Browse decisions Displaying 1 - 200 out of 89766 results

Catchwords:

PROFESSIONS AND TRADES – health and professionals – medical practitioners – disciplinary proceedings – registration of medical practitioner cancelled – with prohibition on reapplication for registration – medical practitioner making application for reinstatement following period of prohibition

Catchwords:

CRIMINAL LAW – sentence – appeal against sentence – Commonwealth drug offences – State drug and fraud offences – whether sentence imposed for a discrete offence was outside the available range – utility of sentencing statistics – whether a custodial sentence was warranted for discrete offence – manifest excess – question of parity with co-offender

Catchwords:

CRIMINAL LAW – appeals – appeal against sentence – indecent assault – whether sentencing judge erred in finding the objective seriousness of the offending as in the mid-range – whether sentencing judge erred by not giving sufficient weight to the applicant’s remorse – whether sentencing judge erred by failing to properly apply a sufficient discount for the guilty plea – whether sentencing judge erred by failing to consider alternatives to full time imprisonment – whether sentence manifestly excessive

Catchwords:

PRACTICE AND PROCEDURE – Application for leave to file an amended statement of claim – Where the plaintiff sustained injury when his hand became caught in a boat anchor chain – Whether there is sufficient explanation for delay – Whether the proposed amendments disclose a new cause of action

Catchwords:

CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of serious injury – worker injured   SENTENCING –objective seriousness – general deterrence – specific deterrence – aggravating factors – significant ongoing disabilities – mitigating factors – no record of previous convictions – good prospects of rehabilitation – remorse – plea of guilty – assistance to law enforcement authorities – good corporate citizen   WORK HEALTH AND SAFETY – obvious risk – known to the offender – inadequate instructions – no documented safe work procedure – risk control measures available at low cost   COSTS – prosecution costs   OTHER – bricklaying – fall from height

Catchwords:

CRIMINAL LAW – leave to appeal against sentence – offender pleaded guilty to 22 offences relating to child pornography and child abuse material – additional 15 child pornography offences taken into account on sentence – offender transmitted and solicited child abuse material to and from various male children – possession of child abuse material – offender transmitted indecent communications to various victims – offending conduct occurred over two-and-a-half-year period involving multiple offences and actual victims – two child victims of indecent communications identified – victims provided victim impact statements – two grounds of appeal that overall sentence was manifestly excessive as sentences imposed on discrete counts were manifestly excessive – element of artificiality in the complaints – sentences for discrete counts open to sentencing Judge – no error demonstrated – ground of appeal that overall sentence was manifestly excessive – active and persistent offender – favourable findings based on psychological evidence – cautionary approach given limited insight into offending behaviour – general deterrence a primary consideration in offences involving sexual predatory conduct towards children – no demonstrable error in total effective sentence – leave to appeal granted – appeal dismissed

Catchwords:

TRAFFIC LAW AND TRANSPORT – motor accident legislation – liability – plaintiff injured as a result of a motor vehicle accident TORT – damages – economic loss – out-of-pocket expenses – gratuitous care – pre-existing conditions – Motor Accidents Compensation Act

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Catchwords:

MEDICAL PROFESSION – disciplinary proceedings – external appeal from decision of Medical Council that Dr Chatoor guilty of unsatisfactory professional conduct – subject matter and nature of external appeal – whether Tribunal has jurisdiction to re-determine entire complaint or just the findings and orders appealed against – whether Dr Chatoor guilty of unsatisfactory professional conduct – whether protective orders should be made and the nature of those orders

Catchwords:

COMPULSORY ACQUISITION – conciliation conference – agreement between the parties – orders

Catchwords:

PROFESSIONS AND TRADES - health practitioner - formulation of conditions to be imposed on health practitioner’s registration

Catchwords:

TRADES AND PROFESSIONS – Pharmacy – application for reinstatement

Catchwords:

TRADES AND PROFESSIONS – Nursing – mishandling of Sch 4D and Sch 8 medication – misappropriation of medication – misleading regulators – falsification of qualifications – multiple criminal convictions – not fit in the public interest to practise – prohibition orders

Catchwords:

Medical practitioner – performance of cosmetic procedure – patient develops hypotension and not able to be aroused – ambulance called and patient hospitalised – serious lack of competence, judgment and maintenance of standards demanded of a general practitioner - findings of unsatisfactory professional conduct and professional misconduct – practitioner suspended from practice for a period of six months – extensive conditions imposed on return to practice

Catchwords:

REVENUE - Stamp Duty – Exemptions - agreement for sale of dutiable property to exempt charitable or benevolent body - Duties Act 1997 (NSW), ss 275, 275A - whether a body created by statute to regulate and control thoroughbred horse racing fell within the exemptions, of itself or as trustee of a trust for retired racehorses - nature of a charitable body - meaning of benevolent - Chief Commissioner decided to disallow objection to decision not to allow the exemption - Decision affirmed.

Catchwords:

ADMINISTRATIVE REVIEW – Government Information (Public Access) – application for review by person aggrieved by decision to refuse to release information – public interest considerations

Catchwords:

ADMINISTRATIVE REVIEW – privacy and personal information – review of conduct of agency admitted to be a contravention of the information protection principles concerning personal information

Catchwords:

ADMINISTRATIVE LAW - Application for review of decision of NSW Trustee and Guardian – Application for joinder by wife of person whose estate under financial management

Catchwords:

CIVIL PROCEDURE — Cross-vesting — Transfer from Dust Diseases Tribunal of NSW to Supreme Court — Transfer to other Supreme Court – Relevant factors

Catchwords:

COSTS – whether costs of two mentions in the proceedings and costs thrown away by the vacation of hearing should be paid by the former solicitor for the plaintiff, pursuant to section 99 Civil Procedure Act (NSW)   COSTS – whether costs incurred by serious neglect, serious incompetence or serious misconduct of legal practitioner – conduct was not “improper” in the sense of being professional misconduct, or unsatisfactory professional conduct - conduct was not “unreasonable” as it was not conduct which was vexatious, or designed to harass the other side, or conduct for which there was no proper motive - explanation of the preparation which solicitor did for the case is accepted – actions of solicitor both reasonable and justified - conduct was not “negligent” as there was no failure to act with the competence reasonably to be expected of members of the legal profession

Catchwords:

DUST DISEASES – exposure to asbestos – need for evidence of product identification   DAMAGES – general damages – loss of expectation of life – gratuitous assistance   DAMAGES – loss of capacity to provide gratuitous domestic services to a dependant – s 15B Civil Liability Act 2002 – whether such damages available in estate claim – whether such damages precluded as analogous to damages for loss of earning capacity – whether estate precluded from recovery as claimant had no capacity after death – compensatory principle   DAMAGES - loss of capacity to provide gratuitous domestic services to a dependant – s 15B Civil Liability Act 2002 – life expectancy of dependant – whether services provided by claimant at time liability arose set an upper limit for such damages – whether need for the services is reasonable in all the circumstances – discount for vicissitudes

Catchwords:

PUBLIC SECTOR DISCIPLINARY APPEAL – disciplinary decision to assign employee to a different role - whether an appealable decision – deferment of increment pending outcome of disciplinary process – proper characterisation of deferment – whether an appealable decision – whether such a decision needs to be a disciplinary decision in order to be appealable - cancellation of security clearance – whether a decision in relation to an appealable decision – Industrial Relations Act 1996 s 97 - meaning of “in relation to” – meaning of “reduce” – meaning of “position” – meaning of “give the employee notice in writing”

Catchwords:

Assault; domestic violence related offences

Catchwords:

TORTS – action in negligence under common law – plaintiff was a player in a Second Division Country Rugby League competition game - plaintiff injured as a result of a ‘spear tackle’ by second defendant whilst carrying the ball - whether liability provisions of Civil Liability Act excluded on basis of ‘intentional act’ of the second defendant that was done ‘with intent to cause injury’ to the plaintiff – whether ‘intent to injure’ is satisfied by mental state of recklessness – whether duty of care – whether duty of care breached – causation – voluntary assumption of risk – contributory negligence

Catchwords:

COSTS – Calderbank letter – whether unsuccessful respondent unreasonably rejected offer

Catchwords:

CIVIL – PROCEDURE – transfer of proceedings – application for transfer of proceedings from District Court of NSW to Supreme Court of New South Wales and thence the Supreme Court of Queensland – where substantive claim concerns damages pursuant to Sales of Goods Act 1896 (QLD) and the Australian Consumer Law – whether application in the interests of justice – discussion of operative test in s 5(2)(b)(ii)(A) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) – no connection to NSW except qualification of expert in NSW after filing of summons seeking transfer – application granted

Catchwords:

CONTRACTS – breach of contract – consequences of breach – right to damages – contract for sale of timber mill – warranty about volume of unprocessed stock – provision for adjustment of purchase price if volume less than warranted – whether contract varied to postpone date on which such adjustment to be made – what volume of unprocessed stock was present – purchaser to assume liability for long service leave entitlements of mill employees – asserted understatement of those liabilities – whether vendor agreed to account for the difference – agreement that vendor had access to information on server at the mill after completion – where effective access to that server denied for a week – whether vendor thereby suffered damage

Catchwords:

Disciplinary proceedings against barrister – parties propose consent orders under s 564 Legal Profession Act 2004 – should Tribunal exercise its discretion and make proposed orders or amend or add to the proposed orders – professional misconduct – reprimand and making an apology are appropriate

Catchwords:

Professions and trades, Solicitor stakeholder, unethical and fraudulent dealing with deposit, unsatisfactory professional conduct, or professional misconduct, resulting in loss to aggrieved person. Compensation order by Tribunal.

