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
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
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 — 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
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
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.
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
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
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
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)
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)
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
TORTS – Negligence – Motor accident – Whether collision between pallet loading machines caused injury – Whether concession of permanent impairment greater than 10% for the purposes of s 4.11 Motor Accident Injuries Act 2017 (NSW) gives rise to issue estoppels – Assessment of damages – Determining nature and extent of injuries caused by collision in light of competing factual and medical evidence – Appropriate reduction of future economic loss having regard to pre-existing degenerative changes
APPEAL – District Court – severity of sentence – intentionally/ recklessly damage or destroy property – accessory before the fact – knowingly participate in criminal group, by directing activities of the group, knowing or being reckless as to whether the participation contributes to the occurrence of criminal activity – parity
Practice and procedure – Security for costs – Application for security for costs – whether third defendant’s conduct was causative of plaintiff’s impecuniosity – whether an order for security for costs would stultify the proceedings – approach to quantum where proceedings at an early stage and role of the third defendant in proceedings unclear
JURISDICTION – whether District Court has jurisdiction or power to grant injunctive relief JURISDICTION – whether District Court lacks or may lack jurisdiction to hear and dispose of proceedings
CIVIL PROCEDURE — Parties — Vexatious litigants — Leave to institute proceedings — Proceedings commenced in contravention of order and injunction of Supreme Court of NSW — Plaintiff experienced litigant in person — Proceedings dismissed
Sentence – Sexual Intercourse Without Consent – historical sexual offending - Offending in 1991 – offender recently arrested – DNA match – Whether sentencing practices at time of offending or time of sentence should apply – serious examples of Sexual Assault.
CIVIL PROCEDURE – application for orders to allow testing and inspection of land per UCPR r 23.8 – identification of matters in question in the proceedings – to be determined having regard to pleadings and evidence on the Motion
MENTAL HEALTH — Criminal proceedings — Special hearing — Long unsatisfactory process of determining fitness to stand trial — Defendant in custody for two and a half years awaiting trial — Result is Defendant found to have committed offences and released immediately pursuant to s 10A EVIDENCE — Exclusion of evidence — Criminal proceedings — Ballistics Report served a week before trial in breach of mandatory pre-trial disclosure — No explanation for delay — Significant unfair prejudice to Defendant — Report excluded
CRIME - SENTENCE - discharged firearm with intent to cause grievous bodily harm - possess a shortened firearm without being authorised - possess a pistol without being authorised.
CIVIL – TORTS – NEGLIGENCE – OCCUPIER’S LIABILITY – Hotelier, Security Guards – P was injured at D1’s Hotel when she sought to assist a security guard who was being assaulted by another guest of the hotel (“POI”). D1 had an arrangement with D2 for it to provide security guards for its hotel. D2 supplied security guards who were employees of D3 but wearing D2’s uniform. Security guard being assaulted was an employee of D3. Hotel managers and security guards linked by radio. D1’s system required those on the radio link to listen for calls and respond promptly. Between Security Guard’s call for assistance and the assault there were 1min and 27 seconds. Slowest response time calculated by the Court was 17.3 seconds. If there were adequate response the guard who was assaulted could have been accompanied by one or more other guards. In those circumstances it was unlikely that P would need to come to his assistance. P unable to succeed against D1 as case not properly pleaded against it. P could not succeed against D2 as it was not vicariously liable for the negligence of D3’s employees. P proceeded against D1 and D2 but not against D3. P was 31 years old at time of injury to her right ankle (fractured). Graphic designer at time. Subsequently became a flight attendant. Damages assessed at $211,000.
