Browse decisions Displaying 1 - 200 out of 85669 results

Catchwords:

HIGH RISK OFFENDER - serious sex offender - preliminary hearing - application for interim supervision order and for examination by court-appointed psychiatrists or psychologists - "serious sex offence" of aggravated sexual assault –extended supervision order previously made – order due to expire – question of the need for a further order - criminal history includes numerous convictions for breaches of supervision orders  - poor history of compliance with supervisory conditions – previous revocation of parole - interim supervision order made together with order for examination by two psychiatrists or psychologists

Catchwords:

SENTENCING – murder – offender shot three victims at close range with shotgun – body of one victim burned – female victim had left offender to commence relationship with a male victim – offender motivated by jealousy and humiliation – not guilty plea – whether life sentence should be imposed

Catchwords:

APPEAL – leave to appeal – interlocutory order striking out solicitor’s claim to recover legal costs referable to period before costs disclosure made – submission that subsequent costs disclosure removed barriers to suing for costs for prior services – such submission at odds with statutory language and intent – no exceptional circumstances or well-based apprehension of miscarriage of justice warranting leave to appeal

Catchwords:

CIVIL PROCEDURE – pleadings and evidence – amendment – plaintiff seeks leave to amend its pleadings and rely upon further evidence – where plaintiff previously granted leave to rely on evidence served in the face of a guillotine order – where earlier order that if plaintiff in default of any direction or order the proceedings be dismissed – where plaintiff’s legal advisors aware that defendants preparing evidence in response – where plaintiff’s legal advisors concluded that existing evidence insufficient and required augmentation – where plaintiff’s legal advisors did not inform the defendants or the Court that further evidence be marshalled – where significant body of further evidence served without notice on the day after defendants served its evidence – where likely that defendants will have to revisit all evidence adduced so far to ascertain whether it answers evidence freshly served by plaintiff – whether plaintiff should have leave to rely upon the further evidence – whether plaintiff should have leave to amend its pleadings   PROFESSIONS AND TRADES – Lawyers – whether solicitor for plaintiff should pay the costs that the plaintiff must pay the defendants by reason of leave being granted

Catchwords:

UNFAIR DISMISSAL – Parking Ranger – previous Step: 3 Final Warning (Written) – acted in an aggressive, abrupt and rude manner towards a member of the public – misconduct – dismissal not harsh, unreasonable or unjust – application dismissed

Catchwords:

SENTENCING – murder – offender stabbed victim while intoxicated by drugs and alcohol – possession of weapon with intent to cause actual bodily harm taken into account on Form 1 – offender with violent and abusive upbringing – polysubstance use disorder – lengthy criminal history – offence just below midrange of objective seriousness – Court not permitted to call up breached bonds imposed in the Local Court – expression of remorse – 20 per cent discount for guilty plea

Catchwords:

CORPORATIONS – winding up – liquidators – application by liquidator for directions relating to distributions to creditors – Corporations Act 2001 (Cth), Sch 2 – Insolvency Practice Schedule (Corporations), s 90-15(3)(a) – where sale of the company’s assets and some employees transferred to the purchaser – dispute between liquidator and new employer concerning which employer was responsible for long service leave entitlements – where liquidator called for and ruled on proofs of debt from transferring employees – where no appeal brought against liquidator’s decision that no long service leave entitlements would be paid to transferring employees – where liquidator received legal advice which supported his decision – whether appropriate to give directions that liquidator is justified in making distributions to creditors ignoring any claims by the transferring employees for long service leave entitlements

Catchwords:

DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders

Catchwords:

DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders

Catchwords:

CRIME – appeal against conviction – offence of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug – whether conduct of defence of co-accused caused unfairness to applicant – where co-accused pleaded guilty to another offence to engender reasonable doubt that he had the requisite mental state – where applicant did not apply for a separate trial – purported miscarriage of justice resulting from course deliberately chosen on the basis that it could result in a forensic advantage – where no ground of appeal alleging incompetency of counsel - appeal against sentence – commencement of sentence – pre-sentence custody period not taken into account – sentence backdated

Catchwords:

Solicitor – professional misconduct - breach of condition of a practising – making a threat to another practitioner – appropriate orders

Catchwords:

COSTS – relevant costs rule on appeal where applicants claimed that respondent had unreasonably refused to repeal by-laws – r 38 of the Civil and Administrative Tribunal Rules 2014 (NSW) does not apply – s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) does apply

Catchwords:

DEVELOPMENT APPLICATION: seniors housing development – whether the development standards contained in the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 are capable of variation by way of clause 4.6 of the Ku-ring-gai Local Environmental Plan 2015 – non-compliance with development standards in the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004

Catchwords:

APPEAL – alleged denial of natural justice – summary dismissal of plaintiff’s proceedings – abundant opportunity to prepare and to present case – alleged medical difficulties in attending court – not accepted by Local Court – interlocutory decision – leave required – jurisdictional issue without merit – leave to appeal refused and, to the extent necessary, appeal dismissed.

Catchwords:

LAND AND ENVIRONMENT – categorising rateable land – assessment of the rates payable by the owner of land during the period of development – whether the dominant use of land can be categorised as “for residential accommodation” when the relevant land is being developed for the purpose of the construction of residential apartments – s 516(1)(a) of the Local Government Act 1993 (NSW) considered

Catchwords:

CIVIL PROCEDURE – settlement – court approval – where proceeding commenced on behalf of minor – where settlement amount takes into account the prospect that the plaintiff may not succeed – where settlement amount disproportionately favours the defendant – settlement not approved

Catchwords:

CIVIL – Mental Health (Forensic Provisions) Act 1990 (NSW) – extension order – final hearing – history of schizophrenia and polysubstance abuse – index offence of aggravated sexual assault – patient exhibiting signs of improvement since extension order made in 2015 – experts of opinion that patient should remain forensic patient – Court satisfied to high degree of probability that there is unacceptable risk – risk cannot be adequately managed by less restrictive means – extension order granted for period of 3 years

Catchwords:

TORTS – negligence – plaintiff stepped on kerb and fell causing injury to foot   TORTS – negligence – duty – risk of harm – foreseeability – risk not insignificant – precautions against risk of harm – burden of taking precautions – causation   DAMAGES – non-economic loss – past out-of-pocket expenses – past economic loss and future loss of earning capacity

Catchwords:

SUCCESSION — Executors and administrators — Proceedings against co-executor — Removal sought of the co-executor by another executor to both of whom Probate had been granted — Significant delay in the administration of estate — Defendant executor has not vacated the property which comprises the primary asset of the estate — Possession of real property sought — Occupation fee or mesne profits also sought in amended Summons but not pursued following conclusion of the proceedings   SUCCESSION — FAMILY PROVISION — Claim for a family provision order by Defendant in Cross-Summons — No dispute as to the Defendant’s eligibility as a person with whom the deceased was living in a de facto relationship at the time of her death — Proceedings not commenced within time prescribed by Act — No consent to extension of time — Whether sufficient cause shown — Whether conscious and deliberate decision made by Defendant in not commencing proceedings within time — Unconscionable conduct of Defendant — Prejudice suffered by Plaintiff and other beneficiary due to delay in each receiving his entitlement under Will — Competing claim of the Plaintiff and another beneficiary, each of whom is an adult child of the deceased — Small estate in value — Provision made by deceased to Defendant in Will of half of the value of the real estate — Court not satisfied there was sufficient cause shown for the application being made out of time — Conclusion in part on the basis that the Court would not, in any event, have made a family provision order in favour of the Cross-Claimant

Catchwords:

CONTRACT – whether defendants required to indemnify plaintiff for costs incurred in attempting to enforce the franchise agreement – construction of the franchise agreement and the deed of indemnity and guarantee – relevant clauses not engaged when plaintiff commences proceedings which are ultimately unsuccessful – claim dismissed.

Catchwords:

CHILDREN – parens patriae jurisdiction – application in effect to prevent implementation of orders made by the Children’s Court – where Children’s Court ordered that children the subject of the application be returned to their carers – where Department contends that this would pose an unacceptable risk of harm – whether there is an unacceptable risk of harm – necessary to balance possibility of harm if children are returned with probability of harm if they are not – application dismissed.

Catchwords:

TORT – defamation – limitation – application to amend statement of claim and extend limitation period – plaintiff brings proceedings for anonymous letters placed in letterboxes – defence initially denies publication but then pleads that he published outside the limitation period – requirements of “not reasonable” test satisfied – no issue of principle

Catchwords:

COMPULSORY ACQUISITION – whether the applicants should be ordered to pay the respondent’s costs thrown away occasioned by changes to the applicants’ claims for compensation during the course of the hearing that were subsequently abandoned – new claims resulted in additional legal costs incurred by the respondent to meet the claims – costs ordered against the applicants.

