Browse decisions Displaying 1 - 200 out of 127334 results

Catchwords:

COSTS — where proceedings are discontinued by leave — where no determination on the merits — presumption as to costs under UCPR r 42.19.

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COSTS — interlocutory application — motion seeking to restrain defendant’s solicitor from acting — application to restrain solicitor dismissed — where restraint application was the primary and only contested substantive issue — where other components of motion resolved without contested determination

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JUDICIAL REVIEW – jurisdictional error – District Court – prisoner returned to custody after High Court allows appeal and reinstates conviction and sentence – prisoner granted bail after Court of Criminal Appeal allowed appeal and ordered retrial – whether time on bail counts towards sentence – nature of grant of bail – whether District Court empowered to make orders affecting administration of sentence – construction of ss 18, 25A and 28A of Criminal Appeal Act 1912 (NSW) JURISDICTION – supervisory jurisdiction relating to criminal proceedings in District Court – operation of Supreme Court Act 1970 (NSW), s 17 – whether orders of District Court concerning effect of bail on sentence were made in “proceedings for the prosecution of offenders in indictment” within meaning of Third Schedule of Supreme Court Act

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CONSUMER LAW — consumer guarantees — supply of services — guarantee as to due care and skill — guarantee as to fitness for particular purpose — guarantee as to reasonable time for supply — content of guarantees

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NEGLIGENCE — Duty of care — Reasonable foreseeability — Foreseeability of harm — whether reasonably foreseeable that respondent would suffer psychiatric injury from watching documentary

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COSTS – rr 38 and 38A Civil and Administrative Tribunal Rules 2014 (NSW) – whether rr 38 and 38A apply.

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COSTS — s 98 of the Civil Procedure Act 2005 (NSW) — r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW) — applicant wholly successful in proceedings — usual order made

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ENVIRONMENT AND PLANNING – development consents to carry out different developments on rural land – construction of consents – nature and extent of developments approved – leave to adduce further evidence to construe a consent – carrying out of development in breach of consents – injunctions to restrain breach of consents – how conditions of consent may themselves be breached – whether terms of injunctions too broad and imprecise

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CIVIL PROCEDURE — Court of Appeal — Application for leave to appeal — Leave to appeal from summary dismissal of applicant’s amended summons refused — No question of principle

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LEASES AND TENANCIES – Residential Tenancies Act 2010 (NSW) – state of repair of premises – loss of amenity – assessment of compensation – significant new evidence not reasonably available at hearing – no error on a question of law or grounds for leave to appeal established

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CIVIL PROCEDURE – Representative proceedings – Court approval of settlement sum – Where the funds available for distribution from the proposed settlement are significantly eroded by deductions in favour of the litigation funder and for legal costs – Whether a contradictor should be appointed

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CIVIL PROCEDURE – appointment of a referee – where parties do not agree on identity of referee – no question of principle

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CRIMINAL LAW — Work health and safety — Offences — Category 2 — Worker’s right hand pulled into mill roller — Absence of adequate safety systems to minimise or eliminate risk of workers coming into contact with the moving parts of plant SENTENCING — Relevant factors on sentence — Upper mid-range of objective seriousness — Aggravating factor — Serious injuries — Mitigating factors — Good corporate character — Remorse — Early guilty plea — General deterrence — Adverse publicity order

Catchwords:

COSTS – whether special circumstances warranting an award of costs – where Appeal Panel dismissed the appellant’s application for an extension of time to appeal from one decision and her application for leave to appeal from another at the first callover - whether Appeal Panel can properly conclude that the appellant’s claims lacked a tenable basis in fact or law when the appeal was not determined on the merits – relevance of serious allegations made by appellant against Tribunal, party and solicitors to determination of costs application – compensatory principle – costs application dismissed

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ADMINISTRATIVE LAW – Access to information – GIPA – conclusive presumption against disclosure – client legal privilege – confidential information – information privacy principles – health privacy principles – whether overriding public interest against disclosure – searches - decision that no further information held

