Browse decisions Displaying 1 - 200 out of 114891 results

Catchwords:

ASSOCIATIONS AND CLUBS — domestic and private tribunals — interpretation of rules governing domestic sporting tribunal CONTRACTS — construction — interpretation — natural and ordinary meaning

Catchwords:

APPEALS – claim for unpaid invoices by accountancy practice against former corporate and personal clients – appeal from decision of Small Claims Division of the Local Court of New South Wales – attempt to rely upon fresh evidence – whether the Court’s jurisdiction to hear appeal enlivened – whether clients’ complaints, individually or in combination, constitute complaints about a denial of procedural fairness

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CRIME – Sentence – Conspiracy to possess a commercial quantity of a border-controlled drug.

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CIVIL LAW – cross-vesting – class action in Victoria – proceedings in negligence arising out of novel procedures in the course of IVF treatment – similar issues raised in proceedings in NSW District Court – whether appropriate to remove District Court proceedings to this Court – whether proceedings in each state related to each other – whether more appropriate proceedings be dealt with by the Supreme Court of Victoria – remote duty list – notice of motion in the midst of duty list – colour and movement – misericordious development – consent! – alas, not a consent jurisdiction – thorough and helpful submissions – matter transferred to Victoria

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CONTRACT –– Application of s 127 of the Corporations Act - Execution of a document where there is more than one director – Where a director is also the company secretary – Ratification of a contract

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APPEALS — leave to appeal — interlocutory decisions — adoption of report by referee — leave to appeal refused BUILDING AND CONSTRUCTION — Home Building Act 1989 (NSW) — whether application brought out of time — construction of s 3B – distinction between “completion” and “practical completion”

Catchwords:

APPEALS – jurisdiction of appellate court – Supreme Court – NSW Civil and Administrative Tribunal – Health Practitioner Regulation National Law – cancellation of registration order – whether the Tribunal erred in its application of the appropriate standard of proof – whether the Tribunal erred in its alleged failure to give adequate reasons for its findings – Tribunal’s judgment to be read in the context provided by the whole of its reasons – Tribunal gave comprehensive reasons without placing reliance on undisclosed materials – appeal dismissed HEALTH – practitioner – pharmacist – professional misconduct – alcohol misuse disorder

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EDUCATION and Care Services National Law – Operator approval – Fit and proper – whether applicant possesses sufficient knowledge skill and experience to be considered fit and proper- whether application and assessment process was unfair – merits review

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COMPULSORY ACQUISITION – Application to reopen – interests of justice – evidence not relevant – Application dismissed

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COMPULSORY ACQUISITION – Objection to compensation for compulsory acquisition pursuant to s 66 of Land Acquisition (Just Terms Compensation) Act 1991 – determination of public purpose within s 56(1)(a) – relevant purpose broadly construed to include the Western Sydney Infrastructure Plan, the Western Sydney Airport and attendant economic opportunities – rezoning of land integral to public purpose – statutory disregard pursuant to s 56(1)(a) – determination of market value of land – compensation for injurious affection – claim for disturbance – costs

Catchwords:

DEVELOPMENT APPLICATION – gas powered - electricity generating power plant – data centre - conciliation conference – agreement between the parties - orders

Catchwords:

OCCUPATIONS – Legal practitioners – Barristers – Removal from roll of barristers – where barrister repeatedly and wilfully disobeyed injunctions preventing him from legal practice and advertising or presenting that he was able to engage in legal practice – where he pleaded guilty and was found to have committed 16 counts of contempt for continuing to practise – where he committed 12 contraventions of suspended imprisonment conditions

Catchwords:

DEVELOPMENT APPLICATION – mixed use development – breach in height development standard – variation of development standard – conciliation conference – agreement between the parties – orders

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ADMINISTRATIVE LAW – judicial review – whether the Medical Assessor erred in the treatment of causation of the injury – whether the Delegate erred when considering the Medical Assessor’s treatment of causation of the injury – where the Delegate committed jurisdictional error – the Delegates decision is set aside

Catchwords:

CONTRACTS — terms — exclusion clauses — construction — insurance — where insurance policy covers property damage — where exclusion clause purports to exclude asbestos related damage — whether the negligence arose only from the act of spraying a high pressure hose or the spraying of the hose on a roof that likely contained asbestos – HELD — the liability arose not only from the spraying but included the spraying of a roof likely to contain asbestos — where business efficacy is a relevant consideration to construction

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DEVELOPMENT APPLICATION – demolition of a verandah to a heritage item – conciliation conference – agreement between the parties – orders

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DEVELOPMENT APPLICATION – alterations and additions to existing terrace house within a Heritage Conservation Area

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

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HEALTH — professional registration and discipline — paramedic — convictions for offences — failure to notify the Paramedicine Board of Australia of prescribed matters — whether constitutes unsatisfactory professional conduct — what protective orders should be made

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DEVELOPMENT APPLICATION – adaptation of existing and construction of new warehouses for light industrial and creative purpose - conciliation conference – agreement between the parties – orders

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DEVELOPMENT APPLICATION – new dwelling - conciliation conference - agreement between the parties - orders

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CRIME — Appeals — Appeal against sentence — Application for leave to appeal — Importation of border-controlled drug — Where the co-accused was the applicant’s abusive partner — Where the applicant was subordinate to her co-accused in the importations— Evidence of a non-financial motive — Whether the sentencing judge failed to take into account that the applicant was acting at the direction of an abusive partner in committing the offences in regard to general deterrence and denunciation — failure to make a finding as to moral culpability

Catchwords:

LEASES AND TENANCIES-residential tenancy-tenant’s claim that rent increase was excessive-written rent increase notice required to be given pursuant to s 41 (1) of the Residential Tenancies Act 2010 (NSW) (RTA) -tenant acknowledged receipt of notice within the 60 day time period requirement-validity of written notice when given by email where no email address specified as required by s 223 of the RTA-Tribunal found invalid-Tribunal did not consider significance of tenant’s acknowledgement of receipt-error of law.

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CONTRACTS — Remedies — Damages — Whether party is entitled to recover damages for breach of contract CONTRACTS — Remedies — Specific performance — Where contract is part of parties’ larger commercial relationship ESTOPPEL — Promissory estoppel — Relief — Application of legal principles

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OCCUPATIONS — Legal practitioners — Barristers – application for non-publication order with respect to two complainants

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COSTS – Order for costs thrown away by amendments.

