Browse decisions Displaying 1 - 200 out of 88884 results

Catchwords:

CRIMINAL LAW – application for review of conviction – s 78 Crimes Appeal and Review Act – whether there is an appearance of doubt as to the applicant’s guilt – trial by judge alone in 1992 – appeal against conviction dismissed in 1993 – application for special leave refused by High Court in 1994 – no compelling new evidence – most matters considered by appeal courts in earlier proceedings – consideration of evidence and flaws in prosecution case – whether election for trial without jury flawed – whether election not to give sworn evidence led to miscarriage – whether trial Judge’s reasons insufficient – where subsequent High Court cases suggest more reasons may be required – where issue considered by both CCA and High Court

Catchwords:

CIVIL PROCEDURE – Preliminary discovery – to determine whether to commence proceedings – to identify potential cause of action for breach of warranty or statutory misleading and deceptive conduct

Catchwords:

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

Catchwords:

CIVIL PROCEDURE — Interlocutory applications — Standard of satisfaction for the continuation of an interlocutory injunction   EMPLOYMENT LAW — The contract of service and rights, duties and liabilities as between employer and employee — Enforceability of post-employment restraints

Catchwords:

CIVIL PROCEDURE – refusal to allow amendment to challenge testamentary capacity on basis that amendment, if allowed, was doomed to fail – whether primary judge erred in concluding that claim was doomed to fail notwithstanding a finding that there was an arguable case of lack of testamentary capacity established – whether finding that proposed claim was doomed to fail was a discretionary decision or a finding of abuse of process – significance of unique public interest character of probate proceedings – meaning of “acquiescence” – absence of any real prejudice – appropriate conditions to be imposed on amendment   SUCCESSION – grant of probate in common form in respect of a will – application to amend cross-claim to challenge grant on basis of lack of testamentary capacity – no caveat lodged – application to amend made at a time when case ready to be allocated a hearing date – relevant considerations – importance to be placed on ascertainment of true intention of the testator – significance of unique public interest character of probate proceedings – reasonably arguable case that testator lacked testamentary capacity at relevant time – whether application, if granted, doomed to fail – whether challenge to testamentary capacity was an abuse of process in the circumstances – consideration of In re Goode (1890) 11 LR(NSW) (Eq) 281

Catchwords:

DEVELOPMENT APPLICATION – mixed use – tourist hotel with rooftop bar and restaurant – compliance with Town Centre Master Plan – height and FSR non-compliance – clause 4.6 variation requests – whether reflecting character of area – whether impacting on adjoining uses – social impact considerations – what parking standards apply – acoustic considerations –plan of management – precedent – public interest

Catchwords:

DEVELOPMENT APPLICATION – Concept development application – heritage conservation – industrial heritage – reference scheme – height contravention

Catchwords:

MODIFICATION APPLICATION – impact of the addition of an awning to an approved development on the heritage significance of the heritage conservation area

Catchwords:

DEVELOPMENT APPLICATION – concept development proposal – extent of demolition and impact on the heritage significance of the Roxy Theatre

Catchwords:

CHILDREN PROTECTION – working with children – disqualified person – application for enabling order

Catchwords:

DEVELOPMENT APPLICATION – subdivision of land and construction of new dwellings – conciliation conference – agreement between parties – orders

Catchwords:

APPEAL – leave to appeal from costs orders made by the Land and Environment Court – whether leave should be granted under s 58 of the Land and Environment Court Act 1979 (NSW).   APPEAL - whether the primary judge applied the correct test for the making of an order under s 99 of the Civil Procedure Act 2005 (NSW) – whether the primary judge based his conclusions on findings that were not open on the evidence – whether there was bias on the part of the primary judge – whether there was a denial of procedural fairness – whether the primary judge erred in considering that he had previously made a relevant finding that there was no evidence of conspiracy.

Catchwords:

TORT — Negligence — General principles — Personal injury — Greyhound racing — Operating a catching pen gate — Where the plaintiff was struck by a lure   Defences — Civil Liability Act 2002 (NSW), ss 5K,  5L — Whether the risk of harm was “obvious” — Whether operating the gate was a “recreational activity” — Whether there was a significant risk of physical harm — ss 60, 61 — Whether the defendant was a volunteer   Breach — Whether the defendant failed to take reasonable precautions against the harm

Catchwords:

APPEAL – leave to appeal – building and construction dispute – appeal from Local Court to Supreme Court on a question of law – primary judge found that respondent not bound by releases and bars to action in the settlement deed – where deed delivered to applicant’s solicitors – where applicant disclaimed deed without executing it – whether injustice to applicant in refusing leave to appeal

Catchwords:

CRIMINAL LAW – appeal against sentence – aggravated indecent assault on children under 10 years old – whether offences planned – appellate challenge to factual findings of sentencing judge – application of Clarke v R [2015] NSWCCA 232   CRIMINAL LAW – resentencing – breaches of extended supervision order – indecent assaults – assessment of objective seriousness – significance of offender’s propensity to reoffend – availability of extended supervision or detention orders irrelevant

Catchwords:

MODIFICATION APPLICATION – increase in car parking spaces in basement- conciliation conference – agreement between the parties – orders

Catchwords:

SOLICITORS – whether to refer solicitor to Law Society or Legal Services Commissioner

Catchwords:

COSTS – party/party – proper construction of Heads of Agreement concerning costs – whether agreement to share equally the costs of the referees was subject to agreement as how costs of the proceedings were to be resolved

Catchwords:

PROFESSIONS AND TRADES – health care professionals - medical practitioners – suspension of registration under s 150 of the Health Practitioner Regulation National Law - appeal under s 159 and 159B of the Health Practitioner Regulation National Law - examination without consent - single incident -steps taken by practitioner to review all relevant ethical standards - suspension set aside

Catchwords:

Costs

Catchwords:

Public sector disciplinary appeal - Bus Operator - dismissal – safety of customers - recent final warnings - effect of final warning on consideration of appeal - facts of misconduct made out - appeal dismissed

Catchwords:

BUILDING CERTIFICATE APPLICATION – conciliation conference – agreement between the parties – orders

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TREES (DISPUTES BETWEEN NEIGHBOURS) – damage – sewer pipe – paving – compensation – respondents had applied to remove tree

Catchwords:

COSTS - special circumstances - prolonging proceedings unreasonably - failure to comply with duty to cooperate with Tribunal to achieve the guiding principle - misconceived application-

Catchwords:

MODIFICATION APPLICATION – deletion of conditions - conciliation conference – agreement between the parties – orders

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APPEAL – development application – alterations and additions to an approved residential flat building – cl 4.6 requests – conciliation conference – agreement between the parties

Catchwords:

PROFESSIONS AND TRADES – Medical Profession – Professional Misconduct - practitioner surrenders registration before disciplinary proceedings - Application of s139G of the National Law

Catchwords:

Legal practitioner – application for disciplinary findings – held no complaint validly made to or by NSW Legal Services Commissioner – held no valid delegation of function to initiate proceedings given by NSW Legal Services Commissioner to Law Society of NSW – held no basis for institution of proceedings and no jurisdiction to deal with application – proceedings dismissed.