Catchwords:

DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders

Catchwords:

Name of party-application incorrectly named applicant party- correct name substituted Recording of Tribunal proceedings – application by party-held no valid reason for exercise of discretion Costs application by respondent-application of sec 60 of Civil and Administrative Tribunal Act-held appropriate to make costs order Costs application by applicant for refund of disbursements paid to Tribunal and for compensation-held no power to consider such application – costs order refused

Catchwords:

APPEAL – conciliation – parties agreed to a decision being made on the basis of what occurred at conciliation – former Cockle Creek Smelter and Incitec site – site specific clause applies requiring Planning Secretary certification – no known date by which certification could be obtained – no power to grant development consent

Catchwords:

DEVELOPMENT APPLICATION: Child care centre – to what extent current development consent is a matter for consideration – streetscape character – above ground outdoor space – large balconies and FSR controls – proportion of places for under two year old children

Catchwords:

Residential tenancy – renovation work carried out by Body Corporate resulted in dust and other substances containing excessive lead levels entering premises – expert reports – premises cleaned – held rent abated for a period of 4 days.

Catchwords:

CRIMINAL LAW – APPEAL – appeal against sentence – asserted failure to have regard to limited criminal history – asserted failure to have sufficient regard to subjective case

Catchwords:

ADMINISTRATIVE LAW – judicial review - assessment of causation of neck injury by Motor Accidents Medical Assessment Service Review Panel – whether misapplication of principles of causation disclosed jurisdictional error – whether proposed surgical treatment is related to injury caused by one or more of three motor accidents – where Panel found that mild soft tissue injuries did not materially contribute to chronic degeneration but nevertheless found that proposed surgery related to accidents causing those injuries – where Panel did not make determination in respect of submissions about the persistence of symptoms of those injuries – Panel yet to determine related question of whether proposed treatment reasonable or necessary   ADMINISTRATIVE LAW – prerogative writs - certiorari – need for reviewed decision to have apparent legal effect or to affect rights – declaratory relief available in circumstances where Panel decision did not have immediate legal effect

Catchwords:

ADMINISTRATIVE LAW – administrative tribunals – where plaintiff sought stay of proceedings before Appeal Panel of NCAT – no grounds for intervention of Supreme Court – stay refused

Catchwords:

COSTS – costs of successful application pursuant to Corporations Act 2001 (Cth), s 459S – discussion of the “indulgence principle” – whether it is proper to characterise an application for leave under s 459S as seeking an indulgence from the court – whether the costs of a successful s 459S application should ordinarily be costs in the cause or the plaintiff’s costs in the cause

Catchwords:

CIVIL PROCEDURE – service – application for leave to use affidavits under Civil Procedure Act 2005 (NSW), r 10.2 – defendants neither consent to nor oppose orders – leave granted

Catchwords:

PROCEEDS OF CRIME – application for a forfeiture order – no exclusion application made – notice given to interested parties – orders made as sought

Catchwords:

STATUTORY INTERPRETATION – primacy of text –structure of legislation – construction of provision containing zeugma – no wider context or extrinsic factors to be considered – Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193; [2005] HCA 58 applied   VALUATION – land value – Valuation of Land Act 1916 (NSW), 6A – construction of, and relationship between, s 6A(1) and s 6A(2) – utility of references to separate “s 6A(1)” and “s 6A(2)” valuations   VALUATION – land value – where actual use of land prohibited by zoning but permitted as existing use – contaminated land – whether trial judge erred by disregarding costs of remediation – whether trial judge erred by disregarding location in “blast zone” – whether error to add uplift to amount derived from sales of land of comparable value to account for existing use rights

Catchwords:

CONTEMPT – interim non-publication orders – review of orders – primary objective of safeguarding the public interest in open justice – question of necessity of final order in more limited terms than earlier orders

Catchwords:

COSTS – proceedings resolved without a determination on the merits – proceedings commenced following service of lapsing notice in relation to a caveat – defendants effectively capitulate in the face of plaintiff’s claim – appropriate that defendants pay plaintiff’s costs, but not on an indemnity basis.

Catchwords:

PROFESSIONS AND TRADES – Health Practitioner –Pharmacist – modifications to methadone dispensing unit - record keeping - provision of medication without a valid prescription - whether conduct constitutes unsatisfactory professional conduct and professional misconduct – consideration of appropriate protective orders

Catchwords:

LAND LAW – licences – written agreement for defendant to occupy part of premises for one year with option to renew for further three years – whether agreement included additional oral terms – whether option to renew could be validly exercised by notice given verbally – rent review clause too uncertain to be enforceable – unenforceability of rent review clause does not render the option unenforceable – option validly exercised – whether further agreement reached as to occupation of additional space in the premises – defendant not entitled to occupy additional space and exclude plaintiff from premises – defendant liable to pay outstanding rent and damages for trespass

Catchwords:

APPEAL – Residential Tenancy – tenant made a claim seeking repayment from the landlord of the amount he had paid to a retail electricity supplier in electricity charges during the period of his tenancy – the claim was made on the basis that the residential premises the subject of his residential tenancy agreement with the landlord were not separately metered – the Tribunal below found that the tenant’s application fell within s 47 of the Residential Tenancies Act 2010 (RT Act), s 47(5) of which gave the Tribunal a discretion as to whether to make the order sought – Tribunal below dismissed the tenant’s application in the exercise of that discretion.   APPEAL – whether Tribunal took into account an irrelevant consideration in the exercise of its discretion under s 47(5), namely the oral agreement of the parties at the commencement of the tenancy that the tenant would pay the electricity charges but would not pay the water charges which was void under s 21 of the RT Act because it was contrary to ss 38(1)(a) and 40(1)(c).

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable–physical impairment of applicant – whether applicant can work unsupervised with physical impairment – would a reasonable person allow unsupervised access to their own child in context of child related work

Catchwords:

COSTS – costs of trial – where trial judge entered verdict and judgment for plaintiffs – where appeal and cross-appeal allowed – where damages payable by defendant reduced by approximately 60% – where general rule that costs follow the event – where multiple issues raised at trial – whether “late amendment” principle applied – whether defendant succeeded on dominant issue on appeal – whether plaintiffs engaged in disentitling conduct   COSTS – costs of appeal – where appellant succeeded on main issue argued on appeal – where respondent given leave at conclusion of appeal hearing to file cross-appeal – where substantial post-hearing submissions – where damages payable by appellant reduced by approximately 60% – where appeal and cross-appeal allowed – whether costs of appeal and cross-appeal follow the event   PROCEDURE – payment into court – where moneys paid into court as security for costs of appeal – whether plaintiffs entitled to “stop order” pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 41.16(2)(b) – whether moneys paid “as security for costs” can be paid out for a different purpose   WORDS AND PHRASES – “event” – Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Catchwords:

CIVIL PROCEDURE – Parties – Vexatious litigants – Stay of proceedings – leave to appeal from Vexatious Proceedings Order – Declaration that balance of proceedings be dismissed pursuant to Vexatious Proceedings Act 2008 (NSW), s 13   CIVIL PROCEDURE – referral for pro bono assistance – whether to make an order under UCPR, r 7.36 referring applicants to the registrar for referral for pro bono assistance   COSTS – Party/Party – Court’s discretion

Catchwords:

COSTS: Discontinued Class 1 appeal – application by Respondent Council for all of its costs of the appeal – principles to apply – costs on the motion.

Catchwords:

CORPORATIONS – External administration – Liquidation – Liquidators’ applications – Application by liquidators of corporate trustee for directions consequent upon previous judgment – Date as at which client entitlements are to be ascertained – Whether the non-Equities/ETOs CSAs should be pooled, or transactions between them reversed – Whether funds in trust accounts in excess of trust obligation should be remitted to secured creditor – Whether liquidators justified in adopting process for claims and distribution – Whether appropriate to approve quantum of remuneration and disbursements in connection with distribution process in advance   CORPORATIONS – External administration – Liquidation – Liquidators’ remuneration – Where questions of reasonableness and proportionality emerging – Preferable to consider upon completion of administration   COSTS – Proceedings by trustee for advice – Costs of all parties to be paid out of trust funds, pro rata according to the value of assets in the funds

Catchwords:

EVIDENCE – Hearsay – exceptions to hearsay rule – admissions – proceedings brought by the former clients of an investment advisory firm against the insurers of the deregistered firm pursuant to Corporations Act 2001, s 601AG – whether statements made by the principal of the firm to the clients can be admitted into evidence against underwriters – whether the statements made by the principal are hearsay – whether they are admissions that are admissible against underwriters in Corporations Act, s 601AG proceedings – Evidence Act 1995, ss 81 and 87.

