Browse decisions Displaying 1 - 200 out of 127240 results

Catchwords:

DAMAGES – apportionment – where Second Defendant was a director and the Chief Executive Officer of Third Defendant – whether loss should be apportioned as between Second and Third Defendants – the extent of each Defendant’s responsibility for Plaintiffs’ loss COSTS – whether Defendants should be jointly and severally liable for Plaintiffs’ costs or whether costs should be apportioned

Catchwords:

REMEDIES – account of profits – determination of the extent of the benefits obtained by Third and Fourth Defendants as a result of the Third Defendant’s breach of his fiduciary obligations in which the Fourth Defendant knowingly participated – whether amounts payable by way of interest on a bank facility should be treated as a project expense in determining the extent of the benefits received – whether the amount of the award should be grossed-up for tax – whether interest on the benefits received in individual financial years should run from the end of the relevant financial year or from the end of the project

Catchwords:

DEFAULT JUDGMENT – monies lent to borrower pursuant to loan agreement – first defendant guaranteed obligations of the borrower – borrower defaulted in payment of the loan – no appearance or defence filed by first defendant – plaintiff entitled to judgment by default

Catchwords:

CIVIL PROCEDURE — application to join insurance company as a defendant to the proceedings — whether there is an arguable case that the policy responds to liability — held that it is arguable that the bodily injury through the plaintiff's psychiatric condition arises from that negligence — leave granted to join the insurance company as second defendant CONTRACTS — construction of terms of the insurance policy — where insurance company says it is not arguable that any liability of the defendant to the plaintiff falls within the scope of the insuring clause — where insurance company seeks to rely on a condition precedent to exclude coverage — held that it is not possible or appropriate to determine at this interlocutory stage whether the condition precedent applies

Catchwords:

CIVIL PROCEDURE – parens patriae jurisdiction – administration of estates – where plaintiff suffered a brain injury – where plaintiff received a significant sum of money in settlement – where defendant has been appointed as the manager of the plaintiff’s estate – application for declaration that plaintiff is capable of managing their own affairs – application granted

Catchwords:

APPEAL - question of law - procedural fairness - weight of evidence – constructive failure to exercise jurisdiction

Catchwords:

APPEAL — Anti-Discrimination Act 1977 (NSW) —Whether federal jurisdiction — Tribunal has jurisdiction to resolve APPEAL — Discrimination — Discrimination on the basis of disability and homosexuality — Where computer policy of respondent dependent on inmate security classification — Where appellant is a maximum security inmate — Where appellant seeks in-cell access to laptop computer with specific functionality — Whether policy that such a computer be accessed in a shared space was a condition or requirement — Whether requirement or condition was raised by appellant at first instance PRACTICE AND PROCEDURE — Felons (Civil Proceedings) Act 1981 (NSW) applies to the Tribunal — Appellant granted leave

Catchwords:

APPEAL – whether appeal on each of five grounds is on a question of law – where some purported questions of law not material to the appeal - where some purported questions of law not identified with precision – whether the Tribunal failed to address contentions seriously advanced by the regulator – whether the regulator made substantial, clearly articulated arguments to which the Tribunal did not respond - whether the Tribunal erred by imposing an onus of proof on the regulator – whether the regulator has an obligation to prove disciplinary allegations in proceedings for administrative review of a disciplinary decision – relevance of principle in Briginshaw v Briginshaw (1936) 60 CLR 336 – whether leave to appeal should be granted in respect of the appeal grounds which are not on a question of law

Catchwords:

ADMINISTRATIVE REVIEW – cancellation of taxi licence – suspension of taxi service provider authorisation and booking service provider authorisation

Catchwords:

DEVELOPMENT APPEAL — residential subdivision in urban release area — conciliation conference — agreement between the parties — orders

Catchwords:

MENTAL HEALTH – forensic patient – extension of status as forensic patient – preliminary hearing – whether unacceptable risk of causing serious harm to others – demonstrated risk of violence and sexual violence offending which may be increased by schizophrenia – history of reoffending upon release absent appropriate support systems – whether risk can be adequately managed by less restrictive means – no less restrictive means given ongoing treatment needs, past non-compliance, little time spent in the community, lack of motivation and insights and risk posed – interim extension of status as forensic patient ordered

Catchwords:

TORTS – intentional torts – where 18-year-old plaintiff became intoxicated after her Year 12 school formal and found herself isolated and alone in the street late at night – where she was picked up by a stranger and taken to a house where she was detained, drugged and repeatedly and violently sexually assaulted by three men – where plaintiff did not consent and was incapable of consenting due to heavy intoxication – where objective evidence corroborates plaintiff’s account including expert pharmacological evidence, medical examination evidence and a video recording taken during part of the sexual assaults – plaintiff established that the first and second defendants were two of the three men who detained, drugged and sexually assaulted her in the manner alleged – physical, psychological and psychiatric injuries and economic loss TORTS – intentional torts – where the first defendant, whilst held on remand following his arrest for the sexual assaults, conspired with his brother, the third defendant, to locate the plaintiff and coerce her to change her evidence to falsely assert she had consented to the sexual activity – where conspiracy with others, including a person who unbeknownst to them was an undercover police officer – where the first and third defendants were convicted of attempting to pervert the course of justice – where objective evidence corroborates the plaintiff’s account including intercepted telephone calls between the conspirators and agreed facts on which the third defendant was sentenced – irrelevant that the conspiracy involved an undercover police officer – conspiracy to injure by unlawful means – where plaintiff changed her identity, moved her residence and severed contact with family and friends due to threats – where plaintiff continues to live under an assumed identity – plaintiff established the first and third defendants conspired to injure her by causing her psychological harm and that she suffered psychological injuries and economic loss TORTS – joint and successive tortfeasors – plaintiff’s submission that “you can’t unscramble the egg” categorising all three defendants as joint tortfeasors whose joint acts contributed to the same damage not accepted – first and second defendants liable as joint tortfeasors for the sexual assaults – first and third defendants liable as joint tortfeasors for the conspiracy TORTS – common law damages – apportionment between multiple joint tortfeasors across multiple torts – Court to do the best it can to determine the extent of the damage referable to different torts – third defendant not liable for damages solely attributable to the sexual assaults – aggravated damages – economic loss attributed equally

Catchwords:

APPEAL – development application – multi dwelling housing in mixed use zone – amenity of proposed dwellings – adequacy of solar access to private open space – whether dwellings have satisfactory amenity

Catchwords:

DEVELOPMENT APPLICATION — alterations and additions to dwelling house in C4 Environmental Living zone — conciliation conference — agreement between parties — orders

Catchwords:

APPEALS — Procedural fairness — Failure to provide transcript or sound recording of hearing — Attempt by appellant to rely on his own evidence of what proceeded at the hearing APPEALS — Failure to give adequate reasons — no question of principle CONTRACTS — repudiation by the consumer

Catchwords:

OCCUPATIONS – health practitioner – nurse – application for reinstatement

Catchwords:

CRIMINAL PROCEDURE – Subpoenas – Where prosecuting authority disclosed materials in accordance with obligations – Where applicant obtained leave to issue a subpoena for related materials – Whether a “legitimate forensic purpose” existed for material sought – Whether there was a connection between material sought and applicant’s case at trial

Catchwords:

PRACTICE & PROCEDURE – summons – dismissal – events overtaken relief sought – proceedings now pointless – UCPR r 13.4 – no reasonable cause of action disclosed against fourth defendant – to continue proceedings is now an abuse of process – deliberate delays – failure to file and serve affidavits – failure to comply with Court orders AMENDMENT – attempt to convert proceedings commenced on summons into a different cause of action by statement of claim – abuse of process – UCPR r 6.3 – causes of action to be commenced by statement of claim – these proceedings were commenced by summons – amendment refused COSTS – application for gross sum indemnity costs granted – fourth defendant wrote to the first plaintiff upon receipt of summons requesting discontinuance and warning indemnity costs would be sought COSTS – costs assessment – cost assessor’s obligations – interaction between Legal Profession Uniform Law Application Act 2014 (NSW) ss 70 and 71 and Legal Profession Uniform Law Application Regulation 2025 (NSW) reg 44 – certificate of costs assessor’s determination only released when costs of assessment are paid (reg 44(2)(ii)) – possible interpretation of s 71 for Assessor or Manager to file Certificate of Determination of fees of assessment if not paid by party determined to be liable to pay – s 71 ambiguous in this respect

