement of a “broad brush” approach involving impression and evaluation
COURTS AND JUDGES — recusal application — suggested “cross-over” in subject matter for another proceeding and this proceeding — complaint of judicial ‘interventions’
MENTAL HEALTH — Criminal proceedings — Referral to Mental Health Review Tribunal Criminally responsible Defence of mental health impairment and/or cognitive impairment
MOTOR VEHICLES — Motor Accident Compensation Act 1999 (NSW) — meaning of “an injury that arises gradually from a series of incidents” — s 3A(2) STATUTORY INTERPRETATION — significance of context being considered in first instance CIVIL PROCEDURE — propriety of answering proposed questions separately
BUILDING AND CONSTRUCTION — Contract — Defects — Home Building Act 1989 (NSW) — Design and Building Practitioners Act 2020 (NSW) — assessment of damages
BUILDING AND CONSTRUCTION — application for stay of execution of judgment obtained under the Building and Construction Industry Security of Payment Act 1999 (NSW)
CRIME — Drug offences — Commonwealth offences — Import border-controlled prohibited drug - Recklessness - financial motivation of offender has contributed to conduct which is otherwise out of character SENTENCING — Mitigating factors — Assistance to law enforcement authorities — Efficient and focussed trial — Remorse and belated acceptance of responsibility.
CRIMES — Common Assault — Damage property and intimidation in a domestic setting SENTENCING — Poor criminal history — Long term drug and alcohol dependency — Childhood deprivation — Homeless — Remorse — prospects of rehabilitation — strong subjective case — time in custody to date is appropriate punishment
One count of enter dwelling in company with intent to steal – Objective seriousness – Violent conduct of co-offenders after Offender leaves for which Offender is not criminally responsible relevant to impact on victim – Deprived background – Mental health issues – Significant remorse – Prospects of rehabilitation – Time served of more than a year sufficient punishment
BUILDING AND CONSTRUCTION — contract — damages — defects — purported termination of contract — where property owners excluded builder from site — whether alleged defects were just incomplete work — where the plaintiffs’ breach has a clear causal relationship with the alleged breach of the defendant
CIVIL PROCEDURE — Summary disposal — Judgment for plaintiff — No defence CIVIL PROCEDURE — Pleadings — Striking out — No reasonable cause of action or defence - Defence
CRIME — Sexual offences — Aggravated sexual assault — Victim <16 years CRIME — Sexual offences — Sexually touch — Victim <16 years CRIME — Child sex offences — Sexual intercourse with child >10 <14 SENTENCING — Relevant factors on sentence — Moral culpability SENTENCING — Aggravating factors — Abuse of position of trust or authority in relation to the victim
CRIMINAL LAW – pre-trial ruling – operation of s 138 Evidence Act 1995 – discretion to exclude evidence – menacing or offensive statements made on anonymous online video chat service “Chatruletka” – chat room interaction between participant in Israel and two participants in New South Wales, Australia – where Israeli participant recorded the interaction – an edited video and commentary of the recording published online – whether evidence obtained improperly or in consequence of an impropriety – whether jurisdictional issue – extraterritorial effect – whether contravention of the Surveillance Devices Act 2007 – “Chatruletka” ‘privacy policy’ and ‘terms of use’ considered – desirability v undesirability of admitting the evidence
DEFAMATION — publications concerning managing director of a strata management company — defendant denies she is the publisher — defendant applies for summary dismissal and strike out of statement of claim — issues raised about publication, serious harm, whether alleged imputations capable of being conveyed CIVIL PROCEDURE — abuse of process — application for dismissal of proceeding for commencement of proceeding for improper purpose CIVIL PROCEDURE — referral of litigant for representation
TAXATION – director penalty liabilities – PAYG withholding amounts – superannuation guarantee charge – assessed net amount under the A New Tax Systems (Goods and Services Tax) Act 1999 (Cth) –where the Taxation Administration Act 1953 (Cth) provides that allegations in certain documents are prima facie evidence of certain matters – where the defendant did not appear at the hearing – where the defendant did not lead evidence to rebut the prima facie evidence
TORTS — malicious prosecution — absence of reasonable and probable cause — non-disclosure of exculpatory evidence — where investigating officer pursued prosecution despite knowledge of such exculpatory evidence — general damages — exemplary damages. TORTS — trespass to the person — false imprisonment — wrongful arrest — where multiple charges followed arrest — where investigating officer had reasonable suspicion within meaning of s 99(1) of LEPRA — where arresting officer was directed within meaning of s 99(2) of LEPRA.
