Cases and authorities

COSTS – security for costs – pending appeal – whether special circumstances – impecuniosity – where respondents incurred significant costs in first instance proceedings – where respondents unlikely to recover costs on appeal – appellants’ lack of candour – security ordered

Damages – Contract – Where appellant owned land on which airport located – Where appellant and respondent entered into agreement by which respondent to lease prospective lot at airport – Where appellant breached obligation in agreement to take all reasonable action to apply for and obtain registration of plan of subdivision – Where respondent spent considerable sums in anticipation of or reliance on appellant's performance – Where expenditure wasted due to breach of contract by appellant – Where respondent entitled to be placed in the position it would have been in had the contract been performed – Whether respondent entitled to recover wasted expenditure – Proper approach to method of proof for plaintiff to establish position plaintiff would have been in if contract performed, where plaintiff incurred expenditure in anticipation of or reliance on performance of defendant's contractual obligation and defendant's breach has effect that expenditure wasted. Words and phrases – "anticipation of", "assessment of damages", "breach of contract", "consequential loss", "contract", "damages", "expectation damages", "facilitation of proof", "facilitation principle", "fair wind", "loss", "onus of proof", "presumption", "presumption of recoupment", "reasonably incurred", "reliance damages", "reliance on", "uncertainty of proof", "wasted expenditure".

Statutes – Construction – Presumptions – Imposition of criminal liability – Where Director of National Parks ("DNP") engaged contractor to perform construction works within "sacred site" under Northern Territory Aboriginal Sacred Sites Act 1989 (NT) ("Sacred Sites Act") – Where works undertaken without permission of "Authority Certificate" or "Minister's Certificate" under Sacred Sites Act – Where s 34(1) of Sacred Sites Act prohibits "[a] person" from carrying out work on or using sacred site and specifies criminal penalties for breach – Where DNP a body corporate pursuant to Environment Protection and Biodiversity Conservation Act 1999 (Cth) – Where s 17 of Interpretation Act 1978 (NT) defines "person" to include body politic and body corporate – Where appellant charged DNP with offence against s 34(1) – Whether DNP can be criminally liable for breach of s 34(1) – Whether DNP entitled to benefit of presumption stated in Cain v Doyle [1946] HCA 38; (1946) 72 CLR 409 against imposition of criminal liability "upon the Crown" – Whether presumption stated in Cain v Doyle confined to presumption against construing statute to impose criminal liability on body politic. Words and phrases – "bind the Crown", "body corporate", "body politic", "criminal liability", "Crown in right of", "person", "presumption", "privileges of the Crown", "sacred site", "statutory corporation". Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), s 3(1). Environment Protection and Biodiversity Conservation Act 1999 (Cth), ss 514A, 514B, 514E. National Parks and Wildlife Conservation Act 1975 (Cth), s 15. Interpretation Act 1978 (NT), ss 17, 24AA. Northern Territory Aboriginal Sacred Sites Act 1989 (NT), ss 3, 4, 34(1).

Statutes – Construction – Statutory powers – Where s 233(2) of Criminal Procedure Act 2009 (Vic) provides that prosecution may, with leave of trial judge, call evidence in reply "[i]f, after the close of the prosecution case, the accused gives evidence which could not reasonably have been foreseen by the prosecution" having regard to accused's response to summary of prosecution opening and accused's response to notice of pre‑trial admissions – Where appellant convicted on charge of trafficking in drug of dependence – Where evidence of prosecution included evidence of alleged co‑conspirator that appellant hired van involved in moving drugs – Where appellant gave evidence that he hired van on behalf of friend and handed van over to friend and had nothing more to do with van – Where prosecution applied for leave to adduce evidence in reply – Where prosecutor stated appellant's evidence was first time appellant said he hired van and that appellant previously denied being at car rental place – Where statements incorrect as prosecution had been previously informed appellant admitted he hired van – Where trial judge granted leave for prosecution to adduce evidence in reply – Whether exercise of power under s 233(2) of Criminal Procedure Act involved substantial miscarriage of justice because of prosecutor's incorrect statements – Whether incorrect statements material to trial judge's decision – Whether evidence was not reasonably foreseeable – Whether trial judge permitted to have regard to any relevant material or only to two specified documents in s 233(2). Words and phrases – "evidence which could not reasonably have been foreseen by the prosecution", "exceptional circumstances", "exhaustive or merely inclusive", "incorrect inference", "material error", "material misunderstanding of the relevant facts", "not reasonably have been foreseen", "reasonably foreseeable", "substantial miscarriage of justice". Criminal Procedure Act 2009 (Vic), ss 183, 233(2). Drugs, Poisons and Controlled Substances Act 1981 (Vic), s 71

