CRIMINAL PROCEDURE – stay of proceedings - permanent – cognitive impairments – whether defendant fit to be tried – Presser Test – whether defendant suitable for diversion under s 32, Mental Health (Forensic Provisions) Act 1990
APPLICATION - Appeal to Local Court against decision of RMS to extend interlock compliance period - extension of interlock licence condition – positive alcohol readings caused by prescribed medication – appealable decision – appeal upheld
SENTENCING – particular offences – supply prohibited drug – guilty plea prior to committal – statutory sentencing discount for guilty plea – mid-range objective seriousness- impact of prior criminal record as aggravating factor – deprived of leniency on sentence - relevant to prospects of rehabilitation – drug addiction – participation in treatment and rehabilitation programs – no other alternative than sentence of imprisonment – aggregate sentence – to be served by way of intensive correction order
CRIMINAL LAW - Application for annulment convictions, s 4 Crimes (Appeal and Review) Act 2001 – circumstances in which applications are to be granted – whether applicant hindered by accident, illness, misadventure or other cause – whether application should be granted in the interests of justice – evidentiary standard of proof – meaning of the word “satisfied” for the purposes of s 8 Crimes (Appeal and Review) Act (NSW) 2001
CRIME- Summary offences - Inclosed lands – relevant area open to public as thoroughfare – banning notice – time limitations on banning notice – move on direction – powers of licensee to ban person
CONTRACTS - whether works were residential building work or supply of related services in relation to construction work - terms of contract – applicable legislation CIVIL PROCEDURE - pleadings – striking out
CRIMINAL PROCEDURE – commencing proceedings - whether Attorney General’s consent validly given to prosecution of the particular offences before the court - whether delegation by Attorney General to Solicitor General was invalid - whether instrument of delegation invalid on the words of instruments for lack of specificity - whether authorisation of the prosecution validly made - whether proceedings not validly commenced by Attorney General such that there is no jurisdiction
CRIMINAL PROCEDURE – Application under section 45 of Crime Commission Act 2012 – Application for access to confidential transcripts of compulsory evidence given by witnesses to Crime Commission - whether evidence given before the Crime Commission should be provided to the parties in a criminal trial – whether interests of justice so require – relevant considerations – where Crime Commission objects – submissions taken in the absence of accused persons and their lawyers - in camera submissions taken from lawyers for interested parties (witnesses before the Commission)
CONTRACT - Formation of contract – offer and acceptance – terms contained in attachment to an email – whether terms brought to attention of recipient – whether a legally binding agreement
CRIMINAL LAW - filming person in private act without consent - using carriage service to transmit material that was offensive - word on word allegations
RESTITUTION - Funeral expenses - claim for travel costs for transport of deceased ashes - executor’s legal rights and obligations - executor’s duties to the deceased body and funeral arrangements - dispute between former wife and adult daughter
APPLICATION – Special Jurisdiction – application for removal of drive licence disqualification period – meaning of relevant offence free period – offence committed outside relevant period - date to be used for calculation of relevant threshold for making application - whether date offence committed or date of conviction applies – date of conviction not impediment to making of application, however date of conviction relevant to whether Local Court can exercise power to remove disqualification
CRIMINAL – Sentence – Commonwealth offences - providing false and misleading information to a Commonwealth agency – using a false document to mislead a Commonwealth agency – electoral roll - consequences of offending – top of scale of criminality – extra-curial punishment – media notoriety – injury, loss or damage – loss suffered by community - contrition or plea – partial admission of guilt and apology for some offences - mental illness – diagnosis of bi-polar disorder – unclear whether disorder had developed at time of offending – yet to obtain treatment – satisfied only full-time custodial sentence appropriate
CRIME- Sentencing – Radiation Control Act 1990 (NSW) - section 6(6) – nine offences of corporation failing to ensure regulated material is used by licenced person – regulated material used on children – objectives of Radiation Control Act 1990 (NSW) – proportionality – assessing objective seriousness of each crime against the maximum penalty – role of jurisdictional maximum of Local Court in sentencing exercise – totality –offences committed for financial gain – purposes of sentencing – requirement of sentence to reflect general and specific deterrence and denunciation