CRIME – APPEAL – Notice of motion to amend case stated for determination by Court of Criminal Appeal – Whether District Court has jurisdiction to amend case stated after final orders made, or whether it is functus officio
CIVIL PROCEDURE – pleadings – amendment – proposed pleading is not adequate or appropriate – pleading fails to allege the elements the plaintiff must prove – defendants must know the case they have to meet – pleadings must inform the court of the issues to be determined
CIVIL PROCEDURE — preliminary discovery — application for identity discovery for prospective — prospective defamation suit — whether applicant has objectively-based desire to commence proceeding — whether in interests of justice to accede to application CIVIL PROCEDURE — preliminary discovery — cause of action discovery — applicant subjected to disciplinary investigation — findings of student misconduct — complaint of denial of procedural fairness, and breach of contract — following earlier hearing, parties given opportunity to confer about categories for preliminary discovery without curial adjudication — parties differ as to whether some categories are agreed — whether agreed categories of discovery are sufficient to help the applicant decide whether he has alternative causes of action
CRIME – SENTENCE – Each of these 3 offenders was involved in a money laundering enterprise, the principal of which had fled overseas and had not yet been brought to justice. The first offender was the principal’s mother and the other two offenders became involved because of their personal circumstances. The money laundering involved converting cash collected by organised crime gangs and converting it into USD Tether, a cryptocurrency. Offending involved moving cash between places, handing it over to UCOs or OCOs or assisting with its being deposited in accounts – Offending towards bottom of range – Each offender had some pre-sentence custody – Further penalties imposed did not attract further custodial sentences.
CIVIL – MOTOR VEHICLE – Three cars involved in 2 collisions – Dash cam footage available – Contributory negligence – Claim for property damage only – Dispute as to liability, limited disagreements on quantum
WORKERS COMPENSATION – WHETHER DEATH OF WORKER DUE TO WORK INJURY – Worker died as a result of surgery resulting from a fall (not in course of his employment – W has injured his right knee on 15 June 2015, having earlier injured his left knee. Bilateral total knee replacement (TKR) on 9 May 2017. Right knee revision surgery performed on 19 August 2022. On 28 September 2022 W slipped an fell in a veterinary clinic in his home suburb. That fall lead to surgery attempted on 6 October 2022 during which W died as the result of cardiac arrest due to the administration of anaesthesia – Chain of causation existed between right knee injury on 15 June 2015 and death on 6 October 2022, unbroken by the fall on 28 September 2022 – Second “Oakley” category case.
CRIME – aggravated enter dwelling with intent – aggravated break and enter and commit serious indictable offence – steal property – take and drive – police pursuit – strong subjective case – cognitive impairment – mental health – institutionalisation
CRIME — Serious child sex offences committed in the 1960s and 70s — Maintaining an unlawful sexual relationship with a child — s 66EA of the Crimes Act has retrospective operation — Father sexually abused daughter over period of 6 years from when she was about 10 years old — One count of sexually abusing sister in law then aged 15 years old SENTENCE – Maximum penalty life imprisonment —Relevant factors on sentence – father and daughter — abuse of position of authority over the victim — breach of trust — general deterrence — Limited remorse or contrition — Offender 88 years old — will suffer significantly in gaol due to age and ill health — likely Offender will die in gaol — Limited weight to specific deterrence and rehabilitation because of offender’s age — Impact on victims — Multiple victims — Different offending — Aggregate sentence need for some but not total accumulation CRIMINAL PROCEDURE — Registrable Persons Order
LIMITATION OF ACTIONS – fatal motorcycle accident – competing notices of motion – defendant (compulsory third party insurer) seeks dismissal of proceedings for non-compliance with procedural requirements for plaintiff making a late claim – plaintiff (de facto spouse of the deceased) claims damages in respect of a motorcycle accident in which her partner died – plaintiff seeks a grant of leave to proceed – defendant’s motion dismissed – full and satisfactory explanation for delay – leave to proceed granted to plaintiff
CHILD WELFARE — Change of name — s 28 Births, Deaths and Marriages Registration Act 1995 (NSW) — Application by a mother to change the surnames of two children to her own name – Principles to be applied – Proper construction of s 28(4) of the Births, Deaths and Marriages Registration Act 1995 (NSW)