Catchwords:

LANDLORD AND TENANT – residential tenancies legislation - obligations, prohibited matters and protection for lessees – reduction in services – excessive rent and compensation – assessment – no point of principle

Catchwords:

CONTRACTS – construction and interpretation – share sale agreement – whether the purchaser’s obligation to make deferred payments dependent on seller’s obligation to ensure adjustments made on completion – where parties agreed time was of the essence in relation to the purchaser’s obligation to make the deferred payments – whether parties agreed that the “Date of Completion” was a different date to “Completion” – whether seller no longer bound by restraints and warranties in the agreement   EQUITY – equitable remedies – relief against penalties – clause in share sale agreement provided that restraints and warranties made by defendant are void if payment not made within seven days of due date – whether that clause is a penalty and unenforceable   EQUITY – equitable remedies – relief against forfeiture – non-proprietary rights in the form of restraints and warranties conferred by agreement – whether purchaser should have relief against forfeiture of those rights

Catchwords:

TORTS – negligence – content of duty of care of landlord to tenant – where tenant fell in hole in rear yard and suffered injury   TORTS – negligence – Civil Liability Act 2002 (NSW), s 5B – whether primary judge erred in identification of risk of harm – reasonable precautions to prevent risk of harm – whether landlord should have ensured hole was backfilled or fenced   APPEAL AND NEW TRIAL – where absence of finding of primary fact – whether substantial miscarriage justifying retrial – no entitlement to retrial where absent finding not determinative of breach   TORTS – negligence – factual causation – Civil Liability Act 2002 (NSW), s 5D – whether primary judge erred in finding causation made out   CIVIL PROCEDURE – Court of Appeal – notice of contention – new ground raised on appeal – where other party objects – whether new ground could possibly have been met at trial   TORTS – Negligence – contributory negligence and apportionment – Civil Liability Act 2002 (NSW), ss 5B, 5R and 5S – whether primary judge erred in finding tenant contributorily negligent – whether primary judge erred in assessing extent of tenant’s contribution – causal significance of tenant’s own negligence   DAMAGES – measure and remoteness of damages in actions for tort – economic loss – whether primary judge erred in assessment of past economic loss and residual earning capacity – significance to findings of future economic loss – Civil Liability Act 2002 (NSW), s 13 – whether primary judge adequately engaged with employment history evidence – where plaintiff suffered from pre-existing injuries – whether primary judge adequately engaged with medical evidence to determine extent of exacerbation – whether allowance for future medical expenses was supported by evidence   DAMAGES – measure and remoteness of damages in actions for tort – non-economic loss – Civil Liability Act 2002 (NSW), s 16 – whether primary judge erred in assessment of the degree of severity of non-economic loss – significance of pre-existing injuries – whether primary judge’s assessment susceptible to appellate review   APPEAL AND NEW TRIAL – new trial on particular grounds – whether retrial should be ordered on the assessment of damages – where reliability of evidence in issue

Catchwords:

MORTGAGES AND SECURITIES – mortgages – duties, rights and remedies of mortgagee – power of sale – fiduciary duty of mortgagee in possession exercising power of sale – whether bank breached its duty to mortgagor during sale of the mortgaged property

Catchwords:

Appeal – costs - whether court can remit matter to Assessor or Review Panel upon allowing the appeal – whether the court can remit matter to a costs Assessor as Referee under Part 20.14 - proper approach to the assessment of costs where indemnity costs ordered

Catchwords:

EQUITY – power of court to approve advantageous dealings – discretionary family trust – proposed distribution of trust income and capital to non-beneficiary – Trustee Act 1925 (NSW), s 81- generality of orders sought – “in the administration or management of the trust” – objectives of the trust – “expedient”

Catchwords:

OFFENCES AND PENALTIES – sentence – clearing of native vegetation – objective seriousness of offence – substantial environmental harm caused - clearing reckless – clearing for financial gain – foreseeable risk of environmental harm – practical measures to prevent risk of harm – control over causes – offence is low-middle range – subjective circumstances of offenders – no prior convictions – prior good character – relatively early guilty plea – genuine remorse for offence and consequences – assistance to authorities – appropriate individual fines – adjustment of fines for multiple offenders – director and company owned by director – reduction in individual fines – costs

Catchwords:

EVIDENCE – sentencing hearing for offence in breach of s 64(1) of the Protection of the Environment Operations Act 1997 – guilty plea entered – proposed exclusionary ruling – did Prosecutor’s written outline disclose intention to rely on evidence in breach of De Simoni principle – was proposed evidence unfairly prejudicial to Defendant – no breach of De Simoni principle – Defendant’s rights to raise future objections to Prosecutor’s evidence not constrained – proposed ruling rejected

Catchwords:

ADMINISTRATIVE LAW – administrative tribunals – Civil and Administrative Tribunal (NSW) - whether the Tribunal erred in failing to afford procedural fairness – whether the Tribunal failed to take into account the general principles in s 4 of the Guardianship Act 1987 (NSW) – whether the Tribunal made a manifestly unreasonable decision – whether the Tribunal placed excessive reliance on matters to the exclusion of all relevant factors – whether the Tribunal ought to have allowed the Daughter to adduce particular medical evidence.

Catchwords:

CIVIL PROCEDURE – settlement of proceedings – enforcement of settlement – where party liable signed deed imposing obligation to pay money to the plaintiff – where the party failed to sign a consent judgment to be filed in circumstances where payment not made – where payment not made – settlement enforced – s 73 Civil Procedure Act – judgment entered

Catchwords:

CRIMINAL LAW – sentencing – Crown appeal – whether sentence manifestly inadequate – objective seriousness – indicative sentences -- totality – double counting – accumulation – subjective features – Bugmy principles – residual discretion – appeal allowed – resentencing

Catchwords:

APPEAL – development application – construction of two dwellings on new lots created by subdivision – heritage – engineering – adequacy of right of way over adjacent property – scale of the proposed dwellings –amenity of private open space – visual impact – replacement plantings – whether Vegetation Management Plan for subdivision can be considered in determining whether there is a net improvement in indigenous vegetation – directions made concerning landscape plan

Catchwords:

Legal practitioner – failure to comply with an undertaking – practising in breach of a condition upon a practising certificate – professional misconduct found – appropriate orders – liability for costs

Catchwords:

DEFAMATION – assessment of damage – plastic surgeon – continuing malicious vilification – aggravated damages – injunctive relief made permanent – one award for non-economic damages, including aggravated damages – interest – discussion on interest   TORT – Injurious falsehood – elements – injunctive relief – malice – permanent injunctive relief granted   COSTS – Defamation – indemnity costs awarded

Catchwords:

DAMAGES – non-economic loss – eye injury resulting from hit by tennis ball – whether primary judge erred in assessment of non-economic loss   DAMAGES – future economic loss – impairment of earning capacity – extent of evidence required in case of adolescent – State of New South Wales v Moss (2000) 54 NSWLR 536 considered   APPEALS – nature of appellate review of an assessment of severity of non-economic loss under s 16 of the Civil Liability Act 2002 (NSW)

Catchwords:

ADMINISTRATIVE LAW – defendant injured in motor accident – plaintiff applied for further medical assessment of degree of permanent impairment of defendant – proper officer dismissed plaintiff’s application – plaintiff requested that proper officer reconsider decision – proper officer found no reason to reconsider decision – plaintiff sought judicial review of proper officer’s decisions – whether proper officer applied wrong legal test – whether proper officer misconstrued applicable guidelines – whether pre-impairment injury or records of pre-impairment injury must exist “at the time of the accident” – whether proper officer wrongly determined for herself issues properly for expert opinion – whether Court should in any event exercise its discretion to decline to grant relief   CIVIL PROCEDURE – plaintiff’s summons filed out of time in respect of proper officer’s first decision but not second decision – whether extension of time should be granted in respect of first decision – where delay explained by exhaustion of remedies below – where second decision inextricably linked to first decision – where defendant accepted there would be no prejudice

Catchwords:

EMPLOYMENT AND INDUSTRIAL LAW – Award interpretation – relevant principles to be applied – meaning and application of status quo provision in the award – whether discretion should be exercised to refuse relief

Catchwords:

JUDGMENTS AND ORDERS – pre-judgment interest – discretion to order – time from when post-judgment interest runs – calculation of pre-judgement interest.

Catchwords:

ADMINISTRATIVE LAW – proper basis for directions pursuant to s 155 of the Crimes (Administration of Sentences) Act 1999 (NSW) – where satisfied that Community Corrections pre-release report contained misleading information – where satisfied that State Parole Authority’s decision to refuse parole based on misleading information gave rise to circumstance of “manifest injustice” – consent orders made

Catchwords:

DEFAMATION – Publication – Generally – Public Facebook Page – Liability of Media Company Owner of Public Facebook Page for comments by third-party users – probable that defamatory comments would be posted – Public Facebook Page operated for commercial interests of Media Company – Capacity to prevent and control postings – resources required – no assessment performed of likelihood of defamatory comments – Discussion of general test for primary or first publisher – liability of subordinate or secondary publisher – innocent dissemination – separate question asked – Media Company owners of Public Facebook Page held to be primary publisher

Catchwords:

DEVELOPMENT APPLICATION – whether land mapped “Biodiversity” in Ku-ring-gai Local Environmental Plan 2015 is “Environmentally sensitive land” within the meaning of Sch 1 of State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 – whether proposed development in the public interest – appeal upheld

Catchwords:

INDUSTRIAL DISPUTE - clause 28.7 of the Award -application for interpretation pursuant to s.175 of Industrial Relations Act 1996 - relevant principles of interpretation of awards and industrial instruments – directions sought - recommendations made for settlement of industrial dispute.