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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 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:

RECTIFICATION — commercial contract — common intention — proof — internal communication between plaintiff and solicitor — relevance and significance — defendant’s intention — whether Jones v Dunkel inference should be drawn CONTRACT — interpretation of commercial contract for sale of land — right of recission — interpretation by reference to context — potentially contaminated land — contaminated land legislation and Environmental Protection Authority guidelines — relevance of expert opinion evidence

Catchwords:

SENTENCING – murder – young mother suffocated her 11-month-old daughter – early plea of guilty – facilitated the administration of justice – mental impairment and objective seriousness – mental impairment and moral culpability – special circumstances

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CIVIL PROCEDURE – notice of motion filed by applicant defendant pursuant to either UCPR r 13.4 or r 14.28 seeking dismissal or alternatively striking out of respondent plaintiff’s proceedings – whether applicant defendant has established an Anshun estoppel to preclude the respondent plaintiff from further pursuing its claim – refusal of the relief sought

Catchwords:

PROCEDURAL RULINGS – Interlocutory – Costs appeal – s 89(4) Legal Profession Uniform Law Application Act – application for leave to put on fresh, additional or substitute evidence – comment that such applications are best serviced by parties identifying the dispute in a schedule identifying evidence said to be fresh, additional or in substitution and, if in substitution, then the evidence substituted for.

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ADMINISTRATIVE LAW — summons — application for leave — relevance — oppression — abuse of process

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VALUATION — Valuer — Comparable sales — Appeal against determination by Valuer-General of land value — Appeal dismissed

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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 – forklift hit pedestrian worker at depot – inadequate traffic management plan – no separation of pedestrians and forklifts

Catchwords:

VALUATION APPEAL – land valuer – conciliation conference – agreement between the parties - orders

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DEVELOPMENT APPLICATION – torrens subdivision and new dwellings – conciliation conference – amended plans – agreement between the parties – orders made

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ADMINISTRATIVE LAW – judicial review of decision of medical appeal panel – medical dispute under Workplace Injury Management and Workers Compensation Act 1998 – where medical assessor’s assessment upheld by appeal panel – where appeal panel erred by misunderstanding the applicable legal test – whether panel failed to exercise its statutory functions according to law – whether same conclusion would have been arrived at regardless of error – matter remitted for reconsideration by different Appeal Panel

Catchwords:

APPEAL – development control order – modification of time for compliance - conciliation conference – agreement between the parties – orders

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MODIFICATION APPLICATION – shop top housing – conciliation conference – agreement between the parties – orders

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APPEALS — Leave to appeal — Interlocutory decisions —— leave to appeal refused

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DEVELOPMENT APPLICATION – alterations to an existing dwelling - construction of a secondary dwelling above garage – conciliation conference – agreement between the parties – orders

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ADMINISTRATIVE LAW – Firearms licencing- refusal - public interest – fit and proper person -traffic offences

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DEVELOPMENT CONTROL ORDER – parties agree to modified development control order

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PRACTICE – summary dismissal – notice of intention to appeal and notice of appeal filed late – whether appeal should be dismissed on basis of delay and insufficiency of prospects – delay minor – difficulty in assessing prospects in absence of appeal books and respondents’ submissions – lack of utility in determining questions of law in light of right of review – application for summary dismissal refused PRACTICE – security for costs – respondents in breach of procedural directions – application brought late – appeal to be heard in five business days – majority of costs the subject of the application already incurred - significance of delay – application for security for costs dismissed

Catchwords:

CORPORATIONS — winding up — practice and procedure — application to transfer proceedings to the Federal Court of Australia — where related Federal Court proceedings are on foot — where the same issues arise and the same primary outcome is sought in both the Supreme Court and Federal Court proceedings — where the transfer of proceedings is in the interests of justice

Catchwords:

PRIVATE INTERNATIONAL LAW – Foreign Judgments Act 1991 (Cth) s 7(2)(a)(v) – Section requires the Court to set the registration of a foreign judgment aside where the judgment debtor did not receive notice of the proceedings in sufficient time to enable him to defend the proceedings and he did not appear - Application to set aside registration of a judgment of the High Court of the Hong Kong Special Administrative Region, Court of First Instance – Where defendant did not receive notice of the Hong Kong proceedings until after judgment was given – Where defendant did not appear in the Hong Kong Court to defend the judgment – Where defendant moved the Hong Kong Court to set aside its judgment before making the application to this Court – Whether by doing so defendant appeared (or did not not appear) within the meaning of the section – HELD defendant did not appear – Registration of the foreign judgment set aside CIVIL PROCEDURE – Application by plaintiff for monies paid by consent order into Court by defendant to be paid by the Court into the Hong Kong Court – Alternatively to be kept in Court pending determination of a proposed claim in the Court by plaintiff against defendant – HELD application refused on various grounds including that the monies were paid into Court under a consent order to abide orders of this Court, not orders of the Hong Kong Court, and defendant’s entitlement to have the registered judgment set aside is not susceptible to the condition that monies stay in Court pending plaintiff’s proposed proceedings

Catchwords:

CONTRACTS — Construction — Interpretation – Doctrine of Contemporaneous Documents - Extrinsic Evidence

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CIVIL PROCEDURE — Representative proceedings — Conduct of proceedings — Notices — Court’s power to order that notice be given to group members — Proposed notice referred to intention to apply for order excluding group members who had neither opted out nor registered from receiving potential prospective settlement sum JUDGMENTS AND ORDERS — Court of Appeal — Where Full Court of Federal Court (Parkin v Boral Ltd (2022) 291 FCR 116; [2022] FCAFC 47) had held that previous decision of Court of Appeal (Wigmans v AMP Ltd (2020) 102 NSWLR 199; [2020] NSWCA 104) was “plainly wrong” — Where disagreement with that characterisation — Whether Court of Appeal should depart from Wigmans v AMP Ltd (2020) 102 NSWLR 199; [2020] NSWCA 104 STATUTORY INTERPRETATION — Context — Whether general words in statute should be read down to conform with surrounding provisions and purpose of the legislation

Catchwords:

BUILDING AND CONSTRUCTION – whether adjudication determination under Building and Construction Industry Security of Payment Act 1999 should be quashed – adjudicator determined that the payment schedule did not contain valid reasons for withholding payment and that the adjudication response advanced new reasons which the adjudicator was not permitted to consider – whether the adjudicator failed to comply with mandatory requirements of Act – whether there was a substantial denial of procedural fairness – jurisdictional error not established

Catchwords:

LICENSING – firearms – mental health issues – false statement in application – public interest

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

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NEGLIGENCE — Personal injuries — where the plaintiff tripped and fell down a flight of stairs in the Republic of Nauru — law of Nauru applies, which is broadly similar to common law — where the height of an exposed metal lip on an aluminium frame attached to the edge of the top stair from which the plaintiff fell was subject to different measurements by a lay person (6.25mm) and two experts (2 to 2.5mm) — whether the primary judge erred in finding the height was 6.25mm and not 2 to 2.5mm — whether any error was material NEGLIGENCE — Causation — Factual causation — whether the primary judge erred in finding that the lip which had a missing yellow non-slip strip caused the plaintiff’s fall when his boot caught on it NEGLIGENCE — Breach — Foreseeability of risk — Standard of care — whether the absence of a “non-slip” strip from the stair frame was obvious and reasonable precautions were required to be taken to address the risk of harm

Catchwords:

APPEAL – finding that appellant’s main witness unreliable – whether evidence as to business practice affected – reliance on commerciality – inferences drawn from circumstances and context – failure of trial judge to be satisfied of case for party bearing onus of proof – absence of basis to reject findings of fact CONTRACTS – formation – contract alleged to have been formed by exchange of emails – respondent disputed the existence of the two emails – no electronic record of emails – only explanation of absence from respondent’s server was deletion prior to migration to cloud in 2017 – deletion not relied on by appellant – hardcopy of emails relied on by appellant – irregularities between disputed emails and undisputed emails – belated discovery implausible

Catchwords:

DEVELOPMENT APPEAL – residential dwelling – conciliation conference – agreement between the parties –- orders

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APPEAL – development application – subdivision of land – offer to enter into a planning agreement for dedication of land – contentions addressed by additional information – agreed conditions of consent

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DEVELOPMENT APPLICATION – residential apartment building – agreement between the parties – orders

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PROFESSIONS AND TRADES — health care professionals — nurses — where practitioner seeks termination of disciplinary proceedings — whether it is “not in the public interest” for the inquiry to continue

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EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – documents produced pursuant to a Summons for Production – claim of public interest immunity – whether immunity attached to intelligence reports of the NSW Police Force – whether the public interest in disclosure outweighs the interests in the administration of justice – the public interest in keeping confidential the informants is outweighed by the public interest in the administration of justice in the unredacted documents being made available to the applicant – consideration of instead making s 164A orders – order made

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DEVELOPMENT APPLICATION – light industry - conciliation conference - agreement between the parties - orders

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

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

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DEVELOPMENT APPLICATION – seniors living – cl 4.6 written request – height of buildings – agreement between the parties – orders

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APPEAL – development application – redevelopment of the President Private Hospital – conciliation conference – agreement between the parties – orders

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

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SUCCESSION — Dispute regarding costs payable consequent upon contested hearing relating to construction and rectification of the deceased’s last Will and estoppel claim — Approximately 9 months after commencement of proceedings defendant appointed pursuant to Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 7.10(2)(b) to represent the deceased’s estate — Estoppel claim successful having practical effect of giving the plaintiff property to which he would not otherwise be entitled having regard to the dismissal of the construction and rectification claims SUCCESSION — Interaction between the costs orders and statutory order under the Probate and Administration Act 1898 (NSW) (“PAA”) for payment of testamentary expenses — Court’s exercise of discretion under s 93(3) of the Trustee Act 1925 (NSW) and s 98 of the Civil Procedure Act 2005 (NSW) (“CPA”) displaces (to the extent described in the costs order) the statutory order provisions of s 46C(2) of the PAA concerning how testamentary expenses are to be borne COSTS — Offers of compromise — UCPR r 42.14 — Principles discussed — Whether offers contained element of ‘real’ or ‘genuine’ compromise (on facts – Yes) — Whether defendant acted reasonably in rejecting offers (on facts – No) — Whether there are other factors beyond the defendant’s reasonableness capable of supporting an ‘otherwise’ order — On facts plaintiff proposed a partial ‘otherwise’ order — Held partial order otherwise made ordering plaintiff to pay defendant’s costs of construction and rectification claims up to the time of the first offer SUCCESSION — Costs — Discussion of means of appraising whether the cost or expense which is the focus of the indemnity sought is ‘properly’ or ‘reasonably’ incurred SUCCESSION — Representative orders — Nature and scope of an estate representative’s role bearing upon costs — Discussion of sources of a representative’s obligations and entitlements — Discussion of options for representatives in estate proceedings to protect themselves as to costs liability, specifically by seeking indemnity and judicial advice — Discussion of jurisdiction (equitable and statutory) to provide for representation of an estate — Discussion of various UCPR Part 7 representation orders and choices, and the connection and interaction between them — Specific discussion regarding representative orders under UCPR r 7.10(2)(b) SUCCESSION — Representative appointment pursuant to UCPR r 7.10(2)(b) — Reference to historical background — Requirements for consent and independence — Discussion of terms of appointment — Discussion regarding nature and scope of a UCPR r 7.10(2)(b) appointee’s obligations and entitlements — Discussion regarding availability of indemnity and judicial advice to UCPR r 7.10(2)(b) appointee COSTS — Indemnity — Discussion regarding how one assesses whether a party is substantively acting in his or her own interest as opposed to acting in a representative capacity COSTS — Set-off of costs orders favouring either side LAW REFORM — It is timely that there be an amendment (or at least consideration of an amendment) to the CPA and UCPR to clarify the position of whether a r 7.10(2)(b) representative may be given judicial advice

Catchwords:

ADMINISTRATIVE REVIEW - Privacy and Personal Information Protection Act – jurisdiction only to review conduct which is subject of internal review application – meaning of “collection” – meaning of “use” - whether information used for a purpose directly related to the purpose for which it was collected – whether information disclosed for a purpose which is directly related to the purpose for which it was collected

Catchwords:

DEVELOPMENT APPLICATION – new dwelling – amended plans – conciliation conference – agreement between the parties – orders

Catchwords:

HEALTH — professional registration and discipline — enrolled nurse — practitioner pleaded guilty and convicted of criminal offences — whether circumstances of the offences render the practitioner unfit in the public interest to practise — appropriate protective orders

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DEVELOPMENT APPLICATION – alterations and additions to an approved residential flat building –exceedance in height development standard – cl 4.6 written request to vary standard – provision of adequate communal open space

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MODIFICATION APPLICATION – two storey dwelling – breach of building height control – visual massing – foreshore location concerns – neighbour objections

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CORPORATIONS — winding up — statutory demand — where the presumption of insolvency applies

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CORPORATIONS — winding up — just and equitable ground — where the relationship between members of the corporations has irretrievably broken down — appointment of liquidators with consent

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CORPORATIONS — winding up — substitution of applicant for company to be wound up — where substitute applicant might otherwise have applied for an order winding up the company

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TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – neighbouring tree – damage to property – damage to dividing fence – whether tree removal is required – orders for fence replacement and tree pruning

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CORPORATIONS – external administration – liquidators – supervisory jurisdiction – whether inquiry into the conduct of liquidator should be ordered – where the liquidator failed to comply with a subpoena for production of documents – where liquidator has now agreed to regime for production.

Catchwords:

APPEALS — Procedure — Stay pending appeal — No issue of principle LAND LAW — Co-ownership — Statutory trust for sale — Writ for possession

Catchwords:

CRIMINAL PROCEDURE — Sexual assault communications privilege — Applications for leave CRIMINAL PROCEDURE — Subpoena — Objection to production of material — Sexual assault communications privilege — Applications for leave under section 299D of the Criminal Procedure Act 1986 (NSW) CRIMINAL PROCEDURE — Sexual offence proceedings — Admissibility of evidence related to sexual experience — Applications for leave to cross-examine under section 294CB(4) of the Criminal Procedure Act 1986 (NSW)

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COSTS — Party/Party — Exceptions to general rule that costs follow the event — Whether circumstances warrant departure from principle that costs follow the event

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COSTS — Party/Party — Bases of quantification — Indemnity basis — Where plaintiff’s director must have been aware that basis of claim was false

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CONTRACT OF CARRIAGE – termination – reinstatement – compensation – identifying parties to the contract of carriage – whether there was an implied contract of carriage – essential elements of a contract not established

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COSTS – whether costs determination should be stayed pending appeal – whether costs should follow the event – whether public interest litigation – no order as to costs.