EQUITY — trusts and trustees — plaintiff won jackpot on Keno lottery game — winnings transferred to account in defendant’s name and partly used to purchase a property for parties to reside — parties fell out — plaintiff excluded from property — application for possession and declaratory relief by plaintiff — whether winnings were split between parties pursuant to purported syndicate arrangement or held on trust for the plaintiff — orders made in favour of plaintiff

LAND LAW — Easements — Creation of easements — Creation by order of court — Where court found proposed easement was reasonably necessary and substantially preferable to defendant’s alternative —Where court ordered parties to confer on appropriate terms of easement and costs order — Where parties could not agree — Where Court determines terms of easement LAND LAW — Easements — Costs — Whether defendant acted unreasonably during course of proceedings — Whether circumstances warrant departure from 88K(5) Conveyancing Act 1919 (NSW)

COSTS – security for costs – where foreign plaintiffs with no assets have entered an agreement with a litigation funder – where dispute as to form and quantum of security – where plaintiffs proposed that adequate security was provided by an after-the-event insurance policy underwritten by a related entity of the funder – where second defendant sought security in form of cash deposit or bank guarantee – whether after-the-event insurance policy is adequate to achieve the objective of security for costs – whether security should be ordered in quantum sought by second defendant

CRIME – appeals – appeals against sentence – manifest excess – alleged error in the finding of the sentencing judge that the applicant had a lack of understanding of issues relating to consent – where applicant pleaded guilty to one count of sexual touching – where sentencing judge found that an ICO was technically available but would not sufficiently serve the purposes of sentencing, in particular, victim vindication, retribution and general deterrence – no error in factual finding established – manifest excess not established – leave to appeal granted – appeal dismissed

CRIME – appeals – appeals against sentence – State and Commonwealth fraud-related offences – alleged failure to consider objective seriousness of count 3 – alleged failure to provide adequate reasons for indicative sentence for count 3 – alleged errors established – sentencing judge applied erroneous discount to indicative sentences – sentencing discretion re-exercised – no lesser sentence warranted in law – sentence varied to account for pre-sentence custody – leave to appeal allowed – appeal allowed

BAIL – release application – young person – 14 years old – concerning charges – further offence committed whilst on bail – Bail Act 2013 (NSW), s 22C test – relevant offences – attempt to commit substantive offence is not a relevant offence – unacceptable risk test – bail granted with conditions

ESTOPPEL — Promissory estoppel — Whether plaintiff orally promised to transfer whole property to defendant — Whether promissory estoppel capable of generating rights — Whether defendant reasonably relied on representations as to interest in property EQUITY — Trusts and trustees — Constructive trusts — Common intention — Whether parties had common intention that defendant would have additional interest in property LAND LAW — Co-ownership — Statutory trust for sale — Appointment of trustees

CORPORATIONS — liquidators — application by liquidator seeking court approval of entry into costs agreement with solicitors — where liquidator also seeks confidentiality orders in respect of material concerning entry into deed of assignment — where costs agreement entered into appropriately and for the benefit of the companies — where public interest in the proper administration of justice in respect of the liquidation outweighs open justice concerns to justify confidentiality orders