CHILD WELFARE — Change of name — s 28 Births, Deaths and Marriages Registration Act 1995 (NSW) — Application by a mother to change the surnames of three children to her own name – Principles to be applied – Proper construction of s 28(4) of the Births, Deaths and Marriages Registration Act 1995 (NSW)
STATUTORY CONSTRUCTION — Proper construction of ss 21 of LEPRA — Suspicion — Subjective test — Reasonable grounds — Objective test –Necessary to make finding of grounds taken into account and then to determine objectively if those grounds are reasonable — Test is not that the suspicion is “reasonable” EVIDENCE — Section 138 Evidence Act — Whether evidence obtained under a search not engaging s 21 power is illegal or improper for s 138 of Evidence Act — Exercise of discretion to exclude evidence — Public importance of police complying with the law when carrying out duties
BUILDING AND CONSTRUCTION — Contract — Damages — Delay — Defects — Claim for consequential pure economic loss — Proper construction of cl 17.2 of standard form contract requiring builder to give notice claim for extension of time — Champion Homes considered and applied the facts the parties did not agree to liquidated damages is irrelevant to the proper construction of cl 17.2 CONTRACTS — Assessment of damages for breach of contract — Prima facie position — Bellgrove v Eldrige discussed — Provisos identified — Breach — Damages — Proof — Defects — Proper construction of Australian Standards and proper construction of s 18B(1)(c) warranties — Decision of Court of Appeal in Owners SP 92450 v JKN Para 1 Pty Limited considered — Approach to damages for breach of statutory warranties no different to approach for any other breach
APPEAL – Section 89 Legal Profession Uniform Law Application Act 2014 (NSW) – Appeal from determination of a Costs Review Panel – Narrow Issue – Whether Costs Agreement novated – Novation implied having regard to the objective intention of the parties – Whether novation operates to vest accrued rights and obligations under the terminated contract in the parties to the substituted contract
WORKERS COMPENSATION – Coal mining – Whether surgery proposed reasonably necessary as a result of injury sustained in course of employment – Whether injury sustained in course of employment
CIVIL – Application for summary judgment – Non-payment of payment claims made under Building and Construction Industry Security of Payment Act 1999 – Contractual interpretation
CIVIL – Appeal from Local Court sitting in Small Claims Division – Claim by Local Council for unpaid rates and charges – Right of appeal misunderstood by applicants
WORKERS COMPENSATION – Coal Mining – Whether injury arising out of or in the course of employment working in or about a coal mine – Injury rupture to L4-L5 disc in spine
PROCEDURE – application for leave to commence proceedings under s 151D of the Workers Compensation Act 1987 – explanation for delay – no decision to delay commencement of proceedings – no prejudice – fair trial can be held
DEFAMATION — Separate determination — Serious harm — Strata dispute — Imputation that the plaintiff is dishonest or a liar — Relevant considerations for separate determination — Likelihood that serious harm can be proved — Special circumstances — Determined in the aggregate — Costs implications — District Court case management — Court resources — Intertwining of issues and evidence — Identification of defences — Whether harm has crystalised — Special circumstances found — No separate hearing
CRIME — Possession and access of online child abuse material — Sexual touching of a child under 10 — Objectively serious example of criminality — subjective case includes deprived childhood and significant mental health issues with a nexus to the offending — Linked remorse and insight — Prospects of rehabilitation guarded — proper approach to sentencing for mixture of Commonwealth and State offences
SENTENCING — Commonwealth crime — Drug offence — Importation of a marketable quantity of a border-controlled drug — Maximum penalty of 25 years’ imprisonment — Young offender — Traumatic childhood — Traumatic adulthood — Birth in custody
TORTS – finding that the defendant assaulted and battered the plaintiff as claimed – rejection of defendant’s claim of self-defence invoking s 52 and s 53 of the Civil Liability Act 2002 (NSW); DAMAGES – assessment of general compensatory damages, aggravated compensatory damages and exemplary damages, with interest – $79,004
SENTENCING — Supply of prohibited drug (methylamphetamine) in indictable quantity against s 25(1) Drug Misuse and Trafficking Act — Parity not a weighty consideration where much less serious offending than co-offender — Risk of institutionalisation — Where offender has opioid and stimulant use disorder — Special circumstance of availing the opportunity for rehabilitation — Sentence by way of Intensive Corrections Order