Catchwords:

COSTS – proceedings resolved without a determination on the merits – plaintiff required to commence the proceedings to protect her rights under an agreement with first defendant – first defendant acted unreasonably – indemnity costs ordered

Catchwords:

CORPORATIONS – external administration – application for directions by receivers – receivers seeking order to sell or dispose of real property belonging to a company – where company acts as trustee of a unit trust – where company owes debt to New South Wales Crime Commission – where unitholders of the trust cannot be identified – orders made allowing the properties to be sold on terms that a further order is required in order to distribute the proceeds of sale

Catchwords:

JUDICIAL REVIEW – integrated development – whether permissible for approval authority Heritage Council to provide comments, rather than general terms of approval, with respect to portion of development application – general terms of approval with respect to development outside curtilage of heritage item required where there is a relevant nexus – relevant nexus apparent from Heritage Council decision – misconstruction of statutory power – jurisdictional error established   WORDS AND PHRASES – “land” – definition of land in s 57(1)(e) not restricted to curtilage of item or to lot on which item sits – to be determined on a case by case basis   WORDS AND PHRASES – “in relation to” – protective purpose of the Heritage Act 1977 – interpretation promoting that purpose preferred to interpretation not promoting that purpose

Catchwords:

DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders.

Catchwords:

PRACTICE AND PROCEDURE – whether leave granted to Roads and Maritime Services (RMS) to institute a prosecution with respect to offences under the Protection of the Environment Operations Act 1997 (POEO Act) – RMS “an appropriate regulatory authority” to bring proceedings for the offence – leave granted pursuant to s 219(1A) of the POEO Act

Catchwords:

CIVIL PROCEDURE – pleadings – application for leave to file an amended defence – where trial date fixed a year earlier – application brought late with little satisfactory explanation beyond the change of legal representation – weakness of proposed defences – risk of expanding hearing beyond current trial estimate   PROCEDURE – subpoenas – application to set aside subpoena – subpoena too broad or poorly framed

Catchwords:

CIVIL PROCEDURE – appeal – security for costs – whether appellant likely to meet an adverse costs order – appellant a trustee – director offering security over property   CIVIL PROCEDURE – appeal – application to call further evidence – likely effect on costs of appeal – direction that motion be heard before the date for hearing the appeal

Catchwords:

APPEAL – development application – wall advertisement – breach of requirements of SEPP 64 – whether development standard or prohibition – request to grant consent notwithstanding breach of development standard – whether other requirements of SEPP 64 met

Catchwords:

APPEAL – workers compensation – “disease injury” – appeal against appellate decision of Deputy President – whether Deputy President misapprehended what had been put to the Arbitrator – whether Deputy President failed to exercise jurisdiction   APPEAL – workers compensation – “disease injury” – appeal against appellate decision of Deputy President – whether appellant had suffered an “injury” – whether Deputy President had failed to address substance of appeal ground

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – disability compensation under Crown Employees (Police Officers Death and Disability) Award 2005 – procedural fairness – whether self-represented litigant denied procedural fairness   EQUITY – disability compensation under Crown Employees (Police Officers Death and Disability) Award 2005 – unconscionability - whether conduct of NSW Police in enforcing Deed unconscionable – whether NSW Police owed appellant a fiduciary duty – whether breach of fiduciary duty   TORTS – disability compensation under Crown Employees (Police Officers Death and Disability) Award 2005 – whether NSW Police owed appellant a duty of care – whether breach of duty of care   CONTRACTS – disability compensation under Crown Employees (Police Officers Death and Disability) Award 2005 – whether Deed contravened Contracts Review Act 1980 (NSW)

Catchwords:

CRIMINAL LAW – Crown appeal against sentence – s 16AC of Crimes Act 1914 (Cth) – applicant received discount for future assistance – whether applicant’s failure to comply entire or partial – whether failure to comply with undertaking without reasonable excuse – review of authorities – no reasonable excuse for failure to comply – partial failure to comply with undertaking found – partial compliance effectively worthless – discretion exercised to remove entire discount for future assistance

Catchwords:

CRIMINAL LAW – sentence appeal – dishonestly obtaining financial advantage from the Commonwealth by deception – attempting to dishonestly obtain financial advantage from the Commonwealth by deception – s 11.1 – s 134.2(1) Criminal Code 1995 (Cth) – pleas of guilty – whether her Honour failed to take into account the applicant’s pleas of guilty – s 16A(2)(g) Crimes Act 1914 (Cth) – utilitarian value – whether the sentence imposed was manifestly excessive

Catchwords:

CRIMINAL LAW – leave to appeal and appeal against sentence – leave to bring application out of time granted – whether sentencing judge failed to take proper account of the applicant’s, remorse, prospects of rehabilitation and presentencing and psychiatrist reports – no error shown – whether sentence was manifestly excessive – leave to appeal refused

Catchwords:

APPEAL FROM LOCAL COURT – alleged denial of procedural fairness – challenges to interlocutory decisions of magistrate of procedural nature – no warrant for grant of leave

Catchwords:

PROFESSIONS AND TRADES — whether decision under appeal is an “appealable decision” under s 175 of Health Practitioner Regulation National Law (NSW)   PROFESSIONS AND TRADES — whether appellant meet a requirement for registration stated in an approved registration standard for the profession, the “Registration standard: Recency of Practice”   PROFESSIONS AND TRADES — whether eligibility for registration can be achieved by the imposition of conditions under s 52(2) of the Health Practitioner Regulation National Law (NSW)

Catchwords:

ADMINISTRATIVE LAW – Judicial Review – Where Roads and Maritime Services (“RMS) cancelled plaintiff mechanic’s examiner’s authority to test and check vehicles for registration purposes – Where appeal against RMS decision dismissed by the Local Court – Whether Magistrate denied procedural fairness by making findings adverse to the plaintiff contrary to concessions by the RMS without adequate notice – Whether Magistrate denied procedural fairness by making adverse findings beyond the breaches alleged against the plaintiff in the show cause letter   JURISDICTION – Appeals – Whether privative clause under s 270 of the Road Transport Act 2013 (NSW) has the effect of removing right of appeal from the Local Court to the Supreme Court against Local Court determinations under s 267(1) of the Road Transport Act – Whether s 267(1) matters are properly heard in the General Division of the civil jurisdiction of the Local Court or within the Court’s special jurisdiction

Catchwords:

REAL PROPERTY - imposition of easement by court - s 88K of the Conveyancing Act 1919 (NSW) – where the grant of easement is unopposed - whether grant of easement is ‘reasonably necessary’ - whether grant of easement is consistent with the public interest – where quantum of compensation to be paid is agreed between the parties

Catchwords:

JUDICIAL REVIEW – review of decision of Judicial Commission Conduct Division to conduct a hearing in public – meaning of “hearing” – relevance of open justice principle – whether criteria in Guidelines promulgated by Judicial Commission create legal obligations – Judicial Officers Act 1986 (NSW), ss 10, 24   JUDICIAL OFFICERS – complaints  concerning ability or behaviour of judicial officer – complaints referred to Judicial Commission Conduct Division – decision to conduct hearing – whether hearing should be held in private or in public – relevant criteria   WORDS AND PHRASES – “hearing” – “public interest” – “should consider”

Catchwords:

CRIME – sentence appeal – supply commercial quantity of prohibited drug – sentenced to 10 years imprisonment with 5 year non-parole period – offender with history of drug supply convictions – contended that assessment of objective seriousness in midrange was erroneous – ground lacks merit– whether sentence manifestly excessive – starting point before 25 per cent discount of 13 years 4 months erroneously excessive

Catchwords:

CORPORATIONS — Voluntary deregistration — Reinstatement — Where final orders made with respect to the shareholding of the company — Where company subsequently deregistered — Requirements for voluntary deregistration not met — Corporations Act 2001 (Cth) s 601AH(2) — “Person aggrieved by the deregistration” — Whether “just” that company be reinstated — Order for reinstatement made.   CORPORATIONS — Dissolution — Reinstatement — Ancillary orders under Corporations Act 2001 (Cth) s 601AH(3)(d) — Scope of power to make ancillary orders — Orders to enforce orders in earlier proceedings — Order to alter shareholding — Order to alter office holders — Order to alter registered office — Order to repeal constitution — Ancillary orders made.   CIVIL PROCEDURE — Service — Substituted service — Whether document cannot practicably be served — Difficulties effecting service in earlier proceedings — Orders for substituted service made in earlier proceedings — Same orders for substituted service made.