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ADMINISTRATIVE LAW – administrative review – Government information – whether the Tribunal should exercise a discretion to make non-publication orders that were not sought prior to the determination of the application for administrative review

Catchwords:

ADMINISTRATIVE LAW - government information – whether documents are excluded information of the Health Care Complaints Commission that is conclusively presumed to be subject to an overriding public interest against disclosure within the meaning of the Government Information (Public Access) Act 2009 (NSW) – whether the application for access to documents should be refused on the basis that there is an overriding public interest against their disclosure as compromising the complaint handling process of the Respondent within the meaning of the Government Information (Public Access) Act 2009 (NSW)

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LICENSING — Liquor licensing — Hotel licence — Extension of trading hours

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HEALTH — professional registration and discipline — chiropractor — where chiropractor is guilty of professional misconduct — what protective orders should be made

Catchwords:

LIMITATION OF ACTIONS — Discoverability — Personal injury — Knowledge of fault of defendant CIVIL PROCEDURE — Pleadings — Striking out — No reasonable cause of action or defence — Whether cause of action “clearly” statute barred under the Limitation Act 1969 (NSW) such that no reasonable cause of action disclosed CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — No reasonable cause of action disclosed — Frivolous or vexatious proceedings — Whether cause of action “clearly” statute barred under the Limitation Act 1969 (NSW) such that no reasonable cause of action disclosed

Catchwords:

CRIME – murder – specially aggravated kidnapping – judge alone trial –extremely violent bashing of 16-year-old in two phases by multiple assailants – multiple bases of liability alleged – witness credibility issues – consistent theme supported by objective evidence – murder proved for one accused and conceded by other – defence of substantial impairment by cognitive impairment not established

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OCCUPATIONS — legal practitioners — misconduct — breach of Code of Conduct — disciplinary proceedings — whether Tribunal has jurisdiction to determine Applicant’s application — whether the Applicant’s application should be dismissed under s 55 of the Civil & Administrative Tribunal Act 2013 (NSW)

Catchwords:

COSTS – respondent applied for order for costs –application for reinstatement under s 181D of the Police Act 1990 not instituted without reasonable cause and was not frivolous nor vexatious – applicant did not unreasonably fail to agree to a settlement of the claim – the application for costs order refused.

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CIVIL PROCEDURE – summary disposal – application seeking judgment entered against first defendant – where first defendant has disengaged from proceedings – proceedings set down for the assessment of damages

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CIVIL PROCEDURE – summary disposal – application for dismissal of proceedings for want of due despatch – where first defendant/cross-claimant has disengaged from proceedings – whether gross sum costs order should be made against first defendant/cross-claimant in favour of third cross-defendant

Catchwords:

COSTS: whether costs follow the event when a respondent surrenders to the orders sought by an applicant in the originating process – whether conduct of the applicants was unreasonable thereby warranting a departure from the usual costs order – whether applicants’ failure to notify the first respondent prior to commencing proceedings was unreasonable conduct warranting a different costs order – whether applicants’ failure to personally serve the first respondent with the originating process was unreasonable conduct warranting a different costs order – whether the applicants’ rejection of an offer to settle the proceedings on the same terms as the relief that they ultimately obtained absent an order as to costs was unreasonable – effect of filing of a submitting appearance by the second respondent on costs – applicable legal principles.

Catchwords:

TAXES AND DUTIES — payroll tax — exemptions TAXES AND DUTIES — payroll tax — liability — contractors TAXES AND DUTIES — payroll tax — wages — deemed employees TAXES AND DUTIES — payroll tax — wages — payments under relevant contracts TAXES AND DUTIES — payroll tax — wages — taxable wages

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COSTS — indemnity basis — where successful party seeks indemnity costs — where unsuccessful party seeks capped costs order pursuant to s 98(4)(d) Civil Procedure Act 2005 (NSW) — where unsuccessful party had ulterior motive and no chance of success — where no principled or evidential basis for capped costs — HELD — indemnity costs payable and no cap imposed

Catchwords:

CRIMINAL LAW – sentence – assault occasioning actual bodily harm – fact finding after jury acquittal on a more serious offence – dispute over extent of victim’s injuries and the offender’s responsibility for them – consideration of offender’s motive – whether offender remorseful – relevance that offending could have been dealt with summarily – whether hardship

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HIGH RISK OFFENDER – preliminary hearing – application for Interim Supervision Order pursuant to s 10B of the Act – whether defendant is a “supervised offender” – whether index offence is a “serious violence offence” as defined in s 5A – whether a court ought to consider the evidence and circumstances constituting the elements of the offence in determining whether the index offence is a “serious violence offence” – “what matters” is the elements of the offence said to constitute a “serious violence offence” – summons dismissed

Catchwords:

CIVIL PROCEDURE – Civil Procedure Act 2005 (NSW) ss 149B, 149E – Application for transfer of proceedings instituted in this Court to the Land and Environment Court of New South Wales for the predominant purpose, not of seeking the substantive relief claimed in this Court, but of transferring the proceedings to that Court to have the outcome that that Court will have jurisdiction with respect to issues having arisen in proceedings in that Court in respect of which it may not have jurisdiction – Where no application is made to that Court to transfer the proceedings, or any part of them, in that Court to this Court – HELD the application for transfer should be refused because it is an abuse of the processes of this Court – HELD FURTHER that it is in any event not more appropriate for the proceedings to be heard in that Court than this one

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OCCUPATIONS — Legal practitioners — Barristers — Professional misconduct – Unsatisfactory Professional conduct – sexual harassment – breaches of Rules – transitional provisions regarding Rules

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CIVIL PROCEDURE – Pleadings – Amendment – Plaintiff sought to add further defects to existing cause of action – Whether Second Defendant would be irremediably prejudiced if amendments allowed – Whether Second Defendant has established viable and realistic cross-claims in respect of defects – Whether order should be made for amendments to take effect from date of commencement of proceedings

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ADMINISTRATIVE LAW – summons seeking judicial review of decisions made under the Australian Harness Racing Rules – where plaintiff was issued with directions to produce his mobile phones to stewards of Harness Racing NSW – where plaintiff contends that directions ultra vires to the extent they infringe legal professional privilege ADMINISTRATIVE Law – Remedies – Equitable remedies – Injunction – where plaintiff seeks interlocutory injunction to restrain the stewards from imposing a penalty for his refusal to comply with the direction to produce his mobile phone – whether the summons raises a serious issue to be tried – where plaintiff has available other avenues of appeal against any penalty to be imposed – whether an injunction should be granted in such circumstances – where impugned decisions relate to matters of public interest – application of principles discussed in New South Wales Bar Association v Stevens