Catchwords:

TAXES AND DUTIES- land tax- primary production exemption- agistment arrangements - use of land by agistee - whether two operations constitute the same business - meaning of ‘dominant use’- meaning of ‘significant and substantial’- meaning of ‘purpose of profit’- consolidation of primary production activities of various users - use of notional costs of labour and land use - onus of proof

Catchwords:

PROFESSIONS AND TRADES – licensing and regulation – contractor license – required experience in residential building work

Catchwords:

Solicitor – professional misconduct – mislead other solicitor – mislead court – client’s instructions – duty to the court - Instrument of Consent

Catchwords:

CRIMINAL LAW – appeal – appeal against sentence –aggravated break, enter and steal under s 112(2) of Crimes Act 1900 (NSW) – offences committed as part of joint criminal enterprise – whether effect of delay taken into account when fixing non-parole period – assessment of subjective case – leave to appeal out of time granted – leave to appeal granted – appeal upheld – applicant resentenced

Catchwords:

MERITS REVIEW – revocation of firearm licence - public interest - fit and proper person – attempt to commit suicide - mental health issues - psychiatric and psychological evidence.   CONFIDENTIALITY - marital dispute - nature of allegations by and against the Applicant – young children – interests of unrepresented persons.

Catchwords:

DEVELOPMENT APPLICATION – Proposed manufactured home estate – provision of adequate transport services – sufficiency of community facilities available - offer of a community bus and ‘convenience store’ in the clubhouse – suitability of the site for development – appropriateness of the proposed development in its context – appeal dismissed

Catchwords:

Crime - Costs

Catchwords:

PROCEDURE – plaintiff convicted in Local Court – plaintiff appealed to District Court – District Court determined appeal – plaintiff then sought to appeal Local Court decision to Supreme Court – whether second appeal competent – whether “appeal” should be summarily dismissed

Catchwords:

Work Health and Safety – application for external review – Provisional Improvement Notice issued by Health and Safety Representative – request to SafeWork to appoint an inspector to review the notice not made within seven days after the notice was issued – decision of inspector to cancel notice – internal review upheld the decision of the inspector – whether the decision by the inspector to cancel the notice was invalid

Catchwords:

BUILDING AND CONSTRUCTION – adjudication determination under section 22 of Building and Construction Industry Security of Payment Act 1999 (NSW) – whether determination void – jurisdictional error – whether adjudicator failed to afford natural justice and procedural fairness in reaching determination – whether denial of procedural fairness was substantial – whether entitled to recover in respect of unaffected part of claim

Catchwords:

DEVELOPMENT APPLICATION – site compatibility certificate – seniors housing – provisions of services – access to community services and recreation facilities - residential aged care – primary production small lots zone

Catchwords:

CRIMINAL LAW - Offender pleaded guilty to serious offences against the person and terrorism offence - Offender writes letter to Court after sentencing hearing but before sentence passed - extremist content of letter - Crown application for non-publication order concerning letter - non-publication order made

Catchwords:

TAXES AND DUTIES – payroll tax – liability to taxation – arrangements affecting liability to tax – objections and appeals – review of assessments pursuant to s 97(4) of the Taxation Administration Act 1996 (NSW)   TAXES AND DUTIES – payroll tax – employment agency contracts – interpretation of s 37(1) of the Payroll Tax Act 2007 (NSW) – meaning of “employment agency contract” – whether it is only the “employment agent” closest in the chain of contractual arrangements leading up to the procurement of the services of another person or persons (the service providers) for an end user (the client) on whom liability for payroll tax arises

Catchwords:

ADMINISTRATIVE LAW – judicial review – where plaintiff injured in motor vehicle accident – where plaintiff challenges decision of medical review panel – whether medical review panel erred by failing to medically examine plaintiff in accordance with her request that it do so – whether plaintiff denied procedural fairness – decision of medical review panel set aside

Catchwords:

CRIMINAL LAW – fitness to stand trial – Presser test – accused charged with murder – intellectual disability – verbal land memory functions impaired – conflict between experts as to fitness – whether accused able to follow trial - whether able to give instructions – where prosecutor accepts open to find accused unfit – foetal alcohol syndrome – abuse and neglect – impact on neurological development – where accused has language skills of 7 year old – inconsistency in test results – whether accused fit to stand trial – he isn’t

Catchwords:

SENTENCING – Mental Health (Forensic Provisions) Act 1990 (NSW) – limiting terms – special hearing conducted before judge alone – limiting terms nominated for manslaughter and robbery armed with an offensive weapon – concurrent limiting terms

Catchwords:

CIVIL PROCEDURE — Pleadings — Amendment – leave sought to amend statement of claim – whether amendments were for “tidying up” or “special circumstances” existed to allow the amendments   CIVIL PROCEDURE – Subpoenas – order for access to documents produced under subpoena – whether the subpoena identified with reasonable particularity the documents sought – whether the subpoena amounted to a fishing expedition or substitute for discovery

Catchwords:

CIVIL LAW – extended supervision order – assessment of risk – where offender guilty of two extremely violent offences and a number of other offences of violence – where pre-existing supervision order about to expire – breaches of orders – whether conditions counter-productive to rehabilitation – fine balance – recent improvement in attitude – too little too late – recent breaches of order – boundaries   CIVIL LAW – high risk offender litigation – surplus of material – repetition of material – dumb and unhelpful – complaints having no impact – parties should co-operate to streamline volume of material

Catchwords:

TAXES AND DUTIES – payroll tax – liability to taxation – arrangements affecting liability to tax – objections and appeals – review of assessments pursuant to s 97(4) of the Taxation Administration Act 1996 (NSW)   TAXES AND DUTIES – interpretation of s 32(2)(a) of the Payroll Tax Act 2007 (NSW) – whether subcontracts were excluded from being relevant contracts – whether supply of services by subcontractors under the subcontract was ancillary to the supply of goods – meaning of “supply” – meaning of “under the contract” – meaning of “ancillary” – whether Smith’s Snackfood Company v Chief Commissioner of State Revenue [2013] NSWCA 470 is distinguishable   TAXES AND DUTIES – interpretation of s 32(2)(d)(i) of the Payroll Tax Act 2007 (NSW) – whether subcontracts were excluded from being relevant contracts – whether the supply of services by subcontractors was ancillary to the conveyance of goods by means of a vehicle provided by subcontractors – meaning of “conveyance” – whether Smith’s Snackfood Company v Chief Commissioner of State Revenue [2013] NSWCA 470 is distinguishable   TAXES AND DUTIES – penalty tax and interest – interpretation of ss 28, 29, 33 of the Taxation Administration Act 1996 (NSW) – whether the scope of the discretion under s 33 is confined by ss 28 and 29 – whether penalty should be reduced to take into account the parties’ conduct

Catchwords:

SENTENCING – Relevant factors on sentence – Parity of sentencing - Co-offenders – Joint criminal enterprise – murder – disparity in sentences of co-offenders - whether justifiable sense of grievance by reference to the notional starting point of sentence of appellant and sentence of co-offender– co-offenders sentenced on different evidentiary basis – sentencing judge found co-offender’s offence more serious than applicant – applicant had strong subjective circumstances unlike co-offender.

Catchwords:

INSURANCE - Total and permanent disablement - Whether the insurer acted fairly and reasonably in assessing and determining the Member’s claim - Whether the insurer gave reasons for the determination - Whether there was an obligation for the insurer to give reasons for declining the Member’s claim - Whether the insurer was in breach of its duty and obligations - Whether separate letters sent by the insurer should be treated as separate declinatures.