CONTRACTS – Construction – Written loan agreement (agreement) under which the First Defendant (Lender) lent the First Plaintiff (Borrower) a large sum of money to enable the First Plaintiff to complete the acquisition of real property (the Property) which it was intended to on-sell at a profit in which they would share – Where on one scenario contemplated by the agreement (which scenario arose) profit would be determined on the basis of market value defined in the agreement as the market value of the Property determined by a licenced real estate valuer selected by the Lender – Whether the First Defendant selected a valuer – Whether the First Defendant was put to selecting one, and only one, valuer in advance of the valuer determining market value and if so whether it was for that valuer, and that valuer alone, to determine market value – Whether the determination could be oral – Whether an unfinalised valuation at a date different to the one required by the agreement can constitute a determination under it – Where receivers appointed by the First Defendant to the First Plaintiff sought to retain a licenced valuer to make a determination under the agreement and the valuer refused a retainer in terms requiring him to carry out the exercise required by the agreement – Where his retainer was terminated before completion of a valuation – HELD the First Defendant did not select a valuer – The agreement did not require a selection to be in advance of the bringing into existence of a valuation – The First Defendant could select a valuer who had made a determination – A determination had to be in writing – The unfinalised valuation could not constitute a determination under the agreement

CORPORATIONS – members’ rights and remedies – oppression – whether conduct is oppressive or unfairly unprejudicial – matter referred to Corporations List for determination and final relief CORPORATIONS – interlocutory application – where plaintiffs seek interim relief of reinstatement – where there is a serious question to be tried – where balance of convenience does not favour reinstatement as appropriate interim remedy – where damages would be an appropriate remedy

COSTS – application for alternative costs order – Calderbank offer - offer of compromise – indemnity costs – plaintiff consents to order

SUCCESSION — Family provision — Claim by adult step-children of deceased — where deceased in the position of a parent of plaintiffs for most of their childhood — where deceased became estranged from plaintiffs following allegations of sexual abuse of which the deceased was found not guilty at trial —whether “factors warranting” making of application — whether deceased had moral duty to make provision for plaintiffs despite estrangement

INSURANCE – public liability – Sydney Trains held liable for personal injury sustained by commuter who slipped on tiles installed by insured – insured now deregistered – claim against insurer pursuant to s 601AG of Corporations Act 2001 (Cth) – claim against insurer confined to claim on implied term of contract – whether implied term to provide tiles of adequate slip resistance – whether term was breached – where expert evidence adduced at negligence trial not tendered in trial against insurer – whether inference that tile was of inadequate slip resistance available – whether breach of duty caused commuter to slip – whether evidence at trial established the tiles were wet – whether subsequent decision to reopen stairway broke chain of causation – whether insurance policy responded to claim – whether “occurrence” for purposes of policy was the installation of the tiles or the commuter’s personal injury – whether liability covered by policy extended to secondary liability for commuter’s personal injury – whether performance warranty exclusion applied

COSTS – Security for costs – appeal – under Corporations Act 2001 (Cth) s 1335 – where parties agreed order should be made – dispute solely on quantum – competing estimates of appropriate amount of security – where security sought in relation to notice of contention – where security sought in relation to past costs – whether professional costs assessor’s estimate to be preferred over solicitor’s security estimate

PRACTICE AND PROCEDURE – Adjournment application – Whether adjournment should be granted. PRACTICE AND PROCEDURE – Whether judgment should be entered pursuant to an agreement between the parties – Where parties had defaulted under settlement agreement.

CIVIL PROCEDURE – inter partes undertakings – variation – undertakings not to act on behalf of the plaintiffs or give directions to plaintiffs’ employees – request by receivers of plaintiffs for assistance in relation to proposed regulatory audit

CRIME – murder – joint criminal enterprise – where accused gave evidence in his trial – where evidence of guilty verdicts of other accused persons sought to be adduced – where evidence of discontinued proceedings against another accused person sought to be adduced – whether evidence is relevant – whether evidence is otherwise admissible pursuant to Evidence Act, s 108A

CRIME – evidence – previous representation of drug supply – where mother gave police statement – where mother is an unavailable witness – whether evidence admissible for its non-hearsay purpose per Evidence Act, s 60 – whether evidence admissible as an exception to hearsay per Evidence Act, s 65

CRIME – evidence – joint criminal enterprise – intercepted phone calls – where Crown contends the accused said “I stabbed a bloke” – where the words are difficult to decipher from the intercepted audio – whether impugned audio passage is relevant – whether the probative value of the evidence is significantly outweighed by its prejudicial effect

