Browse decisions Displaying 1 - 200 out of 106888 results

Catchwords:

COSTS – where plaintiff unsuccessful – where two offers of compromise made by successful defendant – where first offer a walk away offer – whether the Court should order that costs not be on an indemnity basis as a result of that offer – where common ground that later offer warrants indemnity costs order

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 – Where formal requirements satisfied – Whether scheme of arrangement should be approved.

Catchwords:

NEGLIGENCE — Duty of care — Particular relationships — accountant and client — factual case — whether negligent advice given — where evidence showed such advice not given EVIDENCE — credibility — importance of contemporaneous documents

Catchwords:

COSTS – apportionment of costs - mortgagee’s costs – multiple issues – where mortgagor partially successful on cross-claim – where partial success on that issue affected amount recoverable by mortgagee – where mortgagee acted unreasonably in resisting issue raised on cross-claim – mortgagor should pay 80% of costs

Catchwords:

JOINDER - claim for compensation for resumption in 1922 of land at Lake Victoria in far south‑western New South Wales - claimant an Aboriginal person - claim advanced on two bases - first claim based on extinguishment of native title rights - second claim based on adverse possession - claim made against South Australian and New South Wales governments - claim opposed by both governments - both bases of claim opposed - claim founded on rights said to be held by claimant's grandmother at time of resumption - 2015 native title determination recognises native title rights as existing on land surrounding resumed land - native title rights those of the Barkandji and Malyangapa Peoples - determination lists apical ancestors from whom the native title rights are derived - native title rights held by Barkandji Native Title Group Aboriginal Corporation (Corporation) as trustee for descendants of listed apical ancestors - apical ancestors include three members of the Maraura, a subgrouping of the Barkandji and Malyangapa Peoples - three Maraura apical ancestors nominated by claimant in pleadings - claimant is descendant of one of the three Maraura apical ancestors - question of whether Corporation should be joined as a party to the proceedings - joinder sought by Corporation - joinder opposed by claimant - tests for joinder considered - rights of descendants of all three Maraura apical ancestors affected by claimant’s native title claim - Corporation may have responsibilities with respect to those rights - potential for Corporation to have responsibility more than a mere possibility - joinder of Corporation appropriate - Corporation joined as Third Respondent COSTS - costs of joinder deferred to outcome of primary proceedings SUBPOENA - subpoena issued to the Corporation by the claimant - Corporation applies to have subpoena set aside in part - Corporation’s subpoena challenge deferred pending outcome of joinder proceedings FUTURE CONDUCT OF PROCEEDINGS - future conduct of proceedings adjourned to permit Corporation to consider what role it proposed to take in the primary proceedings and whether it maintained its opposition to the claimant’s subpoena - short adjournment permits retention of hearing dates set for February 2023

Catchwords:

COSTS – Challenge to the exercise of discretion – no question of principle involved

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LICENSING – firearms – licence revocation – fit and proper person – public interest – primary producer – unregistered category C rifle – community release order.

Catchwords:

HEALTH – Professional registration – Application for provisional registration – Applicant unable to fulfil his proposed conditions – Consideration of Chinese Medicine Board of Australia v Lee [2014] QCA 149

Catchwords:

CRIMES — sentencing — murder — objective seriousness of offending — offender in psychotic state at time of offending — moral culpability — subjective factors — special circumstances

Catchwords:

TAXES AND DUTIES – principal place of residence exemption – adjoining blocks- whether site of single residence- separate buildings on separate lots – concession for multi-occupancy land – site of a flat

Catchwords:

CONTRACTS — Construction — Interpretation — Interpretation of a clause in a nomination deed for the development of a residential apartment building — Where the clause provided for a specific mix of one, two and three bedroom apartments but included a proviso that the mix “may be varied pursuant to” statutory and Council requirements — Whether the inclusion of studio apartments was a variation falling within that proviso. CONTRACTS — Rectification — Intention — Common intention CONTRACTS — Implied terms — Terms implied in fact ESTOPPEL — Estoppel by representation — “Silence” EVIDENCE — Affidavit evidence — Where substantial parts of the affidavits of three witnesses were copied between them. WORDS AND PHRASES – “varied pursuant to”

Catchwords:

ADMINISTRATIVE LAW – Particular administrative bodies – Personal Injury Commission of New South Wales – Application to President to refer a medical assessment to a review panel for review under s 63 of the Motor Accidents Compensation Act 1999 (NSW) – Decision of delegate of the President to dismiss application – Whether jurisdictional error in deciding to dismiss – Submitting appearances by all defendants – Jurisdictional error found ADMINISTRATIVE LAW – Ground of review other than procedural fairness – Unreasonableness – Whether delegate of the President of the Personal Injury Commission could reasonably have been satisfied that there was no reasonable cause to suspect that the medical assessment was incorrect in a material respect – Whether President’s delegate fundamentally misunderstood the task required to be performed – Submitting appearances by all defendants – Decision legally unreasonable – Misunderstanding of statutory task to be performed.

Catchwords:

CRIMINAL LAW – sentencing – aggravated (armed) robbery – malicious discharge of loaded firearm with intention to prevent lawful arrest – additional offence of allowing himself to be carried in a conveyance knowing that the conveyance was taken without the owner’s consent - applicability of R v Henry guideline judgment – applicability of Bugmy principles – offences committed in 2001 – offending brought to light through assistance to police by an informant - significance of delay - parity principle with reference to the sentence imposed on the informant

Catchwords:

ADMINISTRATIVE LAW – Judicial Review of NCAT decision –Self-Represented Litigants – Denial procedural fairness – Actual or Apprehended bias – Matter remitted

Catchwords:

COSTS – Party/Party – Application for costs to be paid out of Estate – Bases of quantification – Ordinary basis

Catchwords:

PROFESSIONS AND TRADES - Legal Practitioner - application for disciplinary findings - Legal Profession Uniform Law Australian Conduct Rules 2015 R 9 – Breach of Confidentiality – professional misconduct at common law and under Legal Professional Uniform Law (NSW) No 16a, s 297(1)(a) - nature of appropriate orders, quantum of fine considered.

Catchwords:

CRIME — Appeals — Application for leave to appeal against sentence — Sole ground of proposed appeal manifest excess — Where the applicant was sentenced to five years and six months imprisonment for a number of drug related offences — Whether the sentencing judge wrongly focused on the applicant’s significant assets as opposed to the applicant’s subjective circumstances APPEAL — Leave to appeal — Principles governing

Catchwords:

SENTENCING – parity – no question of principle

Catchwords:

APPEALS — Privacy- whether leave to appeal is required - meaning of “personal information” – meaning of “disclosure” – what constitutes a referral – procedural fairness

Catchwords:

COSTS –Party/Party – Indemnity

Catchwords:

DEFAMATION – Requirement of “serious harm” to reputation under Defamation Act 2013 (UK), s 1 – Limited publication – Time at which harm falls to be determined – Relevance of duration of period of harm – Relevance of delay in complaint and commencement of proceedings – Whether imputation regarding specific instance of conduct supports general imputation – Whether Court is required to determine that each conveyed imputation is defamatory in nature – Primary judge’s conclusion that serious harm threshold not satisfied upheld DEFAMATION – Defences – Common law qualified privilege – Where matter complained of was an email sent to complainant’s parents by his ex-wife’s parents regarding family matters – Defining of privileged occasion – Relevance of conveyed imputations to occasion – Whether privilege lost by publication being actuated by malice

Catchwords:

CONTRACTS – Construction and interpretation – Where shareholders agreement entitled company to project management fees in respect of development project – Whether fees became payable after development approval was granted, or at completion of project by sale – Project management expressly not limited to work in relation to development application – No source of funds for fee contemplated other than sale proceeds – Held that fees became payable only at completion of project by sale

Catchwords:

BUILDING AND CONSTRUCTION – Contract – Whether contract existed – Whether respondent engaged as either builder or supervisor – Alleged partly written and partly oral contract – No contract in existence BUILDING AND CONSTRUCTION – Defective work – Duty to mitigate loss – Whether appellants acted reasonably to mitigate loss

Catchwords:

DEVELOPMENT APPEAL – dwelling house – conciliation conference – agreement between the parties – orders

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2A application – neighbouring hedges – obstruction of views – whether the obstruction is severe – whether the applicants have lost access to views – privacy and other benefits of the trees

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – neighbouring hedges – obstruction of views – whether the obstruction is severe – whether the Applicants have lost access to views – application refused

Catchwords:

APPEALS – procedure – stay of judgment pending appeal – where appellant company has no substantial assets – where sufficiently arguable case on appeal – whether real risk of prejudice to appellant in event appellant wound up and prosecution of appeal stayed – whether prejudice to respondent in event application to wind up delayed in challenging “uncommercial transactions” of appellant – no question of principle

Catchwords:

COSTS – indemnity costs order against plaintiff – rule 42.15A UCPR – Calderbank letter sent by defendant - whether it was reasonable for plaintiff to reject Calderbank offer – evidence available at the time of the offer – whether Covid-19 delays result in greater costs for plaintiff - whether indemnity costs order punitive

Catchwords:

CRIME – appeals – appeal against sentence – four counts of using carriage service to menace, harass or offend contrary to s 474.17(1) Criminal Code (Cth) – offending occurred while applicant an inmate at various prisons – offending involved use of phone accounts of other inmates to call various entities and describe fictitious abuse of young daughter and other girls under the age of ten – calls made for purpose of sexual gratification – offending latest manifestation in persistent and identical offending over number of years despite earlier imprisonment – whether sentencing judge erred in applying principle of totality – where approach of backdating sentence to make it partly concurrent with sentence applicant had been serving was open to sentencing judge - whether sentence manifestly excessive – where notional accumulation within sentencing judge’s discretion – no House v The King error demonstrated

Catchwords:

APPEAL - appeal pursuant to s 56A of the Land and Environment Court Act 1979 - Commissioner approves a new McDonald’s restaurant at Wongawilli - appeal on questions of law - Council presses three grounds of appeal - Ground 1, Council complains that Commissioner misconstrued or misapplied applicable provisions of the Council's development control plan - Commissioner’s decision demonstrates appropriate and sufficient consideration of applicable provisions of the development control plan - Ground 1 fails - Ground 2 pleads three subgrounds - Ground 2.1 alleges failure to make applicable provisions of the development control plan a focal point of the Commissioner’s consideration of the relevant issues - Ground 2.1 contingent on Ground 1 and therefore fails - Ground 2.2 alleges specific failure to address cl 3.74 ch B4 of Wollongong Development Control Plan 2009 - matters in the provision adequately addressed - Ground 2.3 alleges failure to have regard to objector evidence concerning “healthy food” - objector evidence appropriately considered - Ground 2 fails - Ground 3 proposed that the Commissioner had no evidence to support his conclusion that changes made to the proposed development were acceptable by failing to consider the likely impacts of the proposed changes - proper evidence upon which the Commissioner based his conclusion of acceptability of the changes - expert evidence on the relevant point supported the Commissioner’s conclusion as to acceptability of the changes - Ground 3 fails - failure on all three grounds requires dismissal of appeal COSTS - costs of s 56A appeals follow the event - Council ordered to pay the Company's costs as agreed or assessed

Catchwords:

BAIL APPLICATION – applicant charged with five counts of drive manner dangerous causing death – 18 years old – no prior convictions – deteriorating mental health – bail concerns addressed by proposed bail conditions – bail granted

Catchwords:

NON-PUBLICATION ORDERS – materials produced on bail application – open justice – access to materials provided to the Court

Catchwords:

PRACTICE AND PROCEDURE – application by the defendant for permanent stay of proceedings seeking damages for alleged historical sexual assault – whether proceedings should be stayed on the basis that defendant, who has neurocognitive deficits including dementia, would not receive a fair trial

Catchwords:

REAL PROPERTY – easements – extinguishment of easements – Cross-Claim seeking extinguishment of right of carriageway pursuant to Conveyancing Act 1919 (NSW) s 89(1) on the grounds of obsolescence, impediment of reasonable user of servient tenement, or abandonment – where right of carriageway has never been used as a means of vehicular access to the dominant tenement – where several obstructions have been erected on right of carriageway – where evidence suggests that right of carriageway has been used historically only as a footway – whether right of carriageway obsolete in circumstances where Council approval for construction of a driveway is very unlikely to be given – whether it is possible to reasonably enjoy servient tenement while right of carriageway subsists – whether acts or omissions of previous dominant owners evinced an intention to abandon right of carriageway in whole or in part – held that right of carriageway not obsolete, inconsistent with reasonable use of servient tenement, or abandoned in whole or in part – held further that dominant owners would suffer a substantial injury if right of carriageway were extinguished – defendants to be ordered to remove obstructions placed on right of carriageway without dominant owners’ assent

Catchwords:

ADMINISTRATIVE LAW – Victims rights and support – Recognition – Grievous bodily harm

Catchwords:

CONSTITUTIONAL LAW – constitutional implications – whether ss 81 and 83 of the Constitution provide an implied basis for the recovery of ultra vires payments by the Commonwealth – where proceedings brought by Commonwealth to recover ultra vires payments mistakenly made to former Navy officer after his separation from Navy – whether s 14(1)(a) of Limitation Act 1969 (NSW) is rendered inoperative or invalid in its application to the Commonwealth’s claim by reason of ss 81 and 83 of the Constitution RESTITUTION – bars and defences to restitutionary claims – limitation periods – where Commonwealth brought proceedings to recover ultra vires payments mistakenly made to former Navy officer after separation from Navy – application of principle in Auckland Harbour Board v The King [1924] AC 318 – whether recovery of some payments statute-barred by reason of limitation period – whether Auckland Harbour Board claim is a claim in “quasi contract” within the meaning of s 14(1)(a) of the Limitation Act 1969 (NSW) – meaning and historical development of claims in “quasi contract” – whether limitation period should be postponed pursuant to s 56 of the Limitation Act RESTITUTION – public authorities – claims by public authorities – where Commonwealth mistakenly continued to make payments to former Navy officer for six years following separation from the Navy – where mistaken payments were made ultra vires – application of principle in Auckland Harbour Board v The King [1924] AC 318 – historical development and juristic nature of claim pursuant to Auckland Harbour Board principle – whether recovery of some payments statute-barred by reason of limitation period – whether claim based on the Auckland Harbour Board is a claim in “quasi-contract” within the meaning of s 14(1)(a) of the Limitation Act 1969 (NSW) – whether former Navy officer liable for payments made to third parties at his direction prior to separation from Navy RESTITUTION – nature of restitutionary liability – common counts – money had and received to the use of the plaintiff – where Commonwealth mistakenly continued to make payments to former Navy officer for six years following separation from the Navy – where mistaken payments were made ultra vires – application of principle in Auckland Harbour Board v The King [1924] AC 318 – historical development and juristic nature of claim pursuant to Auckland Harbour Board principle – whether recovery of some payments statute-barred by reason of limitation period – whether claim based on the Auckland Harbour Board is a claim in “quasi contract” within the meaning of s 14(1)(a) of the Limitation Act 1969 (NSW) LIMITATION OF ACTIONS – quasi-contract and restitution – construction of “quasi contract” for the purposes of s 14(1)(a) of the Limitation Act 1969 (NSW) – where Commonwealth brought proceedings to recover ultra vires payments mistakenly made to former Navy officer after separation from Navy – application of principle in Auckland Harbour Board v The King [1924] AC 318 – whether recovery of some payments statute-barred by reason of limitation period – whether Auckland Harbour Board claim is a claim in “quasi contract” within the meaning of s 14(1)(a) of the Limitation Act 1969 (NSW) – meaning and historical development of claims in “quasi contract” – whether limitation period should be postponed pursuant to s 56 of the Limitation Act

Catchwords:

APPEALS – right of appeal – appeal from Local Court General Division – appeal on question of law – appeal by leave on mixed law and fact – leave not sought – challenge to primary facts not a question of mixed law and fact – challenged findings not dispositive – assessment of damage in absence of evidence BAILMENT – storage of goods in unit controlled by owner – use of storage unit pursuant to licence – licensor obtaining possession of goods on termination of licence – whether gratuitous bailment – goods lost and damaged – no reliable evidence as to lost goods being in storage unit – no evidence as to condition of goods before removal from storage unit CONTRACT – intention to enter legal relations – mutual benefits not sufficient to establish intention – arrangement result of social relationship – no formalities – short term storage of goods in exchange for work on electronics

Catchwords:

DEVELOPMENT APPLICATION – child care centre – whether streetscape of Proposed Development is compatible with character of the local area – whether Applicant’s proposed earthworks are acceptable - whether proposed stormwater management arrangements are acceptable – whether parking is acceptable

Catchwords:

APPEAL – development control order - conciliation conference – agreement between the parties - orders

Catchwords:

DEVELOPMENT APPEAL – boarding house —conciliation conference – agreement between the parties – orders

Catchwords:

DEVELOPMENT APPLICATION – demolition of existing structures and construction of a new six storey mixed use development – amended plans – conciliation – agreement between the parties – orders made

Catchwords:

DEVELOPMENT APPLICATION – subdivision – amended plans and further information – conciliation – agreement between the parties – orders made

Catchwords:

CRIMINAL LAW – severity appeal – multiple offences – challenges to indicative offences – significance of Local Court’s jurisdictional limit – focus on the right of appeal on the aggregate sentence

Catchwords:

CIVIL PROCEDURE — Settlement or discontinuance — Person under a legal disability Court approval — Substantial fund to be paid to private trustees — Civil Procedure Act 2005 (NSW), s 77(3)

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ADMINISTRATIVE LAW – privacy – jurisdiction - NSW Police Force

Catchwords:

HIGH RISK OFFENDER – final hearing – application for extended supervision order – whether unacceptable risk of committing another serious sexual offence if not kept under supervision – defendant conceded that the statutory test met and of 4 years is open on the evidence – 4 years extended supervision order imposed with conditions

Catchwords:

CIVIL PROCEDURE — Pro bono referral under r 7.36 of UCPR — Referral power likely administrative in nature — No evidence as to the financial means of the applicant — Where previous pro bono referral assistance provided — Where applicant unlikely to accept legal advice — Referral refused CIVIL PROCEDURE — Suppression and non-publication — Possible public interest in non-disclosure of identifying information of persons on Child Protection Register — Where the information sought to be suppressed was already in the public domain —Order not made under the Court Suppression Act

Catchwords:

PUBLIC SECTOR DISCIPLINARY APPEAL –findings of misconduct- – whether a decision in relation to an appealable decision – Industrial Relations Act 1996 s 97

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury – vulnerable worker SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – discount of 25% for the utility of the plea – general deterrence – specific deterrence – remorse and contrition – capacity to pay COSTS – prosecutor’s costs

Catchwords:

TORT - application to strike out defamation proceedings for abuse of process and disproportionality - application dismissed with costs

Catchwords:

Administrative law – access to government information - requested material provided – no additional material held – searches – reasonable in all the circumstances – onus

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CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury

Catchwords:

EQUITY — Trusts and trustees — Constructive trusts — Common intention — Where two sisters claimed various beneficial and legal interests in four properties — Whether loan or trust in respect of one property — Whether there was an agreement that plaintiff sister would remain the sole beneficial owner of one property — Whether sisters’ original intention to purchase one property as equal co-owners was changed to tenants in common with interests of 99% and 1% by agreement BANKING AND FINANCE — Banks — Bank accounts — Joint accounts — Whether property purchased using funds from joint account entitled each account holder to co-ownership — No joint account found

Catchwords:

EQUITY — Trusts and trustees — Express trusts — Intention to create — Statute of Frauds — Requirement of writing — Part performance — No question of principle CONTRACTS — Formation — Conditional promises — Whether contract labelled “draft agreement” is subject to contract or binding

Catchwords:

CORPORATIONS — Shares — Conflicting methods of valuation —Where experts disagree on valuation methodology — Where experts disagree on applicable earnings multiple — Where experts disagree on valuation - Where Court asked to determine price to be paid for equity of company by reference to expert valuation — Where Court accepted one valuer’s opinion — Price fixed accordingly

Catchwords:

CRIME – sentence – historical offences - sexual intercourse knowing no consent given – enter dwelling at night with intent to commit a felony namely larceny – delay in sentencing.

Catchwords:

TORTS — General principles — Intentional torts — Joint tortfeasors — Assault — Common design — Procurement — Agency — Damages — Exemplary damages — Aggravated damages — Whether accessory procured or had common design with principal wrongdoer to threaten accessory’s business partner with a gun CONTRACTS — Duress — Forms — Duress to the person — Gun attack — Whether will deflected in entering into termination agreement after a gun attack — Whether termination agreement was affirmed PARTNERSHIPS AND JOINT VENTURES — Joint venture agreements — Rights and duties between joint venturers — Fiduciary relationship — Position of conflict EQUITY — Fiduciary duties — Breach — Whether company director in a joint venture entered into termination agreement — Whether entry into termination agreement was a breach of the no conflict principle — No termination agreement on the facts — No real and sensible possibility of conflict — No breach of statutory directors’ duties

Catchwords:

CRIMINAL LAW – murder – trial by judge alone – joint trial of seven co-accused –extended joint criminal enterprise – whether in the course of an agreement to assault a fatal injury was inflicted with intention to inflict grievous bodily harm – whether the accused foresaw the possibility of infliction of grievous bodily harm by one or more of the accused with the intention to inflict grievous bodily harm –circumstantial case – no eyewitnesses – limited forensic evidence – Crown failed to establish joint criminal enterprise agreement as particularised

Catchwords:

ADMINISTRATIVE LAW – administrative review of decision to refuse an owner builder permit for the construction of a detached dual occupancy – whether special circumstances exist justifying the issue of a permit – meaning of special circumstances in s 32(1A) of the Home Building Act 1989 – no special circumstance found.

Catchwords:

COSTS – offer of compromise and Calderbank offer – motions for special costs orders – apportionment of costs – plaintiff sues five defendants in contract and for misleading and deceptive conduct – plaintiff succeeds in contract against the first, second and third defendants – plaintiff fails against all defendants in the misleading and deceptive conduct claim – claims against fourth and fifth defendants dismissed – plaintiff makes offer of compromise and then a Calderbank offer to all defendants to resolve proceedings – offers were open to acceptance only by all defendants – offers not accepted – whether the judgment the plaintiff obtained against the first, second and third defendants was no less favourable than the offers not accepted by them – consequences of the plaintiff’s failure on the misleading and deceptive conduct claim – whether the misleading and deceptive conduct claim was clearly dominant or severable from the contract claim – whether the final costs order should differentiate between the outcomes of the contract claim and the misleading and deceptive conduct claim.

Catchwords:

RESTRAINT OF TRADE – vendor of shares in company carrying on software reselling business – competition restraint – supplier solicitation restraint – employee solicitation restraint – whether vendor’s new software reselling business competitive with former business – admissibility of opinion from consultant economist – reasonableness of restraints CONTRACT – construction – defined term – “means and includes” – Fitzgerald v Masters – parol evidence rule – exceptions – exchanges of drafts

Catchwords:

CIVIL PROCEDURE – pleadings – striking out – no reasonable defence – tendency to cause embarrassment – where defence pleads contract void for illegality or a sham COSTS – security for costs – relevant factors – impecuniosity – whether the plaintiff’s impecuniosity is attributable to the defendant’s conduct – other relevant considerations

Catchwords:

APPEAL – Strata - Contributions to a special levy - power to alter contributions – ambit of order making power under s 87 and s 232(1) – effect of order varying unit entitlement

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CRIMINAL LAW – proceeds of crime – restraining orders

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APPEALS – refusal to allow fresh evidence as reasonably available before initial hearing – renewal of proceedings following non-compliance with work order – money order made – decision not to make further work order open to the Tribunal - leave to appeal refused.

Catchwords:

CRIMINAL LAW – proceeds of crime – restraining orders

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APPEAL – against the weight of evidence – fair and equitable

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ADMINISTRATIVE LAW - working with children check clearance – assessment of risk – evidence from applicant as to possibility of engaging in the conduct alleged – lack of objective evidence - likelihood of any repetition of the conduct - reasonable person would not allow direct, unsupervised contact with their children.

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HUMAN RIGHTS – Anti-discrimination – Complaint of age, sex and disability discrimination in the provision of education – direct discrimination – victimisation - onus

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GOVERNMENT INFORMATION – Public access - reasonable search – s 53 Government Information (Public Access) Act 2009 (NSW)

Catchwords:

APPEAL – development control order – stop use order – whether current use of the premises is authorised by earlier development consent – purpose of use approved by development consent – purpose of use currently carried out on the site – acoustic impact of current use – whether discretion to issue an order should be exercised

Catchwords:

CRIME — work health and safety — appeal against conviction for breaching duty owed by persons conducting a business or undertaking under s 19(2) of the Work Health and Safety Act 2011 (NSW) — appeal pursuant to s 5AA of the Criminal Appeal Act 1912 (NSW) — consideration of extent to which challenges to findings of fact permitted CRIME — work health and safety — whether conduct of labour hire worker occurred as part of host’s business or undertaking for the purposes of s 19(2) of the Work Health and Safety Act — alleged error in finding that worker an employee or agent of hirer for the purposes of s 244 not material — conviction well supported by factual findings without the need to rely on s 244

Catchwords:

CRIME – Appeals – Appeal against conviction – Unreasonable verdict – Applicant found guilty by jury of two counts of adult sexual assault – Applicant acquitted by jury of multiple counts of same offending – Where Crown case was that two conviction counts were supported by contemporaneous complaint material in the form of text messages – Where applicant contends the jury must have misused the evidence of text messages – Where appeal court should not attempt to parse jury findings in determining unreasonable verdict ground – Where text messages sent by complainant to applicant were powerful contemporaneous complaint suggestive of adult sexual assault CRIME – Appeals – Appeal against conviction – Where applicant convicted of multiple counts of sexual and physical violence – Summing-up of trial judge – Where trial judge gave partial Liberato direction – Where direction did not speak of complete rejection of evidence of applicant – Where primary fact in contention was issue of consent – Where applicant gave sworn evidence in his defence contradicting evidence of complainant on two counts – Where applicant also gave sworn evidence admitting two offences – Where Crown relied on evidence of applicant in that regard – Where defence counsel at trial explicitly satisfied with partial Liberato direction – Where Rule 4.15 engaged – Where no miscarriage of justice CRIME – Appeals – Appeal against conviction – Final address of Crown prosecutor – Summing-up of trial judge – Where final address of Crown prosecutor referred to asserted lies and unusual behaviour of applicant – Where vast majority of final address of Crown prosecutor did not feature consciousness of guilt reasoning – Where one submission of Crown prosecutor should, on analysis, be characterised as consciousness of guilt reasoning – Where applicant contends Edwards direction should have been given to jury –Where defence counsel at trial did not request Edwards direction – Where no miscarriage of justice CRIME – Appeals – Appeal against sentence – Manifest excess – Where applicant submitted that indicative sentences for non-sexual assault offences were manifestly excessive – Where jury verdicts regarding previously committed sexual assaults meant that applicant could not rely on prior good character –Where aggregate sentence imposed for four offences was arguably lenient – Where no manifest excess established