CRIME – Sentencing – incite an aggravated act of indecency – aggravated indecent assault – victim under age of 16 - historical child sex offences – offender victim’s stepfather at time of offending - committed in victim's home – breach of trust – vulnerable victim - offending behaviour above mid-range of objective seriousness - utilitarian value of guilty plea – court required to sentence according to current community standards – special circumstances – offender’s age and health - sentence of imprisonment imposed
CRIME – Sentence – Assault Occasioning Actual Bodily Harm in Company – Possess Prohibited Drug – utilitarian value of guilty plea – previous criminal record - substance abuse – possible underlying mental health issues – no medical report - section 5 threshold crossed – Intensive Corrections Order not appropriate – sentence of full-time imprisonment imposed
CRIMINAL LAW – Particular offences – Driving offences – Driver license disqualification in another jurisdiction – Cancellation of driver license in NSW – Operation of section 207 Road Transport Act 2013 – whether a “decision” by Authority – whether “appealable decision” - whether right of appeal to Local Court under section 267 of Road Transport Act 2013
CRIMINAL LAW – Particular offences – Miscellaneous offences and matters – Disrespectful behaviour in court - meaning of disrespectful behaviour in court - whether failure to stand for Judge in District Court proceedings is disrespectful behaviour in court according to established court practice and convention - freedom of political communication implied by Commonwealth Constitution - whether effectively burdened - if the freedom is burdened, whether law valid - whether law invalid pursuant to Chapter III of the Commonwealth Constitution - whether law inconsistent and invalid pursuant to section 109 of the Commonwealth Constitution
CRIMINAL – Sentence – Commonwealth offences - providing false and misleading information to a Commonwealth agency –above mid-range of seriousness - reliability of electoral roll affected - damage flow to democratic electoral system - guilty plea - utilitarian value - sincere remorse and contrition - reduced need for personal deterrence - custodial sentence appropriate - probable effect of sentence on family - exceptional hardship made out - health conditions of young children - ordered to enter in to recognizance
CONSUMER CREDIT - Credit hire agreement – claim for hire costs of replacement vehicles – actual and temporal loss - type of vehicle - entitled to recover the cost of hiring a replacement vehicle to the extent reasonable to incur expenditure – what is reasonable to meet needs - rate of hire – credit hire agreement does not represent market rate
DAMAGES - Motor vehicle collision - assessment of damages - diminution of value - plaintiff seeks award for diminution of value in addition to the cost of repairs – assessment of diminution
CRIMINAL LAW - Particular offences – Property offences - Dishonestly obtain property by deception – false workers compensation claims – offender not employed – offender not injured – degree of planning – course of criminal conduct – further criminal conduct to dishonestly obtain benefit from second insurer – quantum of loss – consideration of parity issues – need for general deterrence – need for specific deterrence – assumption of sentencing outcome by parties – suspended sentence inappropriate sentencing option
CONTRACTS – Terms - exclusive jurisdiction clause – plain meaning of words within an exclusive jurisdiction clause to operate in commercial contracts – purpose of an exclusive jurisdiction clause the determination of all disputes in a single jurisdiction
CRIMINAL LAW – Sentence – Dishonestly obtain financial advantage by deception - relevant factors – prior history criminal offending – abuse of position of trust – offence involved a degree of planning – committed for financial gain - defendant diagnosed with substance abuse disorder, addictive disorder, and adjustment disorder – impact on former employer – discount for utilitarian value of guilty plea – no other sentence other than imprisonment appropriate – appropriate sentence exceeds jurisdictional limit - effectively removes alternatives to full-time imprisonment from consideration - fact Court determined a sentence beyond the general applicability of alternatives but is constrained by the jurisdictional limit does not re-activate their respective applicability - not appropriate to adjust sentence to bring within parameters of a legislative option if conduct and circumstances would not otherwise justify such an outcome – special circumstances – compensation for loss
CRIMINAL LAW – Sentence – Recklessly inflict grievous bodily harm – domestic violence offence – ferocious violence - excess consumption of alcohol - subjective factors – defendant no memory of offence - psychological reports – speculative conclusions – offender otherwise person of good character – offending behaviour out of character – good prospects rehabilitation – contrition and remorse – mid-range objective seriousness – DPP chose not to elect to have matter dealt with in District Court where full range of sentencing powers available – appropriate sentence exceeds jurisdictional limit of Local Court – general deterrence – adequacy of punishment – accountability – denunciation of domestic violence offence – no other alternative than sentence of imprisonment