CONSUMER LAW — False or misleading representations — Representations about goods or services CONSUMER LAW — Enforcement and remedies — Action for damages — Assessment of damages AGREEMENT – Breach COSTS — Gross sum costs orders
CRIME — sexual offences — sexual assault EVIDENCE — admissibility of DNA evidence — expert evidence — where alternative explanations for presence of accused’s DNA – relevance - probative value — danger of unfair prejudice
COSTS — application for portion of costs to be awarded on an indemnity basis – application for gross sum costs order INTEREST – application for pre-judgment interest on judgment sum
CRIME — Property offences — Aggravated break and enter with intent to commit serious indictable offence namely damage property whilst in company — destroy property by fire — carried in a conveyance without the consent of the owner — participated in a criminal group and contributed to criminal activity — matters on a s 166 certificate — SENTENCING — Relevant factors on sentence — Co-offenders — plea of guilty — committal for sentence
CIVIL PROCEDURE — Jurisdiction — Transfers to and from other courts – Civil Procedure Act 2005 (NSW) s 144(2) – transfer from District Court to Supreme Court
CIVIL – COMPENSATION – Redemption application – Finding that total hip replacement due to underlying condition, not arising out of or in the course of employment at a coal mine
CRIME – Sexual intercourse without consent – Sexual touching – Choking SENTENCING – Special circumstances – Offender abused as a child – Disadvantaged upbringing – Offender suffers from multiple mental health issues and intellectual disabilities – Interrelated offences of – Personal relationship between offender and complainant
CRIMINAL LAW - Costs application - Production of material under subpoena – Documents in subpoena not identified with adequate precision – Subpoena scope -The accused required to meet reasonable costs to defray expenses occurred by applicants to comply – No access sought to documents produced under subpoena – Accused’s position that there was no need for subpoena to be complied with – Accused anticipated he not be burdened with the obligation to meet reasonable costs of compliance - Compliance with subpoena would require disproportionate costs and time –- Reasonable compliance costs ––– Reasonable for the applicant to conclude they were obliged to comply with subpoena
CRIME — Break, enter and commit serious indictable offence — Offence being robbery SENTENCING — Aggravating factors — Elderly victim at home alone — Unnecessary and gratuitous violence — Significant planning and premeditation — Information as to Victim obtained by co-offender as serving police officer from exercise of a warrant searching the Victim’s home — Reaction of people on social media caused harm to victim over and above what ordinarily expected treated as an aggravating factor — Mitigating factors — Good character — Good prospects of rehabilitation and low likelihood of reoffending SENTENCING — Observation that analogy to concepts in equity of people knowingly involved in breach of trust being treated as a defaulting trustee is not appropriate when considering levels of culpability for the purpose of sentencing SENTENCING — Parity — Involvement in crime and subjective factors substantially different between co-offenders justifying disparity in sentences
CRIME — Violent offences — Demanding property with menaces — Joint criminal enterprise — Role of offender — Objective seriousness — Subjective case — Offers to plead guilty on certain facts SENTENCING — Relevant factors on sentence — Co-offenders — Parity — Comparison of involvement in joint criminal enterprise and level of culpability — Co-offenders sentenced on different facts and circumstances — Co-offenders received very lenient sentences, one of which can be explained, the other cannot — Application of parity principle in such circumstances
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty – prospects of rehabilitation TOTALITY PRINCIPLE – whether proceedings in a different court against a different entity but arising out of the same events ought be considered COSTS – capacity to pay – onus of proof – prosecutor’s costs
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – maximum penalty COSTS – prosecutor’s costs
BUILDING AND CONSTRUCTION — contract — payment claim – requirements of a payment schedule — whether a response to an invoice constituted a payment schedule
CONTRACTS – Formation – Identification of the contracting parties and terms of agreement – where discussions between parties and one party signs written document – LOAN CONTRACT – whether simple interest or compound interest payable on principal – appropriation of payments to principal and interest – CONTRACTS – Promise to pay part of debt – rule in Pinnel’s Case – no consideration – ESTOPPEL – Promissory Estoppel – reliance – detriment – estoppel not made out on facts
CRIME - SENTENCE - supply prohibited drug greater than the large commercial quantity - supply prohibited drug greater than the indictable but less than the commercial quantity.