CRIMINAL LAW – Procedure - Ruling – Conviction Appeal – Severity Appeal – Application to adduce fresh evidence – Administration of justice - Intentional deception to obtain a financial benefit – Appellants represented in the Local Court - Production of fraudulent documents
APPEALS — Appeal from Local Court Small Claims Division to District Court under s 39(2) Local Court Act — Meaning of procedural fairness — No breach of procedural fairness — Summons dismissed
CRIME – SENTENCE – 13 State offences – 2 Commonwealth offences – Special circumstances – Multiple breaches of parole – Whether allegations of childhood sexual abuse to be taken into account in sentencing
DEFAMATION — Publication of serious imputations including of paedophilia — Large audience — Conspiracy broadcasts — Unreliable and incredible rantings — Purpose of the broadcasts — Engage with like-minded participants in a room of mirrors — Rambling, long-winded, frenzied, unrelenting and vicious — Persistent and prolonged — No desire for genuine debate — Encouraged and facilitated — Defences of contextual truth, public interest, honest opinion, qualified privilege, triviality and innocent dissemination failed — Assessment of damages — Aggravated damages — Costs
SENTENCING — Sexual offence — Penalties — Offender with long history of child sexual offending — Determined to be a High Risk Offender by Supreme Court and under a ESO (ESO) — Repeated failure to comply with ESO — Five separate counts of breach of ESO — One count of use a child under 14 to make child abuse and material — Bugmy Factors —mental health diagnosis including paedophiliac disorder — Prospects of rehabilitation low — Prospects of reoffending high — Significant need for protection of vulnerable children — Totality
CRIME — ss 61J and 61I Crimes Act 1900 (NSW) — Sexual offences — Aggravated sexual assault —objectively very serious violent examples of offending — multiple victims — offences committed in company SENTENCE — Bugmy factors — De La Rosa — lengthy history of substance use — planned sexual assault of multiple vulnerable victims — 3 separate victims — prospects of rehabilitation low — protection of the community and specific deterrence important
CRIMINAL LAW – trial by judge alone – whether in the ‘interests of justice’ for there to be trial by judge alone – consideration of relevant factors – apprehension of prejudice – legal and factual complexity EVIDENCE – offence of alleged fraud – alleged dishonest obtaining of property by any deception – first accused was former solicitor – first accused subject of subsisting disciplinary investigation – application to exclude evidence referring to or suggestive of professional misconduct – Crown case posits liability of co-accused on joint enterprise principles – relevance of conduct of solicitor before the ‘agreement’ was allegedly entered into – relevance of expert opinion evidence to practices and principles of a solicitor when acting for a deceased Estate – objection to impugned evidence on the ground that their probative value was outweighed by the danger of unfair prejudice
CIVIL PROCEDURE – pre-conditions for commencement of court proceedings not complied with – plaintiff had no entitlement to commence claim MOTOR ACCIDENTS – whether bus doors closing on a person when boarding is a motor accident – whether the act of engaging the mechanism to close the bus doors while stationary at a bus stop is part of the driving of the motor vehicle – whether any injury suffered is a result of the driving of the motor vehicle
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury CAPACITY TO PAY – s 6 of the Fines Act (NSW) – onus on the defendant to establish the appropriate need for the exercise of discretion COSTS – prosecutor’s costs
CONTRACT – Costs agreement – claim for unpaid legal fees and interest – defendants claim deficiencies in expert report and negligent performance of services by solicitors –whether alleged negligent services entitled defendants to reduction in amount claimed
BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 – validity of payment claim – effect of contractual deeming provision – whether progress certificate a payment schedule – application for summary judgment
CIVIL – Compensation Jurisdiction – Special Statutory Compensation List – Notice of Motion of Defendant to dismiss claim – Reconsideration power of the District Court in its Compensation Jurisdiction – Police Officer alleged hurt on duty – Original claim decided in Compensation Court in 1993
