Browse decisions Displaying 1 - 200 out of 105271 results

Catchwords:

CRIME — Drug offences — Supply prohibited drug — Large commercial quantity CRIME — Drug offences — Possess prohibited drug

Catchwords:

CRIME — Drug offences — Supply prohibited drug — Commercial quantity CRIME — Drug offences — Supply prohibited drug — Indictable quantity

Catchwords:

CRIME — Violent offences — Armed robbery — Offensive weapon

Catchwords:

EQUITY – General principles and maxims – Set-off – Rule in Cherry v Boultbee – Defaulting trustee – Principle in Re Dacre – Principle in Morris v Livie – Assignment – Assignee takes subject to equities BANKRUPTCY – Discharge – Liabilities not released upon discharge – Meaning of ‘fraudulent’ in s 153(2)(b)

Catchwords:

CIVIL PROCEDURE — Court administration — Court powers — Control of proceedings — where non-party filed evidence relating to a claim outside leave granted to make submissions and inconsistent with court orders — where non-party had notice of and opportunity to be joined to proceedings — evidence rejected

Catchwords:

CIVIL PROCEDURE — Hearings — Adjournment — Applicable principles — Vacation of hearing dates — Illness of counsel — Defendants’ counsel contracted COVID 19 — COSTS — Principles where adjournment not arising by fault of the applicant

Catchwords:

ADMINISTRATIVE REVIEW - Property and Stock Agents Act 2002 - Application for certificate of registration as an assistant real estate agent - Fit and proper person - conduct giving rise to charges where applicant found not guilty - failure to provide regulator with relevant material

Catchwords:

LEASES-residential tenancy-rent arrears-challenge to rent increases-whether any rent increase notices given-application of s 41 (10) of the Residential Tenancies Act 2010 (NSW)-claim that rent excessive -claim for a rent reduction due to alleged frustration- “clean hands” defence to landlord’s claim not available. APPEALS-alleged bias not established-no error of law in failing to consider undeveloped and unsubstantiated claim and another claim that was misconceived-no other error of law or appealable error-leave to appeal refused.

Catchwords:

ADMINISTRATIVE LAW – reviewability – review of disciplinary findings of Legal Services Commissioner – disciplinary decisions.

Catchwords:

COSTS – whether there is a “cause” to determine result of earlier order – summons – plaintiff substantially successful – costs orders in interlocutory proceedings – general principles – Uniform Civil Procedure Rules 2005 (NSW) rr 42.1 and 42.7 – meaning of words “costs in the cause” – orders of Registrar – Supreme Court Act 1970 (NSW) s 131

Catchwords:

MEDICAL PRACTITIONER – Appeal against refusal of the Respondent Board to grant or renew limited registration – Persistent lack of success in examinations relevant to such registration

Catchwords:

APPEAL – individual biosecurity direction – biosecurity matter – conciliation conference – agreement between the parties – orders

Catchwords:

APPEAL – development application – community title subdivision – earthworks – road construction – landscaping – conciliation conference – agreement reached

Catchwords:

JUDGMENTS AND ORDERS — amending, varying and setting aside — correction under slip rule — overriding purpose of Civil Procedure Act 2005 s 56

Catchwords:

WORK HEALTH AND SAFETY – application for external review – provisional improvement notice – notice of motion – frivolous or vexatious – no reasonable cause of action – abuse of process - costs

Catchwords:

DEVELOPMENT APPEAL – seniors housing development - conciliation conference – agreement between the parties - orders

Catchwords:

APPEAL – leave to appeal – from determination of the appeal panel of NSW Civil and Administrative Tribunal – Civil and Administrative Tribunal Act 2013 (NSW) s 83 – university collection of personal information from plaintiff and his brother for purpose of pre-visa assessment – grounds of appeal against appeal panel determination unclear – plaintiff submitted collection of information was incompatible with fundamental rights to education and privacy – plaintiff alleged denial of procedural fairness – no error of law made by appeal panel to justify grant of leave – no question warranting grant of leave – plaintiff suffered no detriment from appeal panel’s approach – summons dismissed

Catchwords:

CRIMINAL LAW – appeal – applicant faced 11 charges of sexual offences against two children SS and NL – convicted on counts 1 to 3 against SS and count 9 against NL – acquitted of counts 4 to 8, 10 and 11 against NL – SS participated in five interviews with police conducted over 13 months and gave pre-recorded evidence for the trial – evidence in support of counts 1 and 2 provided in the third interview and evidence in support of count 3 in the fifth interview – SS recanted her evidence in the fourth interview – NL participated in three interviews and gave pre-recorded evidence for the trial – SS supported NL’s evidence on count 9 but not the other counts – prosecution called evidence from “expert” with tertiary qualifications in psychology and law – based on review of various studies expert gave evidence as what the “research” indicated was the typical response of child victims to sexual assault – expert also gave evidence of research about child sex offenders acting in a brazen manner – held expert was qualified by reason of her study to give evidence of responses of child victims – held expert not qualified to give evidence of the behaviour of child sex offenders generally – ground upheld – guilty verdicts not inconsistent with acquittals – jury entitled to conclude that SS provided “something additional” to support the evidence of NL – verdicts of guilty not unreasonable – reasonably open to the jury to be satisfied of applicant’s guilt – retrial ordered

Catchwords:

APPEALS — procedure — time limits — extension of time — factors considered — extension refused

Catchwords:

CRIMINAL APPEALS – fresh evidence on sentence appeal – when admissible – evidence that applicant involved in violence incidents in gaol – evidence not brought to the attention of the sentencing Judge – applicant a schizophrenic – where applicant refused to authorise his lawyers to access Justice Health records – evidence that violent incidents typical of victimisation of schizophrenic inmates – where sentencing Judge found experience in custody not more onerous by reason of mental illness CRIMINAL LAW – sentence appeal – re-sentencing – serious stalking and strangling offence – chilling facts – relevant considerations – whether less severe sentence warranted

Catchwords:

CRIMINAL LAW – Offences – Sentence – Appeal – Crown appeal asserting manifest inadequacy of sentence – Multiple instances of sexual and related offending committed over a lengthy period of time on eight separate victims – Consistently predatory behaviour on the part of the respondent – Some of the offending planned – Serious breach of a position of trust towards the victims – Aggregate sentence of imprisonment for 10 years imposed with a non-parole period of 6 years and 6 months – Where Crown relied upon latent error – Where errors were identified in the reasons of the sentencing judge but not relied upon by the Crown – Factual errors and omissions – Inadequate reasons – Failure to properly assess the objective seriousness of the offending – Displacement between findings as to objective seriousness and indicative sentences – Brevity of the individual instances of offending of limited relevance – Necessity to apply the correct approach when sentencing for an offence to which a Form 1 attaches – Apparent error in not treating the fact that one episode of offending occurred in the victim’s home as an aggravating circumstance – Lack of clarity as to what aggravating circumstances were in fact taken into account – Confusion between matters which are relevant to the assessment of an offender’s subjective case and those which might justify a finding of special circumstances – Where the sentence imposed failed to recognise the fundamental purposes of sentencing – Necessity for the Court to intervene in order to maintain public confidence in the criminal justice system – Crown appeal allowed – Sentence quashed and the respondent re-sentenced

Catchwords:

CRIME - violent offences - detain with intent to obtain an advantage with assault occasioning actual bodily harm - students in naked hazing ritual intercepted, detained, threatened with pistol and hit with piece of wood and weapon CRIME - violent offences - break enter and commit serious indictable offence - intimidation - detain with intent to obtain an advantage - broke into adjacent motel room - held occupant hostage SENTENCING - factors - Bugmy - totality - aggregate sentence

Catchwords:

PRACTICE AND PROCEDURE - plaintiff and defendant each seek summary relief against each other shortly before the trial - no issue of principle

Catchwords:

CONTRACT – Claim by the plaintiff that he lent $170,000 to the first defendant for a period of two years at an interest rate of 5% per annum pursuant to an oral agreement – the first defendant denies the loan – reliance on spoken words to establish cause of action – conversation must be proved to reasonable satisfaction of the Court – HELD – Loan not proved