Catchwords:

CRIMINAL LAW – Crown appeal against sentence – Criminal Appeal Act 1912 (NSW), s 5DA – discount on sentence due to undertaking to provide future assistance – assistance not provided – whether undertaking extended to assisting at sentencing of co-offender – effect of respondent being held in immigration detention after being entitled to be released on parole – where effect of discount was 78 days, of which 61 days had been served in immigration detention – where undertaking contributed to co-offender’s guilty plea – appeal dismissed

Catchwords:

SENTENCING – manslaughter by substantial impairment – schizophrenia – subjective considerations on sentence – impact of mental illness on objective seriousness and moral culpability – mental illness heightening danger to community – plea of guilty at earliest opportunity – special circumstances

Catchwords:

CIVIL PROCEDURE – Subpoenas – Notice to Produce – legitimate forensic purpose – whether fishing expedition – whether abuse of process

Catchwords:

HIGH RISK OFFENDERS – Terrorism (High Risk Offenders) Act 2017 (NSW) – application for interim supervision order – extremist ideology developed while in custody – serious threats of extremist violence against law enforcement officers and others – no evidence of violent extremism in the community – order granted

Catchwords:

CRIMINAL LAW – sentencing – drug offences – aggregate sentencing – where Judge told of wrong maximum penalty – where Judge told of standard non-parole period that did not exist – error not picked up by applicant – error raised by counsel for respondent – error conceded and established – necessary to re-sentence – lesser aggregate sentence warranted   CRIMINAL LAW – other grounds of appeal – grounds rejected – whether Judge erred in not providing 25% discount for plea – whether Judge erred in assessment of objective criminality – where no evidence available to establish precise role of offender

Catchwords:

Contract - moneys advanced pursuant to deeds of loan - whether default interest clause in the last deed amounts to a penalty - further moneys allegedly advanced pursuant to an oral agreement - identity of lender and borrower pursuant to oral agreement in dispute - terms of alleged loan in dispute – authority of alleged agent in dispute – whether actual authority – whether ostensible authority through a course of dealings

Catchwords:

HIGH RISK OFFENDER – application for interim supervision order

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – damage – garage roof and guttering – no evidence that damage is caused by trees – no tree removal or compensation ordered – minor damage likely – respondents to prune trees

Catchwords:

POLICE - Member of police force resigned from force due to mental health illness - Plaintiff later rejoined police force - Whether the plaintiff was incapable from an infirmity of mind of discharging the duties of his office at his time of resignation

Catchwords:

CIVIL PROCEDURE – application for leave to appeal – challenge to costs order made when dismissing plaintiffs’ proceedings – whether proceedings abandoned – late tender of evidence – plaintiffs not notified of hearings after solicitor ceased to act – failure to attend not evidence of abandonment of proceedings   CORPORATIONS – application for leave to appeal – company in liquidation – leave granted in trial court – need for leave to proceed against company on appeal – challenge to company’s debt – leave granted nunc pro tunc

Catchwords:

PROCEDURE – notice of motion seeking determination of separate questions under r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) – motion granted

Catchwords:

PROCEDURAL RULING – Fitness to stand trial - intellectual disability – child – serious sexual offences – fitness issue properly raised – referral to Mental Health Review Tribunal – criteria – accused unfit. EVIDENCE – Expert evidence – fitness to stand trial – uniform opinion that accused is unfit.

Catchwords:

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

Catchwords:

COSTS - Class 4 proceedings - consent orders - outcome achieved by the Applicant by the consent orders substantially in accordance with that sought in the initiating Summons - costs follow the event absent disentitling conduct - no disentitling conduct - costs order appropriate - consideration of whether gross sum order appropriate - gross sum order appropriate - costs ordered in gross sum of $6,000.

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – cypress hedge – damage – fence – near future – planting poorly planned

Catchwords:

WORKERS COMPENSATION – appeal against decision of Workers Compensation Commission –validity of Deputy President of WCC’s re-determination of the Arbitrator’s decision – s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) and Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344; 5 DDCR 1 considered   WORKERS COMPENSATION – appeal against decision of Workers Compensation Commission – only question raised before the Deputy President of WCC was whether the respondent was entitled to compensation arising from a journey claim within the meaning of s 10 of the Workers Compensation Act – ground conceded by the appellant   WORKERS COMPENSATION – cross-appeal – whether Deputy President of WCC erred in point of law – whether evidence the respondent was speeding – whether there was evidence the respondent was holding his mobile telephone - “no evidence” ground does not apply - Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 discussed

Catchwords:

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

Catchwords:

COSTS – costs of appeal – each party enjoyed success on the appeal – where appellant successful on a new ground permitted at hearing of appeal – indemnity costs sought - measurement of success on appeal– costs of hearing at first instance when second trial of one issue led to a different result than at first trial - fresh evidence at second trial.

Catchwords:

COSTS – security for costs – where plaintiff did not lead evidence about the financial position of its director or shareholders – where plaintiff’s claim as currently pleaded is not strong – security for costs ordered in tranches

Catchwords:

CRIME — Appeals — Application for leave to appeal against sentence and conviction — Primary judge imposed aggregate sentence in respect of offences including offences of unauthorised possession of prohibited firearms contrary to s 7(1) of the Firearms Act 1996 (NSW) to which applicant pleaded guilty — Where one such offence charged under s 7(1) related to possession of a shortened 20-gauge BOITO single-barrel shotgun — Common ground on appeal that agreed description of shotgun did not disclose offence against s 7(1) and that consequentially the relevant count on the indictment and aggregate sentence imposed thereon ought to be quashed — Whether applicant could be resentenced on appeal pursuant to s 7(2) of the Criminal Appeal Act 1912 (NSW) — No power for Court of Criminal Appeal to re-sentence where there was no other possible count on indictment on which a jury could have found applicant guilty — Proceedings remitted to District Court for re-sentencing

Catchwords:

EQUITY – estoppel – rights arising out of deed of family arrangement – appellant provided capital to fund purchase of property in which she would live with respondents – appellant consented to subsequent move away from that property – respondents relied to their detriment on consent – appellant estopped from complaining of move

Catchwords:

CONTRACTS — Construction — Interpretation — Contract for sale of land — Special condition in contract required vendor to ensure all development conditions complied with prior to completion — Whether warranty had effect of requiring all works subject of development approval to be completed —Special condition contained disclosure that some works were carried out in conformity with development consent but lower staircase requires replacement — Whether disclosure amounts to warranty that all works subject of development approval have been completed — Where some but not all works the subject of development approval in fact completed —— Whether provision of interim occupation certificate capable of satisfying vendors’ obligation to provide an occupation certificate   BUILDING AND CONSTRUCTION — Occupation certificates — Whether interim occupation certificate that certifies some but not all of works the subject of development approval means that whole premises cannot be lawfully occupied — Whether occupation certificate relates to entire property or merely part of property on which certified works situated — Meaning of “altered portion” of existing building

Catchwords:

PRACTICE AND PROCEDURE – Leave to appeal – dismissal of application for summary dismissal – abuse of process – failure to enquire about the value of works for which a work order is sought under the Home Building Act prior to the commencement of proceedings.

Catchwords:

TORT – sale of residential property – special condition for provision of evidence concerning home warranty insurance and compliance with council requirements in relation to building works – implied fraudulent representations in relation to evidence referable to fulfilment of special condition – whether representations made and relied upon

Catchwords:

PROCEDURE – money paid into court – whether money should be paid out or retained pending outcome of substantive proceedings – interpretation of deed of settlement and other documents – whether varied by subsequent agreement and events – whether in interests of justice to retain money in court EVIDENCE – Privileges – Without prejudice privilege – section 131(1) of the Evidence Act 1995 (NSW) – whether correspondence written in context of attempt to negotiate settlement – whether exception in section 131(2)(f) of Evidence Act 1995 (NSW) applies

Catchwords:

Application under Pt 36 r 36.16 to set aside previous order made by the Court for security for costs.