Catchwords:

CRIME — Appeals — Appeal against conviction — whether tendency evidence was wrongly admitted — where evidence was of applicant’s consensual sexual relationship with a female under 16 years — where offence alleged involved no consent — where evidence showed sexual interest in females under 16 years — where evidence not wrongly admitted CRIME — Appeals — Appeal against conviction — Miscarriage of justice — whether crown prosecutors questioning appropriate — fairness obligation — where held questioning appropriate CRIME — Appeals — Appeal against conviction — Unreasonable verdict — alternative count — where verdict could be explained based on different consent requirements in counts charged — where verdict not unreasonable CRIME — Appeals — Appeal against sentence — whether finding made by sentencing judge consistent with jury verdict — De Simoni principle — where finding consistent

Catchwords:

CRIME – Appeals – Appeal against sentence – Ongoing drug dealing – Manifest excess – Where submitted that remarks of sentencing judge were not reflected in sentence imposed – Where unusual sentence structure imposed – Where special circumstances found causing dramatic departure from statutory ratio between non-parole period and head sentence – Leave to appeal granted and appeal dismissed

Catchwords:

CIVIL PROCEDURE – adjournment – to vacate hearing date – where plaintiffs were granted leave to file notice of motion to vacate hearing date – motion listed before duty judge – no motion filed – plaintiffs failed to appear – hearing date confirmed

Catchwords:

CIVIL PROCEDURE - commencement of proceedings – leave to commence action – where plaintiff serving a sentence for a serious indictable offence – where proceedings commenced before leave sought – where plaintiff alleged he was sexually abused as an inmate of a juvenile correctional centre – leave granted

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SUCCESSION – Probate and administration – Costs – Where probate issues not the only matters in dispute – Interplay of costs principles where litigation may be attributed to testator, where circumstances warranted investigation and Calderbank offers – Some allocation of costs by reference to issues

Catchwords:

BUILDING AND CONSTRUCTION – where payment schedule under Building and Construction Industry Security of Payment Act 1999 (NSW) served using Procore electronic information exchange system – whether provision in building contract concerning electronic service of documents engaged – whether payment schedule provided within 10 day limit in s 14 of the Act – whether electronic service deemed to occur at 9.30am on day following electronic receipt – where developer had actual notice of payment schedule on the evening of receipt – whether plaintiff builder entitled to recover claimed amount under s 15 of the Act

Catchwords:

COSTS — Security for costs — Relevant factors — Strength of the claim — Degree of unreality about claims in light of undisputed facts — Discretion — Mere non-payment of judgment debt does not indicate stultification of appeal — Lack of evidence of financial position of either party — Order not to be refused purely on the basis that claimant of security may have been well-resourced

Catchwords:

PRACTICE AND PROCEDURE – adoption of referee’s report – whether report included certain findings – whether certain opinions and recommendations expressed by the referee were extraneous to the scope of the reference

Catchwords:

APPEAL- whether Tribunal erred in finding that provisions of Covid-19 Regulations only invoked when impacted lessee provides financial information to lessor- whether Tribunal erred in failing to find that lessor’s request to mediate after lessee vacated premises removed bar to lessor recovering rental arrears accrued during period in which lessee was impacted lessee pursuant to Covid-19 Regulations

Catchwords:

SUCCESSION – The deceased died leaving duly executed Will probate of which was granted to the Defendant, one of two adult children of the deceased – Plaintiff received 25 per cent share, whilst Defendant received 75 per cent share, of the deceased’s estate – Clause giving power of appropriation to the executor in Will – Construction and effect of the appropriation Clause – Whether Defendant entitled to acquire the Plaintiff’s interest in the estate – Whether dispute as to valuation of the property forming part of the estate – No competing valuation evidence given by the Plaintiff – Alleged difference in value of the property would have resulted in Plaintiff, on her case, being entitled to receive an additional amount less than $50,000 than the amount paid to, but not retained by, Plaintiff.

Catchwords:

CONTRACTS — formation — agreement — whether intention to make concluded bargain — essential or important matter yet to be agreed — whether subject to statement of assets and liabilities — Masters v Cameron

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CRIMES – Sentence- Single count of enhanced indoor cultivation of cannabis for commercial purposes

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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 – Where formal requirements satisfied – Whether scheme of arrangement should be approved.

Catchwords:

CORPORATIONS – Scheme of arrangement – Application for order convening meeting of members to consider scheme of arrangement.

Catchwords:

COSTS – application for indemnity costs on the basis of unsuccessful party’s failure to accept Calderbank offer – no question of principle

Catchwords:

WORKERS COMPENSATION – Medical assessment – Judicial review of decision by medical appeal panel – Where appeal panel accepted error alleged to have been made in medical assessment, but proceeded to uphold ultimate outcome using alternative reasoning – Function of appeal panel confined to considering grounds raised in appeal – Held that appeal panel exceeded jurisdiction by embarking on alternative examination after accepting error below – Erroneous Medical Assessment Certificate quashed – Held that as a matter of law, only one particular determination should have been made – Appeal panel directed to issue certificate on terms to effect of that determination

Catchwords:

COSTS – departure from usual rule that costs follow the event – plaintiffs’ claims unsuccessful – unreasonable conduct of first defendant significantly contributed to the litigation – plaintiffs ordered to pay costs of second defendant but not costs of first defendant

Catchwords:

COSTS — Payable out of the deceased’s estate — Liability for costs where various claims were abandoned

Catchwords:

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – by person serving a sentence for a serious indictable offence – where plaintiff alleges he was sexually and physically abused by officers of juvenile correction centres – leave granted

Catchwords:

CIVIL PROCEDURE – commencement of proceedings – leave to commence action – by person serving a sentence for a serious indictable offence – where plaintiff alleges he was sexually and physically abused by officers of juvenile correctional centres – leave granted

Catchwords:

CONTRACTS – Formation – Uncertainty – Intention to contract – Promissory estoppel – Testamentary promise – Detrimental reliance – Remedies SUCCESSION – Family provision – Claim by stepchild as alleged member of household and dependant for provision from the deceased’s estate under Succession Act 2006 (NSW) Ch 3 – Whether eligible person – Whether a member of household – Whether a dependant – Notional estate – Where property of the estate distributed – Joinder of third parties SUCCESSION – Family provision – Claim by adult child – Application made out of time – Whether ‘sufficient cause’ pursuant to Succession Act 2006 (NSW) s 58(2)

Catchwords:

LICENSING – firearms – firearms prohibition order – fitness in the public interest – statutory interpretation – – presumption concerning common law rights – proportionality – confidential evidence – use to be made of confidential evidence. WORDS AND PHRASES – “not fit, in the public interest”

Catchwords:

REVENUE –dutiable value – s 21 Duties Act 1997

Catchwords:

Unfair dismissal – public health orders requiring vaccination against COVID-19 - Determination by Health Secretary – no consultation required under the WHS Act or otherwise – respondent did consult and provided the applicant with access to information to make an informed choice – applicant chose not to be vaccinated - application dismissed

Catchwords:

ADMINISTRATIVE REVIEW - firearms – revocation of licence – public interest – character – genuine reason – expiration of licence

Catchwords:

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

Catchwords:

PRACTICE & PROCEDURE – dismissal of summons seeking preliminary discovery pursuant to UCPR r 5.3 – orders seeking primary relief became unnecessary due to capitulation by respondent; COSTS – respondent to pay applicant’s costs of and incidental to the summons assessed on a specified gross sum basis to be paid forthwith

Catchwords:

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

Catchwords:

APPEALS – procedure - leave to appeal – principles governing – leave to amend summons refused – question of law – mixed question of law and fact – admission of evidence – common knowledge of background to commercial environment – taking account irrelevant matters CIVIL PROCEDURE – leave to appeal - leave to appeal refused

Catchwords:

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

Catchwords:

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

Catchwords:

Conciliation conference – agreement between the parties – dwelling house

Catchwords:

Conciliation conference – agreement between the parties – residential subdivision

Catchwords:

APPEAL- consumer claim- whether Tribunal erred in failing to award damages for breach of contract and granting relief in the nature of specific performance

Catchwords:

APPEAL – Development Application – new dwelling – Foreshore Area – character – visual presence – overshadowing.