Catchwords:

PRACTICE AND PROCEDURE – orders necessary to give effect to primary judgment – where Share Sale Agreement to be rescinded pursuant to s 237 of the Australian Consumer Law – whether further orders should be made dealing with parties’ rights once rescission takes effect – where parties not agreed as to consequences of rescission COSTS – where Commercial Proceedings and Defamation Proceedings heard together – what order for costs should be made in each proceeding – where plaintiffs substantially unsuccessful in Commercial Proceedings – where cross-claimants substantially successful in Commercial Proceedings – where plaintiff recovered modest damages in Defamation Proceedings – whether an order for indemnity costs should be made in either proceedings – whether s 40 of Defamation Act 2005 (NSW) enlivened

Catchwords:

EQUITY – specific performance – agreement for purchase of shares, to be satisfied in part by transfer of purchaser’s share of land co-owned with vendor – purchaser obliged to buy the shares rather than only having an option to do so – purchase price to be paid within a reasonable time – purchaser in control of company in meantime – before time for payment arrives vendor removes assets used in conduct of company’s business so as to pressure purchaser to pay – unclean hands – relief refused – plaintiff remitted to claim for judgment at law – costs

Catchwords:

PROCEDURE – application to set aside orders made after hearing – whether orders made irregularly, illegally or against good faith

Catchwords:

CONSUMER LAW – Misleading or deceptive conduct – Representations as to future matters –representations as to future matters deemed to be misleading – causation – damages – difficulties with proof of damage – Tribunal must do the best it can to estimate damages CONSUMER LAW – suppliers of goods and services to disclose prejudicial terms relating to supply – intermediaries to disclose referral fees and commissions – breach – local contravention – compensation CONTRACTS – Construction – Interpretation – background – oral conversation preceding written document – no determination by Tribunal whether contract partly oral and partly in writing – constructive failure to exercise jurisdiction – Tribunal overlooking or misreading written term

Catchwords:

COSTS – application for order as to costs at first instance following outcome on appeal – costs of appeal – costs of late amendment to notice of appeal

Catchwords:

CONTRACTS — Deeds — Whether binding lease or agreement for lease came into existence prior to withdrawal by respondent from proposed lease transaction — Where heads of agreement reserved parties’ right to withdraw from and terminate negotiations at any time prior to execution of lease documents by both parties — Where respondent provided executed lease documents to appellants’ solicitors and obtained early access to premises for limited purposes but appellants did not execute lease documents prior to withdrawal by respondent — Whether primary judge erred in holding that no binding lease or agreement for lease came into existence — Appeal dismissed.

Catchwords:

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

Catchwords:

CONTRACTS – Formation – Intention to create legal relations – Whether agreement signed by the plaintiff constituted a binding contract – Whether unjust contract under the Contracts Review Act 1980 (NSW) EQUITY – Unconscionable conduct – Special disability or disadvantage – Independent advice – Inequality of bargaining power – Whether unconscientious advantage taken – Whether defences of laches and acquiescence applied – Whether Limitation Act 1969 (NSW) applied by analogy – Whether transaction ought to be set aside EQUITY – Trusts and trustees – Constructive trusts – Remedial – Breaches of trust – Whether a constructive trust arises – Whether knowing receipt of trust property – Whether encumbrance of trust property constitutes a breach of trust EQUITY – Fiduciary duties – Breach – Agent and principal – Whether donee of power of attorney acted in best interests of the plaintiff

Catchwords:

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

Catchwords:

ADMINISTRATIVE LAW – Firearms Act – revocation of licence

Catchwords:

DEVELOPMENT APPLICATION – alterations and additions to Victorian terrace – heritage conservation – desired future character – bulk, form and scale – compatibility

Catchwords:

CRIME- Application for costs following Crown decision not to continue proceedings.

Catchwords:

CIVIL PROCEDURE — court administration — case management — directions — Court reserved on case management orders following contested directions hearing — orders made in respect of, inter alia, restoration of trust fund, service of documents, and points of claim

Catchwords:

CIVIL PROCEDURE — Originating process — where it is claimed parts of amended statement of claim should be struck out under r 13.4 or dismissed under r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) — whether there is a high degree of certainty about ultimate outcome of proceedings — role of consideration of the just, quick and cheap resolution of the real issues in the proceedings under Civil Procedure Act 2005 (NSW), s 56 CONTRACTS — where it is claimed employment contract contains implied terms which were breached resulting in employee’s constructive dismissal – claim bound to fail CONTRACTS — construction — deed of release — whether deed contained implied term — claim legally untenable where implied term contrary to express terms CONTRACTS — whether deed void ab initio as the result of breach — claim legally untenable — deed remains binding and precludes claims for damages for breach of contract and claimed breaches of Corporations Act 2001 (Cth), Pt 9.4AAA during course of employment CONTRACTS — construction — deed of release — that deed did not apply to breaches of Corporations Act 2001 (Cth), Pt 9.4AAA after termination of employment arguable EMPLOYMENT AND INDUSTRIAL LAW — contract of employment — repudiation — whether repudiation accepted — employment ended by resignation on payments made by employer in accordance with deed

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — contract — restraint of trade — interlocutory injunction — where defendant has provided undertakings in relation to non-solicitation of employees and customers — where remaining issue in dispute in relation to interlocutory relief is whether defendant should be restricted from working for the plaintiff’s competitor in any capacity — whether in the alternative the defendant should be permitted to work for the plaintiff’s competitor in a limited capacity without client contact — interlocutory relief granted in the form sought by the defendants referred to as the “warehouse proposal”

Catchwords:

CIVIL PROCEDURE – application for pro bono referral under UCPR r 7.36 – where grounds of appeal do not identify a question of law – where applicant unlikely to accept advice as to defects in her case – where applicant not completely lacking financial means

Catchwords:

CIVIL PROCEDURE – application for pro bono referral under UCPR r 7.36 – where proposed appeal is devoid of merit – where Applicant has a prolonged grievance against his former counsel – where applicant unlikely to accept advice explaining defects in his case

Catchwords:

REVENUE LAW - First Home Owner (New Homes) Act 2000 (NSW) (FHOG Act) - principal place of residence requirement - where applicant failed to discharge onus of establishing residence in the grant property as his principal place of residence for the period required under the Act - Chief Commissioner’s decisions affirmed.

Catchwords:

ADMINISTRATIVE REVIEW - Firearms Act 1996 – Application for category H firearms licence – public interest – period since offending – cessation of alcohol

Catchwords:

LEASES AND TENANCIES – Residential tenancies – arrears of rent – alleged offsetting claim APPEALS – alleged procedural unfairness in failing to hear an alleged offsetting claim – subsequent dismissal of offsetting claim in separate proceedings – no utility in appeal

Catchwords:

LAND LAW – Strata Management – alleged unreasonable refusal of consent by lot owners to proposed amendment – pre-conditions to challenge of refusal – proper parties

Catchwords:

WORKING WITH CHILDREN CHECK CLEARANCE – no real and appreciable risk to the safety of children – reasonable person would not allow direct, unsupervised contact with their children - teacher-student relationship - professional boundaries crossed.