CRIMINAL LAW – Procedure – Leave to dispute agreed facts – plea bargain - Evidence Act not applicable – offender bound by conduct of counsel – offender aware of factual issues for years – disputed facts not raised in timely manner – interests of justice – procedural fairness – desirability for finality of proceedings– evidence not given by defendant – difficulty in assessing untested assertions – onus of proof on party seeking leave – leave refused
CRIMINAL LAW – Miscellaneous powers of courts and judges - application for dismissal following withdrawal pursuant to s 208 of the Criminal Procedure Act 1986 – whether abuse of process – accused’s submissions misconceived and must fail CRIMINAL LAW – Costs – whether the investigation has been conducted unreasonably or there has been an unreasonable failure to investigate a relevant matter suggesting the accused might not be guilty - whether it is otherwise “just and reasonable” to award costs – application refused
CRIMINAL LAW – Sentencing – assault with an act of indecency – historical offences – offender juvenile at time offending – committed in victim's home – breach of trust – towards upper level of objective seriousness - prior good character - unlikely to reoffend – good prospects of rehabilitation – utilitarian value of guilty plea – mistake to assume proceedings would have been dealt with in children’s jurisdiction – at odds with current authority – court must approach sentencing on basis of penalties which existed at time of offending, and prevailing sentencing patterns and procedures – sentence of imprisonment imposed - suspended on condition that offender enter bond for each conviction
CRIMINAL LAW - Fitness to plead or be tried - cognitive impairments - sexual offending - Local Court jurisdiction - appropriate order - permanent stay - diversion pursuant to section 32
CRIMINAL LAW – sentencing – cybercrime –offences committed while subject to an intensive correction order for other offences - effect of delay on sentencing – weight to be given to self-serving and untested statements in psychologist report
EVIDENCE – tendency evidence – allegations of indecent assault upon children and possession of child abuse material – whether possession of child abuse material demonstrates a tendency to be interested in children in a sexual manner and obtain sexual gratification from children
CRIMINAL LAW – self-administer drug with intent to procure own miscarriage – s 82, Crimes Act 1900 – whether miscarriage or abortion a necessary outcome to ground the element of intention STATUTORY INTERPRETATION – meaning of ‘miscarriage’ and ‘abortion’
CRIMINAL PROCEEDINGS – drive with illicit drug present in blood – positive test to cannabis – defence of honest and reasonable mistake of fact – availability
CIVIL PROCEEDINGS – Debt recovery – jurisdiction of Local Court when cause of action or defendant out of state – whether material part of cause of action arose in New South Wales – assignment of debt merely passing interest to assignee – no jurisdiction to determine proceedings
CRIMINAL LAW - Particular offences - Driving offences - Dangerous driving – Grievous bodily harm – furious driving part of dangerousness – exceeding the speed limit – abandonment of responsibility as a driver – not momentary inattention – multiple victims – conditional liberty – poor driving record – matters on Form 1 – bonds revoked – need for general deterrence – need for specific deterrence – severe injury requires retribution in sentencing – special circumstances
CRIMINAL LAW – Sentencing – particular offences – dangerous driving occasioning death – failure to keep a proper lookout – negligence more than momentary inattention - factors relevant to sentencing – degree of moral culpability – impact on community and victim – need for general deterrence- prior good character - plea of guilty – remorse – sentence other than imprisonment appropriate – suitable for community service
SENTENCING - intimidation – remain in building with intent to commit an indictable offence – armed with intent to commit an indictable offence – home invasion – objective seriousness – drug addiction not mitigating factor other than in exceptional case – intensive correction order – suitable for order but order not appropriate – purposes of sentencing – special circumstances
CRIMINAL LAW – sentence – dishonestly obtaining financial advantage by deception – assessment of objective seriousness – victim organisations role in offending – assistance to authorities – voluntary disclosure of guilt – treatment by media as extra curial punishment – disposition without recording a conviction.
CONTRACTS - rental agreement - failure of consideration - Australian Consumer Law - acceptable quality - fitness for purpose - sale of goods by sample.