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking a business or undertaking– risk of death or serious injury – maximum penalties COSTS – capacity to pay – prosecutors costs
TORTS — personal injury alleged to have occurred from an assault during incarceration – requirement for notice under ss 26Ba and 26BD of the Civil Liability Act 2002 (NSW) – whether the proceedings are out of time under s 50C of the Limitation Act 1969 – when the cause of action was discoverable – whether the proceedings are an abuse of process
SENTENCING — Federal offenders — Sentence by State court for offence against Commonwealth law SENTENCING — Penalties — Intensive correction orders — availability of intensive correction orders for Commonwealth offences CRIME — Federal offences — vaping and tobacco related offending
BUILDING AND CONSTRUCTION — contract — termination — repudiation — prevention principle — where property owner refused entry to builder — rectification of defects
SENTENCING – Aggregate sentence imposed for multiple offences of aid and abet importation of border controlled drugs – One offence of attempt to obtain possession of border controlled drugs
Customs and excise — Customs prosecutions — Moving goods subject to Customs Control against s 33 Customs Act — Aiding and Abetting — Goods unknown Customs prosecutions — Consideration on Penalty — No assistance provided to authorities — Absence of contrition —No submissions made by Defendants — Penalties of $50,000 and $40,000 imposed — Costs
COSTS — Award of Indemnity Costs — Calderbank Offer — Whether a genuine offer — Whether unreasonable not to accept offer — Plaintiff cases destined to fail
CONTRACTS — Construction — Implied terms — Terms implied in fact — Consistency with express terms of contract — Requirements for implication — Obviousness —Terms implied in law — Requirements for implication EMPLOYMENT AND INDUSTRIAL LAW — Contract — Terms — Implied terms
SENTENCING – Supplying not less than a large commercial quantity of methylamphetamine – Quantity of 994.6g – Offender’s vehicle stopped at 1:40am in Broken Hill – Contradictory versions between Offender and wife prompted search of vehicle – Small amount of methylamphetamine and $14,000 cash located – Interior carpeting of vehicle peeled away, revealing four vacuum-sealed bags of almost 250g methylamphetamine each – Offender’s fingerprint inside packaging and matching vacuum-seal bags found in vehicle SENTENCING – Role of offender – More than a mere courier – Background of deprivation – Traumatic childhood in Vietnam – Boat refugee to Indonesia, then time spent in a refugee camp – Arrived in Australia with little English – Physical discipline in family home – Poor mental health – Self-employed as an auto electrician for many years – Developed an addiction to methylamphetamine and began gambling – Previous criminal offending of a different type – Alleged non-exculpatory duress – Non-exculpatory duress not made out
COSTS — Security for costs — Relevant factors — Impecuniosity of cross-claimant — Jurisdictional requirement established COSTS — Security for costs — Relevant discretionary factors — Likely cost of proceedings —Costs are disproportionate to the importance and complexity of disputed subject matter — Would an order stifle the cross-claim — Undesirable to fracture proceedings — Discretionary decision not to order security for costs COSTS — Who wins out of this litigation — Whether to wager $1,000,000 in legal costs for a judgment for about a quarter of that amount, at most — Possible pyrrhic victory with no monetary outcome — Parties need to sit down and reach a solution now, not after the end of a protracted and expensive hearing — litigating in Little Gidding
CRIMINAL LAW – Manslaughter – Death from impact between dislodged truck load and another vehicle – Pre-trial ruling upon whether there exists a “Manager Duty” – Scope of the duty owed by transport business manager to road users.
BUILDING AND CONSTRUCTION – security of payment – validity of service of payment claims – Building and Construction Industry Security of Payments Act 1999
CRIME – prosecution – work health and safety – breach of duty owed by person undertaking business and an officer to a worker WORK HEALTH AND SAFETY – fall into unguarded conveyor chute – likelihood of risk occurring – risk of workers falling on loose rocks into unguarded chute- category 1 offence –– gross negligence – category 2 offence – strict liability – breach of s 19(1) duty – breach of s 27 duty – failure by an officer to exercise due diligence to ensure compliance with corporation’s duty – failure by mine operator to implement and enforce safety management system required by a mining regulations and to keep it up-to-date– failure by managing director to supervise and adequately fund the implementation of the safety management system – failure to maintain and upgrade emergency stop controls in accordance with the Australian Standard
CRIMINAL LAW – prosecution – work health and safety – breach of duty by persons undertaking business and officers to worker and other person - death of skydiving instructor and student SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine - appropriate penalty SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of worker SENTENCING - objective seriousness - deterrence - aggravating factors - appropriate penalty SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities
CIVIL PROCEDURE — Pleadings — Striking out — Abuse of process – allegation that statement of claim was filed for the predominant purpose of obtaining evidence CIVIL PROCEDURE — Subpoenas — Application to set aside – allegation that subpoenas had been issued as a substitute for discovery and for an improper purpose
CRIMINAL LAW- Costs application – Sexual Assault Offences allegedly committed during marriage – 2 alleged episodes of non-consensual digital anal penetration on the same occasion with consensual penetrative sexual intercourse occurring in between both episodes – events allegedly occurring 2017/18 – lack of complaint by complainant in Family Law consent orders after separation – 2 years later complaints made when older child elected to live with accused and further Family Law proceedings – numerous Instagram and SMS communications subsequent to allegation including explicitly sexual matters – other inconsistent and vindictive conduct towards accused and his new partner – positive good character witnesses called by accused – facts of alleged indecent assault illogical and incredible – complainant substantially lacking in credit.