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children – risk to children whether risk real and appreciable– allegations – circumstances of allegations – weight of evidence - balance of probabilities- whether necessary to make positive findings on all matters – weight of evidence of risk – current risk– future risk – evidence of behaviour that caused harm to children – insight – whether nature of response creates further risk – whether future response failings indicate of level of future risk

Catchwords:

COSTS – where defendant successful on notice of motion to dismiss the proceedings – no question of principle

Catchwords:

COSTS – questions of law submitted by a prosecutor pursuant to s 5AE – prosecutor sought to “appeal” trial judge’s decision – costs order made – no question of principle

Catchwords:

DEVELOPMENT APPEAL – residential flat building – conciliation conference – agreement between the parties – orders

Catchwords:

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — social housing — termination of social housing agreements – no question of principle

Catchwords:

APPEALS — procedural fairness — failure to give reasons — adequacy of reasons COSTS — party/party — appeals — amount in dispute exceeds $30,000 - general rule that costs follow the event — application of the rule COSTS — party/party — exceptions to general rule that costs follow the event - proceedings at first instance — amount in dispute exceeds $30,000 — separable issues - application of the rule LEASES AND TENANCIES — retail leases — retail shop lease — lessor in breach of obligations — where lessor failed to provide disabled toilet and to clean toilets LEASES AND TENANCIES — retail leases — retail shop lease — where lessee claimed lessor breached covenant of quiet enjoyment by water ingress LEASES AND TENANCIES — retail leases — retail shop lease — where lessee claimed lessor engaged in misleading or deceptive conduct LEASES AND TENANCIES — retail leases — retail shop lease — where lessee claimed lessor engaged in unconscionable conduct LEASES AND TENANCIES — retail leases — retail shop lease — where covid-19 regulatory regime required rent to be renegotiated in good faith by lessor and lessee — where lessor failed to renegotiate in good faith — whether the tribunal has power to vary the lease

Catchwords:

BAIL – release application – bail refused by Court of Criminal Appeal – fresh application under s 74(3) as not legally represented on previous application – conviction and sentence appeal listed on 15 July 2022 – no special or exceptional circumstances – s 22 Bail Act not satisfied – application dismissed.

Catchwords:

MODIFICATION APPLICATION – design changes to approved dwelling house – conciliation conference – agreement between the parties – orders

Catchwords:

CRIMINAL LAW – appeal – appeal against conviction and sentence – aggravated indecent assault and sexual touching of a child between the age of 10 and 16 years – conviction ground asserted that a miscarriage of justice arose as trial Judge did not additionally remind and identify for the jury inconsistencies in the complainant’s evidence following the replay of JIRT interview during jury deliberations - no such application made at trial by defence counsel – consideration whether Court of Criminal Appeal should view pre-recorded evidence for the purpose of determining ground of appeal – no forensic purpose established for Court to view JIRT interview – leave to rely on ground refused – sentence ground asserted that aggregate sentence was manifestly excessive by reason of allegedly excessive indicative sentences – significance of “problematic” standard non-parole period for s.61M(2) Crimes Act 1900 offences – absence of standard non-parole period for s.66DB(a) Crimes Act 1900 offence – aspects of indicative sentences resulted in manifestly excessive aggregate sentence – Applicant resentenced

Catchwords:

CRIME – appeals – appeals against sentence – applicant convicted of three offences pertaining to violent attempted sexual assault of victim in her home late at night – applicant intoxicated by alcohol – objective seriousness – no error in consideration of relevant serious indictable offence on count 1 – opportunistic but not spontaneous – remorse – s 21A(3)(i) of Sentencing Act – conflated with inability to explain offending, rehabilitation and risk of re-offending – no separate finding made despite unchallenged evidence – error established – applicant remorseful – appeal allowed – re-sentence CRIME – property offences – aggravated enter dwelling with intent to commit serious indictable offence and break out – s 109(2) of Crimes Act – elements – whether count 2 correctly said to be a manifestation of the intent expressed in the s 109(2) offence – no error made out

Catchwords:

SENTENCE - three charges of breaching s 69SA(1) of the Forestry Act 2012 - pleas of guilty by Defendant - agreed facts for sentencing purposes - no potential aggravating factors - consideration of matters mandated by the Biodiversity Conservation Act 2016 - consideration of Defendant’s subjective factors - extent of contrition and remorse - extent of likelihood of reoffending - other subjective factors favourable to Defendant - need for general deterrence - appropriate starting penalty toward (but not at) the low end of the low range for such conduct - penalties of $120,000 for each offence - plea of guilty entered at earliest opportunity - discount of 25% on starting penalties appropriate TOTALITY AND ACCUMULATION - offences all arising out of same course of conduct - penalties for second and third offences moderated ADDITIONAL ORDERS - publication order appropriate to be made - minor changes to Prosecutor’s draft - publication order made - proposals for order requiring training of forest‑harvesting employers and contractors in new mapping technology - consent orders settled by the parties for mapping technology training - training orders made by consent

Catchwords:

APPEALS – leave to appeal – appeal from Appeal Panel of NCAT – appeal on question of law – grounds – ground to be more than merely arguable – whether reasons adequate – whether plaintiff denied procedural fairness CIVIL PROCEDURE – application by plaintiff to vacate hearing – late medical certificate – chronic illness – pro forma certificate – nature and history of proceedings – cost and inconvenience to respondent - whether proceedings futile LEASES AND TENANCIES – residential tenancy agreement – holding over period – notice of termination without reasons – whether retaliatory notice – tenant evicted whether relief available in NCAT

Catchwords:

COSTS – Party/Party – Exceptions to the general rule that costs follow the event – whether plaintiffs’ conduct in joining the second and fourth defendants to the proceedings supported an order for costs to be assessed on an indemnity basis COSTS – Party/Party – Orders when proceedings involve multiple parties – Bullock and Sanderson orders – whether the burden of an unsuccessful defendant’s insolvency should be cast on the plaintiffs or the successful defendants

Catchwords:

LICENSING – firearms – licence revocation – public interest – discretion.

Catchwords:

SUCCESSION – Alleged lack of testamentary capacity – Alleged lack of knowledge and approval SUCCESSION – FAMILY PROVISION – Alternative claim for family provision order under the Succession Act 2006 (NSW), Ch 3 – Whether appellant is an ‘eligible person’ under s 57(1) of the Succession Act 2006 (NSW) – Whether appellant was wholly or partly dependent upon deceased at any particular time – Whether adequate provision had been made for appellant’s education, maintenance and advancement in life

Catchwords:

EQUITY – trusts and trustees – remedial constructive trusts – Baumgartner principles – where the land is included as an asset of a partnership – quantification of contributions of parties - whether there has been relevant premature termination constituting unconscionability of retaining sole legal title – whether appropriate relief required imposition of a constructive trust over the property as tenants-in-common CORPORATIONS – shares – rectification of share register – application to correct the register pursuant to s 175 Corporations Act 2001 (Cth) LEASES AND TENANCIES – rent and outgoings – payment of rent – where rent not paid by a tenant in common

Catchwords:

CRIMINAL LAW – offences – murder – trial — judge alone – where accused stabbed the deceased multiple times - accused pleaded not guilty to murder but guilty to manslaughter by reason of substantial impairment – Crown asserted defence of mental health impairment under s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – whether Crown could assert defence of mental illness – where psychiatrists qualified on behalf of Crown and accused agreed that accused did not know that his acts of stabbing the deceased were wrong – where Crown could raise the defence in circumstances where accused had put mental illness in issue – proof was on the balance of probabilities whether raised by the accused or the Crown - special verdict of act proven but not criminally responsible

Catchwords:

DEVELOPMENT APPEAL – residential development – Torrens title subdivision – ANEF contour - conciliation conference – agreement between the parties - orders

Catchwords:

PRACTICE AND PROCEDURE - application for stay of proceedings pursuant to s 20 of the Service and Execution of Process Act 1992 (Cth) - plaintiff and defendant neighbours in rural Victoria - defendant objects to development proposal made to Council by plaintiff - plaintiff commences defamation proceedings for the defendant’s letter of objection and for her posts on Facebook sites conducted by residents of Victoria - limited publication in New South Wales - balance of probabilities and relevant factors - stay granted

Catchwords:

CAVEATS – application for extension of caveat – where estate or interest in land specified in caveat differs from caveatable interest claimed at hearing of application – erroneous specification in caveat of estate in fee simple as the estate or interest claimed by the caveator – s 74L of the Real Property Act 1900 (NSW) not applicable – application dismissed INTERIM INJUNCTIONS – no issue as to serious question to be tried – where defendant has given sufficient undertaking – balance of convenience does not favour granting injunction – application dismissed

Catchwords:

CIVIL PROCEDURE – notice of motion – Felons (Civil Proceedings) Act 1981 (NSW) – leave to commence proceedings sought – claim for damages for sexual abuse – leave granted nunc pro tunc – costs

Catchwords:

PRACTICE AND PROCEDURE – application for stay pending appeal – where no arguable grounds of appeal – where no evidence as to applicant’s financial means

Catchwords:

COSTS — security for costs — quantum and form — Court earlier satisfied that security for costs ought to be provided by corporate plaintiffs — Court earlier considered that security ought to be provided by means of charge granted by first plaintiff over its shares in first defendant — subsequent change in position — suspension of trading of shares in first defendant lifts — market value of shares declines — security for costs ordered

Catchwords:

Practice and Procedure – Admiralty Law – application for extension of time to commence proceedings – where defendant admitted liability – whether the defendant would suffer prejudice.