APPLICATION PROCEEDINGS – disposal of property seized by police - competing applications for disposal of motor vehicle – s 219, Law Enforcement (Powers and Responsibilities) Act 2002
COMMITTAL PROCEEDINGS – application by media for access to court documents – material played in open court - uplift and copy access sought – broadcast for purpose of giving a fair report of proceedings – potential for prejudice to fair trial of accused
SENTENCE – possess unauthorised firearm – possess prohibited weapons – possess prohibited drug – Form 1 offences – general principles regarding sentencing for firearms and prohibited weapons offences - discounts for plea of guilty and assistance to authorities - weight not given to self-serving and untested out of court statements - suitable for intensive correction order but order not appropriate - purposes of sentencing - need for general and specific deterrence - no finding of special circumstances
CRIMINAL LAW – driving while disqualified – meaning of “road” and “road related area” – Aboriginal Land Council land – open to and used by public – express or implied invitation to enter
CIVIL PROCEEDINGS – notice of motion - setting aside judgment entered by consent – splitting a cause of action – insurance – subrogation - Morganite principle – good faith
CRIMINAL LAW – applications – disqualification for apprehended bias – hearing following preliminary hearing where magistrate exposed to material said to be prejudicial – link to potential for bias in decision-making not identified
CRIMINAL LAW – driving with an illicit drug present in blood – availability of defence – honest and reasonable mistake of fact EVIDENCE – expert evidence – contradictory evidence of two experts
CIVIL PROCEEDINGS – guarantee - whether guarantee for trade credit application applies to subsequent contract for supply of goods and services between same parties
CRIMINAL PROCEEDINGS – offences relating to publishing gambling related advertising - gambling activity – credit – reward – inducement STATUTORY INTERPRETATION – construction of Racing Administration Act and regulations – whether punitive or beneficial in nature
CIVIL PROCEEDINGS – small claims – motor vehicle accident – damages - loss of use - income producing chattels - claim by corporation - assessment of damages based on market rate for replacement - need for replacement
CRIMINAL LAW - Arson - Fraudulent insurance claim - Dishonestly, for gain, destroy property by fire - Dishonestly obtain financial advantage by deception (attempt)
CORONIAL LAW – application of public interest immunity – claim of public interest immunity made by Commissioner of Police (NSW) in respect of documents EVIDENCE - privilege – claim of public interest immunity made by Commissioner of Police (NSW) in respect of documents – public interest in effective law enforcement – public interest in the administration of justice – whether public interest immunity attaches to post-incident debrief documents
CIVIL PROCEEDINGS – applications - leave to institute civil proceedings - person convicted of serious indictable offence - Felons (Civil Proceedings) Act 1981 - disposal of property in police custody
CRIMINAL LAW – sentence - negligent driving occasioning death – offence at or just above mid-range of objective seriousness – powerful subjective case – exceptional hardship to family – no alternative to custodial sentence – regard to be had fact that offence resulted in loss of life - suspension of sentence of imprisonment
CRIMINAL PROCEEDINGS – prosecution statute barred - disposition of proceedings – papers to be marked ‘no jurisdiction’ - power to award costs where proceedings invalid
CIVIL PROCEEDINGS – motor vehicle accident claim – hire of replacement vehicle – assessment of damages – identification of market rate – need of plaintiff – duty to mitigate loss
SENTENCING - supply prohibited drug - subjective factors - factors in mitigation - primary consideration of general deterrence and denunciation - discount for assistance to authorities and guilty plea
CIVIL PROCEEDINGS – practice and procedure – restitution- moneys paid under garnishee order following default judgment – default judgment set aside – power of Local Court to order restitution of garnisheed moneys in substantive proceedings – civil contempt of court
CRIMINAL PROCEEDINGS – application for mental health diversion – s 32 Mental Health (Forensic Provisions) Act 1990 - assault – assault occasioning actual bodily harm – intimidation – whether acts impulsive – inadequacy of psychological report – generic treatment plan – submissions contrary to facts re extent of injury - use of a weapon – escalating level of violence – pre-conditions of s 32(1)(a)(iii) not met
CIVIL PROCEEDINGS – discontinuance – costs – ordinary rule that plaintiff is to pay defendant’s costs unless court orders otherwise – ordinary rule not a fetter to general discretion to order costs - displacement of the ordinary rule - principles
CRIMINAL LAW – sentencing – domestic violence offences – contravention of ADVO with violence - aggregate sentence – Local Court jurisdictional limit - general deterrence – specific deterrence – denunciation – protection of community – principle of totality – special circumstances
CIVIL PROCEEDINGS – motor vehicle accident – damages – cost of repairs – loss of use – hire of replacement vehicle – requirement for plaintiff to demonstrate need
SENTENCE – negligent driving occasioning death – failure to keep proper lookout – sentencing considerations – harm to victim and community – prior good character – exemplary driving record – demonstrated remorse – general deterrence – licence disqualification – automatic period – discretion to reduce disqualification period