Catchwords:

CORPORATIONS – deregistration – application to reinstate company – company in liquidation at the time of deregistration – whether liquidator at the time of the company’s deregistration should be re-appointed – where liquidator enters into an agreement with former creditor of the company to sell property which was discovered after the company’s deregistration – where agreement potentially gives a particular creditor an advantage over other creditors of the company – where agreement potentially fetters liquidator’s duties under the Corporations Act 2001 (Cth) – suitability of re-appointment   CORPORATIONS – deregistration – application to reinstate company – suspension of limitation periods – whether order under Corporations Act 2001 (Cth), s 601AH(3)(d) should be made to suspend limitation period – order not necessary

Catchwords:

TORTS – intentional torts – personal injury –allegations of historic sexual and physical child abuse – damages sought for psychiatric injury and consequential loss   EVIDENCE – civil standard of proof – approach to assessment of credibility – burden of proof to the Briginshaw standard – Evidence Act 1995, s 140(2)

Catchwords:

SENTENCING – appeal against sentence – non-parole period – ratio of the non-parole period and balance of term – special circumstances – whether sentencing judge wrongly focused on whether offender needed extended supervision period – whether sentencing judge assumed treatment available in custody – whether special circumstances should have been found

Catchwords:

TRUSTS – appointment of trustee – where sole member of trust resolved to remove former trustee and resolved to appoint replacement trustee in accordance with express power contained in trust deed – whether declaration should be made as to validity of appointment of trustee of the trust – where vesting order under s 71 of the Trustee Act 1925 (NSW) sought in respect of unidentified property held by previous trustee subject to trust – whether vesting order should be made.   PRACTICE AND PROCEDURE – joinder of parties – where former trustee of trust made substantial loan to company in liquidation – whether replacement trustee of trust should be joined as a defendant in substantive proceedings.

Catchwords:

AGENCY – powers of attorney – application for advice and direction under s 38 of the Powers of Attorney Act 2003 (NSW) – where attorneys appointed by enduring power of attorney have personal interest in any decision made in respect of the exercise of options by principal – where evidence supports the attorneys’ view that exercise of options is not in the principal’s best interests – whether the Court will give the advice and direction sought.

Catchwords:

CRIME – sentence – manslaughter by dangerous and unlawful act – death of baby caused by shaking – consideration of weight to be given to history stated to psychiatrist and psychologist where offender did not give evidence – consideration of relevance of the possibility of deportation

Catchwords:

SENTENCE APPEAL – Fisheries prosecutions – eastern rock lobster – blatant, serious and systematic offending – custodial sentences – defended hearing – sentence appeal only – maximum penalties – hardship to family – totality – deterrent sentences required – recent legislative changes – availability of Intensive Corrections Order.

Catchwords:

COSTS – departing from general rule – first to tenth defendants’ application for indemnity costs based on Calderbank offer – offer not accepted by plaintiff – proceedings brought in name of plaintiff and conducted by third party – third party is effectively the plaintiff – offer provided for payments to be made to third party – plaintiff unsuccessful – plaintiff in position to make reasonable assessment of its prospects at time offer was made – plaintiff unreasonably rejected Calderbank offer   COSTS – departing from general rule – plaintiff’s application to limit the costs of eleventh and twelfth defendants to the proportion of costs incurred by each of the first to tenth defendants – the eleventh and twelfth defendants represented by solicitors and counsel separate from those representing the first to tenth defendants – plaintiff submitted that retaining separate legal representation was unreasonable where all defendants had same interests and s 66ZL(8) of the Conveyancing Act 1919 (NSW) made the plaintiff prima facie liable for the defendants’ costs – eleventh and twelfth defendants did not act unreasonably in retaining separate legal representation in the absence of any objection raised by the plaintiff

Catchwords:

PRACTICE AND PROCEDURE – application for stay of proceedings pending determination of taxpayer’s objections to assessment made pursuant to s 167 of the Income Tax Assessment Act 1936 (Cth) – stay refused

Catchwords:

Contempt – application for referral to Supreme Court – publication by respondent of alleged contemptible material made to Registrar –publication of contemptible material made by Tribunal within Reasons for Decision – held conduct capable of constituting contempt of the Tribunal-held further not appropriate to make referral to Supreme Court – application dismissed.

Catchwords:

CIVIL PROCEDURE – application to vacate hearing date to permit counsel to provide merit advice in connection with application for Legal Aid – application to vacate hearing refused

Catchwords:

ADMINISTRATIVE REVIEW – application for packaged liquor licence – whether premises are a ‘general store’ – meaning of ‘in the neighbourhood’ – whether no other take-away liquor service reasonably available to the public.

Catchwords:

COSTS – no question of principle

Catchwords:

PRACTICE AND PROCEDURE – whether adjournment of final hearing should be granted – adjournment refused – matter dismissed for want of due despatch

Catchwords:

DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders

Catchwords:

ADMINISTRATIVE LAW- review under section 27 Child Protection (Working with Children) Act 2012 (NSW)-where cancellation of working with children check clearance - where application for protection of the children in the Children’s Court due to abuse -where applicant granted care of his children by Children’s Court – where the children’s mother abused the children - where paramount concern is protecting children from child abuse – assessment of risk posed by applicant- whether the applicant has proven he is not a risk to the safety of children – where review finds preferable decision is to set aside the cancellation and grant a clearance.

Catchwords:

BUILDING AND CONSTRUCTION – whether Tribunal erred in denying procedural fairness to a party by proceeding in its absence

Catchwords:

LEGAL PRACTITIONERS – solicitor – disciplinary proceedings – overcharging – principles – transfer of trust funds for fees without prior authority – costs disclosure – failure to provide trust account statements – no client complaint -professional misconduct or unsatisfactory professional conduct – appropriate orders – costs – “exceptional circumstances”

Catchwords:

CRIME – bail – release application – applicant convicted of offences relating to enrolment of voters at false addresses prior to local council election in which applicant was a candidate – bail sought on basis of pending appeal to District Court and need to deal with bankruptcy and bipolar disorder – applicant not legally represented in previous application to same court – – whether appeal had reasonably arguable prospect of success in circumstances where applicant intended to lead fresh evidence – unacceptable risk evinced by numerous recent offences in custody and breaches of bail conditions – bail refused

Catchwords:

CRIMINAL LAW – sentence – murder of two victims – murders occurred in one course of criminal conduct – guilty pleas entered – objective seriousness of offence – offender’s moral culpability – deterrence – aggravating and mitigating matters – principle of totality – victim impact statements – no finding of special circumstances – discount for guilty pleas – aggregate sentence imposed

Catchwords:

DEFAMATION – offers of amends – where defendant made offer of amends pursuant to Pt 3, Div 1 of the Defamation Act 2005 (NSW) including offer of compensation and stated offer was “open to be accepted until commencement of the trial, unless withdrawn in writing” – where plaintiff made offer of compromise pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 20.26, seeking damages in greater amount than compensation in offer of amends – where offer of amends not expressly withdrawn – where plaintiff accepted offer of amends prior to trial – whether offer of compromise constituted rejection of offer of amends – whether offer of amends validly accepted   STATUTORY INTERPRETATION – whether Pt 3, Div 1 of the Defamation Act 2005 (NSW) departs from the general law of offer and acceptance   STATUTORY INTERPRETATION – whether intersection between statutory schemes established by Pt 3, Div 1 of the Defamation Act 2005 (NSW) and offer of compromise provisions in UCPR Pt 20, Div 4   WORDS AND PHRASES – “withdrawn” – Defamation Act 2005 (NSW), s 16

Catchwords:

ADMINISTRATIVE REVIEW – Education and Care Services National Law – provider approval – whether fit and proper person to be involved in the provision of an education and care service – whether evidence of mandatory assessment improperly obtained - whether evidence of mandatory assessment should be admitted in evidence –

Catchwords:

DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders

Catchwords:

Health practitioner enrolled nurse operating beauty salon – appeal against suspension of registration – principles applying on appeal – injectable treatments in beauty salon – held appropriate to suspend registration to protect the health and safety of clients and potential clients and in the public interest – appeal dismissed – costs reserved.

Catchwords:

APPEAL – application for leave to appeal against interlocutory ruling in Local Court summary criminal proceedings – interpretation of r 8.7(4) of Local Court Rules 2009 (NSW) – leave refused

Catchwords:

ADMINISTRATIVE LAW – Child Protection – Where applicant a disqualified person by reason of a manslaughter conviction over 30 years ago - Application for a stay of determination that applicant be refused a working with children check clearance

Catchwords:

DEVELOPMENT APPLICATION: expansion of an existing caravan park to add 208 long term residential sites; whether the development is inconsistent with the zone objectives; whether the development, including the increase in residential density, is incompatible with the rural character of the area; whether the necessary community facilities and services are available in the locality; whether separation to adjoining land is adequate; resident objectors.

