Cases and authorities

COURTS AND JUDGES – Application for suppression and non-publication orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) – Prohibition on publication already enlivened by s 15A of the Children’s (Criminal Proceedings) Act 1987 (NSW) – necessity – appropriateness of further orders – application refused

COSTS – interlocutory costs order – costs thrown away by reason of vacation of hearing date and abandonment of claims – no question of principle

ADMINISTRATIVE LAW — judicial review — summons seeking judicial review for error of law on the face of the record or a constructive failure to exercise jurisdiction — whether a review panel of the Personal Injury Commission constituted under the Motor Accident Injuries Act 2017 (NSW) fell into jurisdictional error, failed to exercise its statutory powers or failed to give adequate reasons TRAFFIC LAW AND TRANSPORT — traffic law — Motor Accident Injuries Act 2017 (NSW) — meaning of “threshold injury” under s 1.6 — whether claimant’s radiculopathy caused by motor accident — where Medical Assessor found radiculopathy present after motor vehicle accident

HIGH RISK OFFENDER – Final hearing – High risk violent offender – Application for extended supervision order – Where parties accept defendant poses unacceptable risk of committing serious offence if not kept under supervision – Where dispute as to appropriate duration and conditions of supervision

ADMINISTRATIVE LAW – judicial review of decision of Review Panel – no failure to exercise statutory function – no attempt to determine scope of the motor accident – adequate reasons – no relevant inconsistencies – proper application by the Review Panel of the requirements of cll 6.40 and 6.41 of Guidelines – no failure to provide procedural fairness – appropriate for Review Panel to avoid addressing legal submissions of parties about what constitutes “a motor accident” – no error – summons dismissed

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.

RESTRAINT OF TRADE – application for interlocutory injunctive relief – employee restraint – whether restraint on former employees is necessary to prevent disclosure of confidential information or exploitation of former client relationships – whether injunction should be made on balance of convenience

EQUITY – real property – caveats – application to extend operation of caveat under s 74K of the Real Property Act 1900 (NSW) – whether purchase price of property is significantly below market value – where there is a serious question to be tried – where balance of convenience does not favour extension of caveat – injunctive relief not granted

COSTS – Where the plaintiffs were successful but failed to establish that a rent review had occurred and a number of their claimed heads of damage – Where the circumstances justify a reduction in the plaintiffs’ entitlement to costs – HELD: the defendants are to pay 80% of the plaintiffs’ costs on the ordinary basis (excluding the plaintiffs’ costs attributable to the provision of the explanation for their failure to discover adequately and their costs of, and incidental to, the submissions on costs)

ADMINISTRATIVE LAW – judicial review – Children’s Court Magistrate - bias – apprehended bias – application for disqualification of Magistrate – fair-minded lay observer – error of law on the face of the record – adequacy of reasons

CORPORATIONS – Court's power to order that a meeting of members be called – meaning of "impracticable" – relevant considerations for exercise of Court's discretion

CIVIL PROCEDURE – appeal – strike out application – failure to state orders sought – failure to comply with rules as to statement of grounds of appeal – notice of appeal repleaded – unrepresented appellant – sufficient clarity achieved

CIVIL PROCEDURE – appeal – leave to appeal – notice of appeal filed – satisfaction of threshold to appeal without leave – claim in defamation dismissed at trial – contingent assessment of damages well below threshold – pro forma certificate by solicitor

CIVIL PROCEDURE – appeal – security for costs of appeal – special circumstances – circumstances relevant to exercise of discretion

CRIME – appeals – appeal against sentence – break and enter and commit serious indictable offence – principle of totality – manifest excess – notional starting point commensurate with objective gravity of the offending – offence committed nine days after release to parole – parole revoked – lengthy criminal history – personal history of deprivation – interplay between earlier sentence and sentence for the present offence – role of State Parole Authority in determining when to re-parole on earlier sentence

SENTENCING – Crown appeal against inadequacy of sentence – manifest inadequacy – offence of break and enter and commit a serious indictable offence – sentencing judge’s discretion to evaluate the objective seriousness – “leniency” associated with an intensive correction order significantly moderated by the respondent’s time in custody – imposition of an ICO is nevertheless a custodial sentence