Catchwords:

ADMINISTRATIVE REVIEW – accredited certifier – findings of unsatisfactory professional conduct – disciplinary orders

Catchwords:

Costs – special circumstances – exercise of discretion

Catchwords:

LAND LAW – strata title – common property – common property rights by-law – unreasonable refusal – objective test – reasons – subsequent evidence   CONSTITUTIONAL LAW – Commonwealth Constitution – jurisdiction - whether an owners corporation is a “resident” for the purposes of s 75(iv) of the Constitution

Catchwords:

COSTS – appeal dismissed – whether order for costs should be made

Catchwords:

MOTOR ACCIDENTS – where collision between two vehicles – where plaintiff injured and sought compensation under Motor Accidents Compensation Act 1999 (NSW) – whether plaintiff’s car parked kerbside or executing a U-turn or right turn at time of collision – where primary judge found plaintiff’s car was performing a U-turn or right turn at time of collision – no error in fact finding by primary judge

Catchwords:

Administrative Law – tattoo parlours – application for operator licence – fit and proper person – record of drug convictions – public interest.

Catchwords:

ADMINISTRATIVE LAW – ground of review other than procedural fairness – improper exercise of power – plaintiffs issued with notices from defendant on behalf of the National Resources Access Regulator – notices issued under s 338A Water Management Act 2000 (NSW) – notices required the provision of stipulated information and documents – notices said to be issued as part of an investigation by NRAR into the plaintiffs’ water access and use at their two farms – notices said to be issued for the purpose of determining whether there had been compliance with or contravention of identified conditions of the access licence for each of the properties – whether the defendant was entitled to require the plaintiffs to furnish the stipulated information/documents – whether the information/documents were required for the purpose of ascertaining whether the plaintiffs had contravened identified conditions of the respective access licences – notices set aside

Catchwords:

COSTS – Security for costs – representative proceedings - application by the defendant – costs of discovery

Catchwords:

Judicial review – application to set aside decision of Medical Appeal Panel – need to make out jurisdictional error or error of law on face of record – significance of distinction – whether Panel empowered to rely on medical examination by one of its members – significance of “clinical judgment” – whether Panel failed to make findings or give reasons – whether Panel failed to address substantial argument – whether Panel misapplied Guidelines – application dismissed

Catchwords:

CHILD WELFARE – parental responsibility allocated to Minister – final orders in Children’s Court – appeal to District Court – whether jurisdictional error or error of law on the face of the record of District Court –procedural unfairness – failure to tender evidence – relevant considerations   CIVIL PROCEDURE – parties – supervisory jurisdiction – children as necessary parties – representation – role of representative

Catchwords:

TRUSTS – resulting trust – plaintiff is the grandson of the second defendant and the son of the first defendant and of her deceased husband – second defendant alleges she supplied all the purchase money to acquire real property in Cootamundra that she purchased as a joint tenant with the first defendant and with the deceased – plaintiff alleges the second defendant agreed to loan the purchase money for the Cootamundra property to the deceased and to the first defendant and that they held the Cootamundra property beneficially, owing only a liability in debt to the second defendant – whether the first defendant and the deceased held their respective shares in the Cootamundra property on resulting trust for the second defendant – Cootamundra property sold and the proceeds applied to purchase another property, the Emerald Drive property, in the names of the second defendant, the deceased and the plaintiff – at about the time of the sale of the Cootamundra property, the deceased and the first defendant separate and reach a property settlement under the Family Law Act but are not divorced – the Emerald Drive property in turn was sold and its proceeds applied to purchase the final property, which was held in the name of the second defendant – final property sold to provide an accommodation deposit, so the second defendant can have secure accommodation in an aged care facility – whether the second defendant is the beneficial owner of 100% of the final property and in turn of the accommodation deposit.   CONTRACTS – Contracts Review Act 1980 – unconscionable conduct – the Emerald Drive property held in the name of the plaintiff, the deceased and the second defendant as joint tenants – plaintiff alleges the deceased and the second defendant pressured him into surrendering to them his joint tenancy in the Emerald Drive property for no consideration and without legal advice – second defendant claims no pressure was applied to the plaintiff and that the Emerald Drive property was always owned by her beneficially – whether the surrender of the plaintiff’s joint tenancy should be set aside under the Contracts Review Act or in equity.   SUCCESSION – family provision – plaintiff one of three children of the deceased, who left his residuary estate under his will to them in equal shares – estate of the deceased was fully distributed to the first defendant, the deceased’s wife, before trial – whether the plaintiff was left under the will of the deceased without adequate provision for his education maintenance or advancement in life – whether further provision should be made out of the estate or notional estate of the deceased for the plaintiff.   NOTIONAL ESTATE – family provision Succession Act Part 3.3 – the deceased’s estate is fully distributed – at time of his death, the Emerald Drive property was held in the name of the deceased and the second defendant as joint tenants – the Emerald Drive property sold and the final property purchased in the second defendant’s name – the final property was sold to provide an aged care facility accommodation deposit for the second defendant – deceased fails before his death to sever the joint tenancy in the Emerald Drive property – whether final property’s proceeds, in the form of the accommodation bond, may be designated as notional estate – whether designation of the final property’s proceeds as notional estate would interfere with the second defendant’s reasonable expectations in relation to that property.

Catchwords:

CIVIL PROCEDURE – interlocutory applications – application for secured undertakings as to costs of the derivative suit in one proceeding – in the alternative applications for security for costs in one or both of the respective proceedings – pursuant to ss 237 and 242, 1335(1) of the Corporations Act 2001 (Cth) and/or r 42.21 of the Uniform Civil Procedure Rules 2005 (NSW) and/or the Court’s inherent jurisdiction

Catchwords:

PROCEEDS OF CRIME – application to exclude property from restraining orders – whether interest is the proceeds of an indictable offence or instrument of any serious offence under s.29(2)(d) Proceeds of Crime Act 2002 (Cth) – whether property ceases to be proceeds or an instrument – whether acquisition of property was by a third party for sufficient consideration under s.330(4)(a) Proceeds of Crime Act 2002 – application of Lordianto v Commissioner of the Australian Federal Police (2018) 337 FLR 17; [2018] NSWCA 199 – where Applicant was not a third party – where Applicant did not acquire interest for sufficient consideration – where Applicant was wilfully blind – application dismissed

Catchwords:

ESTOPPEL – Anshun estoppel – where proprietors commenced earlier proceedings against builder alleging defective workmanship – where defendant architects prepared the building contract and supervised builder’s work but were not joined in earlier proceedings – where earlier proceedings referred out and referee’s report adopted – where proprietors do not in these proceedings seek findings inconsistent with those of referee in earlier proceedings – whether unreasonable for proprietors not to have joined architects in the earlier proceedings so that they are now estopped from bringing these proceedings   CIVIL PROCEDURE – pleadings – striking out – abuse of process

Catchwords:

CONTRACT – supply of wall printing machinery – breach of contract – existence of oral contract –whether damage was caused.   DAMAGES – breach of warranty – loss of profits – cost of rectification – reliance damages.   TRADE PRACTICES – misleading or deceptive conduct – whether pre-contractual representations were made – whether the misrepresentations were false, misleading or deceptive – whether statement about “quality” of product actionable representation or ‘puffery’ – ancillary liability – whether agent directly liable for any misrepresentation – whether agent can only be liable as accessory for misleading or deceptive conduct – reliance.   ESTOPPEL– whether estoppel lies in respect to verbal guarantee that is unenforceable for non-compliance with requirement of writing.