CIVIL PROCEDURE – dismissal of defendant’s application for stay of enforcement of judgments entered pursuant to the Building & Construction Industry Security of Payments Act 1999 (NSW)
BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — assessment of damages following default judgment RESTITUTION — Mistake — Restitution of money paid – assessment of amount payable
CRIME – SENTENCE – Knowingly take part in supply of commercial quantity of methylamphetamine – Knowingly deal with proceeds of crime ($24,950) – Offender 70 years of age – Fulltime custodial sentence imposed.
CRIME – SENTENCE – meet/travel to meet child groomed for sexual activity – 2 x aggravated sexual intercourse child >=14 & <16 years - registerable person order
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of officers – risk of death or serious injury – disputed facts 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
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – other persons 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 – whether the defendant’s failures were a significant and substantial cause of exposing the person to the risk – no novus actus interveniens OTHER – whether person is a worker or other person – whether an alternative charge must be considered – if primary charge succeeds the court need not consider alternative charge
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – where there are concurrent duty holders – whether contractors were agents of the defendant under s 244 of WHS Act OTHER – bucket elevator conveyor maintenance – conveyor went into an uncontrolled free run – fluid coupling failed – explosion of metal debris struck worker on head – failure to stop work and conduct an updated risk assessment when a change in work process was identified
CRIMINAL LAW – application for costs certificate – sexual offences alleged committed against 13 year old girl – whether complainant, as witness, was ‘very substantially lacking in credit’
DEFAMATION – three lengthy social media podcasts and X posts over a 10-day period – imputations that the plaintiff engaged in criminal activity including paedophilia and abuse of children, was the leader of an international criminal and paedophile cult and had perjured himself in legal proceedings – application by second defendant for preliminary rulings on serious harm – evidence of thousands of listeners and readers – matters remained on the social media site for an extended period – evidence of grapevine effect in the form of publications on other podcast and social media sites – whether serious harm findings should be the subject of a ruling now, at a later interlocutory stage, or at the trial – parties with limited financial means – desirability of early trial – serious harm findings made in the context of an early trial hearing date being set PRACTICE AND PROCEDURE – impact on case management of second defendant’s submissions referring to non-existent and/or misstated judgments and legal principles, in breach of District Court General Practice Note 2 Generative AI Practice Note
LEASES AND TENANCIES — Retail leases — Assignment – extend to which assignor is bound by provisions of lease and other agreements – failure to pay rent and other charges under the lease and other agreements – make good costs after termination – allegations of disturbance under the Retail Leases Act 1994 (NSW) – whether Covid-19 rent relief claimed – eligibility to claim – tenant’s claim for ‘equitable set-off’ GUARANTEE AND INDEMNITY — Actions to enforce guarantee — claim that guarantee is unenforceable LAND LAW — claim of fraud under the Real Property Act 1900 (NSW)
SENTENCING — 15 Break, enter and steal offences — 37 Form 1 matters — Stealing from commercial premises with deliberate operational mode to avoid interaction with any person — Motivation to fund drug habit — Early guilty plea, 25% discount — Mitigating factors — Rehabilitation — Positive engagement with Drug Court Compulsory Drug Treatment program — Aggravating factors — Breach of conditional liberty — Offences committed while on bail — Relevant factors on sentence — Multiple offences — Aggregate sentences — Totality — Offender serving existing sentence with related or unrelated offences — Adjustment of non-parole period — Finding of special circumstances SENTENCING — Backdating — Offender arrested also for related offending and serving existing sentence for related or unrelated offending
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 – parity COSTS – prosecution costs – reserved costs of interlocutory application OTHER – fall from height – slip while climbing down the outside of scaffold – unprotected edges – no site-specific SWMS – unsafe entry to roof – access to roof without appropriate safety measures in place – failure to assess safety of scaffold
COSTS — application for costs when the question of liability has been tried and the question of quantum is pending – costs of third party cross-defendants where cross- claim unsuccessful
CRIME – Sentencing – Guilty verdict following jury trial in Broken Hill – Inflict grievous bodily harm with intent to cause grievous bodily harm – Altercation between two brothers – History of violence by and between brothers – Excessive self-defence – Stabbing – Life threatening injury – Tourniquet applied in course of medical evacuation to Adelaide – Left leg ultimately amputated above the knee