Catchwords:

CRIME – appeals – appeal against sentence – supply of prohibited drug – commercial and indictable quantity – whether sentencing judge erred in assessment of objective seriousness – whether sentencing judge erred in assessment of the significance of the applicant’s deprived background to his moral culpability – whether sentence unreasonable or plainly unjust – no error demonstrated – leave to appeal granted – appeal dismissed

Catchwords:

ADMINISTRATIVE LAW- summary dismissal-freedom of information- government information public access-no reasonable excuse for delay- Government Information (Public Access) Act 2009 (NSW)

Catchwords:

ADMINISTRATIVE LAW – extension of time - review of decision refusing a real estate agents licence – applicant’s poor prospects of success – extension of time refused

Catchwords:

HUMAN RIGHTS — equal opportunity — whether leave required for complaint to proceed — principles applying to grant of leave

Catchwords:

ADMINISTRATIVE LAW — Government Information (Public Access) — Grounds for refusing access — Balancing competing public interest factors for and against disclosure

Catchwords:

OCCUPATIONS – Solicitor – disciplinary proceedings – findings of professional misconduct and unsatisfactory professional conduct – orders

Catchwords:

ADMINISTRATIVE LAW – merits review – application to correct register of births deaths and marriages recording death – de facto relationship – criteria – nature, extent and existence of relationship at time of death.

Catchwords:

UNFAIR DISMISSALS – threshold issues – Public Health Orders – Health Secretary Determination – unvaccinated workers prohibited from working in public health– requirement to consult-impracticability of reinstatement or re-employment orders

Catchwords:

DEVELOPMENT APPLICATION: substantial demolition of existing building - construction of boarding house - directions made in earlier decision for amended plans – directions complied with – preconditions to the grant of consent met – development acceptable on merit - final orders made.

Catchwords:

DEVELOPMENT APPEAL – modification – penthouse apartment – communal open space – floor space ratio - conciliation conference – agreement between the parties - orders

Catchwords:

DEVELOPMENT APPLICATION – seniors housing development – registered club – site compatibility certificate – minimising gambling harm – lay objections

Catchwords:

ADMINISTRATIVE LAW – merits review – Victims Rights and Support – restitution order against person convicted of relevant offence – reasonableness of victims support – applicant failed to discharge onus of proof

Catchwords:

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

Catchwords:

CIVIL PROCEDURE – Notice of motion – Referral or direction to NSW Police Force or Attorney General – Stay of proceedings – Allegations of fraud or criminal conduct – Abuse of process – Indemnity costs – Scandalous material

Catchwords:

BAIL – release application – breaches of ESO – s 17 bail risks – unacceptable risks – bail refused

Catchwords:

CRIME – Sentence – Federal Offences – Conspiracy to defraud the Commonwealth – s 135.4(1) Criminal Code – Defrauding the Pharmaceutical Benefits Scheme – Ongoing course of conduct – Falsifying prescriptions – Loss to Commonwealth of $19.35 million

Catchwords:

COSTS – guarantee and indemnity under a sub-lease - where plaintiff seeks order to recover all legal costs pursuant to guarantee and indemnity under sub-lease in a specified amount – where legal costs incurred up to 27 July 2021 quantified at hearing – whether plaintiff’s later costs of proceedings should be ordered on a fixed sum or indemnity basis

Catchwords:

SENTENCE – robbery; various break and enter offences; supply prohibited drugs.

Catchwords:

Break and enter and commit serious indictable offence.

Catchwords:

CIVIL PROCEDURE – Protective jurisdiction – Administration of estates – NSW Trustee and Guardian – Appointment of receiver – Powers of court – Whether intangible property within s 11(1)(f) of NSW Trustee and Guardian Act 2009 (NSW) CIVIL PROCEDURE – Appearance – Standing – Leave of court – Unrepresented litigants – Assistance of court – Non-party participation – Overriding purpose

Catchwords:

CRIMINAL APPEAL – sentence appeal – extension of time – parity – where offenders sentenced for the same offences – where co-offenders sentences for additional offences – different roles and subjective cases – where the same sentence imposed on each offender – whether lack of disparity gives rise to justifiable sense of grievance – equal justice

Catchwords:

APPEAL - Notice of Appeal lodged more than 21 months late - No evidence provided to first instance hearing - Application breached mediation agreement

Catchwords:

ADMINISTRATIVE LAW — Reviewability — whether review of decision otiose — dismissal of proceedings

Catchwords:

APPEALS - HOME BUILDING – responsibility of builder or supplier for defective work COSTS – procedural fairness – no opportunity to respond

Catchwords:

EVIDENCE – appeal from magistrate – damages for breach of contract to construct bore – where fine sand egression prevented installation of pump – admissibility of evidence contained in a report – opinion rule – whether opinion was a lay opinion – whether evidence was an expert opinion – where author of report not called to give evidence – where appellant conceded report was a business record – other exclusionary rules still applied – diagram and structure of Evidence Act not applied – denial of opportunity to cross-examine – fundamental precept of adversarial system of justice

Catchwords:

CRIMINAL LAW – sentence – prosecution appeal against inadequacy – sexual offending against two children – whether judge failed to apply standard non-parole period – use of word “depart” or “departure” from standard non-parole period – whether indicative of error – aggregate sentence – where indicative sentences significantly below standard non-parole period – whether indicative of error CIRMINAL LAW – sentencing – totality and proportionality – whether Judge erred in application of totality principle – whether sentence reflected the criminality against separate victims and in separate time frames – whether sentence manifestly inadequate as a result – (by majority) aggregate sentence increased – totality principle – notional accumulation within aggregate sentence

Catchwords:

APPEAL – plaintiffs claimed damages for breach of agreement to issue shares – primary judge dismissed claim but indicated alternative case which might succeed – whether primary judge ought to have upheld claim based on alternative case – whether alternative case subject of concession at trial – whether concession wrongly elicited by primary judge – whether concession ought be permitted to be withdrawn on appeal – appeal dismissed

Catchwords:

SUCCESSION – application for family provision order by biological son of deceased – approval of compromise under Succession Act 2006 (NSW) s 98 – parties entered into compromise following mediation – executrix opposed making orders giving effect to compromise – shortly after compromise reached, executrix came to believe applicant had been formally adopted – primary judge declined to make orders giving effect to settlement – whether adoption order caused applicant no longer to be a child of the deceased for purposes of s 57 of Succession Act – significance of executrix being on notice of the possibility of formal adoption – whether applicant remained a child of the deceased after being formally adopted – whether mistake as to basis of settlement warranted declining to make orders – appeal dismissed

Catchwords:

CRIME — Appeals — Appeal against sentence — whether disparity between sentence imposed on applicant compared to co-offender — where open to sentencing judge to assess relative culpability as similar — where open to sentencing judge to impose same pre-discount sentence on both offenders — leave to appeal granted — ground not made out CRIME — Appeals — Appeal against sentence — whether sentencing judge could make finding on time of death based on evidence — where evidence existed — where ground devoid of merit and unduly technical — leave to appeal not granted

Catchwords:

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

Catchwords:

PRACTICE AND PROCEDURE — order 3 seeking leave to amend grounds of appeal — amendment of documents pursuant to s 64 Civil Procedure Act 2005 (NSW) — whether error of law identified that would vitiate decision of Commissioner — no prospects of success found — leave not granted — Applicant to pay costs

Catchwords:

DEVELOPMENT APPLICATION – residential dwelling development – amended plans – agreement between the parties – orders

Catchwords:

PROFESSIONAL NEGLIGENCE – architect – respondent was engaged as architect for appellant’s home renovations – appellants indicated initial budget of $300,000 which was later revised to $600,000 – respondent provided “opinion on probable cost” of $590,000 excluding GST and other items in April 2015 for preliminary design – further additions to design thereafter – appellants engaged builder who commenced work on cost plus basis in December 2015 – falling out between parties and appellants continued with builder – by June 2016 substantial increase in costs and some aspects of design not pursued – renovations cost $780,000 but only increased value of house by $330,000 – appellants sued for false and misleading representation about cost of renovations and breach of contractual and tortious duty to advise about cost – appellants claimed damages on a no transaction basis namely that if known that cost would have exceeded $600,000 would not have undertaken renovations – trial judge rejected appellants evidence of express representations about cost of renovations – trial judge upheld contract and tort claim but only awarded nominal damages – whether trial judge’s approach to damages was erroneous – whether trial judge’s findings warranted finding that respondent obliged to advise appellants that renovations could not be undertaken for $600,000 – whether appellants would not have undertaken renovations if they had been so advised – held – trial judge’s approach to damages erroneous – however not able to conclude that had respondent not breached his contractual and tortious duties then appellants would not have undertaken renovations – appeal dismissed

Catchwords:

CRIMINAL LAW – conviction appeal – applicant convicted of one charge of sexual intercourse with the complainant without her consent – applicant met victim following contact on social media – applicant drove her to various locations and then to carport at his apartment block – applicant found to have raped her in car parked in carport – applicant and victim exchanged text messages in the following days – victim then spoke to her ex-boyfriend in Vietnam and approached police – whether verdict was unreasonable and cannot be supported having regard to the evidence – victim told jury that she sent messages to find out whether the person who raped her had any interest in her other than sex – any doubt about victim’s credibility or reliability arising from messages was a doubt that the jury’s advantage in seeing and hearing her evidence was capable of resolving – observations of trial judge in absence of jury about strength of Crown case – irrelevant to ground of appeal – whether absence of evidence from ex-boyfriend meant verdict unreasonable – ground rejected – leave to appeal granted but appeal dismissed

Catchwords:

DEVELOPMENT APPLICATION – dual occupancy development – amended plans – agreement between the parties - orders

Catchwords:

CIVIL PROCEDURE – application by first defendant for stay of proceedings – whether abuse of process established CIVIL PROCEDURE – application by first defendant for summary dismissal of proceedings – whether no reasonable cause of action disclosed – where first defendant self-represented – meaning of “notice” and “application” in s 136 of the Proceeds of Crime Act 2002 (Cth) CIVIL PROCEDURE – application by plaintiff for summary dismissal of the first defendant’s cross-summons – whether no reasonable cause of action disclosed – where cross-summons disputes the constitutional validity of the pecuniary penalty order regime under the Proceeds of Crime Act 2002 (Cth) in cases of tax fraud – where similar issue previously considered by Court of Appeal in related appeal brought by first defendant

Catchwords:

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

Catchwords:

COSTS – costs of an application for preliminary discovery – where applicant for preliminary discovery successful on some but not all categories for discovery – whether applicant should pay defendant’s costs of preliminary discovery application in addition to costs of compliance with orders

Catchwords:

APPEALS — appeal from Local Court to Supreme Court — application for judicial review — decision not to exercise jurisdiction under Dividing Fences Act 1991 — failure to draw Local Court’s attention to jurisdictional fact — error of law established — appeal upheld

Catchwords:

EQUITY — Trusts and trustees — rectification of trust deed

Catchwords:

SUCCESSION – Administration of estates – The deceased died intestate in 2020 – The first Plaintiff, the uncle of the deceased, seeks letters of administration – First necessary to determine the persons entitled on intestacy in order to ascertain whether he has a beneficial interest in the deceased’s estate – First Plaintiff seeks order giving liberty to distribute the estate on particular basis – Searches do not reveal identity of deceased’s father – Whether any further searches would reveal identity – Benjamin Order made – Determination of matters in doubt to enable entitlement to distribution and then administration of deceased’s estate – First Plaintiff justified in distributing the estate to himself as uncle of the deceased – Order also made that the Plaintiffs’ costs of the proceedings, calculated on the indemnity basis, be paid, or retained, as the case may be, out of the estate of the deceased

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Public sector disciplinary appeal – dismissal – homophobic comment in the workplace – inappropriate communications about staff members with direct manager over extended period of time - communications had a connection with workplace - workplace culture and behaviours in the workplace generally – request to manager for answers to questions in job application – applicant used his position to facilitate free entry for manager into concert - consideration of mitigating factors – long and unblemished service history – conduct condoned by manager - insight into contribution to negative workplace culture – appeal dismissed

Catchwords:

SUCCESSION — family provision — approval of release — plaintiff enters into deed of family arrangement with deceased and others whereby deceased and deceased’s wife promise to transfer real property to plaintiff and plaintiff’s then-husband at undervalue — plaintiff promises by deed not to seek to challenge in any way the wills of the deceased or deceased’s wife — defendant executor seeks to enforce deed against plaintiff by approval of release of rights to apply for a family provision order under Succession Act 2006 (NSW), s 95 — whether relevant term of deed constitutes release for purposes of s 95 — whether to approve release — deceased exerts pressure on plaintiff to execute deed without seeking legal advice — plaintiff receives insufficient legal advice — plaintiff under financial pressure — attempt at early inheritance and equality of result among deceased’s children undermined by precariousness of plaintiff’s marriage — approval of release declined SUCCESSION — family provision — claim by adult child for provision from the deceased’s estate under Succession Act 2006 (NSW), Ch 3 — plaintiff with significant medical needs — plaintiff receives early inheritance by deed of family arrangement — whether inadequate and proper provision made for the plaintiff and, if so, the nature and quantum of the provision to be made — further provision ordered

Catchwords:

LAND LAW – leases and subleases – interpretation of leases and subleases – where one condition of termination of leases and subleases by lessor is service of notice of termination requiring vacant possession 3 Months from the date of service – where lessor served notices of termination on 30 March 2022 requiring vacant possession no later than 30 June 2022 – where lessee alleges that notices should not have required vacant possession before 1 July 2022 and that notices are accordingly invalid – “Month” defined in leases and subleases as a named month – 3 Months from date of service held to include April, May and June 2022 – notices held to have erroneously called for vacant possession by 30 June 2022 – notices nonetheless held to be valid and effective as notices would make it clear to a reasonable recipient that lessor was seeking vacant possession only in accordance with identified provisions of leases and subleases WORDS AND PHRASES – “Month” – “Named Month” – “Calendar Month”

Catchwords:

CONTRACT – supply of telecommunications services – admitted breach by telco provider – whether loss or damage caused CONSUMER PROTECTION – whether plaintiff was a ‘consumer’ – Australian Consumer Law, s 3(3) – consideration of the price paid for services supplied under more than one contract – whether prices can be ‘aggregated’ for the purpose of considering the monetary threshold - whether purpose and/or result guarantee not complied with – whether non-compliance amounted to a ‘major’ non-compliance - whether limitation clause permitted by s 64A DAMAGES – construction and application of exclusion and limitation clauses – consideration of claim for compensation and damages for any non-compliance with consumer guarantee – Australian Consumer Law, ss 267(3)(b) and 267(4) LIMITATIONS OF ACTIONS – whether action for damages for breach of contract statute-barred – whether limitation period postponed by reason of mistake

Catchwords:

JURISDICTION – Privacy and Personal Information Protection Act 1998 – Whether certain allegations were subject of review by the Tribunal – Application to strike out

Catchwords:

LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) — oral tenancy agreement — NSW Civil And Administrative Tribunal — no issue of principle

Catchwords:

CRIME — Sentencing — Manslaughter — Self‑defence with excessive force — Early guilty plea to manslaughter — Special circumstances

Catchwords:

CORPORATIONS – Winding up – Statutory demand – Demand issued for loan debt – Interstate address nominated in demand – Whether debt “due and payable” – Whether nullity – Demand not a nullity - Other defects alleged including alleged lack of verification – Service of Originating Process by email to solicitor for creditor – Effect of s 600G and the deeming provisions in ss 105A and 105B of the Corporations Act 2001 (Cth) – Whether originator believes on reasonable grounds electronic address for the addressee to be a current for receiving electronic communications s 9 Corporations Act 2001 (Cth) – Service valid – Failure to attach SEPA notice – Whether unconscionable reliance on defects – Whether applicant can rely on ground not raised in affidavit in support of application EXPERT EVIDENCE – ss 105A and 105B of the Corporations Act 2001 (Cth) – When is an electronic communication sent and received – “capable of being retrieved”

Catchwords:

HEALTH — Professional registration and discipline — Professional misconduct — exercise of power to cancel practitioner’s registration

Catchwords:

OCCUPATIONS – health practitioner – psychologist – unsatisfactory professional conduct – professional misconduct – protective orders

Catchwords:

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

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – is bamboo hedge severely obstructing views – damage to property – apprehension of additional damage to property – leaves and other refuse from trees falling on applicant’s land – contemplation of orders

Catchwords:

WORKERS COMPENSATION — medical assessment — medical dispute — referral of medical dispute for assessment by Approved Medical Specialist — degree of permanent impairment as a result of an injury — scope of referral ADMINISTRATIVE LAW — whether reviewable error of law — error of law on the face of the record

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:

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

Catchwords:

MERITS REVIEW – Revenue law – land tax – sole use of parcel of land – exemption.

Catchwords:

INTERIM INJUNCTIONS – whether serious question to be tried – balance of convenience – no question of principle

Catchwords:

JUDGMENTS AND ORDERS — Enforcement CIVIL PROCEDURE — Interim preservation — Freezing orders — Against third parties

Catchwords:

APPEAL – Crimes (Appeal and Review) Act – costs awarded against prosecutor following adjournment – lower court adopted wrong test – no question of principle

Catchwords:

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — caveat lodged on basis of spurious claim to interest in land thwarting enforcement of writ for levy of property — caveator fails to prosecute claim when given opportunity to do so — summary declaration that caveator has no estate or interest in land

Catchwords:

APPEAL – PRACTICE AND PROCEDURE – evidence – whether the standard in Briginshaw v Briginshaw (1938) 60 CLR 336 supplemented by s 140 of the Evidence Act 1995 (NSW) applies to the fact finding of the Tribunal - residential tenancy – finding that the tenant, who is not a qualified electrician, caused a fire by illegally installing a power point – whether there was no evidence to justify such finding – whether such finding was unreasonable or illogical – whether leave to appeal should be granted – whether the finding of the Tribunal was against the weight of the evidence

Catchwords:

ADMINISTRATIVE LAW – access to government information – investigation of complaint against staff – request for access to redacted portions of documents – confidential information – whether prejudice to exercise of the agency’s functions – whether prejudice to conduct, effectiveness or integrity of any audit, test, investigation or review conducted – whether disclosure reveals personal information – whether disclosure contravenes an information protection principle

Catchwords:

NOTICE OF MOTION – application to rely on documents

Catchwords:

LICENSING – firearms – domestic circumstances - public interest

Catchwords:

LICENSING – firearms - confidentiality

Catchwords:

LICENSING – firearms false statements in applications – use of firearms contrary to licence – failure to notify change of use –– fit and proper person – public interest

Catchwords:

LEASES AND TENANCIES — retail leases — unconscionable and other misconduct alleged against the lessor – no errors in findings of fact – no question of principle COSTS — party/party — orders against non-parties — personal costs orders against legal practitioners – power of NSW Civil and Administrative Tribunal to make costs orders against non-parties - power of NSW Civil and Administrative Tribunal to make costs orders against legal practitioners – principles to apply to applications for costs against non-parties - principles to apply to applications for costs against legal practitioners

Catchwords:

CRIME — Appeals — Appeal against conviction — Unreasonable verdict — where applicant found guilty on one count, not guilty on five counts and jury unable to return verdict on one count — appeal dismissed

Catchwords:

OCCUPATIONS — medical practitioners — misconduct and discipline — unsatisfactory professional conduct — professional misconduct

Catchwords:

DEVELOPMENT APPLICATION – infill seniors housing development – amended plans – agreement between the parties - orders

Catchwords:

CRIME — appeals — appeal against conviction — whether guilty verdicts unreasonable by reason of inconsistency with not guilty verdict — logical and rational basis for distinction drawn by jury

Catchwords:

CRIME — appeals — application for leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) against orders dismissing the applications for permanent stay or for separate trial — ruling on evidence is not an interlocutory order or judgment amenable to appeal under s 5F(3) of Criminal Appeal Act — the underlying basis for the application is a preliminary ruling on evidence — leave to appeal refused

Catchwords:

DEVELOPMENT APPLICATION – infill seniors housing development – amended plans – agreement between the parties - orders

Catchwords:

DEVELOPMENT APPLICATION – deferred commencement condition - compliance

Catchwords:

COSTS – whether costs of application for leave to reopen should be awarded on an ordinary or indemnity basis – no issue of principle

Catchwords:

ADMINISTRATIVE LAW – administrative review - Government Information – balancing the public interest

Catchwords:

Privacy - information protection principle - personal information - disclosure to third party - reasonable security safeguards to prevent disclosure

Catchwords:

Sentence – Commonwealth offending – female offender – male victim – procuring – numerous text messages – general deterrence – hardship to third parties

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Industrial disputes – Dispute orders – consideration of factors going to exercise of discretion as to whether to make dispute orders

Catchwords:

APPEAL – nature of appeal – appeal from Local Court non-publication orders – de novo hearing – Court Suppression and Non-publication Orders Act 2010 (NSW), s 14 MEDIA AND COMMUNICATIONS – non-publication orders – when “necessary” – need to identify relevant ground – scope of information “otherwise concerning” a party – suppression of affidavit evidence indicating expected response to publication – Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8 MEDIA AND COMMUNICATIONS – non-publication orders – purpose of order – protecting safety of person – protection of other public interest – need to identify public interest PRACTICE AND PROCEDURE – statutory protection of child’s identity – court orders to similar effect inappropriate and unnecessary - Children (Criminal Proceedings) Act 1987 (NSW), s 15A

Catchwords:

LEAVE TO APPEAL – slip and fall case – whether an injustice in rejecting plaintiff’s claim – proposed challenge to factual findings underpinning findings of obvious risk, no breach of duty and limitation defence – no issue of principle

Catchwords:

CRIME – confiscations – restraining order – proceeds of crime – where no exclusion application has been made in respect of the property –statutory requirements satisfied – no point of principle

Catchwords:

CIVIL PROCEDURE – application for permanent stay of proceedings seeking damages for alleged sexual assault in 1981 – alleged perpetrator died before defendant on notice of any allegation – no other witnesses to assaults – many critical witnesses deceased or unavailable – absence of documents – no basis for grant of leave to appeal from grant of permanent stay

Catchwords:

RETIREMENT VILLAGES – approval of budget – provision of information to residents’ committee under section 114 of the Retirement Villages Act 1999 – approval by the Tribunal under section 115 of the Retirement Villages Act 1999 of expenditure under a proposed village budget

Catchwords:

ADMINISTRATIVE LAW – access to government information – confidential information that facilitates the effective exercise of that agency’s functions - supply of information from an informant – whether public interest considerations against disclosure outweigh public interest considerations in favour of disclosure

Catchwords:

PROFESSIONAL DISCIPLINE – registered veterinary practitioner – allegations including that the applicant discharged a non-ambulatory dog with tick poisoning – Veterinary Practitioners Code of Professional Conduct – finding of unsatisfactory professional conduct – issue of caution and fine of $1,000 – correct and preferable decision COSTS – exception to s 60 (each party pay their own costs) – cl 26, Division 6, Part 4 of Schedule 5 to the CAT Act (costs payable by applicant) - whether there are special circumstances