Catchwords:

CONTRACT – wholly written contract – dispute as to identity of builder to perform residential building – whether regard may be had to post-contractual conduct – where contract identified one company as builder but gave another company’s licence and insurance details – parties taken to have agreed to a contract which was lawful and enforceable

Catchwords:

FAMILY LAW – Children – Parens patriae jurisdiction – Whether Court should set aside care orders made by Children’s Court

Catchwords:

CIVIL LAW – declaratory relief sought concerning qualifications of a psychologist to furnish a report in support of a s.32 Mental Health (Forensic Provisions) Act 1990 application – where report rejected by Magistrate as it was not a psychiatric report – report later accepted by different Magistrate – application under s.32 later successful – whether live controversy exists for grant of declaratory relief – lack of utility or real interest – Plaintiff seeks advisory opinion without reference to concrete facts – appropriate to make general observations concerning construction and operation of s.32 – no bright line test as to areas where a psychological report can or cannot be received on a s.32 application – application for declaratory relief refused

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders ­

Catchwords:

DEVELOPMENT APPLICATION ­– multi-dwelling housing in a community title subdivision – solar access to private open space – urban design considerations including street activation and clustering – adequacy of road design and access including acceptable road widths and speed mitigation measures – provision for public access through the site – community objections

Catchwords:

Victims Rights and Support – administrative review – Time limits for an application for victims support – act of violence

Catchwords:

PRACTICE AND PROCEDURE - Notice of Motion seeking to invoke Slip Rule to permit orders that a moiety of the fines imposed in the primary decision be paid to the Applicant - application of Slip Rule - power to award a moiety - orders amended/added to order payment to the Council of half of each fine imposed on the Respondent

Catchwords:

CRIMINAL LAW – application for leave to appeal against sentence – assault occasioning actual bodily harm in company – wounding with intent to cause grievous bodily harm – aggregate sentence - whether applicant’s representation in the District Court was incompetent – whether discount for late pleas of guilty inadequate - whether sentence excessive

Catchwords:

SUCCESSION – wills and estates – construction and effect of testamentary disposition - gift of interest in property subject to conditions – non-fulfilment of conditions – no lapsing of gift – equitable obligations to perform – scope of repair and maintenance condition – purpose of fund created to defray costs associated with trusts

Catchwords:

CONTRACTS – Construction – Interpretation – determination of market rent by an expert valuer – construction of provision of sub-lease requiring the valuer to “have regard to” certain matters in determining the market rent for a sub-lease of premises located at King Street Wharf, Sydney – interpretation of requirement to “have regard to” “comparable premises in the vicinity of the Premises” – whether matters listed exhaustive – meaning of “have regard to”   VALUATION – expert determination – whether the trial judge erred in finding that the valuer did not have regard to market rents in the manner prescribed by the sub-lease – whether the trial judge erred in finding that the determination of market rent by the valuer was not binding on the appellant and the respondent as parties to the sub-lease – whether the valuer erroneously had regard to the physical configuration of the premises or tenant’s property – appeal dismissed with costs   VALUATION – nature of valuation – meaning of “acting as an expert and not as an arbitrator”

Catchwords:

ESTOPPEL – proprietary estoppel – estoppel by representation – where plaintiff provided accommodation for niece and family including defendant husband – whether representation that defendant would have accommodation for life – after passing of niece defendant relocated to a second property owned by plaintiff – plaintiff claiming possession of second property – defendant claiming alteration of position – surrender of lease of assisted accommodation – representation not proved – occupation of second property permissive and terminable on reasonable notice

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders ­

Catchwords:

COSTS – ex parte interlocutory injunction application

Catchwords:

CRIMINAL LAW – appeal by Director of Public Prosecutions (NSW) under s.56(1)(c) Crimes (Appeal and Review) Act 2001 – charge of resist police officer while in execution of his duty contrary to s.58 Crimes Act 1900 dismissed in Local Court – primary evidence recorded on body-worn video camera – Defendant does not oppose orders sought on appeal – whether Magistrate failed to provide reasons as required by law for decision to dismiss the charge – whether Magistrate erred by failing to afford procedural fairness to the prosecutor – error of law demonstrated on each ground – appeal allowed – matter remitted to Local Court for determination by a different Magistrate

Catchwords:

PRACTICE – application for adjournment of hearing of leave application – application to quash guilty pleas entered in Local Court and confirmed by District Court – application to single Judge of Appeal to quash decision of District Court in civil proceedings – absence of jurisdiction – application dismissed

Catchwords:

CIVIL PROCEDURE — Cross-vesting — Transfer to other Supreme Court — Relevant factors

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Catchwords:

APPEAL – development application – child care centre – increase in number of children from 70 to 175 – increase in parking demand – whether parking demand can be accommodated – cross-fall gradient – potential for conflict in parking demands arising from adjoining uses – dispute on conditions of consent – surrender of earlier consents – amendment of earlier consents – consolidation of lots – requirement for accessibility for existing lift – update to Plan of Management

Catchwords:

Victims Rights and Support – administrative review –primary victim of an act of violence – burden of proof

Catchwords:

PRIVILEGE– privileges – client legal privilege – waiver – before the hearing of the proceedings commenced, the plaintiffs waived privilege over a communication with their solicitor dated 29 March 2016 – the principal officer of the plaintiffs was cross-examined on this communication and said he had forwarded some emails to the plaintiffs’ solicitor, for the solicitor to advise about the communication of 29 March 2016 – but the plaintiffs’ principal officer denied receiving any advice from his solicitor prior to 29 March 2016 – cross-examiner called for any pre-29 March 2016 advice – documents were produced and client legal privilege was claimed over them – whether client legal privilege waived.

Catchwords:

APPEAL – appeal from NCAT on question of law – application for victims support under Victims Rights and Support Act 2013 (NSW) – applicant claimed he had suffered from an “act of violence” following his arrest by police – whether error of law in rejecting that claim – whether error of law in failing to make findings or give reasons concerning unreasonable use of force when no point had been raised in NCAT – distinction between lawfulness of conduct established by s 230 of Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and need for applicant to establish commission of offence – significance of applicant’s failure following final hearing in District Court of civil proceedings – leave refused

Catchwords:

CRIMINAL LAW – sentencing – appeal against sentence – unrepresented applicant – question of commencement date of sentence – assessment of prospects of rehabilitation – asserted manifest excess

Catchwords:

CRIME - appeals - appeal against sentence – whether sentence manifestly excessive - applicant pleaded guilty to a number of sexual offences - three further offences taken into account on a Form 1 - offending occurred when the applicant was 15 and 16 years of age - complainant was the applicant’s stepbrother aged 10 and 11 years at the time - approximately 16 year delay in prosecuting the offences - whether the sentencing judge gave sufficient weight to the offender's youth and the delay - where the offending was significant - where the offences charged were representative offences - where the offending involved threats and a degree of coercion - consideration of how the offender would have been sentenced but for the delay - sentence not unreasonable or plainly unjust - appeal dismissed

Catchwords:

APPEAL - Crown appeal - manifest inadequacy of aggregate sentence - sentence after trial - Respondent convicted of three offences under s.27 Crimes Act 1900 - wounding with intent to murder, cause grievous bodily harm with intent to murder and attempt to wound with intent to murder - Respondent armed with large axe and knife - Respondent randomly attacked victims with axe in a convenience store without provocation - initial attack on two victims captured on CCTV footage - attack on third victim on street outside convenience store - significant impact of offences upon all three victims - Respondent had powerful subjective case - consideration of sentencing decisions for s.27 Crimes Act 1900 offences - aggregate sentence manifestly inadequate - appropriate case for Court to resentence Respondent - finding of special circumstances - Respondent resentenced to aggregate term of imprisonment of 14 years with a non-parole period of eight years

Catchwords:

PRACTICE AND PROCEDURE – Costs – Where the plaintiff was unsuccessful in judicial review proceedings – Where the plaintiff sought a certificate pursuant to the Suitors’ Fund Act 1951 – Where that Act grants power to issue a certificate to the respondent to a successful appeal – Whether the plaintiff was in the position of a “respondent” – Where her “appeal” had not been successful – Threshold requirements for the issue of a certificate not met – Application for certificate refused – Usual costs order made

Catchwords:

ADMINISTRATIVE LAW –access to information –whether respondent holds further information – reasonableness of searches

Catchwords:

PRACTICE AND PROCEDURE – Principles applying to power to make confidentiality orders – Whether Tribunal should dispense with a hearing PROCEDURAL FAIRNESS – Apprehended or actual bias - Whether Tribunal member should recuse herself

Catchwords:

APPEALS — NCAT — whether the Appeal Panel has power to determine an appeal against a decision made by the Guardianship Division of the NCAT where the Supreme Court has dismissed an appeal against that decision   APPEALS — NCAT — principles governing granting leave to appeal an interlocutory decision — whether discretion miscarried   STATUTORY CONSTRUCTION — meaning of the term an appeal to the Supreme Court in cl 12(1)(a) of sch 6 to the Civil and Administrative Tribunal Act 2013 (NSW)

Catchwords:

APPEAL – residential tenancy - termination notice based on frustration of agreement - landlord’s claim for break fee – tenant’s claim for abatement of rent

Catchwords:

APPEAL – Home Building – claim for variations on contractual basis – further claims for adjustment of provisional sum - alternative claims by builder on quantum meruit basis – no error of law – leave to appeal declined

Catchwords:

ADMINISTRATIVE LAW – freedom of information – preliminary draft expert report – whether release could reasonably be expected to prejudice the effective exercise of agency’s functions – effect upon availability of experts to assist agency – consideration of broader circumstances where expert does not object to disclosure

Catchwords:

ADMINISTRATIVE LAW – licensing – firearms – refusal of licence application – refusal of application for permit to acquire a firearm – fit and proper person – public interest.