CRIME – Judge alone trial – Intentionally destroy property by fire – Intentionally destroy dwelling with intent to endanger life – Arson offences – Vehicle ignited by balaclava clad assailant – Complainant interrupting criminal conduct – Assault – Explosion igniting housefire – Petrol accelerant detected – House and vehicle destroyed – Identification evidence –Petrol soaked clothing located in accused’s residence during search warrant – Burn balaclava and jacket located under accused’s veranda during search warrant – Accused suffered burns – Verdicts of Guilty
CRIME – SENTENCE – Question of level of seniority in drug syndicate – Commonwealth and State Aggregate Sentences – Excellent prospects of rehabilitation – Enlivenment of Bugmy principles
SENTENCING — Serious example of intimidation and knife offences — Relevant factors on sentence — Mental health of Offender — Deprived background — Poor criminal history — Prospect of appropriate treatment low — Protection of community given significant weight — Offender already institutionalised — Limitations in criminal justice system dealing with Offenders suffering mental health issues in an appropriate way
CIVIL – Notice of motion - Application to adjourn hearing – Hearing listed to commence on Monday, Motion filed on Friday prior – Plaintiff and key witness advanced in age – Application inimical to interests of Plaintiff – Application refused
TORTS – Battery – False imprisonment – Alleged unlawful search – Consent to search under s. 34A Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA) – Consent to search under the common law – Power to search under s. 23(1) and s. 21 LEPRA
CONTRACTS – Formation – Agreement – Intention to make concluded bargain – Oral agreement with agreement to prepare a written contract – PERSONAL GUARANTEES – oral guarantee – no need for writing
CRIME — Driving offences — Negligent driving causing death — Negligence particularised as failing to keep proper lookout — Accused did not see 83-year-old lady pedestrian until moment before impact — No direct evidence of what the deceased was doing prior to impact — Inferences — Competing inference reasonably open — Accused account — No reason not to accept — Consistent with all other evidence — Verdict of not guilty CRIMINAL PROCEDURE — Trial — Section 166 Criminal Procedure Act 1986 — Matter referred to District Court as “back-up charge” to dangerous driving causing death — Jury acquitted Accused of dangerous driving — Hearing before judge on negligent driving causing death on same evidence as was put before the jury
SENTENCING — Wound with intent to cause grievous bodily harm — Relevant factors on sentence — Moral culpability of Offender — Deprived background — Strong subjective case — Offender diagnosed with Autism Spectrum Disorder and Post-Traumatic Stress Disorder — Factual findings made consistent with jury’s verdict — Offender subjectively believed that stabbing the victim was reasonably necessary to protect himself but objectively his response was not reasonable — Approach to sentencing when finding is “excessive self-defence”
PROFESSIONAL NEGLIGENCE - legal - advice in connection with execution of will - whether failure to explain possibility of severance of joint tenancy - whether duty of care owed to deceased’s child – disappointed beneficiary OCCUPATIONS — Legal practitioners — Solicitors — Professional negligence NEGLIGENCE — Causation — Loss of chance NEGLIGENCE — Essentials of cause of action — Accrual of — When damage suffered WILLS AND ESTATES - whether terms of will reflected instructions of testator - evidence of instructions
TORTS – false imprisonment – wrongful arrest – arrest without warrant under s 77(1) of Bail Act 2013 (NSW) – where Plaintiff’s bail conditions were incorrectly recorded on the COPS database – where arresting officer relied on the COPS database in forming a belief that Plaintiff had breached his bail conditions – whether arresting officer’s belief that Plaintiff had breached his bail conditions was held on reasonable grounds – whether arresting officer considered each of the matters in s 77(3) – lawful justification defence TORTS – assault – battery – where Plaintiff lawfully arrested – whether Plaintiff was handcuffed in front or behind his back upon arrest – whether Plaintiff was handcuffed whilst detained in a dock/cell – where Plaintiff refused to give police his shoelace – whether use of force was reasonably necessary TORTS – false imprisonment – wrongful arrest – arrest without warrant – plaintiff arrested by police for “intimidate police” where he was seen to be “filming” an officer’s private vehicle entering the police station – whether the arresting officer had reasonable grounds to suspect the Plaintiff had committed an offence – whether arresting officer had formed a contemporaneous intention to charge the Plaintiff with an offence – no lawful justification defence TORTS – assault – battery – where Plaintiff unlawfully arrested – where arresting officer firmly grabbed Plaintiff by the arm led him to the police station DAMAGES – compensatory damages – aggravated damages – not a case for exemplary damages
CRIME - SENTENCE - possess child abuse material - use carriage service to access child abuse material on three or more occasions involving two or more people - minimum term of imprisonment applicable for Commonwealth offence.