Catchwords:

CIVIL ENFORCEMENT — Swimming Pools Act 1992 (NSW) — barrier non-compliance — orders for compliance — Respondent to pay Applicant’s costs

Catchwords:

CRIMINAL LAW — Work health and safety — Offences — Category 2 — Worker’s hand drawn between two rollers and crushed SENTENCING — Relevant factors on sentence — Reduced moral culpability — Substantial mitigating factors — Specific deterrence substantially diminished — Reduced capacity to pay

Catchwords:

COSTS – costs assessment – determination – review/appeal – application for judicial review of District Court on appeal against decision of review panel under s 89 of the Legal Profession Uniform Law Application Act 2014 (NSW) – where District Court is to have “all the functions of the review panel” – District Court required to conduct a rehearing of the application for review and consider for itself the question whether the costs are fair and reasonable – where primary judge failed to exercise statutory task – jurisdictional error established ADMINISTRATIVE LAW – privative clause – discussion of history and context of s 176 of the District Court Act 1973 (NSW)

Catchwords:

GUARANTEE AND INDEMNITY — action to enforce guarantee — guarantor’s liability — whether defendants bound by an irrevocable authority — whether claimed term can be implied into the authority — what must be paid CIVIL PROCEDURE — hearing — procedural fairness — where defendants are self-represented — adjournment refused — where defendants given fair opportunity to be heard EVIDENCE — motion — application to re-open case — defendant seeking to replead and lead further evidence after hearing concluded — motion dismissed

Catchwords:

BUILDING AND CONSTRUCTION — adjudication — Building and Construction Industry Security of Payment Act 1999 (NSW), ss 25, 32 — where plaintiff seeks to enforce a judgment entered after an adjudication — where defendant seeks orders for payment by monthly instalments — whether evidence established a just basis for making such an order — where defendant relies on case sought to be established in other proceedings in which it challenges the result of the adjudication CIVIL PROCEDURE — subpoena and notice to produce — motion — where defendant seeks production of financial records by subpoena and notice to produce — where relevance disputed — relevance not established

Catchwords:

CORPORATIONS — judicial advice — where deed administrators seek judicial advice under s 90-15 of the Insolvency Practice Schedule (Corporations) as to the disposition of original bank guarantees

Catchwords:

COURTS AND JUDGES — bias — apprehended bias — disqualification application — application granted

Catchwords:

CIVIL – Injurious falsehood – Australian Consumer Law – Allegation of forgery of signature on guarantee for finance of property – Context of marriage breakdown between P and D – Not open on balance of probabilities that D, as opposed to another, forged P’s signature – P and D not in trade or commerce – No apparent loss suffered by P

Catchwords:

LEASES AND TENANCIES — Default and termination — Repudiation — Where short-term closure order under s 50B(1) of the Public Health (Tobacco) Act 2008 (NSW) issued to premises for unlawful trading in illicit tobacco products — Where variation to order under s 50B(4) to permit premises to re-open and sell goods except tobacco, smoking and vaping products and smoking accessories — Where lessor gave notice to terminate lease under s 50J(1)

Catchwords:

HIGH RISK OFFENDERS — extended supervision orders — term of — consideration of appropriate length having regard to neurocognitive decline HIGH RISK OFFENDERS — extended supervision orders — conditions — appropriate conditions — no issue of principle

Catchwords:

ADMINISTRATIVE REVIEW – – Refusal of Personal Information Application Processing Charge Waiver – Third Party Consultations – No Information Held

Catchwords:

APPEAL – from findings of fact – challenge to trial judge’s finding as to nature of information required by local council – appellant bore burden of demonstrating that finding was wrong – burden not discharged LEASES AND TENANCIES – default and termination – commercial lease – express right to terminate if occupation certificate not obtained by contractual deadline – implied limitation preventing party from relying on own breach or default – construction of lease not challenged on appeal – whether lessee entitled to terminate CONTRACTS – performance – discharge by performance – lessee required to provide all information required for Council expeditiously to process development application – Council requested “BCA report for a fit out” – whether request required clause-by-clause assessment of proposed fit-out and existing building – purpose of BCA compliance report – absence of express statutory requirement immaterial – obligation to seek clarification if request ambiguous – breach established CONTRACTS – causation – material contribution –substantial chance – whether outstanding fire safety order caused requirement for BCA compliance report or material delay – no causal connection established – other requests for information concerned minor matters capable of prompt and concurrent resolution – statutory period allowed by Council for response did not qualify contractual obligation to act expeditiously CONTRACTS – causation – counterfactual program of construction works – expert program aggressive but achievable – alleged concessions overstated – sufficient allowance for contingencies – substantial chance occupation certificate would have been obtained by contractual deadline ENVIRONMENT AND PLANNING – application concerning fit-out and change of use of premises in existing building – assessment under s 64(2) of Environmental Planning and Assessment Regulation 2021 (NSW) – purpose and required content of BCA compliance report

Catchwords:

HIGH RISK OFFENDERS — Extended supervision orders — Application — s 20 of Terrorism (High Risk Offenders) Act 2017 (NSW) required subject of application to be “eligible offender” — respondent eligible offender at time of application — successful severity appeal in District Court resulted in respondent no longer being eligible offender at time application determined STATUTORY INTERPRETATION — Amendment and repeal — s 20 amended to include words “or was in custody or under supervision at the time the original application for the order was filed” — whether words removed requirement for respondent to be eligible offender at time application determined — no obviously preferable construction — State’s construction required substantial implied additions to statutory text — respondent’s construction rendered inserted words superfluous — presumption against superfluity not determinative — identification of leading and subordinate provisions — importance of legislative intention in context of words inserted by amendment

Catchwords:

DEVELOPMENT APPLICATION – mixed use building – alterations – conciliation conference – heritage – variation for FSR – agreement between the parties.

Catchwords:

ADMINISTRATIVE LAW - review of decision not to grant recognition payments – absence of discrete injuries – earlier claims for recognition payments successful – had previously been granted $40,000 for the earlier claims - applicant also suffered trauma from other events that have occurred throughout her life.

Catchwords:

DEVELOPMENT APPEAL – centre-based child care centre – conciliation conference – agreement between the parties – orders

Catchwords:

RESTITUTION — quantum meruit — fair and reasonable remuneration for services rendered — contract term void for unfairness — where services rendered pursuant to void term — where legislative policy prohibits inclusion of unfair terms in standard form contracts — whether legislative policy stultified by permitting quantum meruit claim RESTITUTION — quantum meruit — fair and reasonable remuneration for services rendered — contract term void for unfairness — whether contract survives excision of void term — where remaining clauses silent on fair and reasonable remuneration for services — whether quantum meruit claim “fits” with remaining clauses RESTITUTION — quantum meruit — fair and reasonable remuneration for services rendered — whether necessary to establish external standard for work performed — whether percentage fee agreed by parties can be some evidence of reasonableness — whether evidence sufficient to discharge onus of proof in respect of quantum of restitutionary claim

Catchwords:

APPEAL – land subdivision – conciliation conference – agreement between the parties – orders

Catchwords:

APPEAL — unauthorised alterations and additions — amended plans and documents — conciliation conference — past unlawful conduct not a relevant consideration in the determination of a DA — agreement between the parties — orders made

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Appeals — Removal of police officer under s 181D of Police Act 1990 (NSW) — Allegations of misconduct — Leave to appeal granted — Whether procedural fairness was denied — Not established — Witnesses relied upon to remove officer not called to give evidence before Commission — Appropriate weight to be given to evidence on which challenged decision was made — Sexual harassment established — Failure to establish removal was harsh unreasonable or unjust — Appeal dismissed

Catchwords:

STATUTORY INTERPRETATION – Construction – Private Health Insurance (Benefit Requirements) Rules 2011 (Cth) sch 5 cl 3 – Proper construction of cl 3(6) – Where a private health insurer had no negotiated agreement with plaintiff second tier private hospitals – Where private hospitals provided insured patients with episodes of hospital treatment and sought minimum benefits from insurer calculated under the Rules – Where insurer required to calculate minimum benefit

Catchwords:

APPEALS – extension of time - application for extension of time to lodge appeal – no satisfactory explanation for delay – no fairly arguable error on a question of law or other error requiring leave to appeal – application for extension of time refused – appeal dismissed

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Awards and enterprise agreements — Section 19 of Industrial Relations Act 1996 (NSW) — Commencement of award review proceedings — Conduct of award review proceedings

Catchwords:

CONTRACT — construction — shareholders agreement — whether a loan default notice has been served in accordance with the shareholders agreement — whether there is a requirement for a further notice of default after a failure to remedy the breach within ten days — HELD — no requirement for a further notice of default — loan default notice was served in accordance with the shareholders agreement CONTRACT — construction — shareholders agreement — where a security default notice was served in respect of shares provided as security to a third party in breach of the shareholders agreement — whether a deed poll purporting to remedy that breach extinguished the right to acquire shares under the shareholder agreement as a consequence of the security default notice — HELD — the right to acquire shares as a consequence of the security default notice arose immediately upon the breach and did not provide a period within which it may be remedied before the default arose CONTRACT — construction — shareholders agreement — where the shareholders agreement provided that it would be automatically terminated upon the commencement of certain proceedings against the company — whether proceedings commenced against the company caused the shareholders agreement to be automatically terminated — HELD — on its proper construction, the proceedings commenced against the company were not proceedings that triggered the automatic termination of the shareholders agreement EQUITY — equitable remedies — specific performance — the right of one shareholder to purchase shares of another shareholder under shareholders agreement to obtain controlling interest — where the shares are not freely or readily available on the open market — whether damages an adequate remedy — HELD — specific performance of right to acquire shares granted

Catchwords:

LEASES AND TENANCIES – residential tenancy agreement – consent order for payment of rental arrears – whether consent orders could be set aside

Catchwords:

COSTS — whether consent orders constituted an “event” — whether Respondents capitulated — whether the Applicant is a “clear winner” — no reasonable alternative but to commence legal proceedings — Respondents to pay Applicant’s costs as agreed or assessed

Catchwords:

APPEAL – costs – consumer claim – amount in dispute on appeal in excess of $30,000 - first respondent with legal representation a successful party – costs should follow the event.

Catchwords:

ADMINISTRATIVE LAW – child protection – working with children check clearance – refusal of clearance – risk assessment – real and appreciable risk to the safety of children – reasonable person test – public interest test

Catchwords:

CRIMINAL LAW – murder – hearing under s 31 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – where psychiatrists agree accused was suffering from schizophrenia at time of killing – Professor Greenberg considered accused also suffering chronic substance use disorder and so possibility of drug-induced psychosis cannot be excluded – exception under s 4(3) to mental health impairment does not apply because impairment not caused solely by substance use disorder or intoxication – accused unable to reason with a moderate degree of sense and composure – did not know her act was wrong – special verdict entered CRIMINAL LAW – victim impact statements – complexity of grief – remarkable courage in preparing and presenting these intensely private and difficult responses

Catchwords:

APPEAL – development application – children’s carousel within existing hotel grounds and adjacent to harbour foreshore walk – amusement device – recreation facility (outdoor) – whether visual impact is acceptable – viability of proposed landscaping screening – whether there is an impact on trees in the public domain – whether there is an impact on significance of heritage conservation area – whether design excellence clause applies and if proposal exhibits design excellence – impact on coastal use area – appeal dismissed

Catchwords:

TAXES AND DUTIES — Land tax — Surcharge land tax — Foreign person

Catchwords:

ADMINISTRATIVE REVIEW – Holder of Working with Children Check – Review of Cancellation of Clearance – Correct and Preferrable Decision – Is there a Real and Appreciable Risk to the Safety of Children

Catchwords:

APPEAL – modification application – conciliation conference – agreement between the parties – orders

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application – neighbouring trees – risk of damage – risk of further damage– Pt 2A application – obstruction of sunlight – obstruction of views– applicants purchase date – orders for pruning and fence repair

Catchwords:

DEVELOPMENT APPLICATION – excessive excavation – subdivision – construction of a dwelling house – construction of a dual occupancy

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application— neighbouring tree — whether the tree has caused damage —whether the tree is likely to cause further damage— storm water management —lack of evidence— damage to boundary fence—application granted in part

Catchwords:

OCCUPATIONS – nurse – refusal of registration – failure to meet English language registration standard

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Awards and agreements – application for approval of contract agreement – nominal term of agreement expired before it was signed and the application for approval was filed – requirement of s 325 that “the agreement complies with all relevant statutory requirements – nominal term is a statutory requirement - s 328(2) requires “The nominal term of a contract agreement must not be less than 12 months nor more than 3 years” – “not less than 12 months” must have some practical meaning - agreement when signed and when application filed did not have a term of at least 12 months - application for approval refused.

Catchwords:

COSTS — party/party — exceptions to general rule that costs follow the event — plaintiff seeking indulgence — where plaintiff unsuccessfully pursued litigation, is dissatisfied with legal representation and claims financial hardship — usual costs order cannot justly be refused

Catchwords:

CIVIL PROCEDURE — summary dismissal — application to summarily dismiss proceedings — allegation of bias against ninth defendant — allegation of improper purpose against ninth defendant — whether a reasonable cause of action disclosed

Catchwords:

CIVIL PROCEDURE — Subpoenas — Application to set aside — Where subpoena seeking transcript of public examination by liquidator in Federal Court proceeding — Where application in Federal Court proceeding to restrict use of transcript

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW ─ Awards and enterprise agreements ─ Variation ─ State Wage Case ─ Adopted National decision in relation to minimum rates awards

Catchwords:

LEASES AND TENANCIES – where Plaintiff leases premises to First Defendant for a term of 5 years – where Second Defendant guarantees the performance of the First Defendant’s obligations under the lease LEASES AND TENANCIES – rent and outgoings – where validity and execution of lease is not in issue – where Defendants put Plaintiff to proof as to the amounts said to be owing under the Lease

Catchwords:

CIVIL PROCEDURE — application for orders restricting access to court files without notice — where applicant is party to unrelated proceedings — where cross-examination of applicant in unrelated proceedings about matters the subject of proceedings in the District Court and Court of Appeal could pose risk to applicant’s right to silence and privilege against self-incrimination — requirement of notice before access granted

Catchwords:

APPEALS – questions of law – procedural fairness – adequacy of reasons – fresh evidence - no error on a question of law identified - leave - access to information – legal professional privilege – conclusive presumption against disclosure – appeal dismissed

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 – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty COSTS – prosecution costs OTHER – gate fell on worker – worker opened gate manually – end stop had recently broken – gate ran beyond the vertical guideposts – informal and undocumented system for manual gate operation – no system to ensure gates were regularly inspected by a competent person SENTENCING – relative culpability of “conduit entities” – where each company has an identical capacity to “influence and control” – each company is a separate legal entity which enjoys rights and is subject to duties and obligations – WHS duties are not transferrable and multiple persons can concurrently hold the same duty –– companies should not be able to benefit from the separate legal entity doctrine but disavow it when it operates to their disadvantage SENTENCING – whether “double punishment” arises when two corporate defendants have common ownership and control – each company has a non-delegable duty SENTENCING – whether CSP Act s 10 dismissal is appropriate where an offender has an unblemished record and exemplary character but the circumstances of the case are not extraordinary or exceptional

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 – plea of guilty – general deterrence – specific deterrence – capacity to pay appropriate penalty COSTS – prosecution costs – defence costs OTHER – person struck by moving plant – person walking on walkway struck by a reversing reach stacker – failure to conduct adequate risk assessment – failure to develop, implement, and enforce a traffic management plan

Catchwords:

FOOD — food safety — improvement notice — prohibition order — reasonable grounds — grounds — compensation ADMINISTRATIVE LAW — reviewable decision — correct and preferable decision — Civil and Administrative Tribunal

Catchwords:

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

Catchwords:

APPEAL – Modification Application – conciliation conference – agreement between the parties - orders

Catchwords:

DEVELOPMENT APPLICATION — s 34 conciliation conference –– manufactured home estate including community club house and recreation facilities –– agreement between the parties – orders made

Catchwords:

APPEAL — development control order — conciliation conference — agreement reached — order modified

Catchwords:

ENVIRONMENT AND PLANNING — conciliation conference — consent — appeal — s 34 agreement — cl 4.6 variation — conditions of consent

Catchwords:

TAXES AND DUTIES — Income tax — Collection and recovery — Proceedings for recovery — No appearance from plaintiff — No question of principle

Catchwords:

ADMINISTRATIVE LAW — review of medical assessment by Review Panel — judicial review of Review Panel decision — where medical assessment certificate revoked and replaced by Review Panel — whether Review Panel’s decision affected by reviewable error due to making of findings beyond scope of medical dispute — whether Review Panel failed to afford procedural fairness

Catchwords:

INTERLOCUTORY INJUNCTION – application for urgent ex parte interlocutory relief to stop the aerial shooting, ground shooting, trapping or killing of wild horses in Yuraygir National Park and Yuraygir State Conservation Area – legal principles for the granting of an ex parte interim injunction – inadequate notice given to respondent of application for injunctive relief – no serious question to be tried – the balance of convenience favours the respondent – interim relief refused – application stood over to permit respondent to be present – upon respondent being represented undertaking given in terms of order 1 of the notice of motion – by consent motion dismissed. PROCEDURE – by consent proceedings fast-tracked without the need for formal expedition being sought by the respondent – consequential timetabling orders made.