Catchwords:

APPEAL – stay application refused in part – security for costs application refused – security order and absence of stay likely to render appeal nugatory

Catchwords:

APPEAL – application for leave to appeal – less than $100,000 in issue – motor vehicle accident – no issue of principle or clear injustice – leave refused

Catchwords:

CORPORATIONS – winding up – statutory demand – application for extension of time to comply with statutory demand – extension of time to pursue an appeal – prospective appeal raises no issue of principle – extension of time granted on terms that applicant undertake to commence and prosecute the appeal proceeding with all due dispatch and to provide security for the defendant's costs of the appeal

Catchwords:

CRIMINAL LAW – appeal – indictment containing multiple counts of sexual offences with respect to one complainant – verdicts of guilty on two counts and acquittal on third count – whether verdicts unreasonable – significance of acquittals when considering unreasonableness of guilty verdicts – whether rational basis existed for the difference in the verdicts returned   CRIMINAL LAW – appeal – indictment containing multiple counts of sexual offences with respect to one complainant – verdicts of guilty on two counts and acquittal on third count – whether verdicts unreasonable – significance of jury’s rejection of complainant’s evidence on one count on the assessment of reliability in respect of other counts – whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty

Catchwords:

COSTS – party/party - exceptions to general rule that costs follow event - offers of compromise/Calderbank offers - whether Calderbank offers warrants indemnity costs - where neither party wholly successful

Catchwords:

CRIMINAL LAW – application for leave to appeal against conviction – whether a miscarriage was occasioned by misdirection to the jury regarding evidence given on oath by the appellant – whether verdict of jury unreasonable – leave refused to raise first ground – leave granted to raise second ground but held verdict was not unreasonable – appeal against conviction dismissed   CRIMINAL LAW – application for leave to appeal against severity of sentence – whether sentencing judge erred in having regard to breach of trust in relation to counts 3, 4 and 5 when being “under the authority” of the appellant was an element of the offences – appeal allowed – appellant re-sentenced

Catchwords:

Guardianship – administrative review – application for review of decision of the NSW Trustee & Guardian – internal review – where internal review finalised – where Applicant offered no evidence

Catchwords:

DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders

Catchwords:

BANKING AND FINANCE – banker and customer relationship – money market deposit accounts – deposits recommended by financial planner – financial planner alleged to have engaged in Ponzi Scheme – monies in accounts misappropriated – monies allegedly withdrawn without mandate – monies allegedly withdrawn with knowledge of fraud   INSURANCE – liability insurance – aggregation clause – proper construction – how many “Claims” made in representative proceedings – whether loss for which insurers are liable arises from one “Claim” or multiple “Claims” – unifying factor – how many “Wrongful Acts” – whether there was a “series of related” Wrongful Acts – whether the wrongful acts “unrelated” – whether plaintiff’s claim under policy subject to one or to multiple retentions

Catchwords:

ERROR OF LAW – adequacy of reasons

Catchwords:

CRIMINAL LAW – procedure – application for leave to appeal out of time against sentence imposed in the Local Court on a ground involving a mixed question of law and fact – appeal incompetent since plaintiff sought to challenge order of Local Court which was no longer operative, District Court having dismissed application for leave to appeal – summons dismissed.

Catchwords:

PROCEDURE: application for leave to amend claim to add claim for special value in compulsory acquisition – amendment caused in part by recent NSWCA decisions - evidence closed – witnesses excused – prejudice to both parties – greater prejudice to applicants if leave not granted – leave to amend granted.

Catchwords:

CONSTITUTIONAL LAW – The federal judicature – The nature and extent of judicial power – State tribunal invested with power to make an order terminating a residential tenancy agreements under s 87 of the Residential Tenancies Act 2010 (NSW) – whether tribunal was exercising judicial power in making such an order   CONSTITUTIONAL LAW – The federal judicature – Exclusive and invested jurisdiction – proceedings before State tribunal involved matter between residents of different States – whether tribunal was a “court of a State” invested with federal jurisdiction to determine the matter pursuant to Chapter III of the Constitution and s 39 of the Judiciary Act 1903 (Cth)

Catchwords:

EQUITY – contribution – circumstances when contribution excluded – consideration of scope of common intention exception – significance of equity's regard for substance over form – Official Trustee in Bankruptcy v Citibank Savings Ltd (1995) 38 NSWLR 116 considered   GUARANTEE AND INDEMNITY – contribution between guarantors – circumstances when contribution not available – exception when one guarantor enjoys all the benefit – exception when agreement or common intention to contrary – whether primary judge erred in finding guarantors’ liabilities were coordinate

Catchwords:

HIGH RISK OFFENDER - serious sex offender – preliminary hearing – application for interim supervision order and for examination by court-appointed psychiatrists or psychologists – “serious sex offence” of having sexual intercourse with a person under the age of 10 years in 2003 – criminal history includes other sexual offences - chequered history of compliance with supervisory conditions – parole revoked following release on parole in June 2018 - interim supervision order made together with order for examination by two psychiatrists or psychologists

Catchwords:

JURISDICTION - comparison between terms of statute prior to amendments operating from 1 March 2018 and those operating subsequent to that date - different effective position arises from amendments - presumption that Parliament intended that outcome - jurisdiction arises as a consequence of changes - jurisdiction found EXPEDITION - short period of time between Police notice of objection to event proceeding and timing of proposed event - evidence of financial impacts if event cancelled - expedition granted

Catchwords:

DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders

Catchwords:

DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders

Catchwords:

DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders

Catchwords:

MEDICAL PRACTITIONER – application for review of orders made by The Medical Tribunal in 2003 – 18 years since last practiced – expert medical opinion supports re-registration – application granted – comprehensive conditions imposed

Catchwords:

EQUITY – Trusts and trustees – Where Court made orders appointing new trustee in circumstances where former trustee wished to be discharged from the role – Former trustee ordered by Court to deliver up to new trustee all documents of the trust within her possession, custody or control – New trustee contended that order had not been complied with – What constitutes “documents of the trust” liable to be delivered up to incoming trustee – Whether includes documents constituting deliberations of trustee as distinct from decisions – Whether includes private communications with beneficiaries – Whether includes privileged documents – Where outgoing trustee has proceeded on misconceived basis – Orders made for outgoing trustee to verify compliance   EVIDENCE – privilege – waiver – joint privilege – Evidence Act 1995, s 124

Catchwords:

PRACTICE AND PROCEDURE – denial of procedural fairness – Tribunal proceeding when notice of hearing not received – Tribunal amending application on own motion   LAND LAW – Residential Tenancies – caravan parks – whether agreement for occupation of an on-site caravan is a residential tenancy

Catchwords:

CIVIL PROCEDURE – Application to dismiss appeal as incompetent – Where SM was detained under Mental Health Act 2007 (NSW) – Where primary judge held that SM was a mentally ill person and that no care of a less restrictive kind was appropriate – Whether appeal involves a civil right amounting to or of the value of $100,000 or more – Mental Health Act 2007 (NSW) – Appeal dismissed as incompetent

Catchwords:

JUDICIAL ADVICE – nature of application – not appropriate for determination of substantive questions of fact and law – necessity for declaratory proceedings – desirability of a contradictor

Catchwords:

APPEAL – Strata Schemes – Appellant sought declarations as to s 104 of the Strata Schemes Management Act - power of Tribunal

Catchwords:

CRIMINAL LAW – Appeal – Application for leave to appeal against sentence – Break and enter and commit larceny in circumstances of special aggravation – Detention with the intention of obtaining an advantage – Where applicant was not charged with the most serious iteration of the offence under s 112(3) of the Crimes Act 1900 (NSW) – Where applicant did not perpetrate act of violence himself – Parity – Whether sentence was manifestly excessive – Leave granted – Appeal allowed

Catchwords:

ADMINISTRATIVE LAW – judicial review – applicant was convicted of filming person’s private parts, contrary to s 91L of Crimes Act 1900 (NSW) – summons for judicial review of two District Court interlocutory decisions – first decision was grant of leave to Director of Public Prosecutions (DPP) to adduce fresh evidence on appeal from Local Court, namely, tendency evidence – second decision was refusal of applicant’s application for counsel appearing for DPP to be precluded from continuing to represent DPP – whether primary judge ought to have submitted questions of law to the Court of Criminal Appeal, pursuant to s 5B of Criminal Appeal Act 1919 (NSW) – no error – whether applicant denied procedural fairness in relation to both District Court decisions – discussion of appellate intervention in criminal interlocutory proceedings – District Court decisions lacked necessary quality of finality – no jurisdictional error established – dismissed also on discretionary grounds including prevention of fragmentation of criminal proceedings

Catchwords:

DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders

Catchwords:

CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – Whether the proceedings were commenced in breach of a dispute resolution clause – Whether the proceedings should be stayed

Catchwords:

LAND AND ENVIRONMENT – compulsory acquisition of land – compensation – compensation awarded for market value – whether claim for disturbance available – relationship between heads of compensation for market value and disturbance – whether costs claimed were or would be reasonably incurred as a direct or natural consequence of acquisition – whether costs claimed related to the actual use of the acquired land – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 55, 59