Catchwords:

ENVIRONMENT AND PLANNING — consent —validity — conditions of consent to be approved by Crown instrumentality — compliance with Environmental Planning and Assessment Act 1979 (NSW), s 91A — whether consent unconditional   ENVIRONMENT AND PLANNING — consent —construction — use of development application in construing development consent — use of environmental impact statement in construing development consent — significance of material being included on public register — when document or plan incorporated into consent — where reference necessary to describe development adequately   ENVIRONMENT AND PLANNING — consent — breach of conditions of consent — consent conditioned by purpose of activity — whether quarry breached limiting purpose by use other than primarily for railway ballast — whether breach where quarrying outside area specified on plan — interference with amenity of neighbourhood — transport of greatly more than 30% of quarrying products by road   ENVIRONMENT AND PLANNING — consent —modification, revocation or review — whether Council consented to change of conditions   ENVIRONMENT AND PLANNING — existing use rights — enlargement, expansion or intensification — scope of existing use rights — date at which existing use rights are assessed — rights limited for railway undertaking on particular lands — effect of consent not negated by existing use rights   ADMINISTRATIVE LAW — judicial review — validity of variation of licence issued by the Environment Protection Authority — jurisdictional facts — conditions under Protection of the Environment Operations Act 1997 (NSW), ss 50 and 58

Catchwords:

SUCCESSION – Wills, Probate and Administration – Construction and effect of testamentary dispositions – Construction of particular Will – Rectification of Will under s 27 Succession Act 2006 (NSW) – Principles relevant to construction and to rectification   SUCCESSION – Wills, Probate and Administration – Partition of particular property specified under Will of deceased – s 57 Probate and Administration Act 1898 (NSW)

Catchwords:

SEPARATE QUESTION - construction of statutory provision in Transport Administration Act 1988 potentially determinative of whether proceedings can be presently dealt with or whether they require to be postponed until the Sydney Metro line tunnel is actually constructed - separate question answered in the affirmative - affirmative answer to separate question does not require deferral of determination of one of the proceedings as the acquiring authority concedes the tunnel under one premises is sufficiently complete to engage the necessity for further consideration of that application - necessity for consideration of a second separate question concerning statutory construction of the Act - matter set down for directions for settlement of second separate question and pre-trial directions concerning it

Catchwords:

Adjournment

Catchwords:

DEVELOPMENT APPEAL – against deemed refusal – seniors living development – infill self-care housing – cl 26 location and access to facilities – clause 4.6 written request

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – hedge – obstruction of views – privacy – approved landscape plan

Catchwords:

CRIMINAL – sentencing - Wound with Intent – intellectual impairment – criminal history aggravating factor – effect of intellectual impairment on finding that the criminal history is an aggravating factor

Catchwords:

APPEAL – appeal from Local Court – appeal against conviction for environmental offence – carry out reclamation work without permit – construction of retaining wall and concrete boat ramp on water land – whether involved “reclamation work” – meaning of “reclamation work” – whether works proved to involve reclamation work

Catchwords:

DEVELOPMENT APPLICATION – residential apartment development – Auburn Town Centre – key sites development – site isolation - stormwater detention – street wall height

Catchwords:

Costs

Catchwords:

PROCEDURAL FAIRNESS – where applicant lodged incorrect form in the Tribunal   EVIDENCE – whether the Tribunal acted on no evidence – legal reasonableness of decision

Catchwords:

COSTS — Party/Party — General rule that costs follow the event — Proceedings discontinued or dismissed — Where plaintiff has discontinued the proceedings — Whether court should award costs on an indemnity basis — Indemnity costs awarded from the time at which the plaintiff had already formed the view that he would not prosecute the proceedings to hearing

Catchwords:

COSTS — Party/Party — Payable out of a fund — Deceased estate — Scale costs of obtaining a new grant of probate to be paid out of the deceased’s estate — Effect of executor’s costs already having been paid from the deceased’s estate — Plaintiffs’ costs award to be limited to recovery of costs that it was reasonable for them to have incurred   COSTS — Party/Party — Exceptions to general rule that costs follow the event — Party seeking indulgence or dispensation of the court — Whether an interim costs order or interim distribution should be made in a case in which the orders will be appealed   COSTS — Party/Party — Exceptions to general rule that costs follow the event — Offers of compromise/Calderbank offers — Where figures in the Calderbank offer have been redacted — Where single offer made in Calderbank offer to settle four proceedings — Whether Calderbank offer was effective and, if so, whether costs should be paid on an indemnity basis

Catchwords:

CIVIL PROCEDURE – Jurisdiction – Transfer of proceedings from District Court of NSW – whether case management alongside existing proceedings in Supreme Court of NSW is appropriate – time and costs – differences between proceedings – whether risk of inconsistent outcomes

Catchwords:

SUCCESSION – family provision orders under Succession Act 2006 (NSW) – whether exercises of discretion miscarried and the amounts of additional provisions ordered should be reduced – whether exercise of discretion miscarried with respect to who should bear the burden of additional provisions   APPEALS – nature of appeal – standard of review applicable to family provision orders under s 59(1)(c) of the Succession Act 2006 (NSW)

Catchwords:

LEGAL PRACTITIONERS — Disciplinary proceedings — Appeal against decision of NSW Civil and Administrative Tribunal (“NCAT”) — Appellant failed to disclose to Law Society her suspension by the Migration Agents Registration Authority (“MARA”) from practising as a migration agent — Whether NCAT erred in finding nondisclosure of suspension amounted to professional misconduct within the meaning of s 297 of the Legal Profession Uniform Law (NSW) — Whether certain statements by member of NCAT during course of hearing sufficient to ground a reasonable apprehension of bias — Whether appellant denied procedural fairness in relation to NCAT’s use of the fact of the MARA finding   ADMINISTRATIVE LAW – tribunals – proper role of NCAT in hearing professional conduct matters – not appropriate for Tribunal member to express “hope” as to what further investigations Law Society might undertake

Catchwords:

CONTRACTS – recovery of fee for services provided under contract CONTRACTS – Performance – defence to contract claim – whether plaintiff failed to substantially perform its obligations – defence not properly pleaded – taking plaintiff by surprise EQUITY – Fiduciary Duties – Fiduciary relationships – indicia – breach – scope – defence to contract claim – whether fiduciary unable to claim remuneration because of breach – whether fiduciary relationship and duties consistent with terms of contract – exclusion by contract – whether breach of fiduciary duty disentitled the plaintiff from recovering fees PROFESSIONS AND TRADES – Property, Stock and Business Agents Act 2002 (NSW) – no corporation licence – whether plaintiff not entitled to recover fee – whether plaintiff acted as ‘agent’ in connection with the sale of the land – Property, Stock and Business Agents Regulation 2014 (NSW) reg 46A – whether work amounted to ‘commercial property agency work’ – whether evidence of use or intended use of the land for agricultural activities

Catchwords:

ADMINISTRATIVE LAW – Judicial review of decision to dismiss application for inquiry into conviction or sentence under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) – Whether jurisdictional error or error of law established – Whether applicant raised any matter that had not previously been fully considered – Summons dismissed

Catchwords:

JUDICIAL REVIEW – Heritage Council – heritage listing of building occupying part of appellant’s land – prohibition upon carrying out any development in relation to the land on which the listing building was situated without Heritage Council approval – Heritage Act 1977 (NSW), s 57(1)(e) – appellant applied to redevelop the balance of its land – Heritage Council proceeded on basis that its approval was only required for proposed activities within the listed building – adjoining landowner sought judicial review, claiming Heritage Council had misdirected itself – whether prohibition required a nexus between development and heritage values of listed building – whether prohibition applied to development on any part of the lot on which the listed building was situated – significance of statutory text, context and purpose

Catchwords:

JUDGMENTS AND ORDERS — Consequential orders — First defendant transferred shares to third defendant for no consideration — Issue sufficiently litigated to justify a declaration to that effect – Parties did not contest the issue of whether the third defendant holds the shares on a resulting trust for the first defendant – No declaration to that effect   COSTS — Party/Party — Bases of quantification — Ordinary vs indemnity basis — Ordinary basis appropriate because the defendants’ conduct the subject of the proceedings cannot of itself found an entitlement to indemnity costs, and the defence itself was not conducted with the requisite degree of delinquency to justify indemnity costs

Catchwords:

INDUSTRIAL DISPUTE-, qualifications of employees-school councillors- recommendation for preference to be given to employees with dual qualifications

Catchwords:

PROCEDURE – contempt – injunction to restrain further publication of defamatory material – criminal contempt – closed period of criminal breach of injunction alleged – whether wilful and contumacious – where defendant bankrupt – no penalty sought by plaintiff – criminal contempt found

Catchwords:

NOTICE OF MOTION – whether hearing dates in Class 3 proceedings should be vacated due to late identification of further contention – motion dismissed with costs.