SENTENCING – Drug offences – Supplying less than a commercial quantity of a prohibited drug – Participating in a criminal group involved in supplying a prohibited drug – Dealing with proceeds of crime – Attempting to possess a large commercial quantity of a prohibited drug – Cocaine – Related offences – Possessing an anabolic or androgenic steroidal agent – Possessing ammunition without holding a licence, permit, or authority SENTENCING – No criminal history – Comparatively lesser role and length of time involved in criminal group than co-offenders – Acting under the direction of another – Parity – 10% discount for utilitarian value of plea – Rehabilitation during extended period on bail SENTENCING – Pre-sentence custody of 1 year and 7 months followed by 1 year and almost 5 months on bail – Head sentence of over 3 years – Consequent requirement for the State Parole Authority to make a parole determination, rather than automatic release to statutory parole on expiry of non-parole period (as with sentences under 3 years) – Offender required to enter into custody despite non-parole period expiring and intention that he be immediately released to parole
SENTENCING – Sentence following jury’s verdicts of Guilty – Sexual intercourse without consent– Intentional choking – Offending arising from two separate incidents with two separate victims – Sex workers – First victim was a “sugar baby”, met offender in hotel – Non-consensual penile-anal intercourse – Second set of offences occurred whilst on bail for first set of offences – Second victim was a masseuse at an erotic massage parlour – Forceful non-consensual penile-vaginal intercourse and digital penetration – Both victims physically restrained or pinned down – Both victims crying, asking to stop repeatedly while offender continued SENTENCING – Offender aged in mid-late 60s, several physical ailments – Mental health issues – First time in custody – No prior criminal history – Offences committed whilst on bail
CRIME — Sentencing — Recklessly cause grievous bodily harm — Objectively serious unprovoked assault — Victim suffered significant injuries — Early plea — Mental health of Offender — Contested diagnosis of schizophrenia — Deprived childhood — Poor criminal history — Homeless — Prospect of appropriate treatment low — Protection of community given significant weight — Limitations in criminal justice system dealing with Offenders suffering mental health issues in an appropriate way
CRIME – Appeal and review – Appeal from Local Court to District Court – by person sentenced against sentence – ICO not stayed – appellant not subject to conditions of ICO – time spent on ICO must be taken into account CRIME – domestic violence – Appeal against final ADVO
CRIME – prosecution – work health and safety – breach of duty by persons undertaking business and officers to worker and other person –death of skydiving instructor and student TRAFFIC LAW AND TRANSPORT – Civil Aviation – regulation of parachuting activities by Australian Parachuting Federation – regulation of modification to aircraft – issuing of engineering orders by qualified aircraft design engineer – mandatory buddy checks WORK HEALTH AND SAFETY – risk of parachuting equipment snagging on modified aircraft step – likelihood of the risk occurring – reasonable foreseeability of breach of Civil Aviation Regulations by experienced Jump Pilot and Chief Instructor – breach of s 19 duty – reasonably practicable steps to eliminate or minimise the risk – obligations of person conducting business in a highly regulated industry – breach of s 27 duty – failure by an officer to exercise due diligence to ensure compliance with corporation’s duty – causation – whether an engineering order would have been issued – obviousness of the hazard – drug-related impairment – significant or substantial causes of exposure of an individual to a risk of death or serious injury