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CIVIL PROCEDURE – urgent ex parte asset preservation application – where defendants generally on notice of criminal investigations and civil proceedings – where risk of dissipation of funds CRIME – confiscations – restraining orders and custody and control orders – Proceeds of Crime Act 2002 (Cth), ss 18, 19, 38 – where alleged effective control of corporate accounts – Commonwealth money laundering offences – where authorised officer held reasonable grounds for suspecting money or other property is proceeds of crime – statutory prerequisites satisfied

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TORTS – nuisance – private nuisance – plaintiffs’ properties affected by rupture of defendant’s water main – level of generality at which to identify purpose of use – whether purpose of use common and ordinary – whether rupture of water main was caused by a latent defect – whether defendant established that its uses of lands were conveniently done – whether s 43A of Civil Liability Act 2002 (NSW) applicable COSTS – Party/Party – whether exercise of costs discretion manifestly miscarried – where primary judge apportioned costs in respect of one issue but not others – where issues and evidence overlapped

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DEVELOPMENT CONTROL ORDER – fire safety order – conciliation conference – agreement between the parties – orders

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APPEAL – development application – subdivision of land into two Torrens title lots – multi dwelling housing proposed on one lot – dwelling on one lot – conciliation conference – agreement reached – orders made

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CRIMINAL PROCEDURE — Application for permanent stay of Summons — Duplicity — Section 233 of the Work Health and Safety Act 2011 (NSW) — Whether there are one or two pleaded risks — Connection between two potential manifestations of the risk — Application dismissed

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TAXES AND DUTIES – land tax – principal place of residence exemption – joint owners – concession for unoccupied land intended by the joint owners to be their principal place of residence – whether the requirements of clause 6 of Schedule 1A of the Land Tax Management Act 1956 (NSW) met

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OCCUPATIONS – medical practitioner – unsatisfactory professional conduct – professional misconduct – protective orders

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APPEALS — from finding of fact — contracts — whether primary judge erred in finding existence of three wholly oral loan agreements — whether primary judge erred in finding loans were due and repayable on sale of a property — whether primary judge erred in failing to find allegation that loans were due and repayable on the sale of a property was a recent invention to avoid operation of Limitation Act 1969 (NSW) APPEALS — from finding of fact — credibility of witnesses — where primary judge generally preferred the evidence of one witness over another

Catchwords:

CONTRACT – accord and satisfaction – agreement by parties for payment by instalments to Plaintiff – whether subsequent agreement partly oral and partly in writing amounts to accord and satisfaction of claim under earlier agreement for payment LIMITATION OF ACTIONS – whether claim in contract statute barred – Limitation Act 1969 (NSW), s 54 – confirmation – whether acknowledgment in writing – authenticated signature fiction rule CONTRACT – whether Plaintiff not entitled to payment by reason of the Property Stock and Business Agents Act 2002 (NSW), s 55 – whether Plaintiff acted as buyer’s agent for commission – whether discretion under s 55A available and should be exercised

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APPEAL – appeal from interlocutory decision dismissing application for an extension of time - leave to appeal – whether leave should be granted

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ARBITRATION – Public policy – Whether enforcement of partial arbitral awards is contrary to domestic public policy pursuant to s 36(1)(b)(ii) Commercial Arbitration Act 2010 (NSW) – Whether difference between international and domestic principles concerning public policy in refusing to enforce arbitral awards BUILDING AND CONSTRUCTION – Policy under Building and Construction Industry Security of Payment Act 1999 (NSW) which allows contractors to receive progress payments pending final resolution of dispute – Whether SOPA policy is a public policy for the purposes of s 36(1)(b)(ii) COSTS – Whether plaintiff entitled to its costs – Where defendant may be entitled to further monies following finalisation of arbitration – Where partial arbitral awards final – Whether post-judgment interest rate under Civil Procedure Act 2005 (NSW) is applicable