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APPLICATION – an application to modify a consent granted by the Court – boarding house – conciliation conference – agreement reached – orders made

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CRIME — Property offences — Break and enter with intent to commit serious indictable offence — Circumstances of aggravation CRIME — Sexual offences — sexual intercourse without consent

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

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CONSUMER CLAIMS — breach of procedural fairness — whether on a re-hearing the finding that the Respondent received no benefit from the consumer contract following lawful termination should be disturbed — on a re-hearing Appeal Panel is satisfied that the original orders should stand

Catchwords:

SENTENCING — relevant factors on sentence — whether sentencing judge failed to consider, or mistook the facts in relation to, pressure exerted by the offender’s mother and ex-partner to commence and continue social security fraud SENTENCING — resentence — relevant factors on sentence — relationship between moral culpability and objective seriousness — where duress is present — significance of general deterrence in sentencing for social security fraud

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APPEALS — Dividing fences — Extension of time – Appeal by leave under s 80(2) of the Civil and Administrative Tribunal Act 2013 (NSW) — Breach of procedural fairness — Whether there is significant new evidence for the purposes of clause 12, Schedule 4 of the Civil and Administrative Tribunal Act 2013 (NSW)

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

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APPEAL – development application for water storage facility – characterisation – whether proposed development can be properly characterised as water storage facility – whether industrial activity – traffic safety issues

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MODIFICATION APPLICATION – whether substantially the same development – the floor space ratio standard exceeded – the height standard is exceeded – whether the bulk and scale is acceptable – whether development as modified will establish undesirable precedent

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DEVELOPMENT APPLICATION – mixed use development in R4 High Density Residential zone – residential apartment development – conciliation conference – agreement between parties – orders

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CRIME — Appeals — Appeal against conviction and sentence — Murder MENTAL HEALTH — Criminal proceedings — Defence of mental health impairment — Special verdict of act proven but not criminally responsible — Where applicant diagnosed with schizophrenia after conviction

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OCCUPATIONS – physiotherapist – misconduct and discipline – failure to provide prior explanation for treatment methods – physical examination of female pubic and pelvic anatomy – no informed consent – unsatisfactory professional conduct and professional misconduct

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CRIME – appeal and review – appeal from Local Court to Supreme Court – where appeal directed towards decision of Local Court magistrate to refuse leave to withdraw guilty pleas – whether plaintiff has been “convicted” by the Local Court for the purposes of ss 52(1) and 53(1) of the Crimes (Appeal and Review) Act 2001 (NSW) – where plaintiff is a person against whom an interlocutory order has been made in relation to summary proceedings and can only proceed under s 53(3)(b), requiring a “question of law alone” and leave of the Supreme Court – no “question of law” arising – no basis to grant leave – leave to appeal refused – conviction appeal pursuant to ss 52(1) or 53(1) – prosecution proceeding on agreed basis – no “question of law” arising – no basis to grant leave – leave to appeal refused

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CORPORATIONS – Winding up - Whether winding up on the just and equitable ground should be ordered - Where common ground that there has been a failure in the relationship between shareholders – Where the Company has no assets and its business is apparently now operated by another entity.

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CIVIL PROCEDURE – alleged partnership dispute – applications for summary dismissal and (alternatively) strike out of an amended pleading – amended pleading filed out of time directed – whether leave to amend should be granted retrospectively

Catchwords:

COSTS – third party costs order – whether majority shareholders of plaintiff companies should pay costs of unsuccessful application for interim injunction – whether majority shareholders and plaintiffs should be jointly and severally liable for costs – whether those costs should be assessed and payable forthwith

Catchwords:

Mosely Costs costs thrown away

Catchwords:

BUILDING AND CONSTRUCTION – Contract – cost plus contract for construction of residence – alleged breach of contract – whether builder entitled to claim payment of outstanding invoices – whether builder entitled to claim damages for loss of profits BUILDING AND CONSTRUCTION – Australian Consumer Law – whether misleading or deceptive conduct – whether builder represented that cost of building would be around and not substantially more than $550,000 or $750,000 – whether owners relied on any such representation when deciding to enter the contract BUILDING AND CONSTRUCTION – Contract – damages – whether “alternative transaction” case or “no transaction” case available – where damages claimed “because” of the alleged misleading or deceptive conduct BUILDING AND CONSTRUCTION – Contract – variation – oral variation – whether owners agreed to substitute blockwork for Rediwall construction – whether builder can rely on oral variation in defence of claim by owner

Catchwords:

CIVIL PROCEDURE – default judgment – where defendant is bankrupt – whether leave from the Federal Court is needed to proceed – where plaintiff’s claim satisfies exception under s 82(2) in the Bankruptcy Act 1999 (Cth) – claim for unliquidated damages arising from an intentional tort or negligence – judgment entered for damages to be assessed and for costs

Catchwords:

ADMINISTRATIVE LAW – referral of question of law to the Supreme Court – question of law arising in proceedings –

Catchwords:

COSTS – Courts discretion – Application for alternative costs order – Offer of compromise – Change in plaintiff’s case on filing of amended statement of claim – Alternative costs order granted – No costs order up to 11 May 2023 – Costs thereafter in plaintiffs favour to be assessed on an indemnity basis

Catchwords:

ADMINISTRATIVE LAW – Judicial review – whether time should be extended to allow judicial review of the first of three decisions – extension of time not granted – where judicial review of the following two decisions also fails

Catchwords:

ADMINISTRATIVE LAW — firearms –– objects of legislation — public interest — public safety — PTSD — no evidence of self harm — no evidence of threats of violence to self or others — no evidence of violence to others — not contrary to public interest for the licensee to continue to hold a Firearms Licence

Catchwords:

COSTS — appeals — whether the Tribunal erred in not finding special circumstances and ordering costs after the Respondent, in substance, consented to the relief sought by the Appellant, the Applicant below — failure to consent to the Appellant’s proceedings earlier was not unreasonable — the Tribunal did not err in not finding special circumstances and not awarding costs in favour of the Appellant — whether the order of the Tribunal directing the Appellant to exempt the Respondent from any costs imposition relating to the Tribunal’s proceedings was within power and the jurisdiction of the Tribunal to make

Catchwords:

CONTRACTS – Unjust contracts – Contracts Review Act 1980 (NSW), ss 7, 9 – Whether 6% monthly simple interest provision was relevantly unjust – Where mortgage was provided to a “lender of last resort” – Where debtor was advised by an independent solicitor of the applicable interest rates – Where primary judge varied the contract to remove the compounding element of the interest provision

Catchwords:

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

Catchwords:

RESIDENTIAL TENANCY — whether the Tribunal erred in awarding refund of excessive rent paid under the Residential Tenancies Act 2010 (NSW) — no question of law raised — leave to appeal refused

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – dwelling house – Heritage Conservation Area – agreement between the parties – orders

Catchwords:

MODIFICATION APPLICATION — whether the development is substantially the same – acoustic impacts – traffic impacts – weight given to public submissions

Catchwords:

DEVELOPMENT APPLICATION – Torrens title subdivision and construction of two dwellings – works in the public reserve requiring owner’s consent from Crown Lands – part of the site is mapped as littoral rainforest – the subdivision of the site is on land mapped as littoral rainforest – the proposal is designated development pursuant to s 2.7(2) of the State Environmental Planning Policy (Resilience and Hazards) 2021 and the development application is to be accompanied by an environmental impact statement pursuant to ss 4.10(1) and 4.12(8) of the Environmental Planning and Assessment Act 1979 – parties directed to file a revised set of agreed conditions that omit any reference to the approval of subdivision or subdivision works

Catchwords:

WORKERS COMPENSATION – Medical assessment – Degree of permanent impairment as a result of an injury – Where medical assessor assessed appellant as having whole person impairment of 19% – Where primary judge found medical assessor had exceeded his statutory jurisdiction having regard to an estoppel arising from the terms of a Certificate of Determination – Whether primary judge erred as to the proper construction of the Certificate of Determination

Catchwords:

DEVELOPMENT APPLICATION: shop top housing development in E1 Local Centre zone – whether development isolates adjoining site – whether exhibits design excellence

Catchwords:

APPEALS – appeal from the Local Court to the Supreme Court – appeal as of right “only on a question of law” – no leave to appeal on a question of mixed fact and law sought – whether question of law raised BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 (NSW) – payment claim – claimant’s entitlement to recover “the unpaid portion of the claimed amount” – whether relying on payment made which reduced the unpaid portion amounted to “bringing a cross-claim” which was prohibited – whether a payment not made to the claimant which was found to reduce the unpaid portion was not to be taken into account in determining the unpaid portion

Catchwords:

BUILDING & CONSTRUCTION — Adjudication — Application to have adjudication determination made void — Whether parties had entered a ‘construction contract’ as defined in s 4(1) of the Building and Construction Industry Security of Payment Act 1999 (NSW) CONTRACTS — Formation — Incompleteness — Executed contracts — Whether contract was signed and agreed to by all essential parties

Catchwords:

APPEALS – leave to appeal – whether to grant leave – circumstances of case did not raise matters of public importance – monetary amount small – leave refused

Catchwords:

HEALTH — professional registration and discipline — where medical practitioner convicted of criminal offence — whether practitioner otherwise guilty of unsatisfactory professional conduct and/or professional misconduct — whether practitioner no longer registered should be disqualified from being registered — whether practitioner should be disqualified from providing health services during disqualification period — whether practitioner should pay Commission’s costs

Catchwords:

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement – Where formal requirements satisfied – Whether scheme of arrangement should be approved.

Catchwords:

CIVIL PROCEDURE – summary disposal – dismissal of proceedings – frivolous or vexatious proceedings – abuse of process – where plaintiff sought judicial review of a decision of a judge of the Supreme Court – application for summary dismissal granted

Catchwords:

CORPORATIONS — trustees and receivers — whether trustees and receivers are entitled to recover further receivership costs — HELD — further receivership costs to be paid to trustees and receivers

Catchwords:

COSTS – application for maximum costs order limiting costs recoverable by other party – factors to consider in making maximum costs order – whether litigation in public interest – inadequate and deliberately incomplete revelation of applicant’s true financial situation – maximum costs order not made

Catchwords:

TAXES AND DUTIES – Land tax – Surcharge land tax – Foreign person – Liability TAXES AND DUTIES – Land tax – Surcharge land tax – Joint ownership TAXES AND DUTIES – Land tax – Surcharge land tax – Exemptions – Principal place of residence

Catchwords:

APPEAL AND REVIEW – appeal from judicial review of costs assessment – application for leave – judicial review refused on discretionary grounds – failure to follow prescribed procedure for review and appeal – allegation of procedural unfairness for failure to grant further adjournment not established – no arguable error on part of primary judge – no issue of principle CIVIL PROCEDURE – application for leave to appeal – application months out of time – explanation for delay – merit of application for leave – extension of time refused

Catchwords:

VALUATION OF LAND – conciliation conference – agreement between the parties – orders

Catchwords:

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

Catchwords:

INSURANCE – professional indemnity insurance – plaintiff was design and construct contractor – claim made relating to external sandstone tiling designed and installed by plaintiff – insured activities included design but not installation – whether the liability resulted from the design or installation of the tiling system INSURANCE – professional indemnity policy underwritten by first defendant for three consecutive years – exclusion clause in respect of prior known circumstances – whether failure to disclose prior known circumstances – consequences of failure to disclose prior known circumstances after entry into the first of the three consecutive policies – application of continuous cover provision – application of ss 21 and 28 of the Insurance Contracts Act 1984 (Cth) INSURANCE – whether plaintiff failed to comply with s 21 of the Insurance Contracts Act 1984 by failure to disclose that plaintiff performed external tiling or cladding works – whether the first defendant would have entered into policy if relevant failure had not occurred INSURANCE – construction of contract of insurance – exclusion clauses INSURANCE – brokers – claims for negligence and misleading or deceptive conduct – premises for claims not established BUILDING AND CONSTRUCTION – scope of rectification works – cost of rectification works

Catchwords:

CIVIL PROCEDURE — Pleadings — Amendment — Leave granted to file proposed amended pleadings exclusive of specific paras due to inadequate particularisation CIVIL PROCEDURE — Discovery — General discovery — Where plaintiff is unable to properly particularise claim without discovery COSTS — Party/Party — Costs orders in interlocutory proceedings – Gross sum costs order — Unnecessarily and unreasonably causing legal expenses to be incurred — Where plaintiffs have persisted in seeking to advance a cause which has limited factual foundation COSTS — Party/Party — Costs orders in interlocutory proceedings — Whether classification as interlocutory or final costs orders affects question of gross sum costs order

Catchwords:

APPEALS – Compensation claim – question of law – Tribunal ordering a refund of the purchase price rather than compensation for the reasonable cost of repairs as sought

Catchwords:

ADMINISTRATIVE LAW — provisional authorisation as kinship carers — cancellation of authorisation — best interests of child

Catchwords:

HEALTH — chiropractor — failure to report charge — sexual abuse — driving under influence OCCUPATIONS — practitioner — misconduct and discipline — professional misconduct — criminal offence — admission of guilt — improper or unethical conduct relating to the practice or purported practice of the practitioner’s profession

Catchwords:

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

Catchwords:

COSTS — Appeal costs — Special circumstances

Catchwords:

EVIDENCE – course of evidence – application by defendants for leave to re-open their case to rely on plaintiff’s expert report