Catchwords:

CHILD WELFARE — Adoption — where the proposed adoptive parents are the children’s current foster parents — whether adoption order is in the children’s best interests — whether a declaration of parentage should be made for the birth father — whether the children’s birth certificates should be amended to include the birth father’s name — whether the requirement to serve notice on the birth father should be dispensed with — whether birth parents’ consent should be dispensed with — whether the children’s change of name should be approved — whether paternal and maternal adoption plans are in the best interests of the children and proper in the circumstances — HELD — adoption order is clearly preferable in the children’s best interests — declaration of parentage should be made for the birth father — the children’s birth certificates should be amended to include the birth father’s name — requirement to serve notice on the birth father dispensed with — order dispensing with consent is in the best interests of the children — change of name approved — maternal and paternal adoption plans are in the best interests of the children and proper in the circumstances — maternal and paternal adoption plans should be registered

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, to agree to proposed scheme of arrangement – whether requirements to order scheme meeting are satisfied

Catchwords:

CORPORATIONS — arrangements and reconstructions — schemes of arrangement or compromise — application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement and ancillary orders

Catchwords:

CIVIL PROCEDURE — Discovery — Whether necessary for resolution of real issues in dispute — Where family dispute over significant commercial property development — No issue of principle CIVIL PROCEDURE — Notices to produce — Application to set aside — Where 64 categories of document called for under notice to produce issued at the same time as motion seeking discovery of 87 categories of document — Whether entire notice to produce is abuse of process — Whether documents called for are specific and relevant — 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 member to consider and, if thought fit, to agree to proposed scheme of arrangement to implement corporate restructuring – whether requirements to order scheme meeting are satisfied

Catchwords:

SUCCESSION — Family provision — Sexual abuse and physical abuse allegations — Where plaintiff adult daughter of deceased from his first marriage — Where plaintiff was removed from her mother’s care at about age 9 and custody awarded to deceased — Where plaintiff lived with deceased, step-mother and two half siblings until aged 18 — Where plaintiff alleges deceased sexually and physically assaulted her between ages 4 to 18 — Where plaintiff left home at 18 following alleged abuse incident —Where plaintiff had no contact with deceased for approximately 34 years before his death following leaving home — Where deceased denied allegations of abuse — Where family did not believe plaintiff — Whether it is proper and appropriate to make findings regarding alleged abuse — Whether the alleged abuse is important and relevant to the facts in dispute SUCCESSION — Family provision — Claim by adult daughter — Modest estate — Plaintiff received no provision in the will — Where estate was left entirely to defendant, second daughter of the deceased — Where plaintiff has significant health issues allegedly caused by deceased — Where plaintiff has limited savings but owns property — Where defendant provided care for deceased — Where defendant has limited savings and assets — Whether the deceased fulfilled his moral obligations towards the plaintiff — Whether adequate provision for proper maintenance, education or advancement in life made for plaintiff — Whether an order for further provision ought be made given competing circumstances of defendant — Whether a condition should be imposed on order for provision

Catchwords:

CIVIL PROCEDURE — separate determination of questions — whether appropriate— where one party seeks determination of a separate question by a referee — where substantive proceedings concern disputed validity of association meetings, members and office bearers — where AGM cannot be held — where separate question aimed at regularising an association— where there is a commonality of factual issues — where there is a commonality of witnesses — where issues of witness credit may arise in primary and separate proceedings — whether determination of a separate question would facilitate the just, quick, and cheap resolution of issues CIVIL PROCEDURE — alternative dispute resolution — court referral to referee — whether appropriate — where one party suspects financial and other mismanagement — where parties said to be unlikely to cooperate — where further litigation said to be extremely likely

Catchwords:

CIVIL PROCEDURE - amendment of pleadings - where Originating Process and Points of Claim allege that a particular transaction was an uncommercial transaction and seek relief pursuant to s 588FF of the Corporations Act 2001 (Cth) – where the plaintiffs sought leave to amend the Originating Process to add a claim for relief pursuant to s 588FF(1)(g) and sought leave to amend the Points of Claim to reflect matters raised by the First Defendant’s evidence and the Plaintiffs’ evidence in reply – whether there is an explanation for any delay in making the amendments – whether the Defendants will be prejudiced by the amendments CIVIL PROCEDURE – discovery – whether the Plaintiffs have explained the relevance of the categories – whether the Plaintiffs have complied with Practice Notice SC Eq 11 – whether the scope of various categories should be narrowed – whether a “Sabre order” should be made

Catchwords:

PLEADINGS – amendment of pleadings – application by defendants for costs thrown away or occasioned by reason of the amendment – application for forthwith costs order – no reason to depart from usual rule that costs of interlocutory hearing be payable at the conclusion of the proceedings

Catchwords:

ADJOURNMENT – unrepresented defendant – referral for pro bono legal assistance

Catchwords:

TAXES AND DUTIES – Land tax – Applicants fail to notify Respondent of omitted information and errors in assessment – Errors ultimately corrected and revised assessment made – Interest imposed – Whether there are grounds for remission

Catchwords:

DIVIDING FENCES – sufficient dividing fence – relevant considerations – fence not on boundary line – whether error of law established

Catchwords:

ADMINISTRATIVE LAW – access to government information – invalid application– access application failed to include such information as is reasonably necessary to enable the government information applied for to be identified – Government Information (Public Access) Act 2009 s 41(1)(e)

Catchwords:

ADMINISTRATIVE LAW – privacy – review of conduct of the respondent which is alleged to be a contravention of the notice and use information protection principles in section 10 and 17 of the Privacy and Personal Information Protection Act 1998 (NSW) – standing to bring the application and scope of the conduct the subject of the application ADMINISTRATIVE LAW – decision to remit the conduct the subject of review for reconsideration by the respondent – Administrative Decisions Review Act 1997 (NSW) section 63(3)(d)

Catchwords:

Administrative Law – access to government information - confidential information – whether prejudice to the effective exercise of that agency's functions – breach of confidence – whether prejudice to conduct, effectiveness or integrity of any audit, test, investigation or review conducted – disclosure of personal information - whether public interest considerations against disclosure outweigh the public interest considerations favouring disclosure

Catchwords:

ADMINISTRATIVE LAW — Freedom of information — Access to information — excluded information — searches — decision that no further information held

Catchwords:

DISCRIMINATION – disability

Catchwords:

PROCEDURE – amendment – late amendment made without notice or explanation – application to introduce new ground of apprehended bias – failure to identify material capable of supporting new allegation – application refused

Catchwords:

CORPORATIONS – where administrators appointed over defendant companies shortly before delivery of judgment on plaintiff’s application for the appointment of provisional liquidators – where director of defendant companies made an application prior to the delivery of judgment to adjourn the plaintiff’s application – where administrators did not appear on the adjournment application – where defendant indicated an intention to propose a deed of company arrangement but no details of such proposal were provided to the Court – where there were public interest grounds in favour of the plaintiff’s application for the appointment of provisional liquidators – whether there was a basis for the Court to be satisfied that it was in the interests of the defendant companies’ creditors for those companies to continue under administration rather than have provisional liquidators appointed – adjournment application refused

Catchwords:

NOTICE OF MOTION — application by Respondent for leave to rely on further expert evidence — consequential need to vacate hearing if leave granted — prejudice to applicants — just, quick and cheap — interests of justice — leave granted and hearing vacated

Catchwords:

INTERLOCUTORY INJUNCTION: application for a stay of the operation conditions of a Clean-Up Notice – power of Court to issue a stay – legal principles – no arguable case – balance of convenience favours respondent – stay refused – notice of motion dismissed with costs.