Catchwords:

CONTRACTS — breach of contract — claim in debt — telephone betting on credit — plaintiff a licensed bookmaker — defendant a customer of the plaintiff — defendant refused to pay amounts lost — approximately 6,250 bets — whether wagering contract was unlawful and unenforceable — onus of proving unlawful conduct — whether bookmaker must prove compliance with regulatory requirements to enforce debt

Catchwords:

CIVIL PROCEDURE — application to amend pleadings — where proposed amendments served on defendant on last day of liability evidence — plaintiff did not act with expedition — proposed amended pleadings involving significant recasting of scope and content of duty of care owed by defendant and new case against individuals who were defendant witnesses and who had already ceased giving evidence — ss 56, 58 and 64 of Civil Procedure Act 2005 (NSW) — interaction between common law principles governing amendment of pleadings and Civil Procedure Act

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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 and ancillary orders

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CIVIL PROCEDURE – cross-vesting – application to transfer to Supreme Court of Victoria – where proceedings nascent – more appropriate forum – where tort occurred in Victoria – where plaintiff resides in Victoria – where defendant is State of Victoria – transfer to Supreme Court of Victoria granted

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

Catchwords:

CORPORATIONS – shares – transfer – application by Plaintiff for orders compelling First Defendant to register transfer of shares – where shares formed part of a parcel of shares in First Defendant owned by a third party – where third party granted Second Defendant a fixed charge over all of the shares – where third party subsequently pledged around 30% of the shares as security for borrower’s obligations under a loan agreement with Plaintiff – where Plaintiff, following default under loan agreement, completed transfer form in respect of shares and lodged transfer with First Defendant for registration – where First Defendant refused to register transfer due to Second Defendant’s competing claim in respect of shares – whether First Defendant’s refusal was without just cause

Catchwords:

CHILD WELFARE — Adoption — statement of principles — observations about the importance of the “voice of the child” in adoption proceedings CHILD WELFARE — Adoption — whether a declaration of parentage should be made for the birth father of the child — HELD — declaration of parentage should be made for the birth father of the child CHILD WELFARE — Adoption — whether the Secretary has made reasonable inquiries as to whether the child to be placed for adoption is an Aboriginal child in accordance with s 34 of the Adoption Act 2000 (NSW) — HELD — reasonable inquiries made CHILD WELFARE — Adoption — whether the child is an Aboriginal child for the purposes of the Adoption Act 2000 (NSW) — HELD — child is an Aboriginal child by reason of lineal descent from a Tasmanian Aboriginal man CHILD WELFARE — Adoption — Aboriginal child placement principles — whether an Aboriginal child has been placed for adoption — relationship between ss 33 to 35 of the Adoption Act 2000 (NSW) — where the Aboriginal child has one Aboriginal parent and one non-Aboriginal parent — where child placed in care with non-Aboriginal prospective adoptive parents 10 years ago — where child now 16 years of age — HELD — not practicable or in the best interests of the child for the child to be placed with prospective adoptive parents belonging to any Aboriginal community CHILD WELFARE — Adoption — Aboriginal child placement principles — whether placement of child has satisfied the consultation requirements under s 33 of the Adoption Act 2000 (NSW) — HELD — consultation requirements satisfied CHILD WELFARE — Adoption — Aboriginal child placement principles — whether the adoption plan satisfied the requirements under s 35(5) of the Adoption Act 2000 (NSW) to provide for the child to have the opportunity to develop an identity with the Aboriginal community to which the child belongs — HELD — adoption plan requirements satisfied

Catchwords:

VICTIMS Support – Administrative law – act of violence –-whether evidence satisfied elements of act of violence – whether medical evidence required to verify injury arising from discrete acts - nature of evidence and material required – meaning of apparently in the course of the commission of an offence – meaning of violent conduct

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ABORIGINAL LAND RIGHTS – “claimable Crown lands” – whether land is – whether land is “the subject of” an application for native title determination under Commonwealth Native Title Act – native title determination applications that must not be made – land on which previous exclusive possession act done – such act includes grant or vesting of Scheduled interest – Scheduled interest includes leases of Crown lands – land claimed subject to such leases – Federal Court determination that native title extinguished – land is claimable Crown land

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APPEAL-dispute between builder and homeowners-claim in quantum meruit-failure to satisfy relevant criteria or produce evidence of value-rejection of fresh evidence lodged in support of appeal- error concerning terms on which the Homeowners agreed to fund the work.