CRIME – Sexual offences – Sexual touching – Intentionally record image without consent – Victim intoxicated and unconscious – Victim incapable of consenting – Offender intoxicated – Offender discovers unconscious victim and carried her to a secluded ATM alcove – Offender filmed offending conduct – Offender ceased conduct after being interrupted by a bystander SENTENCING – Plea of guilty – No criminal history – Background of family violence – Emigrated to Australia for study – Genuine expressions of remorse – High risk of re-offending - tension between prospects of rehabilitation and risk of re-offending – more serious offence placed on Form 1
SENTENCING – possess control child abuse material using carriage service – use carriage service to access, transmit and solicit child abuse material – use carriage service to access child abuse material – use carriage service to transmit child abuse material to self – plea of guilty – full time imprisonment
CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 (NSW) — Crown case circumstantial — Stood or fell on single inferential finding — Finding that alternative inference rationally and reasonably open — Consideration as to proper construction of s 2 and 3 of Costs in Criminal Cases Act 1967 (NSW) — No reason in principle why it will necessarily be reasonable to commence proceedings because they rely on inferences drawn from proved primary facts — Crown case fatally flawed — Costs certificate ordered
BUILDING AND CONSTRUCTION — Building and Construction Industry Security of Payment Act 1999 (NSW) — Application to stay Judgment issued as a consequence of filing a s 25 determination. Consideration of principles to be applied — exercise of judicial discretion — Consideration of Court of Appeal decision in Black Label Developments Pty Ltd v McMenemy [2025] NSWCA 114 — Stay granted on condition.
BUILDING AND CONSTRUCTION — Contract — Defects – Home Building Act 1989 (NSW) – Design and Building Practitioners Act 2020 (NSW) – liability of builder – liability of engineer
Crime – Sentence – Commonwealth and State offences – Use carriage service to possess child abuse material – Use carriage service to solicit child abuse material – Use carriage service to transmit child abuse material – Sexual intercourse with child under 10 years – Use child under 14 years to produce child abuse material – Sexual touching child under 10 years
CIVIL PROCEDURE — Pleadings — Amendment – application to file a further amended defence to plead that the claim is an apportionable claim and that there are concurrent wrongdoers – whether claim for breach of contract is a claim arising from a failure to take reasonable care under s 34(1)(a) Civil Liability Act 2002 (NSW) CIVIL PROCEDURE — Subpoenas — Application to set aside
CRIMINAL LAW - Bail – Release Application – no special facts or special circumstances to justify the hearing of the bail application - Importation of border controlled drug – Show cause offences – Risk of further offending – Flight risk due to transfer of substantial funds overseas – Compelling Crown case – Second sequence of misconduct occurred while on bail for first sequence of misconduct
Sections 108C, 135(c) and 192A of the Evidence Act 1995; application by the Crown to exclude expert evidence; admissibility of expert psychological evidence concerning memory and the contamination of memory in children. Evidence admitted in part.
CRIME – s 43A(2) of the Crimes Act 1900 (NSW) – failure to provide necessities of life – alternative charge to manslaughter – guilty verdicts following trial – high level of objective seriousness SENTENCING – citizenship and migration – visa – detention – relevance of potential impact on sentence of decision on migration status – whether immigration detention amounts to punishment – immigration detention as quasi-custody – lack of remorse
TORTS — Private nuisance — damage to property caused by tree roots — tree situated on nature strip next to property — tallowwood tree TORTS — Private nuisance — whether nuisance was created or adopted — whether defendant had knowledge of nuisance before being notified of it — whether nuisance was foreseeable — where there is no evidence that damage to property had worsened between notification and abatement of a nuisance
CRIMINAL LAW – application for a trial by judge order – accused charged with personal violence offence – accused has pleaded guilty to alternative charge – applicant also committed breaches of apprehended violence order prior to the conduct giving rise to the alleged offence – risk prejudice not being ameliorated by jury direction – issue in trial will be whether the accused intended to kill the complainant when he stabbed her – whether that issue requires application of objective community standards – whether jury the more appropriate forum to draw inferences and make credibility and reliability assessment
CRIME — SENTENCING — Plea of guilty — Committal for sentence — use offensive weapon with intent to commit indictable offence namely intimidation — take/detain with intention to gain advantage — Matters taken into account on a s.166 certificate