Catchwords:

CORPORATIONS – appointment of provisional liquidators – where group of companies under control of the same director – where companies raised funds from investors – where companies repeatedly failed to comply with statutory obligations to provide financial reports to ASIC – where director has been subject of serious adverse findings by various regulatory bodies – where there are deficiencies in the companies’ financial records – where companies have been meeting obligations to investors by raising money from new investors and from borrowings – whether there is a reasonable prospect that a winding-up order will be made on the just and equitable ground – whether there is a good reason for the appointment of provisional liquidators pending the determination of the winding up application – whether the undertakings offered by the companies and the director are sufficient to address the concerns raised by ASIC

Catchwords:

CRIME – murder – defence of mental health impairment – where parties agree defence is available – hearing pursuant to of the s 31 Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – Court satisfied defence is available – special verdict entered – act proven but accused not criminally responsible – victim impact statements

Catchwords:

SENTENCE – use a carriage service to transmit communications to recipient under 16 years of age, with the intention of procuring the recipient to engage in sexual activity – transmitting, accessing or soliciting child abuse material

Catchwords:

CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Multitude of circumstances of aggravation — Vulnerable victim — Offences committed while victim at home — Take and drive a conveyance SENTENCING — Objective seriousness — vulnerable victim — Property stolen of significant sentimental value — Subjective factors — Balund-a program as quasi-custody — Offender has history of substance abuse and mental health conditions — Bugmy principles

Catchwords:

COMPULSORY ACQUISITION — objection to compensation — assessment of compensation under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) — whether change in value of land pursuant to s 55(f) was caused by public purpose —determination of market value

Catchwords:

CRIMINAL LAW – murder – hearing under s 31 Mental Health and Cognitive Impairment Forensic Provisions Act – where psychiatrists agree accused suffering from delusional disorder and/or schizophrenia at time of killing – accused thoughts disordered and delusional – delusional belief in partner’s infidelity – accused unable to reason with a moderate degree of sense and composure – did not know his act was wrong – special verdict entered CRIMINAL LAW – victim impact statements – where family members travelled hundreds of miles to attend hearing – bewildered at outcome and finding of “not criminally responsible” – language described by family member as “bullshit” – understandable approach to language of statute – dignified and respectful vigil over proceedings – courageous reading of victim impact statements – statements to remain in Court’s archives as enduring testament to a remarkable woman

Catchwords:

CIVIL PROCEDURE – proceedings commenced by tutor on behalf of person under legal incapacity – application for approval of proposed settlement – whether proposed settlement beneficial to plaintiff’s interests – settlement approved

Catchwords:

PROCEDURE – Security – Money paid into court to secure undertaking to pay costs of administration extended by way of interlocutory relief pending appeal – appeal dismissed – whether applicant has established entitlement to security

Catchwords:

CIVIL PROCEDURE — Hearings — Adjournment —Where primary judge made observations about lawfulness of access to a computer system by a witness called by the appellants and the implications for the appellants’ legal representatives in adducing that evidence — After taking advice counsel acting for appellants withdrew from proceedings and foreshadowed an application to seek leave for the instructing solicitors to withdraw — Application to adjourn proceedings to enable new legal representatives to be briefed — Primary judge prepared to adjourn the proceedings for only three business days to enable new legal representatives to be briefed — Held, granting leave to appeal and allowing the appeal, that the primary judge’s reasons for refusing a longer adjournment revealed errors of a kind in House v R and the discretion miscarried

Catchwords:

EVIDENCE — standard of proof — criminal cases — exercise of discretion to exclude admissions under s 90 of the Evidence Act 1995 (NSW) — whether it would be unfair to use evidence of an admission — correctness standard applies EVIDENCE — admissions — criminal proceedings — whether to exclude pretext call under s 137 of the Evidence Act 1995 (NSW) EVIDENCE — admissions — criminal proceedings — whether to exclude pretext call under s 90 of the Evidence Act 1995 (NSW) APPEALS — from jury verdict — misdirection or nondirection regarding pretext call CRIME — appeals — appeal against conviction — unreasonable verdict — whether jury verdict of guilty on two charges of sexual intercourse without consent was unreasonable

Catchwords:

VALUATION OF LAND — appeal against valuation by Valuer-General — s 6A(1) of Valuation of Land Act 1916 (NSW) — conciliation conference — agreement between the parties

Catchwords:

DEVELOPMENT CONTROL ORDER – conciliation conference – agreement between the parties – orders

Catchwords:

COSTS – whether costs should follow the event – minor success by appellant – whether obtaining grant of leave for some grounds in concurrent hearing warrants departure from usual rule – late amendment to advance ground on which appellants succeeded – no proper basis to depart from usual rule

Catchwords:

DEVELOPMENT APPLICATION — conciliation conference — agreement between the parties —amended plans and documents — cl 4.6 variation — orders

Catchwords:

LAND LAW — Strata title — Common property defects —— Whether lot owner liable under s 153 Strata Schemes Management Act 2015 in nuisance for leaking balcony — apportionment of liability for damages between the lot owner and the owners corporation — constructive failure to exercise jurisdiction

Catchwords:

APPEAL – Modification Application – conciliation conference – agreement between the parties – orders

Catchwords:

CRIME — appeals — appeal against conviction — miscarriage of justice — whether interventions by trial judge were excessive — whether by reason of judicial interventions the applicant was denied a fair trial — number of problematic interventions — not productive of unfairness rising to the level of miscarriage CRIME — appeals — appeal against conviction — unreasonable verdict — whether complainant evidence established beyond reasonable doubt acts alleged to constitute offences — whether reasonable possibility of truthfulness of applicant’s account had been excluded — verdict not unreasonable

Catchwords:

ADMINISTRATIVE LAW — Jurisdictional error — where principal member of the Civil and Administrative Tribunal purported, sitting alone, to set aside decision of fully constituted Tribunal — whether a single member could set aside a “stage 1” decision in proceedings in the Occupational Division of the Tribunal on the basis that the decision to set aside was ancillary to or consequential on the stage 1 decision — meaning of “ancillary” and “consequential on” — jurisdictional error — whether appeal still permitted from a decision involving jurisdictional error — appeal or judicial review APPEALS — Right of appeal — Scope of right — whether right of appeal from a purported decision affected by jurisdictional error OCCUPATIONS — Health practitioners — Health Practitioner Regulation National Law (NSW) — whether Tribunal constituted by senior judicial officer has power to set aside stage 1 decision of the Tribunal — whether stage 1 decision is an “ancillary” or “interlocutory” decision — whether s 53 of the Civil and Administrative Tribunal Act 2013 (NSW) cures absence of power OCCUPATIONS — Health practitioners — Health Practitioner Regulation National Law (NSW) — whether reference to “health practitioner … registered” in s 165B(2)(b) of the Health Practitioner Regulation National Law (NSW) refers to “health practitioner” or “registered health practitioner” — whether cl 8 of Sch 2 of the Civil and Administrative Tribunal Act 2013 (NSW) empowers “health practitioner” to continue to deal with matters in proceedings after ceasing to be registered STATUTORY INTERPRETATION — Definitions — Insertion of definition into substantive enactment — whether reference to “health practitioner … registered” in s 165B(2)(b) of the Health Practitioner Regulation National Law (NSW) refers to definition of “health practitioner” — whether context or subject matter otherwise requires that reference refers to definition of “registered health practitioner” STATUTORY INTERPRETATION — Legislative purpose — Statement of objects — where s 165B(2)(b) of the Health Practitioner Regulation National Law (NSW) provides that provisions in Pt 8 Div 10 intended to apply despite anything to the contrary in the Civil and Administrative Tribunal Act 2013 (NSW) — where Pt 8 Div 10 of the Health Practitioner Regulation National Law (NSW) provides for procedure, and consequences of vacation of office by member, of Civil and Administrative Tribunal — where cl 8 of Sch 2 to the Civil and Administrative Tribunal Act 2013 (NSW) provides for member who ceases to have required qualification to continue to deal with matter notwithstanding — whether any provisions in Pt 8 Div 10 of the Health Practitioner Regulation National Law (NSW) and enlivened in present case directly inconsistent with or repugnant to cl 8 of Sch 2 to the Civil and Administrative Tribunal Act 2013 (NSW)

Catchwords:

ENFORCEMENT — application to refer respondent to Supreme Court to be dealt with for contempt of Tribunal — whether respondent’s social media posts capable of being found beyond reasonable doubt to scandalise Tribunal — whether respondent’s social media posts capable of being found beyond reasonable doubt to diminish or be likely to diminish public confidence in Tribunal

Catchwords:

DEVELOPMENT APPLICATION — multi-dwelling housing — amended plans — conciliation conference — agreement between the parties — orders.