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TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring tree — the tree has been removed — damaged retaining wall requires demolition and replacement — whether the tree caused damage to the applicants’ property — other factors contributing to damage — apportioning costs of works — orders for compensation

Catchwords:

APPEALS — Application for leave — Principles governing — need to establish a reasonably clear injustice beyond that which was merely arguable — where primary judge ordered permanent stay of proceedings — whether arguable case that promise not to sue other than in the Court of Arbitration for Sport applied to application for preliminary discovery where no equivalent procedure available in Court of Arbitration for Sport CIVIL PROCEDURE — Preliminary discovery — To identify potential cause of action — whether, although held to fall outside the scope of an arbitration clause, application was within scope of promise not to sue other than in Court of Arbitration for Sport — stay ordered notwithstanding that preliminary discovery not available in Court of Arbitration for Sport COMMERCIAL ARBITRATION — Arbitration agreement — where primary judge stayed application for preliminary discovery on basis that promise not to sue other than in the Court of Arbitration for Sport applied to that application — whether primary judge erred — whether scope of negative covenant exceeded scope of arbitration agreement

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PRACTICE AND PROCEDURE – disqualification – bias – actual bias

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DEVELOPMENT APPEAL – church building – place of public worship – conciliation conference – agreement between the parties – orders

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APPEAL — development application — residential flat building — transport oriented development — uplift in density and floor space ratio standards associated with affordable housing provision — compliance with development standards — interpreting varying aims of State Environmental Planning Policy (Housing) 2021— interpreting circumstances where ADG prevails over local development control plan — design response to deep soil and side setback controls under development control plan — visual impact — character compatibility — balancing impacts and benefits

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LEASES AND TENANCIES — retail leases — retail shop lease — rent abatement — compensation claim — order for the landlord to perform repairs

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APPEALS — Leave to appeal from decision of a District Court Judicial Registrar — No appearance by applicant — No issue of principle — No question of public importance — No reasonably clear injustice going beyond something that is merely arguable — Summons seeking leave to appeal dismissed

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APPEAL — expedited application for leave to appeal orders entering default judgment for possession — orders dismissing notice of motion — no reasonably clear error going beyond the merely arguable shown — no issue of principle or question of public importance identified

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TREES (DISPUTES BETWEEN NEIGHBOURS) — zoning of land — Pt 2 application — neighbouring palm trees — whether the trees have caused, are causing, or are likely in the near future to cause, damage to the applicants’ property — Pt 2 orders refused — Pt 2A application — neighbouring juniper trees — whether the trees are planted so as to form a hedge — obstruction of views — whether the obstruction is severe — orders to prevent a severe view obstruction

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APPEALS — Appeal on question of law – Scope of question of law APPEALS — Leave to appeal — Principles governing – Leave to appeal refused APPEALS – Whether appellant permitted to raise issues on appeal not raised at first instance – Principles – Certain issues not permitted to be raised

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APPEALS –Strata Scheme – Compulsory appointment of a strata manager – grounds not made out – Strata Schemes Management Act 2015 (NSW) s237

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TREES (DISPUTES BETWEEN NEIGHBOURS) — Pt 2 application — neighbouring tree — whether the tree has caused damage — whether the tree is likely to cause damage or injury, — damage to property — severity of damage — whether causation has been demonstrated — severity of damage whether tree removal is required — Orders for root and branch pruning