CRIME – SENTENCE – Pleas of guilty – Successful completion of drug rehabilitation course despite criminal history – Prospects of rehabilitation excellent – 3 year ICO
SENTENCING — Federal offenders — Sentence by State court for offence against Commonwealth law — Attempt to import a commercial quantity of a border-controlled precursor — Recklessness — s 16BA Taking other offence into account — Subjective considerations on sentence — Qualified Remorse — Guilty plea on first day of trial — 7% discount — Compromised mental acuity — Imprisonment more onerous — Effect of sentence on the Offender's family — Dependant son with significant mental impairments — Non-parole period — Special Circumstances — Favourable prospects of rehabilitation
CIVIL PROCEEDINGS – Felons (Civil Proceedings) Act 1981 – leave to commence civil proceedings – whether there is a prima facie ground for the proceedings – abuse of process – advocate’s immunity
COSTS – whether indemnity costs should be awarded against Plaintiffs on basis of Calderbank principles – whether reasonable not to accept settlement offers COSTS – whether costs of successful Defendants should be disallowed or discounted because of abandonment of issues and evidence at trial
NEGLIGENCE — causation — loss of chance — solicitor negligence — where settlement by Deed did not include a personal injuries claim — where decision to not make a personal injuries claim was advertent
TORTS — trespass to the person — assault — battery — laceration and scarring — pain and suffering — future economic loss — aggravated damages — where defendant abandons defence — general damages — assessment of damages
CIVIL PROCEDURE – application for permanent stay or dismissal of proceeding – abuse of process - indemnity dispute following storm event – rectification works occur following institution of proceeding – suggested ‘destruction’ of evidence after commencement of a proceeding – insurer contends that the works unfairly prejudices its defence – whether test for abuse of process distinct for categories of case involving deliberate destruction of evidence in a pending proceeding – whether an abuse of process committed – whether the appropriate remedy is an order for dismissal or stay
CIVIL PROCEDURE — Notices to produce — Before hearing — Relevant to a fact in issue CIVIL PROCEDURE — Court administration — Case management — Practice Notes – Use of Generative Artificial Intelligence
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
CONTRACTS — Breach of contract — Goods sold and delivered — Director of company liable due to guarantee — Defence goods not collected — Plaintiff case supported by contemporaneous business records and subsequent promises to pay disputed invoices
CRIME — Drug offences — Supply prohibited drug — Commercial quantity — Young person involved in “dial-a-dealer” criminal network — Deal with proceeds of crime — Firearms offences — Offender reckless being in possession of firearms SENTENCING — Relevant factors on sentence — Bail conditions as quasi-custody — Deprived childhood — Limited remorse or insight — Guarded prospects of rehabilitation and reoffending — Youth of Offender — Intensive Corrections Order — Community safety paramount — Strict conditions imposed
CRIMINAL LAW – CONVICTION APPEAL A found guilty of Common Assault. All four elements of common assault proved beyond reasonable doubt. A sought to justify pushing C out of her path on the basis that C was obstructing the footpath and/or in self-defence. Obstructing the footpath is a criminal offence. That did not give A the right to commit an offence. C was merely standing on the footpath talking to someone else. C offered no threat to A. No defence of self-defence available.