Catchwords:

HIGH RISK OFFENDER – serious sex offender - extended supervision order – where parties have agreed that an ESO should be made – where the term of the ESO is in dispute – whether the court should impose a 2 year or 5 year ESO – what test the court should apply to fix the term of an ESO – whether there is a statutory obligation to impose the minimum necessary term for an ESO to be in place

Catchwords:

ENVIRONMENTAL OFFENCE: pollution of waters – plea of guilty – discharge of sediment laden water into a drain – sentencing principles – determination of the objective seriousness of the offence – extent of harm – whether the rule in Browne v Dunn applies in criminal proceedings – consideration of the subjective circumstances of the defendant – no prior convictions – discount for early guilty plea – assistance to authorities – examination of comparable cases – monetary penalty imposed – costs order made.

Catchwords:

CONTRACT – formation – acceptance of offer – where consideration was to be determined by a valuation mechanism – where offer stipulated payment for damages – where offer was purportedly accepted but denounced liability to pay damages – whether terms were certain and complete – whether parties entered into a binding agreement.

Catchwords:

FAMILY LAW — Property — Application for property settlement orders under the Family Law Act 1975 (Cth) (“FLA”) to replace property settlement orders earlier made by consent and subsequently set aside under FLA, s 79A – whether wife’s contributions during the marriage gave rise to proprietary interest by common interest constructive trust or “unjust enrichment” – whether otherwise “just and equitable” under FLA s 79 to make further provision for the wife out of the property.   FAMILY LAW — Property — Marriage — Adjustment of property interests – operation of FLA, ss 79 and 90AE - whether prior order under s 37A Conveyancing Act 1919 (NSW) that wife make property available to satisfy husband’s debts presents a bar to the cross-claim by way of Anshun estoppel – whether prior order could be set aside under s 79 FLA – whether prior order created security interest which cannot be displaced aside from exercise of the Court’s power under s 90AE - where prior order in effect equivalent in operation to security over the property or an order to charge the property with the liability – whether prior order could be set aside under r 36.16(3) Uniform Civil Procedure Rules 2005 (NSW) – whether prior order could be set aside under UCPR r 36.15 - where necessity to set order aside raised by the Court and no claim under FLA s 90AE pursued – where no application made to vary “make available” order under UCPR, r 36.16(3A).   EQUITY — Trusts and trustees — Constructive trusts — Common intention – where at time property was acquired wife was bankrupt and made no contribution to the purchase – where no pooling of assets – where wife’s sole contribution homemaking and care of children – no Baumgartner constructive trust.   FAMILY LAW — Property — Marriage — Adjustment of property interests – property adjustment order under FLA s 79 – whether costs of unsuccessful proceedings arising from husband’s business dealings should be included in the net family assets or solely attributed to husband – where proceedings arose out of husband’s business dealings from which the wife received financial benefit over extended period – where husband and wife physically separated but continue joint financial affairs – where no information available to the Court regarding husband’s assets and liabilities held in country of residence.

Catchwords:

APPEAL – Consumer claim – Where respondent engaged by applicant to repair vehicle engine – Where appellant claimed respondent had failed to repair engine properly - Where respondent failed to comply with Tribunal’s orders to return engine to appellant – Where appellant said he could not obtain an expert report without the engine – Where appellant did not request an adjournment - Whether Tribunal denied the applicant procedural fairness by failing to offer to adjourn the hearing

Catchwords:

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

Catchwords:

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

Catchwords:

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

Catchwords:

APPEAL– new trial – procedural fairness – notice of hearing – service in accordance with NCAT Rules – when departure from rules of natural justice will entitle aggrieved party to a new trial — whether compliance with rules of natural justice would have made any difference to the result   LANDLORD AND TENANT – residential tenancies legislation – excessive rent - proof

Catchwords:

PROCEDURE – judgments and orders – application for stay of orders pending appeal – whether significant risk if money paid to respondent it will be unable to be recovered without delay or difficulty if appeal succeeds – where undertakings offered by respondent

Catchwords:

TAXES AND DUTIES-land tax-objections- out of time- no extension- must be in writing-time limits on power to reassess

Catchwords:

ADMINISTRATIVE LAW- Education and Care Services National Law – review of a decision refusing provider approval under section 15(2) of the National Law – whether a fit and proper person - Objects and Principles of National Law – Children – Childcare Services – Administrative review jurisdiction – correct and preferable decision - whether the Tribunal should uphold the decision or substitute decision.

Catchwords:

CIVIL – Crimes (High Risk Offenders) Act 2006 – preliminary hearing – application for appointment of psychiatrist and psychologist under s 7(4) – mandatory considerations – consideration of factors in s 9 – application for interim detention order pursuant to s 18A – alternative application for interim supervision order – order made

Catchwords:

CRIME -SENTENCE - robbery whilst armed with a dangerous weapon - possess unauthorised firearm - Form 1 matters: fire firearm manner likely injure person - stalk/intimate intend fear physical harm - and possess or use a prohibited weapon without permit

Catchwords:

EQUITY – Equitable remedies – Injunctions – proper construction of conditions of a permit obtained from the Australian Pesticides & Veterinary Medicines Authority – whether injunctive relief should be granted as a matter of discretion

Catchwords:

EQUITY – declaration – interpretation of s 45 of the Births, Deaths and Marriages Registration Act 1995 (NSW) – whether the court has jurisdiction to grant declaratory relief – order that the plaintiff is not the biological father of the first defendant

Catchwords:

ADMINISTRATIVE LAW – Child Protection – Working with children – Where Children’s Guardian cancelled the applicant’s working with children check clearance – Where applicant had a lengthy criminal history – Where there was no evidence that applicant had ever harmed a child - Whether applicant had overcome alcohol use disorder – Whether the applicant poses a real and appreciable risk to the safety of children

Catchwords:

CRIME - Sentence - act of indecency with a person under 10 years of age - sexual intercourse with a person under 10 years of age - indecent assault on a person under 10 years of age - aggravated act of indecency towards person under 16 years of age and under authority - indecent assault on a person under 16 years of age - sexual intercourse with a person over 14 years but under 16 years of age.

Catchwords:

CRIME — appeals — appeal against conviction – whether prosecutor made error of fact by inviting jury to treat evidence of complainant differently due to intellectual disability – whether trial judge made error of fact in finding that the complainant and witnesses had cognitive impairment and directing jury that it could form own opinions about intellectual capacity – no technical medical evidence of intellectual disability – trial run on acceptance of complainant’s lower intellectual capacity – rule 4 Criminal Appeal Rules applies – leave refused CRIME – appeals – appeal against sentence – whether error of fact – taking into account that complainant was cognitively impaired and vulnerable person – no technical medical evidence of intellectual disability – whether error of law – denial of procedural fairness in taking into account complainant’s cognitive impairment – open to judge to describe complainant as having an intellectual disability – applicant’s counsel agreed with proposed sentence – leave refused

Catchwords:

EVIDENCE – affidavit evidence – where plaintiff sues defendants for negligence and misleading and deceptive conduct – where evidence previously excluded from plaintiff’s claim for negligence – whether evidence should be excluded from plaintiff’s claim for misleading and deceptive conduct – whether s 5D(3) of the Civil Liability Act extends to evidence in a claim for misleading and deceptive conduct

Catchwords:

APPEAL – appeal from Local Court – appeal against conviction for environmental offence – failure to comply with clean-up notice – validity of clean-up notice – preconditions to issue of clean-up notice – subjective suspicion of pollution incident and suspicion is reasonable – authority did not form subjective suspicion – any suspicion not reasonable in circumstances – clean-up notice invalid – non-compliance with clean-up notice not proven – conviction set aside

Catchwords:

ADMINISTRATIVE LAW – administrative review - Government Information – third party consultation - public interest considerations against disclosure – whether information provided in confidence – whether disclosure could reasonably be expected to diminish competitive commercial value of information – whether disclosure could prejudice business and commercial interests – onus on third party applicant to establish an overriding public interest against disclosure – onus not discharged