CRIMINAL PROCEEDINGS – sentence – dishonestly obtain financial advantage for another person by deception – defendant a police officer - De Simoni principle – assistance to authorities – disposition without conviction – section 10(1)(b) bond
CRIMINAL LAW – sentence – correction of sentencing error – re-opening of proceedings – function and limits of s 43, Crimes (Sentencing Procedure) Act 1999 – ‘contrary to law’ – drive while licence suspended and mid-range PCA offences - automatic period of licence disqualification upon conviction
CIVIL PROCEEDINGS – registration of certificate of judgment – whether judgment creditor entitled to money paid into court – competing security interest – registration of security interest – attachment to collateral – perfection of security interest as condition of enforceability – effect of late payment of stamp duty on security deed – priority
CRIMINAL PROCEEDINGS – application for annulment of conviction – referral by minister – no contest as to facts – opportunity for mental health discharge if application granted
CRIMINAL PROCEEDINGS – mental health diversion – s 33(1)(b) Mental Health (Forensic Provisions) Act 1990 – Mental Health Act 2007- Local Court jurisdiction
CRIMINAL LAW – deal with property the proceeds of crime – sentence – assistance to authorities – offender a foreign national – relevance to sentencing of possible deportation – need for deterrence – suspended sentence inappropriate
CRIMINAL LAW – sentence – sexual intercourse with person aged over 14 years but less than 16 years – moral culpability of offender – vulnerable victim -disregard for ADVO in place at time of offence - impact of pre-existing and ongoing social disadvantage and mental health issues – risk of re-offending – suspended sentence imposed
CRIMINAL PROCEEDINGS - meaning of “committal proceedings” - meaning of “end of committal proceedings” COSTS - jurisdiction of Local Court for costs in committal proceedings
CRIMINAL LAW – environmental offences – pollute waters – planning consent requirement – water management plan – harm to environment - foreseeable harm – actual harm – general deterrence – specific deterrence – failure to disclose matter in licence variation application – principle of even-handedness – parity of sentence – publication order – consideration of assistance to authorities – aggregation of fines – totality principle
CRIMINAL LAW – high range PCA – drive while suspended – application of guideline judgment - 2 offences within 24 hours - danger to public - prior good character - excellent traffic record - serious alcohol abuse – rehabilitation - general deterrence - custodial sentence required - consideration of ICOs and suspended sentences as alternatives to full-time imprisonment - full-time imprisonment imposed
CIVIL PROCEEDINGS – assault – plaintiff detained by police under s 22 Mental Health Act 2007 – lawful justification for police action - whether use of Taser was reasonable and not excessive
CIVIL – Building and Construction Industry Security of Payments Act - whether payment claim made in accordance with Act - need for strict observance with requirements of Act - assignment - effect of s 553C Corporations Act 2001 (Cth)
CRIMINAL LAW – drive with mid-range PCA and other motor vehicle offences – admissibility of expert evidence – zolpidem intoxication – voluntariness – sane or insane automatism
COSTS - plaintiff's claim for less than $20,000 dismissed - defendant's application for indemnity costs or ordinary costs - discretion under s 98, Civil Procedure Act 2005 - effect of Part G "Maximum Costs Order", Local Court Practice Note Civ 1 - Calderbank offer - proportionality of costs
COMMITTAL PROCEEDINGS – firearms offences – whether court attendance notices (CANs) “embarrassing” and should be dismissed – proof in regard to licence or permit to possess firearms – evidential onus of absence of lawful authority to possess firearm – whether firearms “sold” where forfeited to the Crown
NOTICE OF MOTION - strike out application - whether statement of claim disclosed reasonable cause of action - breach of privacy - negligence - stay application upon provision of security for costs - application to set aside subpoena for production - whether issuing of subpoena constituted abuse of process
CRIMINAL LAW - remittal from Supreme Court - election out of time - correct statutory test to allow prosecution to proceed on indictment - WORDS AND PHRASES - "special circumstances" - Criminal Procedure Act 1986 (NSW), s 263
CRIMINAL LAW - Discharge of accused for prosecutor's failure to appear - Whether the Commonwealth Director of Public Prosecutions had the power to carry on proceedings on behalf of the NSW Director of Public Prosecutions WORDS AND PHRASES - "carry on" - Director of Public Prosecutions Act 1983 (Cth), ss 6(1)(m) and 17
CRIMINAL LAW - particular offences - practice protections - manipulation of the cervical spine - chiropractic WORDS AND PHRASES - "manipulation of the cervical spine" - "high velocity, low amplitude thrust" - Health Practitioner Regulation National Law (NSW), s 123(2)
APPLICATION PROCEEDINGS - recovery of premises under the Landlord and Tenant Act 1899 and the Landlord and Tenant Act 1948 - jurisdiction - service of the application notice - waiver of service requirements upon appearance in proceedings or failure to object
CRIMINAL LAW - application for an annulment of a conviction and sentence pursuant to s 4 of the Crimes (Appeal and Review) Act 2001 (NSW) - prior application for an annulment of conviction found to have been withdrawn - whether leave is required
CIVIL LAW - application for credit - whether contract binds the defendant - whether plaintiff entitled to assume application was duly executed by the defendant - whether goods ordered