CRIME — Appeal and review — Appeal from Local Court to District Court — By person convicted against conviction — By person sentenced against sentence — With leave following plea of guilty — Evidence not before Magistrate — Mental Health SENTENCING — Appeal against sentence — Fresh or new evidence — Mitigating factors — Not fully aware of the consequences of his or her actions because of the offender’s age or any disability — Subjective considerations on sentence — Mental illness — Penalties — Dismissal of charges and conditional discharge of offender
COSTS – plaintiff recovers relatively small monetary judgment – defendant made rules offers – whether extant costs order should be varied to reflect the outcome in the proceeding COSTS – whether, in the event the plaintiff receives a partial costs order, such costs should be capped – whether requirement that applicant seeks declaration COSTS – defendant’s application for partial order for indemnity costs – whether plaintiff’s rejection of offers was unreasonable – whether unreasonable for plaintiff to have rejected defendant’s settlement offers – defendant’s application for gross sum costs order
CONTRACT – construction of commercial contract for supply of internet search engine optimisation services – where defendant failed to cancel contract within time for cancellation – whether plaintiff repudiated contract – whether defendant validly terminated contract – whether defendant induced to contract as result of misleading or deceptive conduct of the plaintiff – whether defendant permitted to re-open its case after close of evidence
TORT – defamation – defence of contextual truth pursuant to s 26 Defamation Act 2005 (NSW) – plaintiff brings application to plead additional imputation and to strike out contextual imputations – application to strike out contextual imputations abandoned – plaintiff brings application to “plead back” defendants’ contextual imputations – defendants consent conditionally upon the preservation of their entitlement to continue to rely upon the contextual truth defence already pleaded – leave granted conditional upon the defendants’ continued preservation of the contextual truth defence
SENTENCING – child sexual assault – whether offender has intellectual disability and likely developmental disorders – extent to which, if at all, Bugmy and De La Rosa principles are engaged
CRIME — Child sex offences — Child abuse material — Dissemination CRIME — Possession of bestiality material SENTENCING — Mitigating factors — Plea of guilty
COSTS — Security for costs — Discussion of whether threshold reached under UCPR or Corporations Act — Question of unwillingness or inability to satisfy a future costs order
APPREHENDED VIOLENCE ORDER – appeals and reviews – dismissal of criminal charges against the appellant on domestic violence related offences – appeal against decision of Magistrate to make final Apprehended Domestic Violence Order against appellant – Crown applies to rely upon evidence of part of a DVEC that was not in evidence in the criminal proceeding – whether in interests of justice to permit Crown to rely upon fresh evidence and (if so) to allow appellant to give fresh evidence of events occurring after ADVO is made
TORTS – Negligence – Occupiers liability – Trip and fall on services cover in common area of shopping centre – CONTRIBUTORY NEGLIGENCE - assessed at 25% – DAMAGES – Non-economic Loss – Past economic loss
CRIME — Sentencing — Driving offences — Dangerous driving occasioning death — 18-year-old unlicenced offender — High speed cause of single vehicle rollover — Offender’s best friend killed — Offender substantially injured — Offender remorseful SENTENCING — Relevant factors — Objective seriousness of offending — Discussion concerning descriptions “momentary inattention” and “abandonment of responsibility” — Very little known about context of offending — Objective seriousness and moral culpability assessed as in lower end of range — Notwithstanding earlier Children’s Court conviction of reckless driving SENTENCING — Relevant factors — Impact on victim and family — General and specific deterrence — Prospects of reoffending and safety of community — Youth SENTENCING — Subjective considerations on sentence — Discussion re: finding of alcohol in offender’s blood — No basis to conclude a factor in offending — Discussion re: notion of extra-curial punishment — Injuries to Offender at least relevant to consideration of prospects of reoffending SENTENCING — Penalties — Section 5 threshold satisfied — Aggregate term of 3 years imprisonment SENTENCING — Penalties — Intensive Correction Order — Giving community safety paramountcy — Appropriate to order sentence served in the community on strict conditions
CIVIL PROCEDURE — Summary dismissal — Finding that Plaintiff’s claim doomed to failure because of clear defence based on “Advocate’s Immunity” and damages claim wholly misconceived — Clear case for summary dismissal CIVIL PROCEDURE — Advocate’s immunity — Applies where advocate acts contrary to instructions
CONTRACTS — Breach of contract — Alleged oral contracts to lend money between people who were romantically involved — Onus of proof of repayment on Defendant — Central issue is Defendant alleges that $400,000 was handed over to the Plaintiff in black bags in part to repay a debt and in part to hold safely — Defendant’s evidence rejected — Defendant failed to discharge onus to prove repayment and Plaintiff succeeds in proving outstanding loan
SENTENCING — Domestic violence — Multiple serious examples of domestic violence offending — Victims are Offender’s partner and 7-year-old child — Some offending in breach of ADVO — Some offending whilst on Community Corrections Order for common assault and breach of ADVO — One count of seek to influence witness in court proceedings — Being alleged victim of domestic violence offences SENTENCING — Subjective considerations on sentence — Statements of remorse not accepted — Finding of lack of remorse and insight — Prospects of reoffending significant — Difficult childhood probably engaging Bugmy principles — 25% discount for early plea of guilty
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty COSTS – prosecution costs OTHER – fall through fragile skylight – hospitality worker assisting with roofing works – no formal working at heights training or site-specific safety induction training – no risk assessment – no SWMS – no skylight covers – no edge protection – no supervision by a qualified person