Catchwords:

APPEAL – Notice of Appeal – filed outside of the prescribed time – whether discretion to grant an extension of time should be granted – Appeal Panel not in a position to assess whether the appellant had an arguable case because, despite being directed to do so, the appellant failed to file and serve the sound recording of the Tribunal’s oral reasons for decision or copies of the material that was before the Tribunal below – extension of time refused

Catchwords:

SUCCESSION – Family provision – Claim by adult child for provision from the deceased’s estate under Chapter 3 of the Succession Act 2006 (NSW) – Express disclaimer of intention by deceased to benefit plaintiff – Strained relationship between plaintiff and deceased – Whether provision should be made notwithstanding deceased’s disclaimer – Modest provision made

Catchwords:

CONTRACT – successive bailments of sports car – determination of liability for damage to vehicle whilst in the possession of a sub-bailee

Catchwords:

EVIDENCE – Admissibility – Where Crown seeks to adduce evidence of third-party telephone conversations to which the accused was not party – Whether evidence relevant – Whether evidence inadmissible hearsay

Catchwords:

SENTENCING – murder – domestic violence-related – where offender introduced accelerant to bedroom of wife and prevented her from escaping subsequent fire – offence well above the mid-range of objective seriousness – aggravating factors – gratuitous cruelty – presence of children – home of deceased – prospects of rehabilitation unfavourable given continuing denial of responsibility – whether life sentence should be imposed – Crimes (Sentencing Procedure) Act 1999 (NSW) s 61(1) – community interest in protection and specific deterrence satisfied by lesser sentence considering age of offender at earliest date of release made re-offending unlikely – minimal planning – consistency in sentencing for spousal murders – life sentence not imposed

Catchwords:

PRACTICE AND PROCEDURE – application to dismiss statement of claim – no reasonable cause of action disclosed – counsel indicated proposed causes of action in submissions – application dismissed – plaintiff granted leave to replead   PRACTICE AND PROCEDURE – reason to depart from general rule that costs follow the event – application brought about by deficiencies in the plaintiff’s pleading – each party to bear own costs

Catchwords:

CRIMINAL LAW - sentence appeal - aggregate sentence of five years’ imprisonment with a non-parole-period of three years - offences of recklessly causing grievous bodily harm (s.35(2) Crimes Act 1900) and assault occasioning actual bodily harm (s.59(1) Crimes Act 1900) - victim of offences a 10-month old baby - additional offence of common assault on Form 1 - s.35(2) offence a standard non-parole period offence - whether sentencing judge erred in assessment of objective seriousness for both offences - sentencing for standard non-parole period offences - s.54A and s.54B Crimes (Sentencing Procedure) Act 1999-– consideration of legislative amendments made by Crimes (Sentencing Procedure) Amendment (Standard Non-Parole Periods) Act 2013 after Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 - proper construction of ss.54A and 54B - standard non-parole period to be taken into account on sentence as legislative guidepost - relevance of Applicant’s self-induced intoxication, intellectual impairment, socially disadvantaged upbringing and moral culpability - self-induced intoxication excluded by statute from consideration as mitigating factor - other matters to be considered as part of single-stage process of instinctive synthesis to determine appropriate sentence - sentencing Judge had regard to Applicant’s socially disadvantaged upbringing, intellectual impairment and moral culpability in determining sentence - error not established - whether aggregate sentence manifestly excessive - sentence not manifestly excessive - appeal dismissed

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children check clearance – applicant is a disqualified person by reason of a conviction for the offence of committing an indecent act – presumed Applicant to be a risk to children - whether applicant has discharged the onus of proof to the contrary

Catchwords:

CRIMINAL LAW – Terrorism trial – Application for suppression, pseudonym and closed-court orders relating to a particular witness – Whether orders necessary to prevent prejudice to the proper administration of justice and to the interests of the Commonwealth in relation to national or international security – Whether orders necessary to protect the safety of a witness – Application granted

Catchwords:

CRIMINAL LAW – sentence – murder – plea to manslaughter – convicted or murder – findings of non-planned – offender moved in and out of rationality – one wound, little force, intention to injure not kill – objectively below mid-range – strong subjective circumstances - Fernando/Bugmy issues – effect of s 21A(5AA) Crimes (Sentencing Procedure) Act – Sentence imposed.

Catchwords:

ENVIRONMENT AND PLANNING – acquisition of land – compensation – compensation awarded for market value including loss of amenity to main dwelling on residue land – whether claim for disturbance available for cost of relocation to replacement dwelling on residue land – relationship between heads of compensation for market value and disturbance – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 54, 55, 59   ENVIRONMENT AND PLANNING – acquisition of land – compensation – compensation awarded for market value including right to potential profits from acquired land – whether claim for disturbance available for loss of profits from acquired land – relationship between heads of compensation for market value and disturbance – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 54, 55, 59

Catchwords:

CRIMINAL - Sentence – sexual assaults of altar boys by a priest – historical crimes – breach of trust – totality – aggregate sentence – pre-existing aggregate sentence – special circumstances

Catchwords:

CONTRACTS – Misleading conduct under statute – Misleading or deceptive conduct – Predictions – Whether the impugned representations were misleading or deceptive – Remedies – Measure of damages – Cross-defendant’s onus to prove benefits to cross-claimant caused by cross-defendant’s unlawful conduct CONTRACTS – Breach of contract – Consequences of breach – Right to damages – Whether the claimed damages were expenditure incurred in the procurement or performance of the contract EVIDENCE – Opinion evidence – Exceptions – Expert opinion – Whether an opinion is wholly or substantially based on a witness’ specialised knowledge

Catchwords:

CORPORATIONS – winding up – winding up in insolvency – application to set aside creditor’s statutory demand under Corporations Act 2001 (Cth), s 459H – debt arising under the Building and Construction Industry Security of Payments Act 1999 (NSW) – offsetting claims – offsetting claim for liquidated damages for failure to complete construction contract by individual milestone dates or overall completion date – where builder prevented sub-contractor from completing works by dates specified in the contract – entitlement to recover liquidated damages   CORPORATIONS – winding up – winding up in insolvency – application to set aside creditor’s statutory demand under Corporations Act 2001 (Cth), s 459H – debt arising under the Building and Construction Industry Security of Payments Act 1999 (NSW) – offsetting claims – offsetting claim for cost of completing work – claim foreshadowed in supporting affidavit but not yet accrued at time of s 459H application – not an offsetting claim   CORPORATIONS – winding up – winding up in insolvency – application to set aside creditor’s statutory demand under Corporations Act 2001 (Cth), s 459H – debt arising under the Building and Construction Industry Security of Payments Act 1999 (NSW) – whether conditions should be imposed under Corporations Act 2001 (Cth), s 459M on an order varying the demand – conditions imposed requiring proceedings to be brought and claim amount paid into court

Catchwords:

SUCCESSION — Wills, probate and administration — Construction and effect of testamentary dispositions — Statutory water rights — Change of statutory scheme between date of Will and date of death — Where farming land and related items left to testamentary trust for grandsons — Where residue left to daughters — Whether water rights and associated shares form part of testamentary trust.   ENERGY AND RESOURCES — Water — Water management — Development water rights in NSW — — Irrigation water rights — Irrigation Act 1912 — Irrigation Corporations Act 1994 — Murrumbidgee Irrigation Area — Construction of Constitution and Member Contract of Murrumbidgee Irrigation Ltd — Transmission of water rights governed by Constitution and Member Contract.

Catchwords:

DEVELOPMENT APPLICATION – seniors living - conciliation conference - agreement between the parties - orders

Catchwords:

CRIMINAL LAW – sentencing – murder – domestic homicide – infliction of multiple sharp force injuries – early plea of guilty – serious offence – gravity of the offence – moral culpability – discount for guilty plea – sentence imposed

Catchwords:

Torts – negligence – property damage claim to motor vehicles arising from motor vehicle accident – quantum not in issue – liability in issue – different factual accounts – whether liability can be determined on the evidence

Catchwords:

COSTS – Appeal from decision of Review Panel – Appeal limited to error of law – Failure of Review Panel to provide any or any sufficient reasons – Remitted to Review Panel to re-determine

Catchwords:

COSTS: Appeal; no question of principle.