Catchwords:

APPEAL – decision at first instance dismissed application on jurisdictional grounds – whether Government Sector Employment Act 2013 impliedly repealed Ch 5 Pt 1 of the Industrial Relations Act 1996 in respect of Public Service senior executive employees – whether privative provision in Government Sector Employment Act 2013 precluded claims under Ch 5 Pt 1 of the Industrial Relations Act 1996 by Public Service senior executive employees – principles to apply on implied repeal and on construction of privative provisions – consideration of meaning and effect of Commissioner of Police v Eaton (2013) 252 CLR 1

Catchwords:

COSTS – where plaintiff successful on motion – where little of substance achieved

Catchwords:

CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of serious injury – worker injured  SENTENCING –objective seriousness – general deterrence – specific deterrence – aggravating factors – substantial injury ­– mitigating factors – no record of previous convictions – good prospects of rehabilitation – remorse – plea of guilty – assistance to law enforcement authorities WORK HEALTH AND SAFETY – obvious risk – known to the offender – lack of training – risk control measures available at low cost  COSTS – prosecution costs  OTHER – high pressure water cleaning – uncontrolled hose

Catchwords:

CRIMINAL LAW – appeal against sentence – robbery armed with knife – whether error in failing to find intellectual disability mitigated moral culpability – whether error in failing to take into account intellectual disability when considering general deterrence – whether sentence manifestly excessive

Catchwords:

ADMINISTRATIVE LAW – review under section 28 Child Protection (Working with Children) Act 2012 (NSW) child protection – working with children – risk to children whether risk real and appreciable –assault on a person under 16 years with an act of indecency contrary to s 61E(1A) Crimes Act 1900 (NSW) – enabling order – discharge onus -would a reasonable person allow unsupervised access to their own child in context of child related work

Catchwords:

CRIMINAL LAW – Appeals – whether sentencing judge fell into Muldrock error – whether instinctive synthesis correctly undertaken – findings as to factual circumstances well founded – findings about failure of applicant to take responsibility well founded – findings about absence of contrition well founded – comparable cases not indicative of excessive sentence - lesser sentence not warranted.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – bamboo – obstruction of sunlight and views – requirement of hedge to be at least 2.5 metres tall – pruning of hedge prior to hearing – whether the trees are severely obstructing a view – orders for pruning of bamboo

Catchwords:

COMPULSORY ACQUISITION – conciliation conference – agreement between the parties – orders

Catchwords:

MODIFICATION APPLICATION – permissible use with an ancillary use – permissible light industry use with an ancillary tattoo studio – whether modification of the consent would give rise to a prohibited independent use in the B5 zone – whether the proposed development as modified is substantially the same.

Catchwords:

APPEAL – order issued by the Council to remove objects from a laneway – whether laneway is a public road – lane included in plan of subdivision and registered deposited plan – relevant statutory scheme considered – whether objects encroach or obstruct the public road

Catchwords:

CRIMINAL LAW – sentence – murder – heroin injection – mercy killing – impairment by abnormality of mind but not so substantial as to reduce murder to manslaughter

Catchwords:

ADMINISTRATIVE LAW – Motor Accidents Compensation Act 1999 (NSW) medical review panel – assessment of degree of permanent impairment – application for judicial review – whether jurisdictional error – whether failure to address an argument properly before review panel – whether denial of procedural fairness – whether review panel directed attention to wrong question – whether error of law on the face of the record – whether review panel’s assessment based on findings of fact for which there was no evidence – scope of error of law on the face of the record

Catchwords:

COSTS – reinstatement of costs order at trial – offer of compromise in relation to appeal – early ‘walk away’ offer – no evidence of costs incurred – whether genuine compromise – whether appeal doomed to fail – offerors’ position not explained – Uniform Civil Procedure Rules 2005 (NSW), r 20.26

Catchwords:

CONTRACT – construction – whether the parties entered into a binding joint venture agreement or bound themselves only to negotiate in good faith a further formal joint venture instrument – whether if they entered into a binding joint venture agreement the first defendant brought it to an end – whether declaration that a binding joint venture agreement entered into is of utility; HELD: the parties entered into a binding joint venture agreement – the first defendant did not bring it to an end – appropriate to order declaratory relief

Catchwords:

CRIME – Appeals – Appeal against conviction – Inconsistency of verdicts – Jury failed agree on Counts 1-7 – Jury convicted on Count 8 –– Count 7 and 8 arose out of same incident - Count 7 concerned allegation of choking so as to render complainant incapable of resistance with intention of enabling applicant to commit sexual assault - Count 8 concerned allegation of aggravated sexual assault where applicant inflicted actual bodily harm by choking complainant – Whether conviction on Count 8 is inconsistent with the failure of jury to agree on Counts 1-7 - Whether principles of inconsistent verdicts apply where failure to agree by jury.   CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Failure by jury to agree on Counts 1-7 – Jury convicted on Count 8 – Whether reasonable doubt that the applicant committed the offence notwithstanding advantage of jury - Assessment of credibility of the complainant and supporting evidence.   CRIME – Sexual offences – Aggravated sexual assault – Assault complainant occasioning actual bodily harm – s 61J(1) Crimes Act 1900.   CRIME – Sexual offences – Sexual assault – 5 counts - s 61I Crimes Act 1900.   CRIME – Violent offences – Choking, suffocation or strangulation – Choking with intention of enabling applicant to commit sexual intercourse without consent – s 67(2) Crimes Act 1900.   CRIME – Violent offences – Stalking or intimidation – Intimidation of complainant with intention of causing the complainant to fear physical or mental harm – s 13(1) Crimes (Domestic and Personal Violence) Act 2007.

Catchwords:

CIVIL PROCEDURE — application for dismissal of proceedings – r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) – application for strike out of the statement of claim – r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) – whether the plaintiffs lack a special interest sufficient to give them standing to seek the relief claimed – whether the plaintiffs are seeking declarations that the defendants committed a criminal offence – whether the commencement of the proceedings was an abuse of process – whether the commencement of the proceedings was based on confidential information of the defendants   CIVIL PROCEDURE — Discovery — Practice Note SC Eq 11 — Exceptional circumstances warranting early disclosure – whether preliminary discovery application more appropriate

Catchwords:

TORTS – negligence – road accident – liability of defendant – defendant completing a right-hand turn across double on-coming lanes – visibility of plaintiff’s motorcycle blocked by car in front – plaintiff sought to overtake car at a high speed on inside lane – collided with defendant – whether defendant negligent in failing to slow down or stop – reasonableness of precautions against unseen vehicles travelling at high speeds – expectation that road users will take reasonable care for their own safety   EXPERT EVIDENCE – negligence – calculation of speed – CCTV footage of accident – failure to assess weight of expert evidence – confirmatory report not taken into account

Catchwords:

JUDICIAL REVIEW – challenge to validity of a Development Control Order issued to the landlord of premises – alleged unlawful works carried out at hotel premises – heritage considerations – denial of procedural fairness – whether removal of render on a wall to create a depiction of a flag is “development” – invalidity on the face of the Order – Wednesbury unreasonableness.

Catchwords:

CRIMINAL LAW – sentence – foreign incursion offence – offender pleaded guilty on first day of trial to an offence against s 119.4 Criminal Code (Cth) – offender committed acts in preparation for incursion into a foreign country for the purpose of engaging in hostile activities – offender travelled to Turkey with the intention of crossing into Syria – stayed in an Islamic State safe house in Turkey – sought assistance to cross into Syria and to make contact with persons associated with IS – obtained military equipment – offender ultimately deported from Turkey back to Australia and subsequently arrested – offender had taken serious steps in the commission of the offence – accumulation of military equipment suggested intent to take an active part in hostilities – offender’s contacts and connections in Turkey demonstrated at least a moderate degree of planning – offending fell slightly below the mid-range of objective seriousness – whether the offender had changed his extreme views – where the offender did not give evidence at the sentence hearing – where the offender refused to stand – available evidence did not suggest that the offender had changed his views – assessment of remorse and prospects of rehabilitation and reoffending – where a letter from the offender expressing regret was provided to the Court – without evidence from the offender that was capable of being tested the Court did not find remorse – prospects of rehabilitation only fair – offender’s criminal antecedents afforded him no leniency – regard had to both general and specific deterrence – discount given for guilty plea   SENTENCING – backdating of sentence – following arrest in 2016 the offender has been remanded in custody awaiting trial – whilst in custody the offender was convicted of assaulting two corrective services officers – sentenced to 8 months’ and 6 months’ imprisonment to be served concurrently – whether the time served for those assault offences should be included in the period of pre-trial custody for the present offence – s 16E Crimes Act 1914 (Cth) and ss 24 and 47 Crimes (Sentencing Procedure) Act 1999 (NSW) – issue to be resolved applying the principle of totality – adjustment made to the commencement date to take into account the sentence imposed for the assault offences

Catchwords:

GAMING AND WAGERING – prohibition of interactive gambling services – meaning of ‘bet’ – meaning of ‘game’   STATUTORY INTERPRETATION – Literal meaning – Natural and ordinary meaning – extrinsic materials

Catchwords:

CIVIL PROCEDURE – Leave to proceed against insurer – defendant in liquidation – third party claims against insurers – arguable case that policy responds to liability – construction of insurance contracts – whether insurer has validly disclaimed liability – held arguable case against defendant – held arguable case that insurance policy responds to liability – held insurer has not discharged onus disclaiming liability – held leave to proceed against insurer granted.   CONTRACT LAW – Interpretation of insurance contracts – exclusion and limitation clauses – construing ambiguous words – whether general expression “spark producing equipment” should be read down – held general expressions to be read in context – held expression confined to include only specified equipment – held general expression to be read down.