Catchwords:

ADMINISTRATIVE LAW – Firearms – Licensing – Revocation – Whether issues of a firearms licence would be contrary to the public interest – medical history – charges of stalking and menacing driving dismissed – confidential information.

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — industrial disputes — dispute orders — Industrial Relations Act 1996 (NSW) ss 136, 137 and 139 —alleged contravention of dispute orders — whether multiple separate contraventions of dispute orders — single course of conduct — assessment of penalty — sentencing principles — consideration of Australian Building and Construction Commissioner v Pattinson (2022) 314 IR 301; [2022] HCA 13 — principle of totality — objective factors — nature and extent of contravening conduct — seriousness of conduct — deliberateness of conduct — loss and damage caused — circumstances of contravention — general deterrence —specific deterrence — subjective factors — penalty imposed EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — power and jurisdiction — industrial disputes — industrial action — conciliation and arbitration — dispute orders — public interest — objects of the Industrial Relations Act 1996 (NSW) EMPLOYMENT AND INDUSTRIAL LAW — Industrial Relations Commission — power and jurisdiction — appellate jurisdiction — statutory right to seek leave to appeal to Full Bench — principles and relevant considerations for grant of leave — grant of leave where Commissioner fails to give adequate reasons COURTS AND TRIBUNALS — jurisdiction of Supreme Court — Industrial Relations Act 1996 (NSW) s 139 — collateral challenge, attack or review — discretion to entertain the collateral challenge — discretion to decline to hear and determine collateral challenge — relevant considerations and factors — application to present case COURTS AND TRIBUNALS — jurisdiction of Supreme Court — privative clause — Industrial Relations Act 1996 (NSW) s 179 — Kirk v Industrial Court (NSW) (2010) 239 CLR 531 — whether s 179 prevents collateral challenge — decision with non-jurisdictional error of law is “final” and not void ADMINISTRATIVE LAW — failure to give reasons — whether the Commission was under an obligation or duty to give reasons — implied statutory obligation to give reasons — “special circumstances” in Public Service Board (NSW) v Osmond (1986) 159 CLR 656 — Industrial Relations Commission is a quasi-judicial body — required to act judicially — required to afford procedural fairness — statutory right of appeal — dispute orders affect rights of persons — discussion of content and adequacy of reasons ADMINISTRATIVE LAW — failure to respond to substantial, clearly articulated argument — meaning of “substantial” and “clearly articulated” — whether satisfied by dialogue or questioning between counsel or representative and Commissioner — practical injustice — materiality ADMINISTRATIVE LAW — jurisdictional error or error of law — whether failure to give reasons amounts to jurisdictional error — constructive failure to exercise jurisdiction — denial of procedural fairness — February dispute orders void — March dispute orders not void

Catchwords:

CIVIL PROCEDURE - Declaratory proceeding – Damages proceedings – challenge to conviction in the trial by jury – challenge to sentencing at trial – challenge to determinations upon appeal – invalidity – constitutional issues – notices of motion to dismiss summary for declaratory relief and statement of claim for damages – abuse of process – unlikely to succeed – summons and statement of claim dismissed

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2 application – whether neighbouring trees have damaged the applicant’s property – whether trees are likely to cause damage or injury – application refused

Catchwords:

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

Catchwords:

SENTENCE- Recklessly deal with property that would become an instrument of crime- Accessory before the fact to publish false statement- Recklessly deal with the proceeds of crime- Attempt to steal a motor vehicle- Larceny as a bailee- Receive stolen motor vehicle.

Catchwords:

RESTRAINT OF TRADE – employee – employment contract governed by law of New South Wales – activities of first defendant during and after employment occurred in Victoria – plaintiff sought injunction in terms not limited to alleged offending conduct and not limited to conduct occurring in Victoria – application of Restraints of Trade Act 1976 (NSW) – no actual or apprehended breach of contractual restraint proved CONTRACT – contractual obligation of confidence – failure to prove that information confidential to the employer was imparted to the employee during the course of employment – failure to prove actual or apprehended breach of contractual obligation of confidence EQUITY – equitable obligation of confidence – necessary quality of confidence – insufficient identification of all information said to be confidential – failure to prove that information confidential to the employer was imparted to the employee during the course of employment – failure to prove actual or apprehended breach of equitable obligation of confidence

Catchwords:

APPEAL – Local Court – Damages – Replacement vehicle – Leave to appeal – Whether the defendant suffered any loss – Whether the defendant proved a ‘need’ for the replacement vehicle – Whether the hire was unreasonable – Objective theory of contract - Decision of Magistrate set aside

Catchwords:

WORKERS COMPENSATION - application for leave for extension of time - work injury damages - plaintiff injured in 2001 - explanation for delay - strength of case - presumptive and actual prejudice - discretion to grant leave not exercised

Catchwords:

HIGH RISK OFFENDERS — Continuing detention orders — Matters to be considered HIGH RISK OFFENDERS — Extended supervision orders — Unacceptable risk of committing a serious offence — Relevance of conditions to risk

Catchwords:

APPEAL – No question of principle

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS): damage to sewer pipes; apprehension of additional damage to property; leaves, sticks, and other refuse from trees falling on applicants’ land; is genuine risk of injury foreseeable

Catchwords:

DEVELOPMENT APPLICATION – centre-based childcare centre – flood prone land – childcare centres as an “unsuitable land use” in the site circumstances – appropriateness of adopted “Manning’s coefficient” or “n value” (roughness factor) in flood modelling – whether the proposed development would result in an unacceptable increase in flooding on-site or off-site – adequacy of proposed Flood Emergency Response Plan as responses to flood risk – appropriateness of “shelter in place” during flood events – applicability of clause 5.21 of standard instrument

Catchwords:

MODIFICATION APPLICATION: modifications to an approved detached dual occupancy – conciliation conference – agreement between parties – orders

Catchwords:

CIVIL PROCEDURE – summary dismissal – dismissal of proceedings – no reasonable cause of action – limitation period – whether claims statute barred – breach of fiduciary duty – not the clearest of cases – application dismissed CIVIL PROCEDURE – pleadings – striking out – no reasonable cause of action – tendency to cause prejudice, embarrassment or delay – lack of clarity – statement of claim struck out – leave to amend granted CIVIL PROCEDURE – application for stay of proceedings – abuse of process – discretion not exercised

Catchwords:

CONCILIATION CONFERENCE – agreement between the parties – centre based child care centre – access – traffic - amenity

Catchwords:

Medium Density Housing – Clause 4.6 – Character – Amenity – Privacy

Catchwords:

DEVELOPMENT APPLICATION – demolition of existing structures and construction of a two-storey dwelling, swimming pool and associated landscaping works – impact on the heritage significance of the heritage conservation area – conciliation conference – agreement between the parties – orders

Catchwords:

CRIMINAL LAW – sentence – victim impact statement – findings of fact – objective seriousness – subjective factors – young offender – psychological evidence – physical and mental health – lack of criminal history – reoffending – rehabilitation – Bugmy factors – remorse – general deterrence – planning and premeditation – nature and severity of assault – mental illness in mitigation – special circumstances – orders

Catchwords:

CRIMES- - Sentencing - Knowingly take part in the cultivation of prohibited plants namely cannabis by enhanced indoor means.

Catchwords:

CRIMINAL LAW – bail - detention application – application made following plea of guilty - s 22B of the Bail Act 2013 (NSW) – prescribed sexual offence

Catchwords:

LAND LAW – possession of land – claim by executors against an occupier – defendant asserts that deceased promised he would leave the property to her – no defence pleaded to claim for possession – defence struck out – judgment for possession

Catchwords:

LAND LAW – possession of land – default under loan agreement and mortgage – where agreement reached after proceedings commenced for consent judgment to be held in escrow on conditions – where defendant breached conditions – plaintiff entitled to judgment for possession

Catchwords:

CONTRACTS – interpretation of commercial contracts – application of established principles to the interpretation of a clause in hotel management agreements entitling the hotel manager to a capital gains bonus fee CORPORATIONS – where sole business of corporations in administration and subsequently liquidation was carried out as trustee of unit trusts – where liquidators were appointed as receivers and managers of trust assets – application by administrators, liquidators and receivers for orders fixing their remuneration – inherent equitable jurisdiction to fix remuneration to be paid out of trust assets

Catchwords:

STATE WAGE CASE – adoption of National decision – consent arrangements – orders made to vary relevant awards – amendments to Wage Fixing Principles

Catchwords:

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

Catchwords:

DEVELOPMENT APPEAL – alterations and additions - car port - orders

Catchwords:

Administrative Law – firearm - refusal of licence - firearms offences - prohibited firearm - not have approved storage - public interest

Catchwords:

ADMINISTRATIVE LAW – Ground of review other than procedural fairness – Constructive failure to exercise jurisdiction – Whether defendant Authority misconstrued evidence – Whether applications determined on the basis of an incorrect factual assumption ADMINISTRATIVE LAW – Procedural fairness – Hearing rule – Disclosure – Whether defendant Authority required to disclose deliberative processes ADMINISTRATIVE LAW – Ground of review other than procedural fairness – Irrelevant and relevant considerations – Statutory construction ADMINISTRATIVE LAW – Hardiman principle – Role of the defendant Authority as the active contradictor – No impropriety

Catchwords:

TORTS — false imprisonment — matters known to prosecutor after conclusion of applicant’s electronic interview with police justified his continued detention following earlier lawful arrest TORTS — malicious prosecution — whether officer-in-charge continued to act as a “prosecutor” after case transferred to DPP — absence of reasonable and probable cause not demonstrated — malice not established as no basis for concluding that prosecutor acted other than appropriately to invoke criminal justice system

Catchwords:

LAND LAW – co-ownership – statutory trust for sale – powers of trustee – variation of orders

Catchwords:

CIVIL PROCEDURE – settlement of proceedings – court approval

Catchwords:

CIVIL PROCEDURE – settlement approval – proceedings brought by person under legal incapacity – Court approval

Catchwords:

CIVIL PROCEDURE – settlement approval – proceedings brought by person under legal incapacity – Court approval

Catchwords:

CRIME – appeal and review – appeal from Local Court to District Court – nature of the appeal – rehearing – act of cruelty – failure to provide veterinary treatment – aggravated cruelty – strict liability defence – defence of honest and reasonable mistake

Catchwords:

CRIME – sentencing – knowingly deal with proceeds of crime CRIME – sentencing – participate in criminal group

Catchwords:

CRIME – sentencing – knowingly deal with proceeds of crime

Catchwords:

TORTS – negligence – occupiers liability – plaintiff injured following trip over uneven margin of sunken utility pit lid on footpath – findings on negligence and contributory negligence – rejection of defence of obvious risk – plaintiff unsuccessful in claim against first defendant – plaintiff successful in claim against fourth defendant; DAMAGES – assessment of claimed heads of damage

Catchwords:

EQUITY – trusts and trustees – discretionary family trust – corporate trustee – application for representative order to bring derivative actions on behalf of trust – viable case against defendants – alternatives to derivative action impractical – “special circumstances” – whether order should be conditional on indemnity for trustee’s costs or security for defendant’s costs – form of order

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Awards and enterprise agreements – Variation – whether employees covered by the Crown Employees (Public Service Conditions of Employment) Reviewed Award 2009 entitled to use accrued sick leave to top up workers compensation payments – whether Award should be varied to clarify, and if necessary confer, such an entitlement

Catchwords:

PROCEDURE – preliminary discovery of health records held by an aged care facility in respect of a deceased resident in that facility – orders made pursuant to UCPR r 5.2 and r 5.3 after construing relevant provisions of Health Records Information Privacy Act 2002 (NSW)

Catchwords:

CRIME – where accused unrepresented for a trial with an estimate of six months – Dietrich v The Queen (1992) 177 CLR 292 – accused previously certified under s 69(3) of the Judiciary Act 1903 (Cth) – Commonwealth legal assistance schemes – significant delay in consideration of the certificate

Catchwords:

APPEAL – criminal appeal – application for leave to appeal pursuant to s 5G of the Criminal Appeal Act 1912 (NSW) from decision pursuant to s 53C(1)(a) of the Jury Act 1977 (NSW) to discharge whole of a jury following discharge of a single juror – where discharge of jury occurred following the close of evidence – where discharge of jury opposed by the accused in a murder trial – whether open to trial judge to form the opinion that there was a risk of a substantial miscarriage of justice - standard of appellate review – where factual errors in relation to suggested breaches by jurors of trial judge’s directions – whether alleged breaches occurred on numerous occasions – materiality of any alleged breaches CRIME – murder trial – where Crown applied to discharge the whole of the jury after close of the evidence – where accused opposed application for discharge – where jury nevertheless discharged - whether open to trial judge to form the opinion that there was a risk of a substantial miscarriage of justice - standard of appellate review – where factual errors in relation to suggested breaches by jurors of trial judge’s directions – whether alleged breaches occurred on numerous occasions – materiality of any alleged breaches

Catchwords:

NEGLIGENCE — Causation — Increased risk of harm — Necessity of showing that the risk “came home” or eventuated EVIDENCE — Opinion evidence — Exceptions — Expert opinion — Whether opinion of experienced horse trainer and breeder without tertiary qualifications based on specialised knowledge — Eccentric expressions used in report — Expert not required to engage in line-drawing exercise APPEALS — From finding of fact — Function of appellate court — Credibility findings — Advantages of trial judge — Impressions formed by seeing and hearing witness not limited to observed demeanour

Catchwords:

PRACTICE — Direction for parties to bring in proposed short minutes of order to give effect to the reasons for judgment — Various sets of proposed orders — Duty of practitioners to assist Court to present materials to the Court in a form which clearly identifies to the judge the orders that are agreed and a concise listing of the outstanding disputed issues. PRACTICE — Sets of submissions provided by each of parties in evolving circumstances leading to refinement of some issues and abandonment of other issues — Duty of practitioners to assist Court to clearly identify which submissions are ultimately relied upon without Court being left to task of attempting to identify whether there are remnants of matters still contended for in earlier submissions ORDERS — Inadvertent mistake by solicitor including reference to an individual party as being jointly liable to pay a costs order payable by a corporation — No dispute that mistake inadvertent — Order opposed by other parties who seeks nonetheless to make individual jointly liable — Inadvertent mistake falls within the concept of the order being "irregularly" for purposes of r 36.15 Uniform Civil Procedure Rules 2005 (NSW) — Order set aside PRACTICE — cases of inadvertent mistake are quintessentially an occasion for parties and legal representatives to reflect upon their duties to the Court to assist the Court to further the overriding purpose of facilitating a just, quick and cheap resolution of the real issues in the proceedings COSTS — Claims for indemnity costs — Principles — No real compromise — Reasons to order otherwise COSTS — Claims for third party costs orders that third-party indemnify other parties for costs of corporate entity — Claims based on Knight v FP Special Assets Ltd (1992) 174 CLR 178; [1992] HCA 28 — An agreement in place for security for costs is a relevant consideration to claims for sole director shareholder to indemnify other parties for costs of corporate entity EVIDENCE — Notice to Admit Facts — Request framed that plaintiff was not ready, willing and able to complete contracts — Complicated question involving consideration of many facts and pieces of evidence and informed by principles of law and construction of documents — Practitioners ought to reflect upon utility of seeking admission of ‘facts’ on what are essentially multifaceted ultimate issues SECURITY FOR COSTS — Requests by parties for directions to release funds held pursuant to agreement for security for costs — No basis for interfering with or cutting across the terms of the agreement between the parties ORDERS — Post judgment claim pursuant to r 36.1 Uniform Civil Procedure Rules 2005 (NSW) by single vendor who had not filed any cross-claim to have order made for return of deposit in reliance upon findings regarding other successful vendors who had filed cross-claim — No evidence from vendor explaining his decision not to seek any such relief — Possibility of considered forensic decision not to risk costs — Claim denied

Catchwords:

ADMINISTRATIVE LAW – Judicial review – Workplace injury – Workers Injury Management and Workers Compensation Act 1998 (NSW) – Assessment of whole person impairment – Section 323 deduction – Whether Medical Assessor correctly applied the ‘four step’ process as described in Ryder v Sundance Bakehouse [2015] NSWSC 526 – Dismissed

Catchwords:

WORKERS COMPENSATION — Disease injury — Aggravation, acceleration, exacerbation, or deterioration in the course of employment — Where the deceased suffered an asthma attack causing cardiac arrest and anoxia, and ultimately resulting in her death, during the course of her employment — Where appellants initially pleaded the injury as an “asthma attack” — Where appellants brought a second claim for compensation pleading the injury as “cardiac arrest and anoxia” — Whether Anshun estoppel precluded the appellants from bringing the second claim STATUTORY INTERPRETATION — Applicability of Anshun estoppel to the Workers Compensation Act 1987 (NSW) and the Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Catchwords:

TAXES AND DUTIES – surcharge purchaser duty – foreign person – presence in Australia subject to limitation as to time imposed by law – interest remission – penalty remission

Catchwords:

RESIDENTIAL TENANCY – allegation of bias – leave to appeal sought claiming decision against the weight of the evidence – no question of principle

Catchwords:

DEVELOPMENT APPLICATION – appeal against condition of consent – alterations and additions to existing commercial building – whether proposed development exhibits design excellence – effect on heritage significance of heritage item – pedestrian amenity in City of Sydney

Catchwords:

ADMINISTRATIVE LAW – administrative review – Government information – onus of proof - scope of GIPA application - reasonable searches - access and form of access – confidential hearing and evidence

Catchwords:

STATUTORY INTERPRETATION – commencement and duration – transitional provisions – where accused found unfit to be tried for a number of criminal offences – where special hearing was conducted pursuant to s 19 of the Mental Health (Forensic Provisions) Act 1990 (NSW) to determine whether the accused had committed the offences charged – where amendments to the Evidence Act 1995 (NSW) came into force after accused was charged, but before the commencement of the special hearing – where cl 28 of Sch 2 to the Evidence Act provided that the amendments did not apply to “proceedings the hearing of which began before the commencement of the amendment” – whether the amendments to the Evidence Act applied to the admission of tendency evidence at the special hearing EVIDENCE – admissions – criminal proceedings – improperly obtained – admission of evidence pursuant to s 138 of the Evidence Act 1995 (NSW) – where complainant recorded telephone call with accused without the accused’s consent, in contravention of s 7 of the Surveillance Devices Act – where phone call contained admissions made by the accused – where primary judge declined to exclude the recorded phone call pursuant to s 138 of the Evidence Act – whether primary judge erred in assessing the relevant considerations enumerated in s 138(3) – whether probative value was reduced by reason of the accused’s intellectual disability – whether importance of phone call in proceedings was reduced by the existence of other evidence containing admissions – whether primary judge erred in finding that the public interest in admitting the phone call outweighed the public interest in its exclusion EVIDENCE – tendency evidence – criminal proceedings – where accused found unfit to be tried for a number of criminal offences, including one of aggravated sexual assault – where special hearing was conducted pursuant to s 19 of the Mental Health (Forensic Provisions) Act 1990 (NSW) to determine whether the accused had committed the offences charged – where Crown sought to adduce tendency evidence given by a former sexual partner of the accused – where amendments to the Evidence Act 1995 (NSW) came into force after accused was charged, but before the commencement of the special hearing – where cl 28 of Sch 2 to the Evidence Act provided that the amendments did not apply to “proceedings the hearing of which began before the commencement of the amendment” – whether the amendments to the Evidence Act applied to the admission of tendency evidence at the special hearing MENTAL HEALTH – criminal proceedings – person unfit to be tried – special hearing – where special hearing conducted pursuant to s 19 of the Mental Health (Forensic Provisions) Act 1990 (NSW) to determine whether the accused had committed a number of offences, including one of aggravated sexual assault – where Crown sought to adduce tendency evidence given by former sexual partner of the accused – where amendments to the Evidence Act 1995 (NSW) came into force after accused was charged, but before the commencement of the special hearing – where cl 28 of Sch 2 to the Evidence Act provided that the amendments did not apply to “proceedings the hearing of which began before the commencement of the amendment” – whether the relevant “hearing” began on the finding of unfitness to be tried, or at the beginning of the special hearing – whether the amendments to the Evidence Act applied to the admission of tendency evidence SENTENCING – appeal against sentence – severity – sentence manifestly excessive – appeal against limiting term imposed pursuant to s 63 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – whether sentencing judge gave adequate weight to the appellant’s intellectual disability in assessing the need for general deterrence – whether sentencing judge gave effect to recognised principles that people with intellectual disabilities may be inappropriate vehicles through whom to send messages of deterrence – whether limiting term was plainly wrong, unreasonably or unjust

Catchwords:

CONTRACTS — Formation — Acceptance of offer — Acceptance by conduct — Where the parties each propounded draft documents — Where neither party expressly accepted the draft provided by the other party — Where respondent commenced works — Whether respondent by its conduct accepted the contract propounded by the appellant CONTRACTS — Formation — Subsequent conduct — Where appellant sought variation of the works ostensibly in accordance with contract provisions — Extent to which subsequent conduct is relevant to questions of formation

Catchwords:

COMMERCIAL ARBITRATION — Arbitration agreement — Stay of proceedings — Whether this proceeding is a distinct dispute from a dispute that was the subject of a prior adjudication determination under the Building and Construction Industry Security of Payment Act 1999 (NSW) — Tiered dispute resolution agreement — Whether the arbitration agreement is inoperative or incapable of being performed because the defendant did not comply with a condition precedent requiring it to procure the President of ACICA to appoint an expert to determine the dispute

Catchwords:

CRIME – Appeals – Appeal against sentence – possession of tobacco products imported to defraud the revenue – asserted failure to consider parity – whether justifiable sense of grievance – asserted failure to take applicant’s antecedents into account – whether some other sentence warranted

Catchwords:

DEVELOPMENT APPLICATION – hotel accommodation with a pub – site suitability – site isolation – adverse social impacts

Catchwords:

CIVIL PROCEDURE – settlement approval – proceedings brought by person under legal incapacity – Court approval

Catchwords:

CIVIL PROCEDURE – admissibility of expert report – service out of time – leave – supplementary report updates an earlier version of a report that has been served in accordance with rule 31.28(4) of the Uniform Civil Procedure Rules 2005 (NSW) – leave granted to rely on the report

Catchwords:

BUILDING AND CONSTRUCTION — Contract — Damages — Quantification — Quantification of damages for the rectification of defects — Where there is disagreement between expert witnesses as to quantification

Catchwords:

CRIMINAL LAW – severity appeal from local court – domestic violence offence – offence of distributing intimate image

Catchwords:

CRIMINAL LAW – severity appeal from Local Court – domestic violence offences

Catchwords:

JUDGMENTS AND ORDERS – narrow disputes following referee’s report on quantum of one of the plaintiff’s claims COSTS – whether costs should be apportioned on issue-by-issue basis

Catchwords:

PROBATE - TESTAMENTARY CAPACITY – knowledge and approval of a will – in January 2020 the testatrix was to undergo serious surgery – when about to be given preoperative anaesthesia the testatrix seeks to make another will – the doctors attending upon her draft a testamentary document and then witness the testatrix’s execution of it – the testatrix’s prior wills divided her property equally between her two children, her daughter, the plaintiff/cross-defendant and her son the defendant/cross-claimant – the January 2020 testamentary document gives substantially the whole of her estate to the son – the daughter commences proceedings seeking a declaration of the invalidity of the January 2020 testamentary document and propounding an earlier will and codicil – the defendant/son cross-claims propounding the January 2020 testamentary document as the testatrix’s last will – the plaintiff/daughter contends that the testatrix did not have testamentary capacity at the time of executing the January 2020 testamentary instrument and did not know or approve its contents.

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Public sector – Police – review of order made under s 173 of the Police Act 1990 – disciplinary transfer – no argument that order harsh – whether order beyond power, or unreasonable or unjust

Catchwords:

CIVIL – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – forensic patient – interim extension order due to expire – application for extension order – whether unacceptable risk of causing serious harm if status as forensic patient ceases – whether risk can be managed adequately by less restrictive means – where no dispute as to duration should orders be made

Catchwords:

ADMINISTRATIVE LAW – review under section 28 Child Protection (Working with Children) Act 2012 (NSW) child protection – working with children – risk to children whether risk real and appreciable – enabling order – failure to discharge onus

Catchwords:

ADMINISTRATIVE LAW - Privacy – Personal Information – whether conduct constitutes a breach of privacy – whether other legislation overrides privacy legislation – s 25 PPIP Act - scope of jurisdiction of Tribunal – whether information held

Catchwords:

COSTS – Security for costs – special circumstances – whether grounds reasonably arguable – whether appellants impecunious – whether attempts at judgment enforcement frustrated by appellants – substantial risk respondents will not recover costs if successful – Uniform Civil Procedure Rules 2005 (NSW), r 51.50

Catchwords:

EQUITY – trusts and trustees – discretionary trust – whether unpaid distributions payable at call – unpaid distributions credited to beneficiaries’ loan accounts – acknowledgement of debt in audited accounts of the trust – whether trustee intended to exercise power of distribution – whether approval of audited accounts of trust justifies inference as to trustee’s intention and informal resolution to make distributions CORPORATIONS – accounts – evidentiary weight of matters stated or recorded in accounts of the trust – s 1305, Corporations Act (Cth) – inference to be drawn from matters recorded in accounts of the trust – where no formal resolution of directors to distribute income to beneficiaries APPEAL – new point on appeal – where alternative case on appeal involves contrary proposition to case at trial – whether prejudice to respondent

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – death of worker SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors – capacity to pay a fine - appropriate penalty SENTENCING PRINCIPLES - no record of previous convictions - good prospects of rehabilitation - remorse - plea of guilty - assistance to law enforcement authorities

Catchwords:

APPEALS — Leave to appeal denied — Section 127 of the District Court Act 1973 (NSW) — Principles relating to appeals for small claims — Damages assessed to be between $7000 and $7500 TORTS — Misfeasance by public officer in discharge of public duty – Mental element

Catchwords:

MODIFICATION APPLICATION— modification application for dwelling house development in R2 low density residential zone – heritage conservation area – conciliation conference – agreement between parties - orders

Catchwords:

CHILD WELFARE — Parens patriae — Very young infant (30 months) placed with plaintiffs for prior 15 months — interim parental responsibility allocated to Minister — Minister and Secretary pursue transition plan for permanent placement with paternal uncle — Plaintiffs’ application for joinder to Children’s Court proceedings opposed and dismissed — Plaintiffs essentially desire permanent placement of infant child — Urgent hearing — infant to be removed within days — Restraining order made PRACTICE — Parens patriae — Amended Summons makes reference to an independent children's lawyer (ICL) who has represented the interests of child in the Children's Court — ICL not named as a party as such — Nonetheless served with notice of application CHILD WELFARE — Parens patriae — Nature of care and protection jurisdiction — Exceptional nature of jurisdiction where proceedings in Children’s Court and appeal decision of Magistrate refusing joinder of applicant to proceedings — Analogous approach to circumstance where applicants also challenge substantively seek to challenge decisions of Minister and Secretary regarding placement and transition plans CHILD WELFARE — Parens patriae — consideration of permanent placement principles in s 10A(3)(b) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) INTERPRETATION — What use can be made of extrinsic materials — Explanatory notes, second reading speeches, relevant material in the Hansard record of debates

Catchwords:

DEVELOPMENT APPLICATION – mixed use development in B2 Local Centre zone – residential apartment development – residential flat building – conciliation conference – agreement between the parties - orders

Catchwords:

DEVELOPMENT APPLICATION – residential flat building development – cl 4.6 written request – height of buildings – minimum landscaped area – agreement between the parties – orders

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – Pt 2A application – obstruction of views – whether trees are planted so as to form a hedge – whether the obstruction is severe – orders for pruning

Catchwords:

CRIMINAL APPEAL – alleged indecent assaults by primary schoolteacher on Years 5, 6 and 7 students – three complainants – 19 counts – jury delivered verdicts on 4 counts relating to one victim – three guilty verdicts – one not guilty verdict – jury then discharged because of bullying allegation by one juror – Jury Act 1977 (NSW), s 73A – Sheriff investigation into bullying allegation – unfounded – applicant sought to rely on material produced by Sheriff’s investigation to show juror bias – one juror alleged to invoke personal experiences of sexual assault in evaluating the evidence – one juror reported that another juror “had made up their mind on the first day basically” – whether evidence produced by Sheriff inadmissible by reason of exclusionary rule concerning evidence of jury deliberations – whether exclusionary rule applicable where evidence of deliberations derived from Sheriff’s report – held that evidence that juror referred to own experience of sexual assault inadmissible – by a majority held that evidence that one juror perceived another to have their mind made up inadmissible – bias ground rejected – whether verdict unreasonable or could not be supported having regard to the evidence – ground rejected – in support of Count 1 complainant gave evidence that applicant kissed her in the storeroom throughout the year – in support of Count 2 complainant gave evidence that applicant kissed her in the laundry while tutoring her over a sustained period of time – whether trial judge erred in directing the jury that the relevant acts for Counts 1 and 2 was the “first time” that the applicant kissed her in the storeroom and the laundry – ground rejected

Catchwords:

CORPORATIONS — receivers, controllers and managers — vicarious performance of loan facility — assignment of debt and associated securities — whether receiver and manager validly appointed — application to strike out appearance and defence where receiver and manager has instructed solicitor for the first defendant

Catchwords:

NEGLIGENCE — transport accident — passenger attempting to board train while doors closing — breach — whether defendant’s employees acted in accordance with system in place to ensure safety of passengers NEGLIGENCE — defences — contributory negligence — whether plaintiff was intoxicated at the time of the accident NEGLIGENCE — damages — personal injury damages — gratuitous attendant care services — whether commercial attendant care services will be availed

Catchwords:

DEVELOPMENT APPLICATION – construction of three storey dual occupancy (attached), basement parking, landscaping and subdivision – conciliation conference – agreement between the parties – orders

Catchwords:

VALUATION OF LAND - appeals against statutory valuations for two valuation years - major regional shopping centre - “highest and best” use - choice between hypothetical development schemes - valuation issues arising concerning the adopted hypothetical development scheme - question of whether, on appeal, a statutory valuation can be increased - unnecessary to resolve jurisdictional question concerning increase in statutory valuation - appeal upheld concerning each statutory valuation - revised valuations substituted for issued statutory valuations - costs reserved

Catchwords:

INSURANCE – liability insurance – application for contribution between insurers – where both plaintiff and defendant insurers wrote liability policy covering the one insured – where plaintiff insurer settled claim against the insured – whether coordinate liability between insurers – whether defendant insurer liable to contribute – whether exclusion in defendant insurer’s policy engaged – proper construction of the exclusion clause

Catchwords:

CIVIL PROCEDURE — Stay of proceedings — Pending appeal — Where stay would render appeal proceedings abortive or nugatory — Where no arguable grounds to the appeal — Where interim stay granted to allow appellant to apply to Court of Appeal

Catchwords:

CRIMINAL PROCEDURE – trial – judge alone – evidence – application for Crown witness to give evidence via AVL – application not opposed – orders made

Catchwords:

CONTRACTS — Termination — where termination of one contract results in termination of another — common mistake that contract remains on foot. CONTRACTS — Implied contract — where parties to and term of resulting implied contract in issue — whether failure to make payments due under implied contract — where parties enter a further contract — parties to and terms of further contract in issue — whether failure to make payments due under further contract — whether loss or damage suffered as result of mistake — unjust enrichment. CONSUMER LAW — Misleading or deceptive conduct — Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law, s 18 — whether misleading or deceptive conduct induced error as to continuation of terminated contract — whether parties became bound by implied agreement as the result of misleading or deceptive conduct — whether further contract entered because of misleading or deceptive conduct — silence —whether loss or damage suffered as the result of misleading or deceptive conduct. EVIDENCE — Opinion evidence — Exceptions — Expert opinion — Evidence Act 1995 (NSW), s 79 — where witness’ necessary specialised knowledge based on experience in industry in issue — whether opinions substantially based on witness’ experience in issue — where facts and assumptions upon which opinion based are undisclosed — where reasoning process is undisclosed — evidence inadmissible as expert opinion evidence. EVIDENCE — Credibility and reliability evidence —conflicting evidence — whether Jones v Dunkel inferences arise to be drawn from failure to call other available witnesses — failure results in drawing of Jones v Dunkel inferences.

Catchwords:

BUILDING AND CONSTRUCTION – Home Building Act 1989 (NSW) – Enforceability of contract – requirement for writing – whether non-compliance with s 7 requirements renders contact unenforceable by contractor EVIDENCE – admissibility where rules of evidence do not apply – Procedural Direction 3 – Expert Evidence – failure to sign and date report – procedural fairness

Catchwords:

ADMINISTRATIVE LAW – costs - special circumstances warranting the award of costs – exercise of discretion to costs

Catchwords:

CIVIL PROCEDURE — Pleadings — Striking out — application to dismiss proceedings for failure to comply with UCPR r 31.36 — where no expert report complying with UCPR requirements CIVIL PROCEDURE — Pleadings — Striking out — statement of claim embarrassing — need for defendant to know the case it has to meet — statement of claim struck out — leave refused to file proposed amended statement of claim CIVIL PROCEDURE — pro bono referral — whether referral in interests of justice — where UCPR requires representation by solicitor — where statement of claim poorly drafted — referral made

Catchwords:

ADMINISTRATIVE LAW – Public Sector – Police Regulation (Superannuation) Act 1906 (NSW) ss 9A(4) and 21(4) – where District Court on appeal de novo backdated respondent’s pension by ten years before date of application – where appeal lies in point of law – where pension may be backdated if decision-maker is satisfied that there are exceptional circumstances that merit its doing so – whether such circumstances are only those which explain the delay in filing an application

Catchwords:

WORKERS COMPENSATION – Boilermaker’s deafness – Workers Compensation Act 1987 (NSW) ss 60 and 17 – claim for provision of new hearing aids – where notice of injury of loss of hearing given to worker’s then employer in 1999 – where worker changed employment in 2009 – where worker suffered further hearing loss due to nature of employment after 1999 but did not give notice of further injury to later employer – where finding made that hearing aids were reasonably necessary as a consequence of worker’s hearing loss notified in 1999 – held worker not obliged to give notice of further injury to second employer – first employer liable for consequences of 1999 injury – no question of law

Catchwords:

SUCCESSION – family provision – claim by adult daughter for provision pursuant to Succession Act 2006 (NSW), s 59 – where deceased’s 2019 will left family home to appellant daughter and small legacy to respondent daughter – where testamentary statement purported to justify 2019 will – where primary judge found will and statement obtained by process of manipulation and sourced to appellant – where earlier will of deceased leaving one-third of estate to each child found to reflect deceased’s fair and considered testamentary judgment – whether primary judge erred in being satisfied that 2019 will did not make adequate provision for respondent’s proper advancement

Catchwords:

APPEAL – Costs of discontinued appeal - whether special circumstances established pursuant to s 60(2) of the Civil and Administrative Tribunal Act 2013 (NSW)