Catchwords:

CIVIL PROCEDURE – discovery – orders and directions

Catchwords:

CIVIL PROCEDURE – application to vacate procedural orders – application for hearing liability of defendant as to specified employee – application for concurrent hearing temporary employment claim – directions and orders

Catchwords:

COSTS — proceedings to which rr 38 and 38A of the Civil and Administrative Tribunal Act 2013 apply — retail lease appeal — withdrawal of proceedings in close proximity to hearing date — self-represented respondents who obtained legal advice — whether lump sum costs order should be made

Catchwords:

CORPORATIONS — directors and officers — ostensible authority — whether company held out managing director as having authority to bind it to indemnity — where nature of indemnity was not outside of the normal course of the company’s activities CORPORATIONS — directors and officers — actual authority — whether managing director had actual authority to enter guarantee and indemnity — whether managing director was the alter ego of the company GUARANTEE AND INDEMNITY — contract of guarantee and indemnity — construction — whether agreement was guarantee and indemnity, or only indemnity ESTOPPEL — estoppel by convention — promissory estoppel — whether parties held mutual assumption, or the company induced solicitors to adopt an assumption, that the company would indemnify solicitors

Catchwords:

ADMINISTRATIVE LAW - qualified supervisor certificate in the category of disconnection and reconnection of fixed electrical equipment (appliances) licence - administrative review of decision to refuse licence - scope of work within the Instrument - qualification required

Catchwords:

ADMINISTRATIVE REVIEW - application for an extension of time within which the applicant is to lodge her application for administrative review

Catchwords:

TREES (DISPUTES BETWEEN NEIGHBOURS) –Pt 2 application – damage to neighbouring property – whether the tree has caused damage – actions taken by the parties – whether compensation should be paid – application refused

Catchwords:

APPEALS – Denial of procedural fairness

Catchwords:

ADMINISTRATIVE REVIEW – Privacy and Personal Information Protection Act 1998 (NSW) – Information Privacy Principles

Catchwords:

DEVELOPMENT APPLICATION – demolition of existing structures and construction of a new dwelling and swimming pool – exceedance of the height of buildings development standard

Catchwords:

CONSTITUTIONAL LAW (Cth) – Whether the Tribunal has jurisdiction to hear and determine complaint – federal jurisdiction - where respondent raised constitutional claim of implied freedom of communication on political matters – whether s38S of the Anti-Discrimination Act 1977 imposes an unjustified burden on the implied freedom of political communication – whether the respondent’s claim was genuinely raised – whether the respondents’ claim was not capable on its face of legal argument. HUMAN RIGHTS – Transgender vilification.

Catchwords:

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

Catchwords:

DEVELOPMENT APPEAL – conciliation conference – agreement between the parties – deferred development consent - orders

Catchwords:

DEVELOPMENT APPLICATION – dual occupancy - conciliation conference – agreement between the parties - orders

Catchwords:

TORT – intentional tort – whether Plaintiff proves disputed allegations – credibility of parties – whether conduct proved by Plaintiff constitutes trespass to the person, assault on Plaintiff and/or battery of Plaintiff on the occasions alleged by her – whether tortious conduct of Defendant was intended to cause injury to the Plaintiff within the meaning of s 3B(1)(a) of the Civil Liability Act 2002 – whether damages to which the Plaintiff establishes an entitlement are assessed pursuant to the Civil Liability Act or the common law – nature, seriousness and likely duration of any injury from which Plaintiff suffers – whether tortious conduct of Defendant caused any injury, loss or damage suffered by Plaintiff – whether any injury, loss or damage suffered by Plaintiff caused by or referable to any pre-disposition of Plaintiff to suffer injury, loss or damage – whether later attack on Plaintiff by third party aggravated Plaintiff’s condition or extended its likely duration – whether Plaintiff has suffered any past or present economic loss or will suffer such loss in future as a result of tortious conduct of Defendant – remoteness from tortious conduct of Defendant of any past, present or future alleged economic loss suffered by Plaintiff – quantum of any general damages to which the Plaintiff entitled – whether Plaintiff entitled to aggravated and/or exemplary damages – quantum of aggravated and exemplary damages – costs

Catchwords:

DEVELOPMENT APPLICATION – conciliation conference – Torrens title subdivision – agreement between the parties – orders

Catchwords:

LAND LAW – easements – substantial interference with rights under easements – neighbouring properties have reciprocal benefits and burdens under easements to enable shared use of an inclinator and rights of foot access – previous judgment determines that the first defendant has engaged in excessive use of easements and has trespassed beyond the boundaries of the designated easement and obstructed or interfered with use of the easement, occasioning nuisance to the plaintiff in four out of eight alleged incidents – conduct of the first defendant found to amount to a substantial interference with the rights of the plaintiff under the easement and a trespass upon a servient tenement – whether damages should be awarded and whether aggravated or exemplary damages should be awarded – assessment of the quantum of damages. COSTS – Party/Party – Court’s discretion – proceeding not complete – whether a costs order should be made at this stage- plaintiff is successful in respect of four out of eight incidents at final hearing and in respect of some issues at earlier hearings – what overall costs orders should be made in the circumstances – what costs orders should be made in respect to a decision of a judge to grant restraining orders with respect to the conduct of the first defendant on one occasion – whether costs orders should be made now or at the conclusion of the proceedings.

Catchwords:

EVIDENCE — documentary evidence — legal professional privilege — fraud or other illegal purpose exception — application of s 125 of the Evidence Act — whether the relevant document was produced in furtherance of a deliberate abuse of power — where no direct evidence of improper purpose or motive

Catchwords:

PROCEDURAL – trial – evidence-in-chief – objection to plaintiff’s evidence-in-chief being given by affidavit – usual and long-standing Tribunal practice of allowing unwell plaintiff to give evidence-in-chief by affidavit – plaintiff with significant emotional and psychiatric issues – unfair burden to require plaintiff to give oral evidence-in-chief – defendants can appropriately cross-examine plaintiff

Catchwords:

PRACTICE AND PROCEDURE – pleadings – amendment of defence – late application of second defendant seeking leave to amend defence and adduce further evidence – necessity to vacate final hearing dates in the interests of justice – no question of principle

Catchwords:

MENTAL HEALTH – criminal proceedings – fitness to be tried – where accused suffering from severe chronic treatment resistant schizophrenic illness – where experts agree that the accused is unfit to be tried under s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) and will not become fit to be tried within 12 months – finding that the accused is not fit to be tried and will not become fit to be tried within 12 months

Catchwords:

PARTNERSHIP AND JOINT VENTURES – rights and duties between parties – expulsion – interpretation of agreement – whether resolution for expulsion was valid – where partnership deed required seven days written notice and 80% of whole partnership votes – where variation resolution came after expulsion resolution – held that expulsion was not valid by reason of breaches of partnership deed PARTNERSHIP AND JOINT VENTURES – rights and duties between parties – fiduciary relationship – good faith obligations – whether expulsion power was exercised for an improper purpose – held that this purpose was not established PARTNERSHIP AND JOINT VENTURES – dissolution – dissolution by court of partnership between plaintiff and defendants – dissolution for just and equitable reasons