Catchwords:

PRACTICE AND PROCEDURE - claim for possession of land following mortgage default - order for possession - writ of execution issued - application for write of execution to be stayed - health issues - stay refused

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – two applications concerning one tree – whether there must be a dispute – council refused application to remove a tree – tree owner did not appeal council decision – risk of damage or injury – applicants have not demonstrated that the tree has damaged or is likely to damage property, or is likely to cause injury – arboricultural evidence not consistent with observations

Catchwords:

COSTS – party/party – percentage apportionment of costs – where plaintiff has had success in a modest amount – where proceedings could have been conducted in a significantly shorter and cheaper manner – determination of apportionment of costs.

Catchwords:

APPEAL – licensing and regulation – leave to appeal on a ground other than a question of law – whether Tribunal’s decision unjust – whether significant new evidence had arisen since the hearing below   ADMINISTRATIVE LAW - Practice and procedure - Agency's duty to produce documents under s 58 Administrative Decisions Review Act 1997

Catchwords:

COSTS – Gross sum award of costs – Where the plaintiff is impecunious

Catchwords:

CRIME – Firearms offences – Conspiracy to unlawfully supply pistols or prohibited firearms   SENTENCING – Appeal against sentence – Co-offenders – Discount for plea of guilty – Co-offenders received discount for plea of 15% - Applicant received discount for plea of 10% - Applicant’s plea entered shortly after   SENTENCING – Appeal against sentence – Assessment of criminality – Whether findings of fact available on evidence   SENTENCING – Appeal against sentence – Non-parole period – Ratio of the non-parole period and balance of term - Finding of special circumstances – Partial Accumulation of sentence upon previously imposed sentence – Non-parole period marginally less than statutory ratio

Catchwords:

JUDGMENTS AND ORDERS – amending, varying and setting aside – consent orders – where based on contract between the parties – duress – whether satisfaction of r 37 of the procedural rules a precondition to exercise of power under s 59 of the Civil and Administrative Tribunal Act 2013 (NSW) – whether the provisions of r 37 satisfied

Catchwords:

Victims Rights and Support – administrative review –grievous bodily harm

Catchwords:

CRIMINAL LAW – application for an inquiry into a conviction for sexual assault – fourth such application – whether issues previously examined should be reconsidered

Catchwords:

JUDGMENTS AND ORDERS – Court of Appeal – third application to set aside vexatious proceedings order – where applicant seeks to re-agitate matters already decided in judicial review proceedings – no new matter raised – where Court may decline to consider the application – Vexatious Proceedings Act 2008 (NSW), s 9(4)

Catchwords:

ADMINISTRATIVE LAW – reviewability – justiciability – subject matter of power or decision – matter of academic judgement – decision by a university thesis supervisor not to certify that a doctoral thesis met the University’s preparation requirement that the thesis was the student’s “own work” – findings of an investigatory panel into allegations of plagiarism against the student taken into account – not an exercise of public power – impermissible merits review   ADMINISTRATIVE LAW – legal unreasonableness – whether the “non-certification decision” and the panel’s findings were legally unreasonable – Briginshaw standard did not apply – inferences made were reasonably open and logically available – not legally unreasonable – no irrelevant consideration – no apprehended bias – no impermissible fetter of discretion or subjugation of state of satisfaction   CONTRACTS – implied terms – parties agreed to be bound by the University’s By-laws and Rules – no term that the parties also agreed to be bound by the University’s Code, Policy and Procedure should be implied   CONTRACTS – legal unreasonableness – alleged failure to exercise a unilateral contractual discretion reasonably – “non-certification decision” not legally unreasonable   ESTOPPEL – estoppel by convention – mutual assumption – assumptions not supported by the evidence   ESTOPPEL – estoppel by representation – detrimental reliance – representations not made – representations not relied upon

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – risk of damage or injury – previous agreement between the parties – respondents have completed landscaping works – access for works

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – award interpretation – employees on call – duties for which on call allowance is paid – whether duties performed by employees whilst on call amount to a “recall to duty” – whether employees entitled to payment for time spent travelling between home and workplace when recalled to duty

Catchwords:

LIMITATION OF ACTIONS – negligence – motor vehicle accident – claim for damages – whether delay in commencing proceedings has been fully and satisfactorily explained – s 109(3)(a) of the Motor Accidents Compensation Act 1999 (NSW)

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – obstruction of views – severity of obstruction – properties not adjoining

Catchwords:

PARTNERSHIP AND JOINT VENTURE — Joint venture — Real estate business — Agreement for fixed term — Whether parties fiduciaries — Buyout —— Former venturer excluded but buyout agreement not performed — Appropriate remedies — Buyout specifically enforced.   CONTRACT — Formation — joint venture agreement — Partly evidenced by draft agreements — Relevance of post-contractual conduct — buyout agreement — effect of buyout agreement on obligations under joint venture agreement — Buyout agreement not performed — Whether damages inadequate — Buyout agreement specifically enforced.   CORPORATIONS — Directors’ duties — director excluded from management — Whether oral resignation valid — Whether resignation agreed as part of buyout valid — Breach of continuing obligation under Corporations Act, s 183 — No loss to company or profit to director proved — No relief granted.

Catchwords:

JUDICIAL REVIEW – challenge to grant of development consent by Central Sydney Planning Committee for podium building in the Sydney CBD – no failure in consideration of cl 4.6 application for variation of a floor space ratio development standard – no failure to consider various provisions of Sydney LEP – no failure to comply with notification requirements – no failure to consider the public interest per s 4.15(1)(e) of EPA Act – no failure to take into account cumulative impacts of multiple departures from Sydney LEP – summons dismissed

Catchwords:

TORTS – professional negligence – alleged negligence of solicitor – alleged negligence in failure to advise or warn about risks of prospective professional negligence suit against former solicitor – whether impugned acts within or incidental to retainer – scope of duty of care – advocates’ immunity – whether duty of care breached.   TRADE PRACTICES – misleading or deceptive conduct – representation as to experience and expertise to conduct professional negligence suit – whether representation misleading or deceptive – whether putative misleading or deceptive conduct within scope of advocates’ immunity.   DAMAGES – causation – whether alleged negligence or misleading conduct caused loss or damage – where causation depends upon proof of hypothetical conduct of judicial officer – whether ‘loss of opportunity’ basis for award is available on the pleading.

Catchwords:

EVIDENCE – expert opinion evidence – whether expert witness has ‘specialised knowledge’ to opine on coaching methods associated with tackling in Rugby League – whether witness’ expertise limited to elite, professional competition rather than second division competition in Country Rugby League – “basis rule.”

Catchwords:

CHILD WELFARE – whether appropriate for Court to exercise parens patriae jurisdiction where Children’s Court of NSW has already made orders – Court declined to exercise jurisdiction   FAMILY LAW – children – jurisdiction of Children’s Court of NSW – whether child “ordinarily resident” in NSW – recovery order made

Catchwords:

CIVIL PROCEDURE – separate determination of questions – where appropriate – where parties labouring under different understandings as to the relief able to be claimed by the defendants in their defences – plaintiff contending no monetary remedy available beyond extent of its claim – evidence of defendants’ impecuniosity – whether proceedings futile – whether leave to discontinue should be granted on terms that there be no order as to costs

Catchwords:

DEVELOPMENT APPEAL – impact on state heritage item - heritage conservation area – residential apartment development – potential view loss

Catchwords:

CORPORATIONS — Winding up — Statutory demands — Service by post — Change of registered office not notified to ASIC — Registered office also defendant’s solicitor — Service also by email —Statutory presumptions not displaced — Service validly effected.   CORPORATIONS — Winding up — Presumption of insolvency — Failure to comply with statutory demand — No s 459G application brought — Whether leave should be granted under s 459S — No evidence as to solvency — Statutory test in s 459S(2) not satisfied — Insufficient evidence of genuine dispute in any case — No evidence of solvency — Appropriate that companies be wound up.