Catchwords:

ADMINISTRATIVE LAW - GIPA Act – Government Information – whether information held by the agency – whether in possession or control – capacity as an officer or member of staff of an agency – obligation to undertake reasonable searches

Catchwords:

APPEALS – application for leave to appeal proceedings – stayed pursuant to inherent jurisdiction and s 67 of the Civil Procedure Act 2005 (NSW) as an abuse of process – whether any proper basis for the finding of abuse of process – whether proceedings properly stayed pursuant to s 17 of the Trans-Tasman Proceedings Act 2010 (Cth) – leave to appeal granted – orders not properly made – orders set aside   CIVIL PROCEDURE – failure to file notice of appeal as ordered - application for leave to appeal treated as constituting notice of appeal

Catchwords:

APPEAL – Leave to appeal on a ground other than a question of law – Whether Tribunal’s decision fair and equitable – Whether Tribunal’s decision against the weight of evidence – Whether significant new evidence had arisen since the hearing below – Whether leave should be given to admit evidence available below

Catchwords:

CIVIL PROCEDURE — interlocutory application – security for costs – application to adjourn based on pending appeal to Legal Aid Review Committee – lengthy litigation history between the parties – existence of special circumstances – adjournment refused

Catchwords:

CRIMINAL LAW – mental health defence – psychiatric evidence – accused suffered defect of reasoning – accused unable to reason wrongfulness – accused mentally ill at time of offence – special verdict of not guilty – order pursuant to s 39 of the Mental Health (Forensic Provisions) Act

Catchwords:

CRIMINAL LAW – appeal against sentence – attempting to procure fictitious child under 14 for unlawful sexual activity – travel with intention of meeting child under 14 whom applicant groomed for sexual purposes with intentions of procuring unlawful sexual activity with child and another person – Crimes Act 1900 (NSW) s 66EB – whether error in level of accumulation – whether total sentence manifestly excessive

Catchwords:

COSTS – security for costs – relevant factors – first plaintiff resides in California – second and third plaintiffs are incorporated in British Columbia – security already provided in an amount exceeding likely cost of enforcing a costs order in those jurisdictions – application made after matter set down for trial – plaintiffs appear to have good prospects of success

Catchwords:

MODIFICATION APPLICATION – consent orders –residential flat building – waste collection – amended plans – resident objector

Catchwords:

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

Catchwords:

DEVELOPMENT APPEAL: appeal against refusal – conciliation conference – multi-dwelling housing - agreement between the parties – orders

Catchwords:

CRIMINAL LAW – Objective seriousness – error made in the exercise of discretion – whether the primary judge erred in assessing the applicant’s role in the drug supply enterprise – held in accepting erroneous assessment of the primary judge it must be accepted that the evaluation of objective seriousness is also erroneous – held primary judge fell into error by characterising the involvement of the applicant as more serious than that indicated by the evidence   CRIMINAL LAW – Appeals – parity principle – equality before the law – whether the applicant has a justifiable sense of grievance in the disparity of sentences imposed – substance rather than form – objective assessment of subjective circumstances – held disparity between sentences of co-offenders gives rise to a justified sense of grievance – resentence applicant

Catchwords:

HIGH RISK OFFENDER – application for extended supervision order – final hearing – serious sex offences and offences of a sexual nature – statutory preconditions for order are satisfied – whether satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision – consideration of independent expert evidence – defendant sentenced for further breaches of child protection orders after preliminary hearing – three year extended supervision order imposed with conditions

Catchwords:

COSTS – indemnity costs – whether first offer of settlement effective as a Calderbank offer – whether unreasonable to not accept – indemnity costs awarded from date of second offer   DECLARATIONS – form of declaration proposed – whether consistent with findings in principal judgment

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) – high hedges – views and privacy

Catchwords:

PERSONAL INJURY – slip and fall – public thoroughfare – water hazard – first defendant’s responsibility in respect of thoroughfare – contributory negligence

Catchwords:

HIGH RISK OFFENDER – Terrorism (High Risk Offenders) Act 2017 (NSW) – application for interim supervision order – threats of extreme violence against police and other officers – limited history of actual violent offending – potential political or ideological elements but extent unclear – orders for examination made – orders restricting access to the file without prior leave of the Court made

Catchwords:

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

Catchwords:

CRIME – conviction appeal – where permanent stay of proceedings denied by trial judge – where appellant accused of historical child sexual offences – where complainant made allegations shortly after the offending – where appellant interviewed by police and cross-examined at committal proceedings – where complainant chose not to proceed with prosecution but later reactivated complaints – where contemporaneous material lost – whether trial judge erred in dismissing application for stay   CRIME – conviction appeal – mixed verdicts – whether convictions on two counts unreasonable and not supported by evidence

Catchwords:

LICENSING – security industry – revocation of security guard licence – whether fit and proper person – driving record – public interest.

Catchwords:

ADMINISTRATIVE LAW – government information – CCTV footage of interior of correction centre - public interests against disclosure of the information in the way requested

Catchwords:

APPEAL – extension of time granted – landlord’s obligation to carry out repairs - whether rent reduction order should be varied or set aside – no error of law – no leave to appeal – no question of principle

Catchwords:

CIVIL PROCEDURE – subpoenas – costs – cost of compliance – application by third party to recover its costs incurred in complying with subpoena issued by defendants – r 33.11 UCPR – applicant had previously acted for the plaintiff in a commercial transaction with the defendant that preceded the present proceedings – several subpoenas issued – first subpoena defective – large volume of documents required review – significant delay caused by defendant’s solicitors – defendant’s solicitors failed to agree to a reasonable request for adjournment of subpoenas – defendant’s solicitors failed to negotiate with the applicant as to the amount of costs to be paid – r 42.33 UCPR – applicant sought fixed sum costs – applicant entitled to reasonable costs and fixed sum costs deemed reasonable   CIVIL PROCEDURE – appearance – where defendant is a company – where a director of the defendant signed a letter of authority authorising a third party to appear on defendant’s behalf – third party was not a director nor an officer of the company – r 7.1 UCPR – rule dispensed with to avoid further delay

Catchwords:

CRIMINAL LAW – sentencing – child sexual assault – amendment of statute to increase statutory age of victim from 10 and 16 years – sentencing Judge not made aware of amendment – indictment not correctly pleaded – Judge adopts error in indictment – impact on assessment of objective criminality – error established – whether victim vulnerable by virtue of age – all children caught by provision necessarily vulnerable – not an aggravating circumstance – exercising sentencing discretion afresh – applicant re-sentenced

Catchwords:

DEVELOPMENT APPLICATION – mixed use development (hotel, offices and long-term car park) – conciliation conference – agreement between the parties – orders

Catchwords:

JUDGMENTS AND ORDERS — Amending, varying and setting aside — Correction under slip rule — Where proceedings commenced and carried on against company identified by incorrect name but correct ACN — Where error identified by liquidator after winding up order made — Evidence referred to correct company — No confusion as to identity of defendant — Amendment to orders made.