SENTENCING - reckless inflict grievous bodily harm - importance of general deterrence - character references and victim impact statement - little use of supervision - contrition and remorse - guilty plea - no prior
CRIMINAL LAW - particular offences - habitually consorting with convicted offenders after warning WORDS AND PHRASES - "consort" - Crimes Act 1900 (NSW), ss 93W and 93X - "chance encounter"
SENTENCING - unathorised access to restricted data - recording a conviction - low objective seriousness - guilty plea - no prior - good character - community concern
CRIMINAL LAW - particular offences - offences against the person - assault occasioning actual bodily harm - common assault - whether police used reasonable force in arresting person suspected of offence - use of taser and capsicum spray - good character
SENTENCING – multiple fraud offences – lengthy prior history of similar offending – relevance and use of prior record in sentencing – factors of universal application to fraud – accumulation of sentences
NOTICE OF MOTION - setting aside default judgment - bankruptcy - claim under Cheques Act 1986 (Cth) - vesting of property in trustee WORDS AND PHRASES - "income" - s 139L of the Bankruptcy Act 1966 (Cth)
INTERPRETATION - possess child abuse material - meaning of "child abuse material" - meaning of "implied to be" - distinguished from "is" and "appears to be" - community attitudes
CIVIL PROCEEDINGS - Notice of Motion - joinder of parties - joinder of insurers - s 51, Insurance Contracts Act - grant of leave under s 6(4), Law Reform (Miscellaneous Provisions) Act 1946 - legislative purpose -principles relevant to the granting of leave - whether there is a viable defendant
CONTRACTS - assignability - unenforceable contract - claim in quantum meruit - unlicensed builder - work performed under supply and install contract - unlicensed builder sells assets to another - whether claim in quantum meruit assignable
CIVIL PROCEEDINGS - debt recovery - insolvent plaintiff - defence of equitable set-off - exclusion clauses in contract - whether terms known to defendant - evidence of usual business practice
SENTENCING - assault occasioning actual bodily harm and common assault - domestic violence offences - course of conduct over a period of 18 months, including while victim was pregnant - offender's drug addiction does not mitigate seriousness of offending - good prospects of rehabilitation - genuine remorse - importance of general deterrence for domestic violence offences - custodial sentences warranted for most of the offences - suitability for Intensive Correction Order
SENTENCING - sale of drugs - role played more important than quantity involved - relevance of sale to undercover officer - exceptional circumstances needed to avoid full-time custody - hardship to third parties not established - partial cumulation - special circumstances
CRIMINAL LAW - negligent driving occasioning death - failure to keep a proper lookout - negligence more than momentary inattention - high moral culpability - relevance of conditions affecting offender's eyesight - common level of responsibility for public safety across all licence holders - no sliding scale of accountability based on potential impact of a physical impairment upon driving - prior good character - plea of guilty - remorse - no sentence other than imprisonment appropriate - referral for home detention suitability assessment
TORTS - detinue - claim for return of a curtain - creative work depicting features and history of town - curtain sewn by volunteer members of the community - dispute as to ownership - dispute as to creator of design
APPLICATION PROCEEDINGS - application for forensic procedure - special jurisdiction, Part 4 Local Court Act 2007 - power to make costs order - where application marked "no jurisdiction"
FORENSIC PROCEDURES - application for forensic procedure - non-compliance with notice requirements - failure to specify type of procedure sought - whether application invalid and a nulltiy
CRIMINAL PROCEEDINGS - defective Court Attendance Notice - whether defect can be ignored - offence established by the evidence different from offence charged - s 16(2), Criminal Procedure Act
PRACTICE AND PROCEDURE - notice of motion to set aside judgment - judgment entered in good faith - judgment entered irregularly - enforcement of costs certificates under the Legal Profession Act 2004 - certificates entered as single judgment - common law principles of restitution - interlocutory or temporary costs orders - temporary stay of execution of judgment
FORENSIC PROCEDURES - Part 7A Crimes (Forensic Procedures) Act 2000 - DNA backcapture - testing of 'untested former offender' - application not conviction-based - provisions operate on service of a Court Attendance Notice for an indictable offence
CONTRACTS - agency - whether the second defendant had ostensible authority - meaning of the term 'account manager'- whether the second defendant breached a warranty of authority - whether the plaintiff relied on the representation of the second defendant
CIVIL PROCEEDINGS - debt recovery - insolvent plaintiff - defence of equitable set-off - whether Corporations Act sets up exclusive jurisdiction for proof of debts against company in winding up - jurisdiction of Local Court to consider equitable defence
CRIMINAL LAW - sentencing - crimes of dishonesty - false claims for parliamentary entitlements - false evidence - need for general deterrence - offences involving breaches of trust, abuse of public position and disregard for administration of justice