Catchwords:

JUDGMENTS AND ORDERS – amending, varying and setting aside – second application to set aside orders under UCPR r 36.16 – no proper basis established – application clearly an abuse of process

Catchwords:

VALUATION APPEAL — land valuer — conciliation conference — agreement between the parties — orders

Catchwords:

VALUATION APPEAL — land valuer — conciliation conference — agreement between the parties — orders

Catchwords:

VALUATION APPEAL — land valuer — conciliation conference — agreement between the parties — orders

Catchwords:

HUMAN RIGHTS — discrimination — equal opportunity — leave required for complaint to proceed — principles applying to grant of leave – disability discrimination – provision of goods and services

Catchwords:

VALUATION APPEAL — land valuer — conciliation conference — agreement between the parties — orders

Catchwords:

ADMINISTRATIVE LAW — Access to government information — code of conduct investigation findings −Council resolved not to adopt recommendations because not satisfied allegations had been substantiated −effect of resolution −role of Tribunal in fact finding where independent report – disclosure of reports could reasonably be expected to reveal unsubstantiated allegations that are defamatory −overriding public interest against disclosure

Catchwords:

COURTS AND JUDGES – apprehended bias – conduct of Judge part heard in criminal proceedings – prosecutions in name of NSW Director of Public Prosecutions – Judge made submission to Committee of Legislative Council of NSW Parliament critical of NSW Director of Public Prosecutions – Judge participated in ex parte communications with lawyers acting for accused persons in other proceedings brought in name of NSW Director of Public Prosecutions in which Judge was reserved on imposing sentence – some communications related to submission made by Judge concerning Director of Public Prosecutions – some communications not disclosed until delivery of judgment on applications for disqualification – concessions of error concerning aspects of Judge’s decision not to disqualify herself – whether reasonable apprehension of bias from Judge’s submission or making of communications or non-disclosure of communications – test for apprehended bias established

Catchwords:

APPEALS — From jury verdict — jury misconduct — application to discharge jury — juror undertook internet research — juror found to have informed other members of jury about research — whether jury irregularities gave rise to a miscarriage of justice — whether decision by trial judge not to discharge the jury gave rise to a miscarriage of justice APPEALS — From jury verdict — jury misconduct — application to discharge jury — juror made allegation of incentives offered to provide a not guilty verdict — whether jury irregularities gave rise to a miscarriage of justice — whether decision by trial judge not to discharge the jury gave rise to a miscarriage of justice CRIMINAL PROCEDURE — Trial — jury — investigation by sheriff — where jurors interviewed by sheriff’s officer — where jurors given criminal caution at commencement of interviews — miscarriage of justice

Catchwords:

DEVELOPMENT APPLICATION – Residential apartment development – residential flat building in R3 Medium Density Residential zone – conciliation conference – agreement between parties – orders

Catchwords:

CRIME — Drug offences — Supply and manufacture prohibited drug cannabis and cannabis oil — Firearm offences — Possession of replica pistol — Unrelated to drug offending SENTENCING — Supply of cannabis and manufacture cannabis oil mostly for personal use but with some supply — Indictable quantity — Low objective seriousness — Strong subjective case

Catchwords:

CRIME — Child abuse offences — Soliciting child abuse material — Possessing child abuse material — Transmitting indecent material to a child — ADJOURNMENT — Application to adjourn sentencing hearing to allow Offender to participate in treatment program refused — SENTENCING — Commonwealth child sexual abuse material offences — Objective seriousness — Strong subjective case — s 17A threshold satisfied — Period of full-time custody appropriate to be released after a period on a Recognizance Release Order to promote rehabilitation and therefore community safety

Catchwords:

CIVIL PRACTICE AND PROCEDURE — application to further amend — whether application concerns additional causes of action that are statute-barred DEFAMATION — concerns notices — whether proposed amended pleading relies upon ‘matters’ not referred to in concerns notice

Catchwords:

OCCUPATIONS — legal practitioners — solicitors — misconduct and discipline — where Tribunal found unsatisfactory professional conduct — where solicitor attributed statements to a judge in letter to costs assessor — where letter was prepared without transcript or contemporaneous note — where letter seriously departed from exchange recorded in transcript — whether conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer

Catchwords:

HIGH RISK OFFENDER — serious sex offender — application for extended supervision order — whether Court satisfied to high degree of probability that the defendant poses an unacceptable risk of committing another serious offence — order made — dispute as to conditions — requirement that conditions be appropriate

Catchwords:

PROCEDURAL FAIRNESS — Hearing Rule — adequate notice of hearing ADMINISTRATIVE LAW — Civil and Administrative Tribunal (NSW), 2013 s 41 — internal appeal — extension of time in which to lodge notice appeal — exercise of discretion

Catchwords:

CIVIL PROCEDURE – Stay of proceedings – application made under s 20 of the Service and Execution of Process Act 1992 (Cth) and r 12.11(1) Uniform Civil Procedure Rules 2005 (NSW)

Catchwords:

GUARDIANSHIP — whether the Tribunal misapplied ss 15(3), 17(1) of the Guardianship Act 1987 (NSW) — whether Tribunal addressed whether proposed guardian satisfied criteria in s 17(1) of the Guardianship Act PROCEDURAL FAIRNESS — whether parties’ misunderstanding of the role of a separate representative meant they were denied a reasonable opportunity to be heard LEAVE TO APPEAL — principles governing exercise of discretion to grant leave to appeal from decision made by NCAT — whether finding by Tribunal that family conflict was likely to be exacerbated if a family member were to be appointed guardian or manager was against the weight of evidence PRACTICE AND PROCEDURE — power to deal with appeal by way of a new hearing — s 80(3)(a) of the Civil and Administrative Act 2013 (NSW)

Catchwords:

ADMINISTRATIVE LAW – administrative review – refusal of home builder licence – liquidation of company – bankruptcy of sole director – chapter 5 body corporate - s 33C(3)(a) - (c) of the Home Building Act 1989 (NSW) has the applicant provided the Tribunal sufficient information to allow the applicant to be issued a builder licence

Catchwords:

JUDGMENTS AND ORDERS – amending, varying and setting aside – to specify the judgment debt and price of relief against forfeiture

Catchwords:

ASSOCIATIONS AND CLUBS – incorporated associations – where governance dispute within incorporated association as to duly appointed committee – whether purported adoption of replacement constitution valid – whether requisition for special general meeting valid – whether special and annual general meetings valid – where orders to be made for a mechanism to be put into place for the election of committee members

Catchwords:

INTERLOCUTORY PROCEEDINGS – application to prohibit disclosure of applicant’s name – where applicant is a transgender person who does not publicly disclose that she is transgender – whether desirable to make a non-disclosure order – applicability of common law principle of open justice

Catchwords:

HUMAN RIGHTS – discrimination on transgender grounds in provision of goods and services - leave required for complaint to proceed – whether leave should be granted – whether police provide a service of responding to reports of abuse and threats – whether police provide a service of handling personal information

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Unfair dismissal claim - Parties entered into a heads of agreement then a Deed to settle the claim – Applicant does not dispute claim has been settled – Applicant seeks enforcement of the Deed – continuation of the proceedings is an abuse of process – order made permanently staying the proceedings.