Catchwords:

APPEAL – compliance with fire safety order – smoke detectors – fire safety statement

Catchwords:

CRIMINAL LAW – sentencing – Commonwealth Criminal Code – acts in preparation of foreign incursion offence – life imprisonment – young offender with schizophrenia – radical Islamism – offender planned to travel to Syria to fight with Islamic State – whether “entrapment” a mitigating feature – where offender took advice from undercover officer – offender not an unwary innocent – offender unable to organise own airfare – offender “radicalised” before involvement of undercover officer – offender’s mother gravely ill with multiple sclerosis – offender’s dilemma – where jury rejects defence of mental impairment – where offender’s psychiatric condition played significant role in commission of offence – reduction in moral culpability – impact on weight to be given to deterrence – where telephone intercepts establish offender’s interest in radical Islam – US government “the hope for humanity” – observation self-evidently facetious   CRIMINAL LAW – sentencing – sentencing options – rehabilitation – where operation of statute would result in very short period of supervision – where offender in need of long term supervision – appropriateness of non-custodial sentence – where offender already served 2 years on remand

Catchwords:

CRIMINAL LAW — appeal against conviction — application for leave —conviction for recklessly causing grievous bodily harm and failing to provide child with necessities of life — medical and biomedical evidence of the cause of injuries — whether verdict unreasonable or cannot be supported having regard to evidence   CRIMINAL LAW — appeal against conviction — whether verdict unreasonable in light of acquittal on count of intentionally causing grievous bodily harm — whether modified circumstantial evidence direction should have been provided   CRIMINAL LAW — appeal against sentence — whether error in assessing objective criminality —precise mechanism of injury unknown

Catchwords:

SENTENCING – appeal – Director’s appeal against inadequacy of sentence – dangerous driving causing death – manifest inadequacy – high range objective seriousness – finding of special circumstances – relevance of hardship to family – discretion to intervene

Catchwords:

INSURANCE – medical catastrophe benefit – interpretation of life threatening non-cancerous tumour in the brain – assessment of whole person impairment – whether both physical and psychiatric conditions go to such an assessment

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury   PROCEDURE – whether proposed amendments to wording of summons prejudicial   PROCEDURE – application by defendant for proceedings to be quashed – functions of indictment – fair trial – prosecution to identify measures that should have been taken and prove beyond reasonable doubt   PROCEDURE – application by defendant for proceedings to be stayed or dismissed – must be abuse of process – whether continuation of proceedings involves unacceptable injustice or unfairness – onus on applicant to prove

Catchwords:

TORT - Negligence – Medical negligence – Liability – Where the plaintiff’s arm was dislocated by a horse bite – Whether the defendants failed to order imaging to identify a rotator cuff injury – Whether the defendants failed to refer the plaintiff to an orthopaedic specialist – Whether the defendants failed to advise the plaintiff as to proper care for her shoulder – Contributory negligence – Whether the plaintiff exacerbated her injury by performing farm work against medical advice   Damages – Personal injury – Assessment of quantum – Economic loss – Costs of past and future care – Costs of caring for animals – Whether the defendants are liable for the cost of maintaining the plaintiff’s unprofitable business

Catchwords:

CRIMINAL LAW – sentence – murder – conviction at trial – stabbing – spontaneous - intent to inflict grievous bodily harm

Catchwords:

CRIMINAL LAW – special hearing – mental health defence – psychiatric evidence – accused suffered defect of reasoning – accused unable to reason wrongfulness – accused mentally ill at time of offence – special verdict of not guilty – order pursuant to s 39 of the Mental Health (Forensic Provisions) Act

Catchwords:

CRIMINAL LAW - procedure - restraining orders sought - ex-parte - orders made

Catchwords:

CRIMINAL LAW - procedure - restraining orders sought - ex-parte - orders made

Catchwords:

PROCEDURE – notice of motion – order seeking funds held in Court as security for costs be paid to solicitors for the defendant with no order as to costs – orders made

Catchwords:

CRIMINAL LAW – variation of restraining orders – consent orders made

Catchwords:

CIVIL PROCEDURE – search warrants – where the first search warrant was declared invalid – where the application for a second search warrant relied on information obtained under first search warrant – conduct of the officer in issuing the second search warrant - whether there was a failure to consider that the search warrant was for items over which there were claims for privilege - whether there was inappropriate conduct during the execution of the second search warrant – blanket privilege claims - whether handwritten notes by the plaintiff give rise to an obligation of confidence – whether personal data stored on Strava app is confidential information

Catchwords:

CRIMINAL LAW – procedure – restraining orders sought – ex-parte – orders made

Catchwords:

EQUITY — Trusts and trustees — Unit trusts – where claims that payments not authorised by trust largely resolved by parties’ concessions – whether judgment ought be entered on gross or net basis in accordance with terms of Trust deed – where judgment sought by reference to income figures disclosed in accounts and entered accordingly.   COSTS — Party/Party — Offers of compromise/Calderbank offers – where plaintiff succeeded in one aspect of claim but otherwise comprehensively failed – where successive offers of compromise made and refused – whether plaintiff ought to pay defendant’s costs following expiration of first offer.

Catchwords:

CIVIL PROCEDURE — Representative proceedings — Settlement — Court approval

Catchwords:

CRIME – Driving offences – Failure to stop and assist after vehicle impact causing death – where offender’s licence was suspended at time of offence – where offender drove through red light shortly after impact– where offender knew that victim had died – where no suggestion that offender’s driving played any part in causing the fatality   SENTENCING – where offence in the mid-range of objective seriousness – aggravating and mitigating factors – where offender unlikely to reoffend – where offender has good prospects of rehabilitation – where offender entered early guilty pleas – where imprisonment necessary – where lengthy periods of disqualification and pecuniary penalty not warranted –multiple offences – accumulation, concurrency and totality

Catchwords:

PROFESSIONS AND TRADES – health and professionals – medical practitioners – disciplinary proceedings – Practitioner creating false document purporting to record results of audiological testing – performing surgery when there was no objective evidence to justify such surgery – practitioner forwarding misleading report to general practitioner – practitioner failing to report damage caused during his treatment of patient – practitioner failing to advise or make notes of such damage – creation of false records – practitioner misleading patient’s general practitioner – practitioner failing to inform patients that proposed treatment was unlikely to provide any benefit - failing to obtain informed consent for surgery – practitioner making false statement that he had consulted with patient prior to surgery – practitioner making falsified claim for remuneration

Catchwords:

PROFESSIONS AND TRADES – health and professionals – medical practitioners – disciplinary proceedings

Catchwords:

COSTS – costs on appeal - respondents substantially successful – amount in dispute exceeds threshold – costs follow event except for agreed discount

Catchwords:

PROFESSIONS AND TRADES – health and professionals – medical practitioners – disciplinary proceedings - Practitioner conducting surgery when necessity for such surgery was not indicated - operative care – practitioner failing to supply clinical records – practitioner failing to inform patients of surgery – practitioner failing to obtain patient’s informed consent – practitioner forwarding misleading report to general practitioner of patient – practitioner misleading applicant

Catchwords:

DEVELOPMENT APPLICATION – demolition and construction of a new boarding house – consent orders – public objections

Catchwords:

DEVELOPMENT APPLICATION – Torrens Title Subdivision of land – one lot into two lots – whether the potential impacts to significant and indigenous trees is acceptable – whether the Applicant’s proposals for on-site detention of stormwater are acceptable.

Catchwords:

PROFESSIONS AND TRADES – health and professionals – medical practitioners – disciplinary proceedings

Catchwords:

CIVIL PROCEDURE – summary judgment application – plaintiffs are the registered proprietors of a hotel in Katoomba – plaintiffs claim that the defendants were their tenants – plaintiffs seek summary judgment for rent said to be owing to them by the defendants – whether the defendants have an arguable defence to the plaintiff’s claim – whether the first and second defendants were in occupation of the hotel – where the first and second defendants claimed that the third defendant company ran the hotel business – first defendant is the sole director of the third defendant company – where company incorporated months after first and second defendants went into occupation - no evidence that the plaintiffs agreed to the company running the business or occupying the hotel – pleading in defence untenable – whether a tenancy existed between the plaintiffs and defendants – where the defendants accepted in oral submissions that they were tenants – no doubt as to occupation by the defendants – tenancy found to exist – whether there was a failure to pay rent – where the defendants did not dispute that the rent was unpaid but alleged that the plaintiffs had agreed at various times to forego rent – no evidence adduced by the defendants of such agreements – the existence of any such agreement was denied by the plaintiffs – defence in this regard untenable – no arguable defence to the claim – summary judgment given

Catchwords:

Residential tenancy – application for termination and possession of social housing based on breach of lease agreement – determination of matter on another basis – held constituted error – decision set aside – Appeal Panel conducted fresh hearing – commercial quantity of illegal drugs found on premises and drugs sold from premises – tenant vicariously liable – order made for termination of tenancy

Catchwords:

PROCEDURE – judgments and orders – amending, varying and setting aside – application for gross sum costs order and payment from a fund – application made out of time with unexplained delay

Catchwords:

LEAVE TO APPEAL – interlocutory decision to refuse amendment – amendment sought leave to advance claim for misleading and deceptive conduct – proceedings dismissed after trial based on fraudulent misrepresentation only – no challenge to final judgment – issue estoppels flowing from final judgment – leave refused