CONTRACTS - franchise agreement - unpaid franchise fees - cross-claim -operation of similar online business by related entity of franchisor - whether franchisor breached restrictive covenant not to compete with franchisee within exclusive territory - unconscionable conduct - obligation to act in good faith
CRIMINAL LAW - evidence - admissions - failure to record alleged admissions during informal conversation between two police officers - whether conversation was "official questioning"
CRIMINAL LAW - sentencing - domestic violence - principles - need for deterrence - custodial sentences called for - partial cumulation - "reconciliation of parties" irrelevant to sentence
CRIMINAL LAW - filming person engaged in private act without consent - whether acts filmed for the purpose of obtaining sexual arousal or sexual gratification
ROAD TRANSPORT - breaches of mass, dimension and load restraint requirements - severe risk breach - exemptions by permits and notices - large indivisible item - container designed for multi-modal travel - container weight declaration - reasonable steps defence
CIVIL PROCEEDINGS - agency agreement - recovery of real estate agent's commission - whether agreement compliant with requirements of the Property, Stock and Business Agents Act 2002 and Regulation - strict compliance required - effective introduction of purchaser
SENTENCE - affray - alcohol related violence - offence above the middle range category of seriousness - young offender with experience of difficult upbringing - importance of general deterrence - ICO not appropriate - sentence of full time imprisonment imposed - finding of special circumstances - jurisdictional limit of Local Court
CRIMINAL LAW - practice and procedure - duplicity - statutory provisions referring to a singular prohibited act - whether impermissible to charge more than one prohibited act in a Court Attendance Notice
CRIMINAL LAW - practice and procedure - application for stay of proceedings - double jeopardy principles - whether proceedings an abuse of process - applicant already subjected to pecuniary penalty
COSTS - criminal proceedings - where successful accused persons represented by Legal Aid Commission and Aboriginal Legal Service - nature of retainer between solicitor and accused person - whether award of costs available - court to assume existence of retainer and that solicitor may look to accused person for payment of their costs - evidence to the contrary required to challenge that assumption - onus of proof lies upon party who seeks to challenge nature of retainer
PRACTICE & PROCEDURE - civil proceedings - application for dismissal of proceedings - application for striking out of Statement of Claim - no reasonable cause of action disclosed COSTS - application for indemnity costs - indemnity costs compensatory not punitive - absence of evidence of deliberate delay, falsehood or other aggravating features
CRIMINAL LAW - indecent assaults upon 13 year old girl SENTENCING - "grooming" behaviour by offender - breach of trust - relevance of good character where "of assistance" to the offending - custodial penalties - partial cumulation - likelihood of re-offending SENTENCING - Victim Impact Statement - no need for proof of harm - "substantial harm" established
INDUSTRIAL LAW - statutory interpretation - payment for untaken annual leave upon resignation - whether leave to be paid at ordinary rate or with loading - Enterprise Agreement providing for entitlements to leave in accordance with Fair Work Act provisions but silent as to payment for untaken leave upon end of employment - National Employment Standards in Fair Work Act setting out minimum standards applying to employment of employees including payment of annual leave in s 90 - construction of s 90 - minimum standard where employee to be paid for untaken annual leave upon end of employment is payment of the amount the employee would have been paid had they taken the annual leave
EVIDENCE - admissibility of certificates as to the taking of a blood sample and its analysis - taking of blood sample from an "accident patient" under the Road Transport (Safety and Traffic Management) Act - whether the accused an "accident patient"
CRIMINAL LAW - environmental offence - permit/cause pollution to waterway - washing of acidic 'pickling paste' into stormwater drain - sentence - matters to be considered in imposing penalty - early plea of guilty - admissions that conduct had occurred for at least 18 months - extent of harm to environment not known but potential for harm reasonably foreseeable - no practical measures taken to mitigate potential harm - flagrant breach of environmental laws - importance of general deterrence
CIVIL PROCEEDINGS - Trade Practices Act - misleading and deceptive conduct - representations and non-disclosure/silence - no need for non-disclosure/silence to be intentional under Trade Practices Act - agreed facts - Civil Aviation (Carriers Liability) Act
Paper committal - Admissions made by Accused - Circumstantial evidence - Admissions to be tape recorded - Section 281 Criminal Procedure Act 1986 (NSW)
CRIMINAL LAW - procedure - forensic procedure application - evidence - admissibility of affidavit evidence of police officer conceded to be hearsay - statements repeating what police officer was told by witnesses - application for waiver of rules of evidence - whether matter to which evidence relates genuinely in dispute - applicable test for forensic procedure applications - whether, based on what police officer was told, saw or heard, reasonable grounds exist to believe suspect has committed an offence
CIVIL PROCEEDINGS - motor vehicle collision - assessment of damages - loss of use - hire of replacement motor vehicle - special damages - general damages