Catchwords:

COSTS – Costs assessment – Determination – Mixed results – Parties succeeding and failing in both claims and cross claims – Intent to find just and equitable costs solution to whole of the proceedings

Catchwords:

TORT – assault, battery, trespass to the person and false imprisonment - plaintiff buys house from defendant – defendant asserts there was an oral agreement the plaintiff would split the profits from a subsequent resale with him, which the plaintiff denies – plaintiff and defendant have a chance encounter in the street and come to blows - police called to the scene charge plaintiff and defendant, who both plead guilty – no conviction recorded for plaintiff but defendant is fined - plaintiff brings proceedings for damages for assault, battery, trespass to the person and false imprisonment – claim for damages including aggravated and exemplary damages - nominal and derisory damages

Catchwords:

ADMINISTRATIVE LAW – judicial review – motor accident compensation – submitting appearances by the defendants – error of law on the face of the record – inadequate reasons

Catchwords:

APPEALS — res judicata — abuse of process — quantum meruit

Catchwords:

COSTS — Application to vary costs order — Where unsuccessful party rejected offer of compromise made by successful party — Whether indemnity costs should be ordered from date offer made COSTS — Security for costs — Application to release security monies paid into court by plaintiff — Where plaintiff successful at trial — Where defendant filed notice to appeal — Whether grounds of appeal arguable — Whether reason to doubt financial position of plaintiff seeking release of security

Catchwords:

COSTS – no real and genuine element of compromise in a Calderbank letter sent prior to the appeal hearing – indemnity costs refused – exercise of discretion under r 38A where one party largely successful in the appeals – no disentitling conduct or other factors to warrant a departure from the principle that costs follow the event.

Catchwords:

Medical Practitioner — psychiatrist — professional misconduct — sexual relationship with a patient — failure to maintain appropriate professional boundaries — practitioner no longer registered — if Practitioner were registered Tribunal would have cancelled her registration for 2 years — impairment

Catchwords:

APPEALS – application for leave to appeal – where applicant club’s constitution provides that by-laws invalid unless “not inconsistent with” constitution – no arguable error identified in primary judgment – no question of principle – leave refused

Catchwords:

CRIMINAL LAW – Sentence – Attempt to possess commercial quantity of border-controlled drug – Commonwealth offence – Offender drug addict – Good prospects of rehabilitation – Recommend as to the treatment plan when on parole – Longer period than usual on parole

Catchwords:

HIGH RISK OFFENDERS – high risk sex offender – offender with long history of violent sexual offending - application for interim supervision order – continuing detention order previously imposed on defendant – no opposition to preliminary orders – orders made

Catchwords:

CRIME – SENTENCE – murder – accessory before the fact – not present at the scene – plea of guilty – deceased lured onto street and shot on pretext of drug deal – where offender’s extent of involvement disputed – where offender diagnosed with ADHD – Bugmy factors – delay in prosecution – limited remorse demonstrated – some prospects of rehabilitation – onerous conditions throughout COVID-19 pandemic – totality

Catchwords:

ADMINISTRATIVE LAW – Whether reviewable error of law – where plaintiff alleges various errors of law on the face of the record and jurisdictional error in decisions of NCAT ADMINISTRATIVE LAW – Particular administrative bodies – Ombudsman – where plaintiff makes allegations of discrimination and victimisation against the Ombudsman

Catchwords:

CRIME — Violent offences — Reckless wounding CRIME — Public order offences — Affray CRIME — Summary offences — Custody of knife in public place or school CRIME — Violent offences — Assault occasioning actual bodily harm

Catchwords:

ADMINISTRATIVE LAW — child protection — working with children — risk to children whether risk real and appreciable — allegations — circumstances of allegations — weight of evidence of risk — current risk — expert evidence — future risk — whether sufficient time to rehabilitate — risk elevating factors

Catchwords:

COSTS –- s 60 Civil and Administrative Tribunal Act 2013 – proceedings not out of the ordinary - proceedings not untenable, frivolous or vexatious – no award of costs.

Catchwords:

ADMINISTRATVE LAW – privacy – access to personal information – jurisdiction – scope of conduct the subject of review – excessive delay.

Catchwords:

APPEAL – PROCEDURAL FAIRNESS – request for AVL link – non-appearance

Catchwords:

APPEALS – appeal from Local Court to Supreme Court – where pending criminal charges against applicant in the Local Court – subpoenas sought for documents from NSW police and local hospital – where refusal by Local Court Registrar to issue subpoenas – where application for review dismissed by Magistrate – prerogative relief sought – in the alternative, leave to appeal refusal by Magistrate in the Local Court – whether error of law on the face of the record – whether applicant denied procedural fairness – whether findings by Magistrate incapable of being supported – whether decision affected by actual or apprehended bias – arguments by applicant rejected – various costs orders made APPEALS – review of various interlocutory decisions of Registrar – certain costs orders impugned – submission that informant in criminal proceedings in Local Court should not be a party in application for prerogative relief and leave to appeal in Supreme Court ill-conceived – notice of motion substantively dismissed – various costs orders made

Catchwords:

ADMINISTRATIVE LAW — administrative review — government information — excluded information – conclusive presumption of an overriding public interest against disclosure - protected information — balancing the public interest considerations in favour of disclosure and against disclosure

Catchwords:

Administrative Law – plumber - refusal to grant tradespersons certificate - fit and proper person

Catchwords:

DEVELOPMENT APPLICATION – shop-top housing – existing use rights – cl 4.6 written request – floor space ratio – agreement between the parties – orders

Catchwords:

CRIME — Appeals — Appeal against sentence

Catchwords:

SENTENCING – Murder – Context of organised criminal activity – Where offender and deceased known to each other through mutual involvement in outlaw motorcycle gang – Where offender shot deceased with an intention to kill – Where circumstances of killing contested

Catchwords:

CRIME – appeals – appeal against sentence – whether the sentencing judge erred by double counting a Form 1 offence when assessing the objective seriousness of a count to which it did not attach – facts and circumstances of a Form 1 offence may be considered to provide context – no demonstrable error – appeal dismissed

Catchwords:

CRIME — Appeals — Appeal against conviction —Directions of trial judge — Whether trial judge’s direction about alternative verdicts erroneously restricted the jury’s deliberations — No error — Leave refused SENTENCING — Appeals — Appeal against sentence — Relevant factors on sentence — Parity principle — Two co-offenders sentenced with benefit of pleas and application of the totality principle — Unorthodox method of achieving appropriate totality reduced the co-offenders’ sentences for the common offence — No justifiable sense of grievance arising from co-offenders’ sentences or from a related offender’s sentence