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APPEAL – development application – centre based child care facility – whether car parking numbers are sufficient to cater for visitor and staff parking demand – whether variation from DCP car parking rates is justified – whether fencing and site layout is compatible with the character of the locality – appeal dismissed

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INTERLOCUTORY INJUNCTION – application for urgent interim relief to restrain the aerial shooting, ground shooting, trapping or killing of wild horses in Kosciuszko National Park in furtherance of the Kosciuszko Wild Horse Heritage Management Plan 2021 – whether serious question to be tried – effect of ss 45, 81 and 171 of the National Parks and Wildlife Act 1974 – whether persons involved in the operations have requisite authorisation – Carltona principle – balance of convenience favours the Secretary – interim relief refused

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OCCUPATIONS — Medical practitioners — Application to anonymise published decision of the Tribunal 3 years before the application — Application granted

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CHILD WELFARE – adoption whether in child’s best interest that adoption order be made – whether adoption order clearly preferable – whether consent of mother should be dispensed with – whether change of name should be approved

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LAND LAW — Conveyancing — transfer of title — where plaintiff transferred property to defendants having expressed an earlier intention that they inherit the property — whether the transfer was a gift or a sale EQUITY — Unconscionable conduct — where plaintiff claims the transfer of property to the defendants was the result of unconscionable conduct on the part of the defendants — whether plaintiff had a special disability or disadvantage — whether defendants took unconscientious advantage

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DEVELOPMENT APPEAL – signage - business identification signage – visual clutter – scale of signage

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

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

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CRIME — appeals — appeal against sentence — parity principle — parity between sentences of applicant and co-offender — where applicant and co-offenders pleaded guilty and sentenced on basis of participation in joint criminal enterprise — where Form 1 matter taken into account on sentence of co-offender — significant differences in subjective cases — whether justifiable sense of grievance

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

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COSTS — general discretion as to costs — whether the Court should order otherwise — application of r 42.14 Uniform Civil Procedure Rules 2005 (NSW) — whether offer of compromise/Calderbank offer was capable of acceptance by first defendant alone — whether judgment is no less favourable to plaintiff

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CIVIL PROCEDURE — Pleadings — Striking out — No reasonable cause of action — whether statement of claim discloses a cause of action — whether pleading articulates causes of action alleged against each respective defendant — whether asserted causes of action are tenable — whether properly pleaded — whether there is any reasonable prospect of the Court granting the remedy sought by the plaintiff CIVIL PROCEDURE — Pleadings — Amendment — where plaintiff seeks leave to replead — where plaintiff has advanced four iterations of pleading in relation to the same underlying factual substratum — consideration of ss 56 to 60 of the Civil Procedure Act 2005 (NSW) — whether it is in the interests of justice, and consistent with the guiding principles of civil litigation to grant leave — whether any grant of leave should be limited by reference to particular causes of action — proposal to order timetable for service of a further draft pleading, and provision to the defendants of an opportunity to consider and be heard on further draft before leave to file is granted

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EMPLOYMENT AND INDUSTRIAL LAW — Bullying EMPLOYMENT AND INDUSTRIAL LAW — Public sector — Teachers

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NEGLIGENCE – Personal injury – Employer and employee – Claim for work injury damages under the Workers Compensation Act – Where plaintiff injured by falling steel beam crushing his foot – Where plaintiff reasonably understood that he was instructed to approach the steel beams – Breach of duty – Causation – No finding of contributory negligence – Assessment of damages – Employment history – Total loss of earning capacity.

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COSTS – applications pursuant to s 98 of the Civil Procedure Act 2005 that the Court make an order for costs of the substantive proceedings – Class 4 judicial review and civil enforcement proceedings – complying development certificate – consent orders requiring parties to carry out certain works but otherwise dismissing the proceedings – whether party acted unreasonably – reasonableness of commencement of proceedings – whether party surrendered or capitulated – no order as to costs

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HUMAN RIGHTS — Legislation — Anti-Discrimination Act 1977 (NSW) --- disability discrimination against contract worker alleged --- labour-hire agency contingent worker – where President of Anti-Discrimination Board declined a complaint of disability discrimination –where Applicant has required the President of the Anti-Discrimination Board to refer a declined complaint to the Tribunal – whether Tribunal should exercise discretion to grant leave for the complaint to be the subject of proceedings under s 96(1) of the Anti-Discrimination Act.