SUCCESSION — Family provision — Claim by adult grandchild – notional estate – plaintiff aged 33 brings a claim for family provision against the estate of his deceased grandmother – the deceased’s will gives the whole of her estate to her son, who is both the defendant and the plaintiff’s father but for a bequest of $30,000 to the plaintiff – the plaintiff lived much of his life in a household at a four-bedroom house in Woolooware with his grandmother and his father – severe tensions arose within the household and especially between the plaintiff and the defendant in the last five years of the deceased’s life – defendant takes out ADVO against plaintiff – plaintiff presently homeless, unemployed, with a gambling addiction, and being treated for psychiatric illness – defendant remains in the Woolooware property – defendant unemployed – defendant unwilling to commit to provide for the plaintiff in his will – estate consists of the Woolooware property and cash and was distributed before the hearing – dependency not in issue and plaintiff conceded to be an eligible person – whether there are factors warranting the making of an order for provision – whether an order for provision should be made out of the estate of the deceased and if so on what sum – whether any property and if so what property should be designated as the notional estate of the deceased.

CORPORATIONS – Winding Up – Statutory demand – Application to set aside – whether there is a defect in the demand, a genuine dispute or an offsetting claim.

CIVIL PROCEDURE – suppression and non-publication – calculus of risk approach – costs certificate granted following an acquittal – sentencing judge’s findings as to the grant of the certificate unlikely to be known to the public – “there must be something in it” – exceptional circumstances established

WORKERS COMPENSATION – application extension of limitation period – application neither consented nor opposed – plaintiff’s reliance on solicitors’ advice – availability of witnesses – no forensic prejudice – discretion to grant leave exercised

CONTRACTS — Formation — Intention to create legal relations CONTRACTS — Formation — Condition precedent CONTRACTS — Construction — Inconsistent provisions CIVIL PROCEDURE — Hearings — Application for adjournment

COSTS ORDER – Appeal – Costs Assessment Review Panel – excessive materials – dismissed – jurisdiction – legal fees – barristers fees – costs agreement – retainer --

COSTS – security for costs – relevant factors – where previous security for costs motion was dismissed – where there has been a material change in the relevant circumstances – impecuniosity of the plaintiff – plaintiff to provide security for costs

NEGLIGENCE – Duty of care – school student - bullying – assault not on school premises – scope of duty – causation – after school hours – waiting for bus – pre-existing condition – assessment of damages – bullying – risk assessment – school supervision – causation – vulnerable students – bus duty – after school supervision – school office hours – damages

CRIME – sentence – manslaughter – excessive self-defence – offender a young person at the time of the offence – trial by judge alone – fatal stabbing – confrontation between young people – KFC restaurant – melee – tragic loss of life – where deceased exhibited hostility towards offender –deceased armed with knuckledusters – offender did not initiate confrontation – offender had no interest in fighting the deceased - offender outnumbered by adversaries – offender believed he was going to be killed – chaos – clamorous noise – extreme situation – real threat to the offender – no intention to kill – where offender suffers from cognitive impairment – FASD – ADHD – youth and lack of maturity – moral culpability significantly reduced – unblemished criminal record – very good prospects of rehabilitation – whether sentence to be served as a juvenile offender – convicted – sentence imposed

BUILDING AND CONSTRUCTION — Building and Construction Industry Security of Payment Act 1999 (NSW) — adjudication — contested result of adjudication — where plaintiff submits that adjudicator decided the determination on a basis not advocated or reasonably contemplated by either party — question of procedural fairness — denial of procedural fairness not found — challenge to adjudication determination fails

CORPORATIONS – voluntary administration – legal proceedings – moratorium on legal proceedings against company under administration – defendant apparently in possession of property which is subject to sale agreement – defendant failed to pay balance of purchase price under the sale agreement – defendant now in administration – plaintiff seeks leave to proceed pursuant to section 440D of the Corporations Act 2001 (Cth) for breach of contract for sale and for delivery up of its property – where administrators proposing to move under section 442C for leave to dispose of the property – leave under section 440D refused

COSTS — party/party — offer of compromise — dispute concerning rights under registered easement — offer in form of proposed declaration as to “true construction” of easement — construction rejected but easement found to be invalid — finality of offer — utility of declaration in negative form – propriety of declaration in Torrens system – declaration contrary to Court’s construction of easement — indemnity costs refused

PRIVATE INTERNATIONAL LAW – Foreign judgments and orders – Recognition or enforcement at common law – Enforcement of judgment from the People’s Republic of China – Whether the defendant was a party to the contract in his personal capacity – Whether the orders of the Fujian High People’s Court are to be construed as imposing joint and several obligations on each of the defendants in the proceedings in China to pay the monies – Judgment enforced.