Catchwords:

CIVIL PROCEDURE — Default judgment — Setting aside — Bona fide defence on merits — No issue of principle

Catchwords:

Application to extend time to appeal against order of Children’s Court – where plaintiff explains delay in filing appeal of more than twelve months – where defendant does not assert prejudice if time to appeal extended – whether children subject of proposed appeal would be prejudiced if time to appeal extended – whether plaintiff has fairly arguable case on appeal

Catchwords:

CIVIL ENFORCEMENT — Applicants seeking a declaration that development consent has not lapsed — whether Applicants have satisfied deferred commencement condition by submitting plans before development consent lapsed — whether deferred commencement condition required state of satisfaction to be reached before development consent lapsed — summons dismissed

Catchwords:

SUCCESSION — Administration of estate — Application for family provision order by plaintiff — Application for interim distribution of plaintiff’s share of residue or interim provision under Succession Act 2006 s 62 — Relevant considerations — Application refused on both bases

Catchwords:

PRACTICE AND PROCEDURE – application to vary or substitute orders pursuant to “slip rule” or inherent jurisdiction – where previous orders recognised existence of constructive trust – where declaration expressed in present tense – whether present tense necessitated that constructive trust commenced prospectively from the date of orders – no occasion to apply the slip rule or exercise the inherent jurisdiction – where application to the Australian Taxation Office for a private binding ruling misstated effect of earlier reasons and orders – where defendant ordered to correct misstatement

Catchwords:

CRIME — appeals — appeal against conviction — multiple offences of possession of drugs and firearms at unoccupied house — unreasonable verdicts — inconsistent verdicts — circumstantial case — where Crown case contended applicant part of a joint criminal enterprise — where possession an essential element of each offence of which the applicant was convicted — whether inference of guilt the only available inference having regard to the whole of the evidence

Catchwords:

PRACTICE AND PROCEDURE — Notice of motion to set aside a notice to produce for inspection — Whether there was a legitimate forensic purpose — Whether documents sought are apparently relevant — Whether documents will materially assist in relation to an identified issue PRACTICE AND PROCEDURE — Privilege — Legal professional privilege — Notice to produce for inspection by applicant seeking production of legal advices prepared by solicitors for respondent — Respondent claimed legal professional privilege — Whether privilege waived in correspondence

Catchwords:

DEVELOPMENT CONTROL ORDER APPEAL – demolish works order – modified order - conciliation conference – agreement between the parties - orders

Catchwords:

DEVELOPMENT CONTROL ORDER APPEAL – demolish works order – modified order - conciliation conference – agreement between the parties - orders

Catchwords:

DEVELOPMENT APPEAL – residential development – alterations and additions and use - conciliation conference – agreement between the parties - orders

Catchwords:

PROCEDURE: application for extension of time to commence proceedings under the Valuation of Land Act 1916 – legal principles – delay excessive – reason for delay understandable – no prejudice to respondent – arguable case – time to appeal extended.

Catchwords:

DEVELOPMENT APPEAL – residential development – alterations and additions and use - conciliation conference – agreement between the parties - orders

Catchwords:

CRIME — appeal against conviction — offence of supplying a commercial quantity of a prohibited drug — trial judge’s directions as to deemed supply and possession — whether trial judge was required to direct as to the availability of the Carey defence — where applicant’s case at trial was that he did not know drugs were in his “missus’ bag” and did not possess them — where Carey defence applies to an accused in possession of drugs but who intends to return them to owner — where trial judge gave a Liberato direction — where no direction sought by trial counsel — no miscarriage of justice established

Catchwords:

APPEALS — Procedure — Stay pending appeal — Stay of primary judge’s orders winding up Co-operative, appointing liquidators and awarding costs — Appeal grounds weak — Delay in seeking stay — Balance of convenience favours respondents — Stay refused

Catchwords:

OCCUPATIONS — Legal practitioners — Legal Practitioners Fidelity Fund — Claims against fund — Where no “trust property” — Where no “pecuniary loss” — Where no “fraudulent dealings” — Where no “default” by legal practitioners — Claims dismissed COURTS AND JUDGES — Bias — Actual bias — Applications for recusal — Where no matter raised by the plaintiff that established actual bias — Where plaintiff unable to point to any evidence of prejudgment — First and second recusal applications rejected CIVIL PROCEDURE — Summary disposal — Summary judgment — Defendant not required to file a defence or response to summons — Defendant had at least arguable answers to relief sought

Catchwords:

CONSUMER LAW — Guarantee relating to the supply of goods by description — guarantee relating to the supply of goods by sample — weight of evidence — significant new evidence — whether substantial miscarriage of justice

Catchwords:

APPEAL – development application – residential flat building with basement parking – affordable housing – no remaining contentions

Catchwords:

ADMINISTRATIVE LAW — Particular administrative bodies — police — revocation of firearms licence — where plaintiff sentenced to conditional release order for firearms-related offences — where delegate gave weight to requirement to refuse a new licence application for a person serving a conditional release order — where delegate determined not in public interest for plaintiff to possess or use firearms by way of a licence ADMINISTRATIVE LAW — Hearing rule — disclosure — adverse allegations — whether delegate erred in taking into account certain police computer system entries ADMINISTRATIVE LAW —Irrelevant and relevant considerations — whether delegate erred in taking into account the requirement to refuse a new licence application for a person serving a conditional release order — whether delegate failed to take into account low objective seriousness of offending and prior behaviour and primary producer status of the plaintiff ADMINISTRATIVE LAW — Ground of review other than procedural fairness — unreasonableness — whether unreasonableness in delegate’s decision due to plaintiff’s lengthy period of prior compliance with firearms legislation

Catchwords:

APPEAL — development application — single car parking space at front of dwelling — non-compliance with controls and standards

Catchwords:

APPEALS – extension of time – whether to extend time to appeal – where appellant’s application for review of conduct under the privacy legislation was dismissed for want of jurisdiction – where Tribunal found appellant had not applied for internal review – whether respondent prejudiced by delay - whether appeal is on a question of law - whether arguable grounds of appeal identified

Catchwords:

FIREARMS - prohibited weapon – silencer – genuine reason – meaning of necessary - vermin control

Catchwords:

HEALTH — Professional registration and discipline — reinstatement – where registration of dental practitioner was cancelled after he inappropriately prescribed drugs of dependence – whether applicant currently fit to practice – whether applicant has demonstrated insight and remorse – whether applicant has an unaddressed substance misuse issue – whether applicant has a cognitive disorder – whether applicant has the knowledge and competence to avoid similar misconduct in the future

Catchwords:

DEVELOPMENT APPEAL — Conciliation conference — agreement between the parties — centre based child care facility — orders

Catchwords:

CRIMINAL APPEAL – sentencing – aggravating circumstances – forgery – 33 counts involving single act – where sentencing Judge accepted prosecution’s submission that offence comprised a series of criminal acts – s 21A(2)(m) – conceded error – resentencing – whether sentence of imprisonment only appropriate sentence – unusual circumstances including completion of community service and partial service of intensive correction order – community correction order imposed

Catchwords:

POSSESSION — costs and further orders — no issue of principle

Catchwords:

COSTS – usual rule that costs follow the event – no question of principle

Catchwords:

COSTS – general rule that costs follow the event – where common ground costs should follow the event – where appellant’s motion dismissed – indemnity costs – whether appellant should pay costs on an indemnity basis – whether appellant should have known application for injunctive relief had no chance of success

Catchwords:

ADMINISTRATIVE LAW – Freedom of information – Personal Information – Access to information – Whether excessive delay – Whether unreasonable and substantial diversion of resources

Catchwords:

APPEAL — amendments to an approved residential flat building — conciliation conference — agreement reached — orders made

Catchwords:

CONTRACT — informal agreements — loan agreement — where agreed that there existed a contract that was partly-oral and partly referred to in text messages — dispute as to parties to the contract — whether borrower was corporation or director personally — where loan monies applied to purchase of property by corporation — no evidence that any corporate borrower mentioned during loan negotiations — use of post-contractual conduct to determine parties to the contract

Catchwords:

DEVELOPMENT APPEAL – modification application – mixed use development – commercial premises – shop top housing – substantially the same development – conciliation conference – agreement between the parties – orders

Catchwords:

DEVELOPMENT APPLICATION – centre based child care facility – conciliation conference – agreement between the parties - orders made

Catchwords:

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

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – agreement between the parties – amended plans and documents – orders

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring trees — whether trees have caused damage — other factors contributing to damage — apportioning the cost of repair works

Catchwords:

PROFESSIONS AND TRADES – medical practitioner – breach of conditions of registration – findings of professional misconduct and unsatisfactory professional conduct – condition “not to administer any conscious sedation (by any route)” – whether intramuscular administration of fentanyl contravened condition – whether subsequent guidance relevant to construction of condition – whether necessary for HCCC to establish depression of consciousness APPEALS – appeal on question of law – requirement to identify question of law – criticism of practice of drafting grounds of appeal with the words “The Tribunal erred in law in” – obligations of practitioners

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring trees — boundary fence damage –– hedge pruned prior to hearing — risk of further damage –– Pt 2A application — obstruction of sunlight — obstruction not severe on day of hearing — balancing privacy against loss of sunlight — orders for pruning — bamboo hedge

Catchwords:

HIGH RISK OFFENDER – Application for extended supervision order – Final hearing – Terrorism (High Risk Offenders) Act 2017 – Whether the defendant “poses an unacceptable risk of committing a serious terrorism offence” – Whether defendant was recruited to commit offences of damaging property for reward – Where defendant spray-painted slogans including “PKK”, “PKK coming” and “Fuk Israel” – Whether offences were committed with antisemitic intent – Whether the curse “Fuk Israel” is antisemitic – Whether defendant adopted an ideology associated with Hezbollah – No significant risk of defendant committing a serious terrorism offence – Summons dismissed.

Catchwords:

CRIMINAL LAW – Crime Commission – where provisional indication provided that transcript would be made available to parties – where interested person provided opportunity to be heard – provisional view confirmed in one case – provisional view changed upon submissions from one of the interested parties – matter may be re-evaluated during trial

Catchwords:

CIVIL ENFORCEMENT: whether contractor carried out unlawful development comprising earthworks and demolition – no development consent obtained for works – evidence discloses that contractor either carried out the works or was responsible for and engaged persons who carried out the works – works not exempt development – works not ancillary to existing development consents – consent required – works unlawful – declaratory and injunctive relief granted – costs ordered.

Catchwords:

PROCEDURE: application for substituted service – opposed by first respondent – legal principles – orders for substituted service made. PROCEDURE: application for leave to appear as agent – no compliance with r 7.7 of the Land and Environment Court Rules 2007 – no authority to appear as agent for either first respondent or director of first respondent or second respondent – leave refused.

Catchwords:

APPEALS — from a decision of the Children’s Court — notice of motion seeking appeal for leave out of time and appeal of the decision made in the Children's Court — notice of motion dismissed JURISDICTION — care proceedings and order from Children's Court — appeal under s 91 of Children and Young Persons (Care and Protection) Act 1998 (NSW) — this Court does not have statutory jurisdiction to determine an appeal from orders of the Children’s Court — considered as an application for judicial review JUDICIAL REVIEW — plaintiff states there was a denial of procedural fairness as she claims the orders were made in her absence or that she had no opportunity to participate as she was overseas — guardian ad litem had been appointed to represent plaintiff's interests in the Children's Court — not satisfied that there was a realistic possibility that the orders would have been different if plaintiff was present — no procedural fairness — no basis for relief established APPLICATION FOR SUMMARY DISMISSAL — defendant seeks summary dismissal pursuant to UCPR r 13.4 — no statutory basis for the plaintiff to have commenced proceedings by appeal in this Court — no jurisdictional error or an error of law on the face of the record to support a judicial review — proceedings are bound to fail and are thus frivolous, vexatious and an abuse of process — summary dismissal granted

Catchwords:

CRIMINAL LAW — Work health and safety — Offences — Category 2 — Sentencing — Crane fitted on truck operated by unlicenced worker — Contact with live overhead powerlines — Offender a small business — Whether payment of prosecutor’s costs is relevant to penalty SENTENCING — Relevant factors on sentence — Co-offenders — Parity — Whether principal contractor at construction site and supplier of cement products engaged in common criminal enterprise — Where culpability of offenders was comparable — Different sentences imposed to reflect principal contractor’s substantially reduced capacity to pay fine

Catchwords:

UNFAIR DISMISSAL - Extension of Time - application to extend time to lodge application - unrepresented litigant - extension opposed by respondent - application not granted.

Catchwords:

CRIMINAL LAW – contested application for accused to appear by audio visual link – whether hearing under the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) is a “physical appearance proceeding” – legislation unclear – Court proceeds on basis that it is – wishes of victim’s family – desire to read Victim Impact Statements in physical presence of the accused – where accused on South Coast and inquiry in Central NSW – where accused mentally unwell – opinion of psychiatrist – difficult decision – AVL order made – matters relevant to interests of the administration of justice

Catchwords:

ADMINISTRATIVE LAW — Freedom of information — Access to information — searches — decision that no further information held

Catchwords:

HIGH RISK OFFENDER – interim supervision order – what conditions likely to be effective – recent alleged offending potentially relevant to risk – defendant in custody bail refused for recent alleged offending – suspension of examinations while awaiting hearing of recent charges – conditions of ISO – conditions should not criminalise minor behavioural issues – unjustifiable conditions should not be imposed

Catchwords:

LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – duty of landlord to repair – compensation to tenant for breach

Catchwords:

HUMAN RIGHTS — discrimination — equal opportunity — leave required for complaint to proceed — principles applying to grant of leave – disability discrimination in employment – age discrimination in employment – victimisation - causation

Catchwords:

APPEAL – leave to appeal – question of law - discretionary decision - House v King principles - leave to appeal GOVERNMENT INFORMATION - conclusive presumption against disclosure - legal professional privilege - public interest considerations for disclosure - public interest considerations against disclosure - balancing public interest considerations - “could reasonably be expected to” test

Catchwords:

ADMINISTRATIVE LAW - administrative review - government information - access application - enforceable right to access government information - presumption in favour of the disclosure of government information – conclusive presumption of overriding public interest against disclosure - public interest considerations against disclosure - public interest considerations in favour of disclosure - balance - term “could reasonably be expected” - prejudice the supply to an agency of confidential information - reveal a deliberation or consultation conducted or an opinion, advice or recommendation - prejudice the effective exercise by an agency of the agency’s functions - reveal or tend to reveal the identity of an informant or prejudice the future supply of information from an informant - personal information - information protection principle - reveal false or unsubstantiated allegations about a person that are defamatory - reasonable searches ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – victimisation – practice and procedure – permanent stay of proceedings – dismissal of proceedings after settlement

Catchwords:

CRIMINAL LAW — Bail — release application pending determination of appeals against conviction and sentence — whether special or exceptional circumstances established — consideration of merit of proposed grounds for severity appeal — whether unacceptable risks — consideration of prospect whether substantial part of non-parole period will be served prior to determination of appeals — consideration of bail conditions

Catchwords:

Crime – Judge alone trial – Verdict - Discharge firearm with intent to cause grievous bodily harm - Fire firearm at a dwelling-house with reckless disregard for the safety of another person

Catchwords:

CRIME – SENTENCE – Supply a prohibited drug not less than the large commercial quantity

Catchwords:

COSTS — No question of principle

Catchwords:

PRACTICE AND PROCEDURE – voir dire on admissibility of evidence of council officer concerning breaches of the Environmental Planning and Assessment Act 1979 (NSW) – exercise of powers of council officer to inspect residential premises under the Environmental Planning and Assessment Act 1979 (NSW) – whether inspection by council officers of residential premises lawful

Catchwords:

BUILDING AND CONSTRUCTION – no insurance taken out as required by s 92 of the Home Building Act 1989 (NSW) – whether a homeowner has a right to recover money paid under a contract where works uninsured – consideration of Field v Dettman [2013] NSWCA 147 – no such right of action - whether the defence of a claim for the return of a deposit received by an uninsured builder is the enforcement of a right of action by the builder to recover money contrary to s 94(1) of the HBA – defence not enforcement.

Catchwords:

APPEAL – Development application – conciliation conference – agreement between the parties – orders

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2A application — neighbouring hedge — bamboo — obstruction of views — whether the obstruction is severe — application refused

Catchwords:

APPEAL — Residential development application — conciliation conference — agreement between the parties — orders