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

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DEVELOPMENT APPLICATION — single dwelling — heritage item — height of building — wall height — views and amenity

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

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APPEAL — development application — dual occupancy — conciliation conference — agreement reached — orders made

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JURISDICTIONAL OBJECTION – Entertainment Industry Act 2013 (NSW) – s 20 – entertainment industry hirer – performer – recorded performances – recording agreement – publishing and merchandise agreement – whether respondent contracted performer for purpose of a performance – definition of performance – recorded performance for financial benefit – obligation to record and deliver Commitment Album – acquisition and exploitation of intellectual property rights – whether rights acquisition arrangement excludes hirer status – dispute concerning royalties, accounting and set-off – connection between dispute and statutory relationship – Notice of Motion dismissed.

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TORTS – work injury damages claim DAMAGES – compensatory damages assessed at $871,284 – judgment for plaintiff in the assessed net sum of $315,438.30 after offset of past weekly workers’ compensation payments of $555,845.70

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JOINDER — application for joinder — statutory tests — issues proposed to be raised by applicant for joinder — costs

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CRIMINAL LAW — sentencing — convicted by jury — murder — circumstantial case — love triangle — intent to kill — use of a knife — disposal of body — flight to Indonesia for several years — long delay between commission of offence and sentence — no remorse and continuing denial of culpability

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CLASS 1 RESIDENTIAL DEVELOPMENT APPEAL – deemed refusal – alterations and additions – residential flat building – apartment development – conciliation conference – amended application – affordable housing – agreement between the parties – orders made

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TORT – Negligence – duty of care – statutory authority – Murray-Darling Basin Authority established under the Water Act 2007 (Cth) – river system to be operated in the public interest – Authority’s functions include executing the agreement between States for sharing the water between the States – Authority required to operate in the face of conflicts – duty alleged to be owed to private irrigators – statutory framework does not erect or facilitate a sufficient relationship between the Authority and private irrigators – duty of care to some private irrigators would distort the focus of the statutory framework – alleged duty would be incongruous with the statutory framework TORT – Negligence – duty of care – pure economic loss – novel case – assumption of responsibility – salient features – reasonable foreseeability – actual foresight – identification of the risks of harm – control over the risks of harm and vulnerability – no specific reliance – no indeterminacy – equivalent duties of care would be owed to others – no assumption of responsibility – salient features do not warrant imposition of duty of care to avoid pure economic loss TORT – Negligence – alleged breach of duty in the conduct of river operations – whether failure to take precautions which a reasonable person in the Authority’s position would have taken – no breach of duty TORT – Negligence – alleged breach of duty in the conduct of commercial negotiations for access to privately-owned infrastructure – no breach of duty TORT – Negligence – causation of loss – factual causation – identification of counterfactual river operations – expert evidence TORT – Negligence – causation of loss – factual causation – determination of what the person who suffered harm would have done – admissibility of evidence – s 5D(3)(b) of the Civil Liability Act 2002 (NSW) – “statement made by the person suffering the harm” – farming business conducted through corporate trustee of family trust – family member involved in the management of business authorised to swear affidavit on behalf of corporate trustee – evidence inadmissible under s 5D(3)(b) TORT – Negligence – quantum of loss – price elasticity of demand for water – expert evidence – the price of hay PRIVATE INTERNATIONAL LAW – Choice of law – tort – Authority established to operate independently of the States – Authority’s place of work in the Australian Capital Territory – negligence alleged to arise from exercise of power to “give directions for the release of water” – directions variously received and acted upon in New South Wales and Victoria – negligence committed in the Australian Capital Territory – substantive issues in the case to be determined in accordance with the law of the Australian Capital Territory PRIVATE INTERNATIONAL LAW – Civil Law (Wrongs) Act 2002 (ACT) – Chapter 4 Negligence – does not apply of its own force to claim against the Authority – applies by virtue of s 64 of the Judiciary Act 1903 (Cth) PRIVATE INTERNATIONAL LAW – Choice of law – procedural issues governed by law of the forum – Court exercising federal jurisdiction – s 79 of the Judiciary Act 1903 (Cth) – whether s 5D(3)(b) of the Civil Liability Act 2002 (NSW) applicable to a case governed by Chapter 4 of the Civil Law (Wrongs) Act 2002 (ACT) – “the determination of factual causation” – whether s 5D(3)(b) applies to the determination of “factual causation” for the purposes of s 45(1)(a) of the Civil Law (Wrongs) Act 2002 (ACT) – s 5D(3)(b) applicable for the purposes of s 79 of the Judiciary Act 1903 (Cth) WORDS AND PHRASES – “statement made by the person suffering the harm” – “the determination of factual causation”