Catchwords:

ADMINISTRATIVE LAW – Disciplinary decisions – whether fit and proper person to hold a licence

Catchwords:

LAND LAW – Torrens system – claim for compensation from Torrens Assurance Fund – claimant had interest as equitable mortgagee – caveat lodged – caveat withdrawn following lodgement of fraudulent withdrawal of caveat form – transfer of title to new registered proprietor – claimant alleged that loss was suffered as a result of dealings because claimant forced to sell another property – claimant failed to establish that dealings were a cause of need to sell property – no entitlement to compensation under s 129 of Real Property Act 1900 (NSW)

Catchwords:

CRIMINAL LAW – appeals – appeal against sentence – applicant convicted of one count of aggravated indecent assault of a child under the age of 16 years – applicant the paternal grandfather of the complainant – complainant stayed over at the applicant’s home and slept in his bed – applicant pulled down the complainant’s pants while pressed against her – sentencing judge found that the applicant had an erection and had ejaculated during the commission of the indecent assault – applicant asserted that he had an incontinence problem and had unwillingly urinated on the complainant – issue relevant to measure of objective seriousness of offending - whether the sentencing judge’s finding of fact was consistent with the jury’s verdict – where the veracity of the applicant’s alleged incontinence was cast into doubt by the evidence – the sentencing judge’s finding was the only rational inference from the facts – finding made beyond reasonable doubt – appeal dismissed

Catchwords:

CRIMINAL LAW — appeals — appeal against sentence —misapplication of principle—objective seriousness of the offence—assessment for each individual offence— whether application of Clarke principle— “smorgasbord” of drugs— whether no penalty other than imprisonment was appropriate   CRIMINAL LAW — appeals — appeal against sentence — manifest excess

Catchwords:

ADMINISTRATIVE LAW – Freedom of information – Access to information concerning a preliminary assessment report of a complaint made by the applicant – whether there is public interest against the disclosure of the information sought and on balance, that public interest against disclosure overrides the public interest in favour of disclosure – confidential information – personal information of a person other than the applicant

Catchwords:

APPEAL – consumer claim – refund of course fees – whether misleading and deceptive conduct

Catchwords:

ADMINISTRATIVE LAW – administrative review – application for enabling order under section 18 Child Protection (Working with Children) Act 2012 NSW – applicant a Disqualified Person – child protection – what is the correct and preferable decision having regard to the material before the Tribunal – whether the applicant poses a real and appreciable risk to the safety of children.

Catchwords:

MOTOR VEHICLE – consumer law – ACL – fit for purpose – major failure – acceptable quality – whether error of law

Catchwords:

EQUITY – Equitable interests in property – Contribution to acquisition or improvement of another’s property – Resulting trust – Family arrangement for purchase of residence with separate accommodation of parent   EQUITY – Trusts and trustees – Resulting trust – Family arrangement for purchase of residence with separate accommodation of parent

Catchwords:

DISMISSING PROCEEDINGS – merits review – the Impounding Act 1993 – jurisdiction of the Tribunal – failure to comply with Tribunal orders.

Catchwords:

Real estate agent licence - fit and proper – res judicata

Catchwords:

Costs

Catchwords:

CRIME– murder - trial by judge alone – accused and deceased both inmates at the same prison – not in dispute that the deceased died from the combined effect of strangulation and blunt force trauma – whether it was the accused’s acts that killed the deceased – where the accused said he could not remember doing the acts causing death – circumstantial Crown case – where CCTV footage showed the deceased and accused alone in cell for more than 20 minutes with door shut – shortly after the accused left the cell the deceased was found unresponsive in his cell and subsequently died in hospital – injuries not capable of being self-inflicted or caused by misadventure – accused’s acts killed the deceased   CRIME — murder — defences — mental illness - where two expert psychiatrists agreed that the accused suffered from schizophrenia – disease of mind found – whether the accused could demonstrate that it was the underlying mental illness that was responsible for his acts causing death – where accused failed to demonstrate that it was his mental illness rather than self-induced intoxication that was operating on his actions - where the accused failed to show that he did not know that what he did was wrong – defence not made out   CRIME — criminal liability — intoxication — offences of specific intent - where the accused had consumed methamphetamine and Xanax on the morning of the offending – whether the accused’s self-induced intoxication deprived him of the capacity to form the requisite specific intention – elements of murder not made out - verdict of not guilty to murder but guilty of manslaughter   CRIME — murder — partial defences – substantial impairment – relationship to mental illness defence

Catchwords:

PROBATE – contested grant – suspicious circumstances – whether proponent of will had discharged onus – will left whole estate to propounder – solicitor who explained and witnessed will believed propounder was testatrix's only daughter and next of kin – solicitor's erroneous beliefs caused by lies by those benefitting under will – inability to rely on solicitor's evidence to discharge onus – requirement to consider entirety of suspicious circumstances – appeal allowed and earlier will admitted to probate – consideration of merits of approach in Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430   SUCCESSION – application for provision – dependency – factors warranting – whether primary judge erred in failing to find nephew dependent on deceased – dependency conceded at trial – whether primary judge erred in failing to find primary facts on financial position and need

Catchwords:

DEFAMATION – defences – contextual truth – amendment by plaintiff to adopt contextual imputations – whether primary judge ought to have inferred that the amendment was not brought in good faith or was an abuse of process   APPEAL – practice and procedure – decision by primary judge to allow amendment – particular caution to be exercised by appellate courts

Catchwords:

CIVIL PROCEDURE – amendment and joinder application – said to be unarguable because certain claims assigned and said to be invalid – where not all claims by all plaintiffs were assigned claims – where proceedings against defendant would continue in any event – importance of principle in Wickstead v Browne – where area of law and public policy underpinnings of principle sought to be invoked fluid – not appropriate to be determined on a summary basis   PERSONAL PROPERTY – assignment of choses in action – prohibition on assignment of bare chose in action – nature of principle stated in Trendtex Trading Corporation v Credit Suisse [1982] AC 679 and adopted in Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498; [2012] HCA 7 – whether test of what rights are to be regarded as incidental to property rights has been modified   PERSONAL PROPERTY – public policy against assignment of bare chose in action – underlying basis of public policy – maintenance and champerty – whether public policy fluid – where underlying public policy justification for principle capable of being challenged – inappropriate to be dealt with on a summary basis

Catchwords:

HIGH RISK OFFENDERS – application for costs by Defendant – Attorney General significantly narrowed on hearing day scope of terrorism intelligence application – Attorney General’s application not pressed concerning substantial volume of documents – Defendant entitled to orders for costs thrown away

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

Catchwords:

LAND LAW – contract for the sale of land – termination for breach of an essential term or for repudiation – where vendors issued notice to complete giving the purchaser 14 days to complete – where parties agreed to extend the time for completion under the notice to complete – where purchaser intimated it could not complete by extended date for completion – where purchaser failed to complete by extended date for completion – vendors terminated contract – whether notice to complete effective to make time of the essence – whether extension effective to make the newly appointed time of the essence – time for completion under extended date held to be of the essence – purchaser held to have breached contract in an essential respect and to have repudiated the contract – contract validly terminated by vendors   LAND LAW – contract for the sale of land – deposit – penalty doctrine – deposit payable by two instalments each of 5% of the purchase price – where first instalment paid on contract date – where second instalment payable “on or prior to the completion” of the contract – whether second instalment is in the nature of a deposit – held that second instalment not in the nature of a deposit   GUARANTEE AND INDEMNITY – guarantee – construction – guarantee of the purchaser’s obligations under contract for the sale of land – guarantor agrees to be personally liable for performance of purchaser’s obligations “under this Contract” – where purchaser liable under liquidated damages clause upon termination of contract – whether obligation under liquidated damages clause is an obligation “under this Contract” – guarantor held to be liable for amount of liquidated damages

Catchwords:

COMPULSORY ACQUISITION – conciliation conference – agreement between the parties – orders

Catchwords:

DEVELOPMENT APPLICATION – rooftop terrace – car stackers – vehicle manoeuvrability – onsite pedestrian safety – site suitability – partial consent

Catchwords:

PRACTICE AND PROCEDURE - service on a foreign corporation - substituted service

Catchwords:

DEVELOPMENT APPLICATION – residential apartment development – Auburn Town Centre – key sites development – site isolation - stormwater detention – street wall height

Catchwords:

CIVIL PROCEDURE — pleadings — application for summary judgment — no reasonable defence disclosed — summary judgment granted

Catchwords:

CRIME — Appeal and review — Application under s 78 Crimes (Appeal and Review) Act 2001 seeking an inquiry into a conviction and sentence – application based on a misunderstanding and did not seek an inquiry into a conviction and sentence – alternatively, matter already dealt with in proceedings on appeal and by a review under previous review provisions as well as having been the subject of appeal proceedings where the appeal or application was withdrawn or allowed to lapse – no special facts or circumstances justifying taking further action – application refused

Catchwords:

CIVIL ENFORCEMENT: declarations sought as to value of lots of land dedicated to or acquired by Council for public purposes – three lots of land transferred to Council pursuant to condition of development consent for a subdivision – determination of value of two of the lots of land – question of liability to pay compensation for the third – highest and best use – hypothetical development scenario – claims for stamp duty – undertaking of Council to pay compensation – construction of condition of development consent – alternative claims for relief discontinued.