CRIMINAL LAW - make false call to emergency service number (x 19) - dishonestly obtain financial advantage by deception - objective seriousness of offences MENTAL HEALTH - section 32 application - whether appropriate in circumstances - considerations
APPREHENDED DOMESTIC VIOLENCE ORDER (ADVO) - Police Officer applicant on behalf of child - basis of suspicion or belief - no requirement to prove defendant committed any act - reasonable cause to fear and in fact fears - principles
CRIMINAL LAW - mental health - s 33 Mental Health (Forensic Provisions) Act 1990 - order made under s 33(1)(a) - accused taken to hospital for assessment and discharged - proceedings adjourned - no appearance by accused on adjourned date and warrant for arrest issued - warrant not executed and accused not brought before court for further 9 months - charges taken to be dismissed by operation of s 33(2)
PROCEDURE - criminal proceedings - application for suppression/non-publication order - applicant the defendant in proceedings before Local Court and Children's Court - statuory prohibition on publication of applicant's name in context of Children's Court proceedings - whether publication of applicant's name as a defendant in Local Court proceedings would identify him as a defendant in Children's Court proceedings - whether order "necessary" per s 8 Court Suppression and Non-publication Orders Act 2010 - separate conduct of Local Court and Children's Court proceedings - order not necessary - application dismissed
CORONIAL INQUEST - death in the course of a police operation, s 23 Coroners Act 2009 - use of Tasers - use of OC spray - manner of restraint of the deceased by officers - lawfulness of arrest - degree and reasonableness of force used - police standard operating procedures
CRIMINAL LAW - sentence - steal property of employer - theft of fuel by tanker driver - multiple offences carried out over period of several months - offences part of plan by group of employees - systematic dishonesty and substantial breach of trust - importance of general deterrence - no sentence other than imprisonment appropriate
CRIMINAL LAW - sentence - reckless wounding - victim stabbed in altercation following persistent harassment by offender - use of knife - offence committed in breach of existing good behaviour bonds - little weight to be given to provocation or excessive self defence - no sentence other than full-time imprisonment appropriate - bonds for prior offences revoked and terms of imprisonment imposed
CRIMINAL LAW - give false evidence at ICAC hearing - unexplained and lengthy delay in bringing proceedings - sentence of imprisonment appropriate notwithstanding delay - consideration of demonstrated rehabilitation by offender and impact of delay in determining manner in which sentence to be served - execution of sentence suspended
CRIMINAL LAW - custody of knife in public place - Summary Offences Act 1988 - meaning of 'knife' - whether a pair of scissors is a knife - statutory construction - use of extrinsic material - Second Reading Speeches and Parliamentary debates
CRIMINAL LAW - sentence - multiple counts of corruptly receive benefit - two further fraud offences - defendant a building inspector for local council - defendant's awareness of intrinsically corrupt nature of conduct - impact on public confidence in proper and transparent local government operations and decision making - need for denunciation and deterrence - corruption offences require imposition of sentence of imprisonment - home detention appropriate, subject to suitability assessment
EVIDENCE - s 138 Evidence Act 1995 - admissibility of evidence improperly or illegally obtained - balancing exercise - whether desirability of admitting evidence outweighs undesirability of admitting evidence obtained improperly or illegally - failure of police to comply with LEPRA requirements - ALS not notified of Aboriginal defendant in custody for questioning - failure not deliberate - seriousness of offence charged
CRIMINAL LAW - illegal disposal of hazardous waste by Council - no actual environmental harm - potential for environmental harm - sentencing principles for environmental offences - early plea of guilty - co-operation with Authority - consideration of application of s 10 Crimes (Sentencing Procedure) Act 1999
CRIMINAL LAW - publish indecent article - uploading of nude photographs of complainant on Facebook website - application of s 10, Crimes (Sentencing Procedure) Act not appropriate - harm to complainant - need for general deterrence - sentence of imprisonment the only appropriate penalty
CRIMINAL LAW - failure to comply with direction of Water Administration Ministerial Corporation to remove earthen embankment across stream - whether stream a 'river' for purpose of Water Act 1912
CORONIAL INQUEST - death of 15 year old boy on skiing holiday - whether boundaries of ski resort adequately marked and maintained - whether ski resort and police protocols and procedures for handling missing person reports adequate - recommendations made
CORONIAL INQUEST - death of 15 month old child - death due to unexplained natural causes - concerns as to aspects of hospital treatment - subsequent implementation of changes to medical procedures to address concerns - no recommendations made
CRIMINAL LAW - sentence - Crimes (Domestic and Personal) Violence Act 2007 - Stalk and intimidate with intent to cause physical or mental harm - threat to publish video of sexual encounter unless victim agreed to further sexual intercourse - prior breaches of ADVOs and escalating nature of offending conduct - need to emphasise general and specific deterrence - no penalty other than sentence of imprisonment appropriate - Intensive Correction Order imposed