Catchwords:

CORPORATIONS - registration time for security interests – application under Corporations Act 2001 (Cth), s 588FM(1) to extend registration time for financing statements registered pursuant to the Personal Property Securities Act 2009 (Cth) – failure to register financing statement because of accident or due to inadvertence

Catchwords:

CRIMINAL LAW – murder – trial by judge alone – alleged murder by accused of his mother – defence of mental illness – long history of mental illness – expert evidence unanimous that defence is available – accused untreated for six months prior to alleged offence – chronic and severe schizophrenia – delusions involving deceased – related charge to be dealt with - not guilty by reason of mental illness

Catchwords:

CIVIL PROCEDURE – dismissal application of appeal proceedings – objections to competency of appeal pursuant to r 50.16A of the Uniform Civil Procedure Rules 2005 (NSW) – whether the appeal is incompetent – whether the notice of motion should be heard and determined in advance of the hearing of the amended summons – the plaintiff’s extant application for extension of time pursuant to r 50.3(1)(c) – whether, if the appeal was out of time, it may be declared incompetent if there remains outstanding an application to extend time –whether the appeal was filed out of time – time for appeal pursuant to r 50.3 of the UCPR – construction of rr 50.2 and 50.3 of the UCPR – relevant principles – r 50.2(1) definition of “material date” and “decision” – material date is defined as “the date on which the decision is pronounced or given” – whether reasonable argument appeal filed in time – motion dismissed – costs reserved

Catchwords:

COSTS – Party/Party – Exceptions to general rule that costs follow the event – Calderbank offers – Whether genuine offers of compromise – Whether unreasonable for the offeree not to accept offers – Whether discretion to award indemnity costs should be exercised; Held: Defendants’ costs in the substantive proceedings to be costs assessed on the ordinary basis; Defendants to pay the Plaintiff’s costs of this application for indemnity costs, also assessed on the ordinary basis.

Catchwords:

PRACTICE – refusal of adjournment – notice of motion and affidavit sent to court on day before hearing – affidavit stated that defendant had received menacing text messages threatening him if he attended court – no attendance by defendant or anyone on his behalf – trial judge granted two short adjournments until the afternoon – notice of motion for adjournment then dismissed for want of prosecution – no evidence establishing a solicitor or barrister or agent could not appear – appeal dismissed

Catchwords:

TRUSTS – charitable trust – trust for the advancement of education – trust established in testator’s will imposed condition that students’ parents be Protestant – cy-près scheme – formulation of scheme – scheme removing religious condition approved and ordered – school named in testator’s will now one of three campuses of merged school – administration of scheme to apply to previous eight years during which income was accumulated

Catchwords:

UNFAIR DISMISSAL – allegations of misconduct – applicant diagnosed with dyslexia – offensive email communications – direction to attend counselling interview – applicant challenged direction – applicant claimed dyslexia responsible for his communication style – applicant rejected offer of independent assessment by clinical psychologist – applicant continued to send offensive communications to managers – misconduct allegations – sustained findings of misconduct – applicant dismissed – dismissal of the applicant not harsh unreasonable or unjust – application dismissed

Catchwords:

PUBLIC SECTOR – disciplinary appeal – appeal to Supreme Court – appeal allowed remitted to Industrial Relations Commission – orders under s 100D (1)(b)-(c) – whether orders should be made – calculation of what the employee would have received - whether the appellant has a duty to mitigate loss - overarching discretion

Catchwords:

PRACTICE AND PROCEDURE – pleadings – application to dismiss proceedings as no reasonable cause of action disclosed – principle of reflective loss

Catchwords:

COSTS – Registrar General’s costs – caveats filed causing disruption to the settlement of a Court ordered conveyancing transaction – Registrar General joined to the proceedings and asked by the Court to make notifications on the title to the property in question – Registrar General places notifications on the title and appears in Court in response to the Court’s orders – Registrar General seeks costs of its various appearances – whether application under Real Property Act 1900, s 74P – whether the Registrar General’s costs were occasioned by the conduct of the caveators – whether it can be identified who lodged the caveats – whether the caveats were unreasonable – whether Mr Robert Sebie was responsible for the filing of the caveats – whether a costs order should be made for the Registrar General’s costs against Mr Robert Sebie.   SPECIFIED GROSS SUM COSTS ORDER – limited appearance by the Registrar General in substantial proceedings in which multiple judgments have been delivered – proceedings protracted and hard fought – where costs order made in favour of the Registrar General – discussion of the principles for the making of specified gross sum costs orders – whether this is an appropriate case for the making of a lump sum costs order in favour of the Registrar General under Civil Procedure Act 2005, s 98(4)(c) – what is the appropriate specified gross sum costs order – should the amount of any specified gross sum costs order be paid out of the funds held in Court.

Catchwords:

CIVIL PROCEDURE: application for stay of orders pending appeal of contempt conviction and penalty – discretionary considerations – stay refused.

Catchwords:

CONTRACTS – Construction – Interpretation – No issue of principle

Catchwords:

CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, approve proposed scheme of arrangement – whether requirements to order scheme meetings are satisfied.   CORPORATIONS – managed investments – application for judicial advice by responsible entity under s 63 of the Trustee Act 1925 (NSW) – whether responsible entity would be justified in convening a meeting of unitholders to approve an amendment to the trust constitution to give effect to a proposed scheme – whether proposed amendments are within the powers of alteration conferred by the constitution of the managed investment scheme and s 601GC of the Corporations Act.

Catchwords:

PROCEDURE – judgment and orders – application to reopen after reasons for judgment but before orders were made.   COSTS – where value of the claims pressed at the hearing were below the jurisdictional limit of the District Court – where matter arguably arose out of a commercial transaction – whether r 42.34 of the Uniform Civil Procedure Rules 2005 (NSW) displaces the possibility of a costs order in favour of the successful party – where several pleaded claims were not pressed at the final hearing – whether costs order should only be made in respect of the successful claim.   ORDERS – determination as to form of orders.

Catchwords:

Exposure to family violence as an adolescent – Reduction in moral culpability – Relevance of research and academic literature about domestic and family violence in the proceedings

Catchwords:

CRIMINAL LAW – appeal against sentence – Crown conceded errors by sentencing judge – consideration of re-sentence – whether sentencing judge erred when considering the applicant’s moral culpability for each offence – question of mitigatory duress – no lesser finding of moral culpability warranted – no lesser sentence warranted in law – appeal dismissed

Catchwords:

DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders

Catchwords:

ADMINISTRATIVE LAW – government information – whether proceedings lacking in substance – costs.

Catchwords:

CIVIL PROCEDURE – plaintiff alleged criminal conduct by defendants in the course of interlocutory application to strike out pleading or dismiss proceedings – defendants applied for non-publication orders – defamation proceedings brought in relation to statements similar to statements made in court –order necessary to prevent prejudice to proper administration of justice

Catchwords:

ADMINISTRATIVE REVIEW – joinder application

Catchwords:

PROFESSIONS AND TRADES – registered health practitioner – where practitioner convicted of criminal offences – whether practitioner is otherwise not a suitable person to hold registration

Catchwords:

APPEAL – development application – residential flat building – breach of the height development standard – bulk and density – visual and acoustic privacy

Catchwords:

LEGAL PRACTITIONERS – solicitor – disciplinary proceedings – delay in attending to the affairs of a client – unsatisfactory professional conduct – statement of fact sworn to by solicitor in an affidavit – belief in the truth of the statement at time of swearing affidavit – no basis upon which to challenge that belief as unreasonable or reckless – subsequent event showed the facts to be untrue – in circumstances conduct neither professional misconduct nor unsatisfactory professional conduct

Catchwords:

CIVIL PROCEDURE - Notices to Produce and Subpoenas - applications to set aside - use of a specified notice to produce as containing “reference provisions” - determinations with respect to individual provisions COSTS - costs of interlocutory applications to set aside - parties roughly equally successful - appropriate that there be no order for costs

Catchwords:

ADMINISTRATIVE LAW – judicial review – Workers Compensation Commission – Medical Appeal Panel – appeal against medical assessment certificate (“MAC”) issued by Approved Medical Specialist (“AMS”) – where MAC issued for nil whole person impairment following workplace accident – where claim by plaintiff that he developed complex regional pain syndrome (“CRPS”) – diagnostic criteria for CRPS not met upon examination of plaintiff – whether incorrect criteria applied by AMS – whether Medical Appeal Panel should have conducted independent clinical examination of plaintiff – summons dismissed

Catchwords:

Guarantees and Indemnities between principal and subcontractors – allocation of payments – implied or actual relationship of agency – misappropriation of cheques – supply and sale of goods and services – Mercantile law

Catchwords:

PRACTICE AND PROCEDURE – need to adjourn sentence hearing because decision of Court of Criminal Appeal following Crown appeal in respect of co-offender not available

Catchwords:

CHARITIES — Charitable gifts and trusts — Validity and practicability — Administrative scheme

Catchwords:

HIGH RISK OFFENDER – terrorism activity offender – application for extended supervision order pursuant to Terrorism (High Risk Offenders) Act 2017 (NSW), Pt 2 – offender on remand for breaches of interim supervision order – offender suffering from chronic schizophrenia – statements by offender in custody expressing intolerance of non-Muslims and wish to travel to fight in Syria – criminal record of repeated dishonesty and property offences and non-compliance with authorities – history of violence against law enforcement officers – whether offender engaged in conduct “involving advocating support for any terrorist acts” – whether “unacceptable risk of committing a serious terrorism offence” if released – Terrorism (High Risk Offenders) Act, ss 10(c)(i), 20(d) – summons dismissed and interim supervision order discharged

Catchwords:

PARTNERSHIPS AND JOINT VENTURES – partnerships – legal characterisation – insolvency practice trading through a proprietary company acting as trustee of a unit trust – fees earned in personal capacity by parties to insolvency practice – where insolvency practice previously conducted business as a partnership – where parties to insolvency practice are directors of proprietary company – whether partnership exists – role of company in partnership – whether income belonged to unit trust – sham   PARTNERSHIPS AND JOINT VENTURES – partnerships – dissolution and winding up – accounts – agreement to distribute partnership assets – where agreement does not deal with all assets and liabilities of partnership – where agreement subject to further adjustments – whether agreement binding   PARTNERSHIPS AND JOINT VENTURES – partnerships – dissolution and winding up – accounts – calculation of work in progress component – calculation of goodwill component   EQUITY – fiduciary duties – directors’ duties to shareholders – whether director owed fiduciary duty to shareholder in taking transfer of shares in company at nominal value upon dissolution of business relationship

Catchwords:

DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders

Catchwords:

COSTS – application for indemnity costs – whether offer of compromise valid in accordance with UCPR provisions – whether bank guarantees should be returned – no question of principle.

Catchwords:

TRADES AND PROFESSION –– reinstatement of health practitioner under Health Practitioner Regulation National Law

Catchwords:

DEVELOPMENT APPEAL: two storey town house redevelopment – infill self-care housing - consistency with the character of the area - variation to standard sought – standard requires single storey development to the rear of the site – potential impacts on the visual and acoustic privacy of adjoining residential lots.

Catchwords:

LEASES AND TENANCIES – social housing tenancy – drug offence – termination order – disability exception – proof – onus of proof – unchallenged evidence – overlooked evidence – inadequacy of reasons

Catchwords:

ADMINISTRATIVE LAW – judicial review – workers compensation – error of law on the face of the record – decision of Medical Appeal Panel – beneficial construction of reasons of administrative decision maker – maximum medical improvement – whether plaintiff’s injury unlikely to improve – long term injury to cervical spine – where surgery proposed by neurologist – whether Appeal Panel failed to take into account – where medical specialist asked to reconsider WPI in light of proposed surgery – pithy response – where different conclusions open on the evidence – need to explain conclusion reached

Catchwords:

INTERLOCUTORY ORDERS – application for interim order

Catchwords:

DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders

Catchwords:

LAND LAW – possessory title – registered proprietor of land died intestate in 1947 – no grant of administration – defendant takes possession of property in 1998 – defendant has since acted as landlord of the land – in 2017 defendant makes application to Registrar-General to become registered proprietor – descendants of registered proprietor seek declaration that defendant is not entitled to obtain possessory title to land – title of registered proprietor would be extinguished by the Limitation Act 1969 (NSW) if it applied to the land – defendant entitled to obtain possessory title

Catchwords:

PRACTICE AND PROCEDURE – applications – security for costs order – Corporations Act 2001 (Cth), s 1335(1) – whether reason to believe company will be unable to pay costs – company in liquidation – relevance of indemnity agreement to the threshold jurisdictional question of whether “the corporation will be unable to pay the costs of the defendant” – evidentiary onus on party resisting security for costs order to show indemnity agreement is sufficient to meet adverse cost order   PRACTICE AND PROCEDURE – applications – security for costs order – discretionary considerations – whether defendant caused the plaintiff’s impecuniosity – cause of impecuniosity where claim is based on loss of profits   PRACTICE AND PROCEDURE – applications – security for costs order – discretionary considerations – delay – effect of delay in bringing a security for costs application where the proceedings are funded under a litigation funding agreement   EVIDENCE – opinion evidence – expert opinion evidence – solicitor’s estimate of future costs to be incurred in proceedings – admissibility   PRACTICE AND PROCEDURE – applications – security for costs order – quantum of security – estimating costs where there is uncertainty in the conduct of proceedings – discretion of the Court to order security be furnished in tranches – discretion of Court to make an order granting leave to apply to adjust quantum of security to reflect the actual level of expenditure on costs

Catchwords:

COSTS – Rule 38(2)(b) – meaning of the expression “the amount claimed or in dispute is more than $30,000” – scope of operation of the rule – special circumstances – challenge to finding that claimant had arguable case

Catchwords:

ADMINISTRATIVE REVIEW – transfer of hotel licence – refusal of application - whether decision administratively reviewable

Catchwords:

ADMINISTRATIVE REVIEW – motor mechanic – whether fit and proper person to hold a tradesperson’s certificate - criminal convictions – former member of outlaw motorcycle gang – period of time since convictions – rehabilitation – nature and purpose of role of motor mechanic

Catchwords:

ADMINISTRATIVE LAW – judicial review of assessment of permanent psychiatric impairment by Motor Accidents Medical Assessment Service Review Panel – purported error of law and denial of procedural fairness in application of principles of causation – where impairment caused by accident was exacerbated by a subsequent non-indemnified event – Motor Accident Permanent Impairment Guidelines cl 1.36 - whether the subsequent event was an ‘unrelated injury’ – whether the assessed impairment from the unrelated injury should be deducted from the whole person impairment assessed – whether Panel required to call for submissions on matter disclosed by injured person

Catchwords:

EVIDENCE - admission of evidence - accused identified in photographic line-up - where none of the other men in the line-up had distinguishing feature of accused - probative value of evidence outweighed by danger of unfair prejudice

Catchwords:

CIVIL PROCEDURE – client legal privilege – waiver

Catchwords:

ADMINISTRATIVE LAW – judicial review – NSW Ministers for Health and for Finance – application for review of decisions to abridge notice period for compulsory acquisition of land from 90 to 30 days – Land Acquisition (Just Terms Compensation Act 1991 (NSW), s 13 – proposed acquisition notice with abridged notice period served – interlocutory injunction sought against Gazettal of compulsory acquisition notice – whether triable issue as to jurisdictional error   LAND LAW – compulsory acquisition of land – procedure for acquisition – notice to owners – review of administrative decisions to abridge notice period – notice served – interlocutory injunction sought against Gazettal of compulsory acquisition notice – land proposed to be compulsorily acquired by Health Administration Corporation for construction of hospital – where bona fide negotiations with owners continued for at least eight months – where negotiations unsuccessful – where perceived urgency for construction of new hospital facilities for provisions of healthcare to locality – whether triable issues – whether balance of convenience favours interlocutory relief – application refused   COSTS – party/party – costs orders in interlocutory proceedings – costs of notice of motion sought on indemnity basis – whether balance of convenience overwhelmingly in favour of refusing application – whether interlocutory injunction application was doomed to fail – whether offers previously made would have given plaintiffs substantially the benefit sought through injunction – indemnity costs ordered

Catchwords:

APPEAL – leave to appeal against interlocutory decision refusing to adjourn proceedings – no issue of principle

Catchwords:

DEVELOPMENT APPLICATION: conciliation conference; agreement between the parties; orders

Catchwords:

APPEAL – administrative law – access to government information – where residents action group requested access to information in documents relating to the Newcastle 500 Supercars Event – whether Tribunal had erred in providing access to certain information – re-determination on merits – whether there is an overriding public interest against disclosure of information

Catchwords:

Preliminary discovery; circumstances in which available; relevance of documents to which access sought through discovery and subpoena process

Catchwords:

Appeal – Guardianship Division – review of revocation of enduring power of attorney – review of making of enduring power of attorney – review of enduring guardianship - presumption of capacity – whether or not principal had mental capacity to revoke and/or make enduring power of attorney – fact finding not undertaken in unorthodox manner – no denial of procedural fairness – appeal dismissed

Catchwords:

CRIMINAL LAW – appeal against conviction – unreasonable verdict – appellant charged with seven counts of sexual offences – jury returned verdicts of guilty on two counts and not guilty on remaining five – whether jury’s verdicts were inconsistent – whether rational explanation for acquittals – whether complainant’s evidence incapable of sustaining convictions – appeal dismissed

Catchwords:

TORTS – negligence – where appellant fell while descending a ladder – where appellant suffered serious injury – where ladder manufactured and supplied by the respondent – whether ladder had safety defect when supplied by the respondent – Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, s 138 – whether safety defect to blame for appellant’s injury – Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, s 138(1)(c) – whether appellant contributorily negligent – Competition and Consumer Act 2010 (Cth), s 137A – whether primary judge erred in assessment of appellant’s credit – whether primary judge erred in assessment of damages