Catchwords:

CIVIL PROCEDURE – notice to produce under Uniform Civil Procedure Rules 2005 (NSW) r 21.10 – where documents sought not specifically referred to nor clearly identified in pleading or affidavit – notice to produce set aside   CIVIL PROCEDURE – discovery – Practice Note SC Eq 11 – court rules not to be used to bypass procedure in Practice Note regarding orders for discovery   CIVIL PROCEDURE – court administration – overriding purpose – where documents sought by notice to produce will inevitably be adduced in evidence – parties and legal representatives to have regard to the overriding purpose of civil procedure rules and avoid interlocutory skirmishes

Catchwords:

CIVIL PROCEDURE – hearings – adjournment – relevant factors   COSTS – gross sum costs order – payable forthwith – order made after discounting respondents’ costs

Catchwords:

CIVIL PROCEDURE – Hearings – Order that proceedings be heard together – Two separate proceedings, each seeking a family provision order out of the same estate – Agreement by parties that both proceedings be heard consecutively, with the evidence in one being evidence in the other – Uniform Civil Procedure Rules 2005 (NSW) r 28.5 – Proceedings involve “a common question” and otherwise “desirable to make an order” under the rule   SUCCESSION – Family Provision – Each Plaintiff, a child of the deceased, applies for a family provision order under Chapter 3 of the Succession Act 2006 (NSW) – The Defendant is the widow of the deceased but was separated from him at the date of his death – Close relationship despite separation – Deceased left Will – Where testamentary trust providing for payment of income or capital to each Plaintiff at the discretion of the Defendant – Initially, issue about nature and value of the estate – Resolved by the date of hearing by Defendant agreeing to proceeds of sale forming part of the estate of the deceased – Estate of moderate value – Whether adequate and proper provision not made in Will of the deceased for each Plaintiff and if so the nature and quantum of the provision to be made   SUCCESSION – Family Provision – Extension of time for the making of the application required in respect of one applicant’s claim – Parties to the proceedings consent to the application being made out of time pursuant to s 58(2) of the Succession Act   SUCCESSION – Family Provision – Necessity for applicant to make full and frank disclosure of his financial circumstances – Where applicants fail to make full disclosure – Large number of documents produced for inspection – Documents inspected and summary prepared – Documents relate to gambling and betting history of each applicant – No suggestion, until the oral evidence of one of the applicants that documents do not record accurately his betting history

Catchwords:

CRIMINAL LAW – Juries – Medical evidence that juror was under severe stress which had been brought about by deliberations – Juror discharged   CRIMINAL LAW – Juries – Verbal altercation between jurors during deliberations – Risk of miscarriage of justice – Remaining members of jury discharged

Catchwords:

CRIMINAL LAW – conviction appeal – joint criminal enterprise – two counts of firing a firearm in a public place – jury trial – verdict of not guilty on first shooting but verdict of guilty on second shooting – circumstantial case – whether verdicts inconsistent – whether verdict of guilty open to the jury – intermediate fact of knowledge that the co-offender possessed a firearm – an issue in the first shooting but not the second – whether other reasonable possibilities inconsistent with guilt

Catchwords:

COSTS – determination of whether costs are payable – where only some prayers of relief were to be heard – where other prayers yet to be heard – where plaintiff unsuccessful – basis upon which plaintiff is to pay defendant’s costs – whether a party heard under r 2.13 of the Supreme Court (Corporations) Rules 1999 (NSW) should be awarded its costs.   COSTS – application for costs be assessed and payable forthwith – where hearing on substantial and discrete application – where there is likely significant time before balance of issues are determined – where one party will have no further role in proceedings – whether costs should be assessed and payable forthwith.

Catchwords:

PROFESSIONS AND TRADES – registered health practitioner – medical practitioner – where practitioner engaged in practice conducted by tele-medicine - where practitioner did not physically examine patients before prescribing compounded medications including medication not registered on the Australian Register of Therapeutic Goods – where practitioner failed to obtain informed consent from patients – professional misconduct established.

Catchwords:

CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of serious injury – worker injured SENTENCING – mitigating factors – objective seriousness – general deterrence – no record of previous convictions – good prospects of rehabilitation – plea of guilty – assistance to law enforcement authorities – remorse WORK HEALTH AND SAFETY – lack of employee training – no documented safe work procedure – risk control measures available at low cost COSTS – prosecution costs OTHER – work at heights – plumbing – installation of copper pipes – high voltage power lines – electric shock

Catchwords:

ADMINISTRATIVE LAW – Reasons – breach of warranty – failure to provide adequate reasons

Catchwords:

Costs on appeal

Catchwords:

CHILD CARE APPEAL – final orders

Catchwords:

Administrative Law – privacy and personal information whether collection of personal information – use of personal information – disclosure of personal information - whether agency exempt from compliance with information protection principle - law enforcement purposes

Catchwords:

CIVIL PROCEDURE — Court administration — Court powers – procedure under Uniform Civil Procedure Rules 2005 (NSW) and Trustee Act 1925 (NSW) - Payment of funds into and out of court less the plaintiff’s costs of and incidental to the summons

Catchwords:

SUCCESSION – family provision – claim by adult son – son excluded from will – estrangement from the deceased – estate left entirely to widow who was second wife – where value of the estate has diminished significantly since the deceased’s death – where widow has low prospects of future employment – no provision made

Catchwords:

CRIME – Appeals – Appeal against sentence – numerous sexual offences committed against a child – whether sentencing judge erred in using “Form 1 offences” in determining objective seriousness – whether sentencing judge erred in relying on Veen (No 2) – failure to include parole period in backdating of sentence – totality principle – error established – approach to exercise of discretion to re-sentence – whether more or less severe sentence is warranted in law – whether Court should specify longer sentence that would have been imposed – discretion to re‑sentence exercised – same length of sentence imposed but new commencement date

Catchwords:

TAXES AND DUTIES – land tax – principal place of residence exemption – strata lots in the same ownership – whether strata lots beneficially owned by the same persons   CONSTRUCTIVE TRUST – whether the registered owner of the strata lot holds the property as constructive trustee for her husband

Catchwords:

Retail lease – extension of time to appeal – no error of law – no demonstrated basis for leave to appeal on alleged error of fact

Catchwords:

CRIME – conviction appeal – where applicant consented to joint trial when advised otherwise by counsel – where Crown witness gave damaging answers in response to questions regarding use of prohibited weapons – where defence counsel disclosed fact of the applicant’s previous incarceration during cross-examination of Crown witness – whether incompetence of counsel led to miscarriage of justice   CRIME – sentence appeal – whether sentence manifestly excessive

Catchwords:

RENEWAL – home building – adequacy of reasons –– procedural fairness

Catchwords:

COSTS – orders for costs where a party acted unreasonably in complicated personal injury proceedings involving multiple defendants – indemnity cost orders

Catchwords:

TORTS – negligence – motor vehicle accident; DAMAGES – assessment of claimed heads of damage – assessment of reliability of expert medical opinions

Catchwords:

LIMITATION OF ACTIONS – negligence – motor vehicle accident – claim for damages for alleged negligence – whether delay in commencing proceedings has been explained fully and satisfactorily and whether damages threshold stipulated by s 109(3)(b) of the Motor Accidents Compensation Act 1999 (NSW) has been met – joinder of insurer pursuant to s 119 of the Motor Accidents Compensation Act 1999 (NSW)

Catchwords:

LIMITATION OF ACTIONS – negligence – motor vehicle accident – claim for damages for alleged negligence – whether delay in commencing proceedings has been explained fully and satisfactorily and whether damages threshold stipulated by s 109(3)(b) of the Motor Accidents Compensation Act 1999 (NSW) has been met

Catchwords:

PRACTICE & PROCEDURE – dismissal of first defendant’s motion seeking an order pursuant to UCPR r 23.4 that the plaintiff submit to psychometric testing – order pursuant to UCPR r 31.20(j) for expert witness to prepare a single report consolidating opinions contained in a series of reports

Catchwords:

LIMITATION OF ACTIONS – work injury damages – claim of bullying and harassment causing the plaintiff to incur severe psychological injury and consequent work incapacity – grant leave to maintain out of time proceedings pursuant to s 151D of Workers Compensation Act 1987 (NSW)

Catchwords:

CRIMINAL LAW – appeal against sentence – series of sexual assaults against granddaughter – whether failure to make finding of special circumstances disclosed error – whether sentence manifestly excessive – comparison with other sentences – appeal allowed and applicant resentenced

Catchwords:

HIGH RISK OFFENDER – application for extended supervision order – final hearing – history of serious violence offences – statutory preconditions established – whether satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious violence offence if not kept under supervision – consideration of progress in rehabilitation, psychological diagnoses, and conduct under past and present supervision – defendant’s negative attitude to extended supervision order not relevant to Court’s discretion – experts in agreement as to assessment of risk posed by defendant – order made subject to conditions

Catchwords:

Principle of proportionality; abuse of process

Catchwords:

CRIMINAL LAW - sentence after trial - conspiracy to do acts in preparation of a terrorist act contrary to ss.11.5(1) and 101.6(1) Criminal Code - shooting of Curtis Cheng in terrorist act on 2 October 2015 - significant degree of planning in conspiracy - offender offered emotional, religious, ideological and financial support to co-conspirators - offender gave counter-surveillance support during critical events when a firearm was being sourced for the terrorist act - offender played a trusted and critical role in the conspiracy - offender did not give evidence at trial or sentencing hearing - limited weight given to offender’s letter to the Court and his account to psychologist - offender did not demonstrate that he resiled from entrenched extremist views - absence of contrition or remorse - risk of reoffending as supporter, sympathiser and conspirator in terrorist acts -offender’s refusal to stand during trials - relevance to prospects of rehabilitation - significant role of denunciation, protection of the community, personal and general deterrence - sentenced to 28 years’ imprisonment with a non-parole period of 21 years

Catchwords:

Costs - building dispute - plaintiff successful on quantum meruit claim but not successful on contractual claim - whether there should be a costs order on discrete issues - Calderbank offer – whether there should be an indemnity costs order - appropriate costs order to be made Interest - building dispute - whether interest should be ordered in relation to quantum merit claim - if so, from what date should interest be ordered

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LEGAL PRACTITIONERS – solicitor and client – claim by solicitor for fees – whether fees claimed are unfair and reasonable or excessive – where client retains solicitor to do work concerning a fraud perpetrated by an employee of the solicitor on the client – where solicitor gives an oral undertaking not to charge for this work – where no consideration given for the undertaking; PROCEDURE – Supreme Court supervisory jurisdiction and generally – whether the court should in its supervisory jurisdiction give effect to the undertaking – where part of the fees charged for may be for work done by the solicitors which transpires to be to their own benefit in adverse proceedings against the client; TORT – fraud – vicarious liability – solicitor in employ of law firm commits fraud on a client of the firm – whether conduct in course and scope of employment; AGENCY – ostensible authority – whether client clothed solicitor with ostensible authority – whether conduct of solicitor was in course and scope of his employment with law firm

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CRIMINAL LAW – appeal against sentence – plea of guilty to offence of cultivate commercial quantity of cannabis – where applicant made admissions to police upon arrest and walked them through grow operation whereas co-offender did not – whether sentencing judge failed to take into account applicant’s admissions

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DEVELOPMENT APPLICATION – boarding house – visual and physical character compatibility – amenity – parking – landscaping

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CRIME – appeals – Crown appeal against sentence – where respondent guilty of sexual intercourse with child under 10 in circumstances of aggravation – victim of offending was 11-month-old infant daughter of the respondent’s partner – where victim suffered internal injury to her rectum – sentencing judge not satisfied that offending was sexually motivated – sentenced to 4 years and 6 months with non-parole period of 3 years – where sentence largely concurrent with manslaughter sentence involving same child – whether sentence manifestly inadequate – objective seriousness of the offending – application of the totality principle – exercise of the residual discretion pursuant to s 5D of the Criminal Appeal Act 1912 (NSW) – consideration of factors relevant to the exercise of the discretion – expiration of the non-parole period imposed by the sentencing judge – respondent resentenced

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OFFENCES AND PENALTIES – sentence – clearing of native vegetation – objective seriousness of offence – substantial environmental harm caused – clearing negligent – clearing for financial gain – foreseeable risk of environmental harm – practical measures to prevent risk of harm – control over causes – offence in low-middle range – subjective circumstances of the offender – no prior convictions – prior good character – relatively early guilty plea – genuine remorse for offence and consequences – assistance to authorities – appropriate fine – moiety of fine – costs

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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 – general deterrence – specific deterrence – appropriate penalty   COSTS - prosecution costs   OTHER – underground coal mine – collisions between transport vehicle and roof infrastructure – resulting fracture of W-strap – driver of transport vehicle injured by damaged W-strap

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WORKERS’ COMPENSATION – proceeding to obtain compensation – work injury damages – whether statement of claim materially different to draft pleading attached to plaintiff’s pre-filing statement – meaning of “materially different” in context of attached pleading.

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CRIMINAL PROCEDURE – trial – directions to jury – failure to direct the jury in accordance with Black v The Queen – failure clearly to respond to notes from the jury indicating inability to reach unanimity – whether undue pressure imposed on jury – whether trial miscarried

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CRIME - Armed robbery - offensive weapon - where offender armed with machete - where offender robbed hairdresser and pharmacy - where small amount of money taken   SENTENCING -Relevant factors on sentence - Objective seriousness - considerable similarity to guideline judgment in R v Henry - offences in the low/mid and mid-range - Aggravating factors - breach of conditional liberty - planned or organised criminal activity - record of previous convictions including crimes of violence - medium/high risk of re-offending - Other matters - offences motivated by drug addiction - remorse shown - early guilty plea - no injury to persons - form 1 matters   SENTENCING - Multiple offences - Aggregate sentences - Imprisonment - referral to Drug Court

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LANDLORD AND TENANT— application for leave to appeal against summary dismissal of statement of claim — where merits of various complaints as to habitability of premises and identity of landlord addressed by New South Wales Civil and Administrative Tribunal — where statement of claim reformulates many of these claims — whether landlord’s failure to provide approval or occupation certificate entitles tenant to refund of rent — whether allegations precluded by issue estoppel — no issue of principle or general importance — application for leave to appeal dismissed

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PRACTICE AND PROCEDURE – Application for stay of proceedings – Where plaintiff commenced proceedings in this Court for negligence arising out of surgical procedures conducted by the defendant in France – Where there was a previous determination that this Court was not an inappropriate forum – Where the defendant commenced proceedings in France subsequent to that determination – Where proceedings now pending in both jurisdictions – Whether the proceedings in this Court should be stayed pending the determination of the proceedings in France – Where the relevant discretionary factors leading to the previous determination remained essentially the same – Where cause of action arose in 2011 and proceedings were commenced in 2015 – Where proceedings listed for hearing in a short time – Application for a stay of proceedings dismissed

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SUCCESSION – family provision – approval of settlement in circumstances where Defendant is a person under a legal incapacity – approval also sought of inter vivos release made by Plaintiff in respect of his right to make an application for a family provision order in respect of the Defendant’s estate upon her death, in proceedings where order for provision sought in respect of deceased father’s estate – Section 95 Succession Act 2006 (NSW) – extent of circumstances considered on approval of inter vivos release – whether inter vivos release made should be approved by Court – whether matter to be dealt with in Chambers or in Court – amended release then made by the Plaintiff which amended release approved

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CIVIL PROCEDURE – Parties – Joinder – Application to be joined as defendant

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LAND LAW – strata title –strata renewal plan given effect

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DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – orders

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SUCCESSION — Family provision and maintenance — Children seeking orders pursuant to s 59 of the Succession Act 2006 (NSW) for further provision for their proper maintenance, education or advancement in life out of the estate or notional estate of the deceased — Will operated so as to transfer the whole of the estate to the widow of the deceased — In circumstances where the substantial component of the deceased’s notional estate was derived from the widow’s own contributions — Summons dismissed, taking into account all relevant circumstances including as outlined by ss 59 and 60 of the Succession Act 2006 (NSW)

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CORPORATIONS LAW – claim by liquidators against director for insolvent trading – D&O policy responded to claim – director entered into personal insolvency agreement – liquidators agreed only to enforce judgment against proceeds of insurance policy – whether insurer should be joined to proceedings pursuant to Civil Liability (Third Party Claims Against Insurers) Act 2017 (NSW) – whether any evidence of dispute between insurer and insured director – whether improved prospects of obtaining a costs order against insurer foreign to discretion to join – application refused – Opes Prime Stockbroking Ltd (in liq) v Stevens [2014] NSWSC 659 and DSHE Holdings v Abboud [2017] NSWSC 579, followed   COSTS – whether unsuccessful liquidators should pay costs of separately represented insurer and insured – general principle that unsuccessful party not ordered to pay two sets of costs where no possibility of conflict between successful separately represented parties – liquidators ordered to pay one set of costs – Local Democracy Matters Inc v Infrastructure NSW (No 2) [2019] NSWCA 118 applied

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PROCEDURE – writ of possession – stay of execution – where default judgment obtained by mortgagee – where application for vacation and stay of execution dismissed by registrar in common law division – where motion to set aside registrar’s decision dismissed by Supreme Court Judge – no arguable grounds of appeal – no question of principle