Catchwords:

LICENSING – firearm licence – confidential material application

Catchwords:

JUDGMENTS AND ORDERS – stay of execution – where appeal lodged – judgments created by registration of certificate of costs assessor - whether “proceedings” constituted by registration – appeal against Review Panel determination - appeal by way of rehearing – whether Part 7 of the Legal Profession Uniform Law Application Act 2014 precluded reliance on ss 67 and 135 of the Civil Procedure Act - whether serious question to be tried at hearing of the appeal – where balance of convenience lies – stay granted on condition of partial payment into court of judgment sum

Catchwords:

DEVELOPMENT APPEAL – hotel - conciliation conference – agreement between the parties - orders

Catchwords:

DEVELOPMENT APPLICATION – new generation boarding house – conciliation conference – agreement between the parties – orders

Catchwords:

ADMINISTRATIVE LAW – Judicial review – Review of decision of the State Parole Authority refusing the plaintiff’s release on parole – Whether Authority erred in law in its interpretation of the relevant statutory provisions STATUTORY INTERPRETATION – Interpretation of statutory provisions governing the release of terrorism related offenders on parole – Whether the State Parole Authority erred in concluding that the plaintiff was a person who had an association with another person or organisation who has advocated support for any terrorist act or violent extremism – Whether it was necessary for the Authority to be satisfied that the plaintiff shared a common purpose of terrorism or violent extremism with the other person or organisation in order to come to the view that the plaintiff had the relevant association WORDS AND PHRASES – associate – association

Catchwords:

CONTEMPT — Civil contempt — Breach of orders – where orders required executors to file and serve a statement of accounts (in common form) – where new orders were made requiring more detailed accounts and documents to be produced – where executors filed and served accounts purportedly in response to both orders – where contempt charges brought in relation to both orders - whether contempt charge in relation to first orders has utility – where executors' accounts did not cover the whole period of their administration of the deceased’s estate but breach fully remedied by compliance with new orders – discretion not to exercise contempt jurisdiction – whether charges in relation to second orders should be dismissed for imprecision – whether contempt charges are an abuse of process where applicants also seeking relief to revoke the grant of probate to the executors – where contempt charges in relation to later orders raise multiple alleged breaches – finding of limited breaches and civil contempt

Catchwords:

CIVIL PROCEDURE – discovery, subpoena and production – grounds for resisting – objection to production and inspection – public interest immunity – immunity granted – another process may be available if redacted material significant and capable of being protected

Catchwords:

CRIME – Crimes Act 1914 (Cth) – breach of parole – appeal against non-parole period – fresh evidence relating to psychiatric issues – nature of appeal as rehearing – non-parole period varied

Catchwords:

COSTS – winding up of partnership – where no partnership assets – where partners are equally responsible for the failure to keep proper accounts and records during the partnership – where defendant ought to be entitled to costs in respect of plaintiff’s abandoned claim – mixed outcome of proceedings – where referee appointed pursuant to r 20.14 of the Uniform Civil Procedure Rules 2005 (NSW) to take account of the partnership – adoption of referee’s report – where inconsistency in court orders as to whether a certain item should be allowed – where referee’s report proposed two scenarios, one in which the item was allowed and one in which the item was disallowed – question of which scenario in report should be adopted – no question of principle

Catchwords:

PROCEDURE – application to vacate hearing date – no question of principle

Catchwords:

CRIMINAL LAW –– Robbery while armed with dangerous weapon – Organised meet to purchase drugs – Unidentified male emerged from bushes with firearm – Offender and unidentified male pursued person supplying drugs on foot but were unsuccessful – Offender approached the victim armed and robbed him of his mobile phone SENTENCE –– Consideration of the impact of offender’s drug addiction following previous trauma – offending aggravated pursuant to s 21A(2)(e) of the Crimes (Sentencing Procedure) Act 1999 (NSW) –Offender’s prior antecedents did not justify leniency – Offending committed whilst on conditional liberty – Remorse not established – Reasonable prospects of rehabilitation found subject to the offender continuing to embrace treatment – Medium risk of re-offending – Features of this case fall outside the R v Henry guideline – Special circumstances found

Catchwords:

COSTS – three proceedings heard together – plaintiff in main proceedings substantially successful in relation to all claims other than its building contract claims – plaintiff had limited success in relation to building contract claims – offers of compromise – whether the offers complied with the Uniform Civil Procedure Rules 2005 (NSW) – whether the offers involved substantial compromise

Catchwords:

COURTS AND JUDGES — Courts — cross-vesting — where first defendant as liquidator has brought proceedings against plaintiffs in District Court for insolvent trading and seeks recovery — where second plaintiff has commenced proceedings in Federal Circuit and Family Court of Australia for division of matrimonial property — where first plaintiff seeks orders to remove District Court proceedings to Supreme Court and then transfer to Federal Circuit and Family Court of Australia — where orders are opposed by liquidator — whether Supreme Court should exercise its power — Civil Procedure Act 2005 (NSW), s 140 — Corporations Act 2001 (Cth), s 1337H — interests of justice — balance of relevant factors — whether proceedings are intertwined or discrete — orders refused

Catchwords:

SEPARATE QUESTION: whether land was "Crown lease restricted" under the Valuation of Land Act 1916 – meaning of "Crown lease restricted" – whether a lease signed in 1994 was a lease granted under the Crown Lands Act 1989 or the Fish Marketing Act 1994 – application of the presumption of regularity - whether the lease is a "holding" for the purpose of the Valuation of Land Act as that term is defined in the Crown Lands Management Act 2016 - meaning of "Crown land" under the Crown Lands Management Act – the effect of the transfer of the land the subject of the lease to a State statutory body – the effect of the repeal of the Crown Lands Act on the lease – the effect of the operation of the savings and transitional provisions of the Crown Lands Management Act on the lease – the land is Crown lease restricted – separate question answered affirmatively in favour of the applicant.

Catchwords:

CIVIL PROCEDURE – transfer of proceedings from District Court to Supreme Court – consolidation of two Common Law Division proceedings and District Court proceedings with Technology and Construction List proceedings – all proceedings involve common facts as to liability – all parties but one consent to transfer and consolidation. SEPARATE QUESTIONS – plaintiff seeks damages determined before liability – plaintiff “will certainly win” – contrary to common sense – unlosable cases are not infrequently lost – waste of time and costs to proceed otherwise.

Catchwords:

ADMINISTRATIVE LAW – administrative review - Government Information – whether further information held – adequacy of searches - refusal to deal – relevant factors – aggregation of applications

Catchwords:

LANDLORD and TENANT-social housing residential tenancy-claim for arrears of rent and as to amount of rent to be paid-previous consent order for increased rent to be paid-jurisdiction of the Tribunal to make orders involving calculation of rent for social housing-orders based upon previous consent orders as to the amount of rent and uncontroversial fact that the tenant had not paid the increased rent the subject of those orders-simple mathematical calculation as to the amount of rental arrears. APPEAL-contention that Tribunal had no jurisdiction to make the orders appealed from-other errors alleged, including bias, procedural unfairness lack of informed consent from the tenant-no evidentiary support for these allegations and contentions-adjournment request refused.