PRACTICE – application to reopen under UCPR r 36.16 – no basis for reopening

CRIME – appeals – appeal against sentence – whether latent error in indicative sentences – whether inadequate reasons in arriving at indicative sentences – whether adequate assessment of objective seriousness of individual offences – finding that sentencing judge did not individually assess criminality of each offence – resentence

CRIME ­­— Appeals — Crown appeal against sentence — Persistent sexual abuse of a child — Approach to assessment of objective seriousness — Manifest inadequacy — Appeal allowed — Respondent resentenced

CRIME — appeals – appeal against sentence – aggregate sentence – whether the sentencing judge erred by imposing a sentence that was manifestly excessive – where the offending occurred in the community and in custody – where the community offending involved offences at five establishments in one night and another location a few days prior – where the offending in custody amounted to a riot and involved threatening prison officers – where the applicant was on bail for other offences – where the sentencing judge took into account the applicant’s youth and deprivation – where community protection and general deterrence were found to be significant – where challenge made to some of indicative sentences and to notional accumulation - where the only sentence relevant to a ground alleging manifest excess is an aggregate sentence – given the nature of the offending the aggregate sentence was not manifestly excessive SENTENCING – appeal against sentence – co-offenders – disparity between sentences – whether the applicant had a justifiable sense of grievance at the lack of disparity between his sentence and that of his co-offender – where the sentencing judge gave consideration to parity – where the indicative sentences for the same offences were identical or explicable by a Form 1 – where both offenders had similar backgrounds and were of a similar age – where the co-offender had additional charges and a worse criminal history – where the co-offender received an increased maximum sentence, increased non-parole period and a lesser reduction in the statutory ratio – applicant did not have a justifiable sense of grievance

COPORATIONS – Application for order under s 588FGA of the Corporations Act 2001 (Cth) – Where preference by liquidator against the Commissioner of Taxation.

COSTS – Party/Party – General rule that costs follow the event – Offers of compromise/Calderbank offers – indemnity costs – a beneficiary of a deceased estate (the first estate) filed a motion in December 2017 seeking the passing of estate accounts after the death of the original executor of the first estate – orders made in February 2018 for the filing and passing of estate accounts in the estate against its first executor – estate accounts not filed by the first executor of the first estate – the first executor of the first estate dies in 2020 – the second executor of first estate (being the executor of the first executor’s estate) does not file and pass accounts in the first estate – in June 2023 the beneficiary of the first estate filed a motion, as applicant, in the estate of the first executor (second estate) seeking the filing and passing of accounts in the first estate – at a probate directions hearing, the Court determines that the real issue in dispute is not one of the passing of accounts but as to the identification of the assets and liabilities of the first estate and orders a final hearing on that issue – the contentions of the beneficiary of the first estate as to the assets of the estate fails – what order for costs should be made – whether the parties have disproportionately incurred costs – whether the applicant have unreasonably failed to follow the advice of the Registrar in probate as to the correct procedure for the conduct of the present dispute – whether the beneficiary has conducted herself so unreasonably as to warrant an order for indemnity costs against her – whether a Calderbank offer has been made – what is the appropriate exercise of the costs discretion.

ADMINISTRATIVE LAW – judicial review of Medical Appeal Panel – referral of medical dispute to a medical assessor – whether Medical Appeal Panel erred in accepting reasons of medical assessor – whether ambiguity of medical assessor’s findings required further assessment – presumption of regularity

SUCCESSION — Family provision — Claim by adult son — Fractured relationship between the deceased and son – Deceased made provision for son’s children in lieu of son – Failure by the deceased to make sufficient provision – Provision made SUCCESSION — Family provision – Costs – Court’s inherent jurisdiction to make costs orders to regulate costs between lawyer and client

CONTRACT – construction and interpretation – whether loan agreement – implied terms – whether payment a gift – payments made to and between third parties – whether defendant monies were paid pursuant to plaintiff’s directions – cross-claim RESTITUTION – where plaintiff paid defendant in consideration for a promise to marry – defence – cross-claim – unjust enrichment – failure of consideration – claim for money had and received

NOTICE OF MOTION – Default Judgment – Application to set aside – Order for payment of debt – Mortgage – Loan agreement – Loan in arrears – Acceleration clause – NSW crimes commission – Restraining orders – Restrained property – Third party authority – Forfeiture – Unconscionable conduct – Delay – Whether arguable defence – Mortgagee’s consent – Eviction – Writ of possession – Debt – Money owed – Prejudice

TORTS — Private nuisance — Interference with use and enjoyment of land — Whether stormwater ingress from uphill neighbouring property a nuisance — Whether defendant has continued or adopted the nuisance TORTS — Private nuisance — Remedies — Whether loss suffered — Whether injunction should be granted preventing defendant from draining stormwater runoff onto plaintiffs’ land — Whether injunction should be granted requiring the defendant to carry out works