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EMPLOYMENT AND INDUSTRIAL LAW — Unfair dismissal claim – Conciliation – In-principle agreement including parties would “enter a” deed of release – At time acceptance communicated, Respondent advised Applicant needed to seek legal advice to avoid impact on extant workers compensation claim – Applicant refused to sign deed of release after having taken advice – Respondent sought dismissal or permanent stay in light of in-principal agreement – Commission found not common intention to be immediately bound by in-principle agreement – Motion dismissed.

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TORTS — Miscellaneous torts — Deceit — Damages - CONSUMER LAW — Misleading or deceptive conduct — Representations as to future matters — Evidential burden – the first plaintiff claims he or the corporate second plaintiff invested funds in contracts for export to the PRC of Australian-made infant formula – the plaintiffs contend these investments were induced by false, misleading and deceptive representations made by the defendants – the plaintiffs’ investments in these contracts were lost – the plaintiffs seek to recover damages from the defendants measured by these allegedly lost investments – whether the defendants engaged in false, misleading or deceptive conduct in making representations to the plaintiffs about the terms of the export arrangements for the infant formula – whether any such representations were contrary to Australian Consumer Law ss 18 and 21 – whether the defendants knew that any representations they made were false, or that they were reckless as to their truth – whether any such representations induced the plaintiffs, to make the investments in the export contracts – whether the plaintiffs are entitled to damages under the Australian Consumer Law or for the tort of deceit.

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

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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

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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

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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

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

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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

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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

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

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

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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:

CRIME — manslaughter — unlawful and dangerous act — intoxication SENTENCING — manslaughter — findings of fact — where Bugmy factors are accepted to reduce moral culpability — where offender had made early offer to plead guilty

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:

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:

CORPORATIONS — management and administration — where very complex and large voluntary administration — orders sought to limit voluntary administrators’ personal liability in respect of notices under s 443B of the Corporations Act 2001 (Cth) and pre-appointment payroll practices — further orders sought for email notification to creditors, establishment of single committee of inspection and preparation of combined remuneration report — orders sought granted

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:

PRACTICE AND PROCEDURE – strike out of paragraph in Defence pleading a limitation defence – Defence filed in response to Amended Statement of Claim

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW — Industrial disputes — Dispute orders — Relief — Recommendations

Catchwords:

TAXATION – director penalty liabilities – PAYG withholding amounts – assessed net amount under the A New Tax Systems (Goods and Services Tax) Act 1999 (Cth) –where the Taxation Administration Act 1953 (Cth) provides that allegations in certain documents are prima facie evidence of certain matters – where the defendant did not challenge the quantum of primary tax due – where the defendant did not plead a defence but gave evidence as to reasons why he should not be liable

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

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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

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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

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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

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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

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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

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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

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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