Catchwords:

CRIME – appeals – appeal against sentence – principle of parity – where applicant and co-offender pleaded guilty to different offences arising from identical facts – where different offences reflected different levels of moral and criminal culpability CRIME – appeals – appeal against sentence – aggravating factors – in company – Applicant carried out offence in company with co-offender – where co-offender pleaded guilty to lesser offence on the basis of joint criminal enterprise – whether the fact that Applicant was in company was an element of his offending SENTENCING – appeal against sentence – co-offenders – disparity between sentences – applicant shot victim in leg after co-offender lured him into position – applicant and co-offender pleaded guilty to different offences arising from identical facts – where maximum penalty for applicant’s offence is 25 years’ imprisonment compared to 10 years for co-offender’s offence – where applicant’s moral and criminal culpability significantly higher than that of co-offender – where applicant obtained lesser discount than co-offender for guilty plea – whether there was unjustifiable disparity between applicant and co-offender’s sentences SENTENCING – appeal against sentence – aggravating factors – in company – Applicant carried out offence in company with co-offender – where co-offender pleaded guilty to lesser offence on the basis of joint criminal enterprise – whether the fact that Applicant was in company was an element of his offending

Catchwords:

SENTENCING – appeal against sentence – co-offenders – disparity between sentences – where applicant and co-offender pleaded guilty to offences in the same terms – where a comparison is drawn between an indicative sentence, noted pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), and a sentence imposed on a co-offender for a single offence – the use of indicative sentences as a guide to the application of the parity principle – where the disparity in sentences reflected different levels of moral and criminal culpability SENTENCING – relevant factors on sentence – co-offenders – parity – where co-offender assisted applicant in the manufacture of methylamphetamine – where applicant recruited and paid co-offender to assist in the criminal enterprise – where co-offender had no prior knowledge or expertise in the manufacturing process – where applicant and co-offender pleaded guilty to offences in the same terms – the use of indicative sentences as a guide to the application of the parity principle

Catchwords:

CIVIL PROCEDURE — second application to file further amended statement of claim — no preclusive rule — dependent upon interests of justice in the particular circumstances of the case

Catchwords:

DAMAGES – plaintiff partially successful in claims for misleading and deceptive conduct and in a claim for indemnity under a mortgage during a hearing on issues relating to liability – damages hearing then takes place – plaintiff elects to pursue indemnity based on the mortgage and abandons an inconsistent remedy for misleading and deceptive conduct that would otherwise result in the mortgage being set aside – whether all the plaintiff’s damages were caused by the misleading and deceptive conduct of the defendant – what particular legal costs and expenses are recoverable under the indemnity clause in the mortgage. COSTS – plaintiff successful on some but not all issues in the principal proceedings – what costs orders are appropriate in the circumstances – what costs order should be made in respect of the damages hearing. CIVIL PROCVEDURE – damages hearing after hearing on liability – during damages hearing plaintiff advances extensive claims for indemnity on a mortgage in respect to a range of legal costs and expenses which have not been the subject of detailed pleadings and were not the subject of specific determination during the liability hearing – whether the damages hearing is an appropriate vehicle for the determination of these claims.

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – Procedure and powers – notice of motion to re-call witness for further cross-examination after evidentiary cases closed – notice of motion opposed – interests of justice - notice of motion dismissed

Catchwords:

HUMAN RIGHTS – political discrimination – university statute prohibits denial of progression within university because of students’ religious or political affiliations, views or beliefs – university nursing degree requires students to complete clinical placements approved by university – student expresses scepticism about safety of Covid-19 vaccination – university cancels student’s clinical placements – internal university disciplinary tribunal makes reinstatement of placements conditional on student making written acknowledgement of unprofessional conduct – whether discrimination “because of” student’s views or beliefs about Covid-19 vaccination – Nursing and Midwifery Board of Australia Code of Conduct – whether student’s views or beliefs about Covid-19 vaccination are “religious or political”

Catchwords:

COSTS – appeals – whether rule 38 of the Civil And Administrative Tribunal Rules 2014 applies – whether special circumstances.

Catchwords:

APPEALS — Procedural fairness — Bias or apprehension of bias APPEALS — Procedural fairness — Hearing rule LEASES AND TENANCIES — Residential Tenancies Act 2010 (NSW) – residential tenancy - claim by tenants for return of rental bond and compensation – principles in awarding damages for distress, anxiety and disappointment

Catchwords:

HEALTH – Professional registration and discipline – application for summary dismissal of disciplinary proceedings

Catchwords:

CONSUMER LAW – representative proceedings – misleading or deceptive conduct – self-propelled crop sprayer – whether representations as to robustness, 4WD capability, crop spraying and braking ability misleading or deceptive – whether representative plaintiffs have established loss

Catchwords:

DAMAGES - whether right foot injury causally related to the accident – residual earning capacity – evidentiary burden on the defendant to provide evidence of the plaintiff’s ability to obtain and retain jobs – economic loss – past out-of-pocket expenses – future medical treatment – past care – future commercial care – Fox v Wood

Catchwords:

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 – capacity to pay appropriate penalty – victim impact statement COSTS – prosecution costs OTHER — defendant engaged contractor to operate a crane to load a dismantled centrifuge onto a flatbed truck – boom of the crane came into contact with, or in close proximity to, live overhead power lines – two workers employed by the defendant suffered electric shocks – failure to conduct a site-specific risk assessment – no appropriate SWMS – failure to adequately instruct and train employees – failure to observe and warn crane operator – failure to insist upon using a qualified dogman

Catchwords:

CIVIL PROCEDURE — summary disposal — dismissal of proceedings — claim against Senior Member of NCAT for actions in the exercise of their functions as a Member — Members of NCAT immune from civil liability in such circumstances — proceedings dismissed as having no prospect of success

Catchwords:

CIVIL PROCEDURE — stay of proceedings — claim for damages for alleged sexual abuse in 1966 — where alleged perpetrator died before applicant on notice of allegation — where no other witnesses to alleged assault or management of the school — where no relevant documentary records — no meaningful opportunity for applicant to investigate or challenge alleged sexual abuse — no meaningful opportunity for applicant to investigate or challenge issues of vicarious liability — stay ordered

Catchwords:

CRIME – Crown appeal against sentence – manifest inadequacy – sentence was manifestly inadequate – insufficient accumulation for separate offence of assault over unrelated drug offences – no issue of principle requires intervention – “residual” discretion to intervene refused.

Catchwords:

CIVIL PROCEDURE – Preliminary Discovery – Applicants previously commenced proceedings against proposed defendants – no evidence of alteration of view – jurisdiction of the Court where no proceedings – jurisdiction and power of the Court to order discovery or production when proceedings on foot – applicants had already decided to sue – UCPR rule 5.3 not applicable – summons dismissed.

Catchwords:

JUDICIAL REVIEW – review of judgment of District Court on appeal from Local Court – criminal jurisdiction – jurisdictional error – failure of judge to refer to submission of defendant – failure of judge to refer to absence of corroborative evidence – no basis for concluding judge mistook the extent or limits of his appellate function

Catchwords:

JUDGMENTS AND ORDERS — Enforcement — where defendant successful against two plaintiffs —whether to vary orders staying enforcement pending appeal by one plaintiff — where overriding purpose promoted no variation — no variation to orders made

Catchwords:

ENVIRONMENTAL OFFENCES — Sentence — Conducting forestry activities in exclusion zones contrary to conditions of biodiversity conservation licence — Determination of objective seriousness — Statutory scheme undermined by offences — Extent of harm to environment — De Simoni principle — Substantial harm — Practical measures available to prevent, control, abate or mitigate harm — Control over causes where conduct by contractors – No evidence that offences committed intentionally or for any reason — “Rolled-up” koala offence in medium range of objective seriousness — Rainforest and warm temperate rainforest offences in low to moderate range of objective seriousness — Determination of subjective circumstances — Record of prior convictions — Pleas of guilty – Assistance to authorities — Good character and low likelihood of similar reoffending — Need for general and specific deterrence — Consistency in sentencing — Publication orders made — Costs as agreed — Unable to make order for payment to Biodiversity Conservation Fund — Determination of appropriate penalties — Principle of totality applied — Order for moiety made — Defendant convicted and fined of four offences

Catchwords:

APPEAL – development application – residential flat building – conciliation conference – agreement reached – orders made

Catchwords:

CIVIL PROCEDURE – preliminary discovery – to identify potential cause of action – application for preliminary discovery pursuant to r 5.3 of the Uniform Civil Procedure Rules 2005 (NSW) – whether preliminary discovery is available against a person who is already a defendant in proceedings brought by the applicant for preliminary discovery

Catchwords:

HUMAN RIGHTS – Discrimination – equal opportunity – leave required for complaint to proceed – principles applying to grant of leave

Catchwords:

APPEAL – licensing – real estate agent – procedural fairness – class 1 – inadvertence – just and equitable