MEDIA AND COMMUNICATIONS – bail application – media application for access to court file – application opposed by both parties – where material contains untested allegations – potential prejudice to any future trial – open justice – where proceedings took place in open court – role of the media as part of a functioning democracy – discretionary determination – access granted subject to conditions

CIVIL LAW – criminal contempt in the face of the court – refusal to answer questions – where contemnor a juvenile – applicability of sentencing legislation – whether “criminal” or “civil” proceedings – Children (Criminal Proceedings) Act held not to apply CIVIL LAW – punishment for contempt – assessment of seriousness – relevant considerations – where refusal to answer selective and sustained – motive unclear – possible reflection of underworld policy of non-cooperation – serious example of contempt – youth of contemnor resulting in little weight to retribution or denunciation – general deterrence also of less weight – where contemnor due to give evidence in separated murder trial – personal deterrence of significant weight – principles stated in other cases – consideration of comparable cases – somewhat lame apology – order for detention as a juvenile offender – order suspended on condition that contemnor be of good behaviour

CORPORATIONS — Injunctions — Whether a mandatory injunction should be ordered on an interlocutory basis — Where the Defendants have taken possession of property used by companies that are in voluntary administration without consent of the voluntary administrators or leave of the Court.

TORTS – negligence – personal injury – determination of liability – where severely disabled plaintiff fell during recreational horse riding activity – where plaintiff’s low intellectual function, distractibility, impulsivity and physical disabilities increased the likelihood of falling and suffering serious harm – social utility of riding activity to plaintiff – whether failure to provide side walkers in close proximity was a breach of duty TORTS – negligence – duty of care – whether school had non-delegable duty of care during riding activity –riding activity found to be independent of school – school-pupil relationship was not operative during the plaintiff’s fall

APPEALS — jurisdiction of appellate court — Supreme Court — whether refusal of a recusal application in the Local Court can be appealed to the Supreme Court — leave required — whether leave to appeal ought be granted — where claim is for small amount — where plaintiff has already had opportunity to raise bias on earlier appeal — leave refused COURTS AND JUDGES — bias — application for recusal — recusal refused — application for leave to appeal from Magistrate’s decision not to recuse himself — where Magistrate had decided earlier proceedings between plaintiff and other parties — where plaintiff was unsuccessful in earlier proceedings — whether Magistrate displayed favouritism towards the legal representative of the defendants in earlier proceedings — whether fair-minded observer might reasonably apprehend bias

ADMINISTRATIVE LAW – Writ of habeas corpus – Where self-represented plaintiff is held in custody bail refused on charges currently before the Local and District Court – Where plaintiff asks the Court to undertake a broader enquiry into the legitimacy of the charges against him – Detention of the plaintiff neither illegal nor unlawful – Application dismissed CIVIL PROCEDURE – Stay of proceedings – Where plaintiff seeks permanent stay of extant criminal proceedings before the Local and District Court on the basis that they are an “abuse of process” and productive of “unfair prejudice” – Where dealing with the substance of the plaintiff’s arguments would lead to the fragmentation of the criminal justice process – No “special reason” or “exceptional or extraordinary” circumstance to displace the general principle against fragmentation – Application for stay of proceedings dismissed CIVIL PROCEDURE – Notices to produce – Before hearing – Where plaintiff seeks an order requiring compliance with notice to produce – Where notice to produce impermissibly sought material from non-parties to the proceedings and in circumvention of the requirement for leave for self-represented parties to issue a subpoena – No “apparent relevance” of the documents sought to the proceedings – Application dismissed

COSTS – costs order – two related family provision proceedings heard together – where plaintiff in one proceedings was successful and plaintiffs in other proceedings were unsuccessful – where successful plaintiff has agreed orders – where unsuccessful plaintiffs seek to make submissions on orders in other proceedings – where onus on unsuccessful plaintiffs to persuade the Court that the overall justice of the case requires the exercise of the Court’s discretion to “otherwise order” – no question of principle

COSTS – Uniform Civil Procedure Rules 2005 (NSW) r 42.1 – Whether costs should follow the event or some other order should be made – Whether to determine costs on the basis of separating out issues – HELD – Costs should follow the event and it is not appropriate, in this case, to apportion costs based on issues or arguments

PRACTICE AND PROCEDURE – Summary dismissal – self-represented litigant – no reasonable cause of action.