CRIMINAL LAW – evidence – admissibility of evidence – whether intercepted messages and phone calls are admissible against each of the accused – s 135(b) Evidence Act 1995 (NSW) – evidence only admissible against particular accused – probative value substantially outweighed by the danger that the evidence might be confusing

CRIMINAL LAW – where accused seeking a verdict of not guilty by direction to a charge of murder – where applicant contends the Crown cannot prove the count through the least demanding pathway, extended joint criminal enterprise – application refused

CRIME – murder – practice and procedure – application for a separate trial – where an accused unlawfully accessed confidential instructions of a co-accused – where counsel had to withdraw pursuant to r 101(a) of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) – where unknown degree of dissemination of stolen material – indeterminate element of incurable prejudice unless a separate trial is ordered

LEGAL PRACTITIONERS — disciplinary proceedings — practitioner convicted of fraud offences and use of carriage service to menace or harass — whether fit and proper person to be on the Roll of Australian Lawyers — relief — order removing name from Roll of Australian Lawyers

SENTENCING — appeal against sentence —arithmetical error by sentencing judge when calculating commencement date SENTENCING — appeal against sentence —discretion of sentencing judge to direct sentence to commence from date prior to that upon which it is imposed — whether sentencing judge erred in their exercise of this discretion — whether sentencing judge failed to take into account all of the applicant’s pre-sentence custody pursuant to s 24 of the Crimes (Sentencing Procedure) Act 1999 (NSW)

CRIME – appeals – appeal against sentence – requirement to show error in appeals under s 5AA of Criminal Appeal Act 1912 (NSW) – fact finding in circumstantial cases – where none of the circumstances relied upon was indispensable, each circumstance not required to be proved beyond reasonable doubt – circumstances not to be considered piecemeal but as a whole based on the entirety of the evidence – no error in the fact finding process SENTENCING – relevant factors on sentence –specific deterrence – whether sentencing judge impermissibly gave specific deterrence primary significance in sentencing – weight to be given to a factor such as specific deterrence quintessentially a matter for sentencing judge – no error disclosed SENTENCING – assessing objective seriousness – whether sentencing judge failed to take into account the relevant circumstances of the present case when assessing objective seriousness – relevant circumstances taken into account – no error disclosed SENTENCING – whether sentence is manifestly excessive – comparable cases providing a yardstick – sentence not manifestly excessive

EVIDENCE — relevance — whether evidence of applicant’s tendency to have a specified sexual interest was relevant — whether such evidence was irrelevant because it was incapable of establishing the tendency asserted EVIDENCE — tendency evidence — evidence of applicant’s tendency to have a specified sexual interest — presumption in s 97A(2) of the Evidence Act 1995 (NSW) that such evidence has significant probative value — whether there were sufficient grounds under s 97A(4) to rebut presumption — where the tendency evidence derives from a single witness — where there were differences between the alleged sexual acts towards the complainant and as alleged in the tendency evidence EVIDENCE — tendency evidence — whether probative value of tendency evidence outweighed danger of unfair prejudice to the applicant — Evidence Act s 101 — capacity of direction to remove prejudice

COSTS — security for costs — corporate plaintiff — off the plan development — application by plaintiff for statutory leave to rescind — plaintiff a special purpose vehicle — overall loss projected for development but loan facility funds available to pay legal costs — inability to pay not established — proceedings defensive in nature — application for security refused

CONTRACT – compromise of proceedings – settlement deed negotiated following informal agreement at mediation – application to set aside settlement deed – alleged departure from informal agreement and pressure from party’s own lawyers to settle – undue influence – unconscionable conduct – economic duress – application to set aside settlement deed refused – orders made for enforcement of terms of settlement COSTS – party/party - general rule that costs follow the event – claim and cross-claim involving different parties – general costs of proceedings to follow event of cross-claim - contractual right to indemnity costs of cross-claim – indemnity costs awarded on cross-claim only

COSTS — party/party — bases of quantification — factors relevant to the court’s discretion when quantifying costs

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.

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.

CIVIL PROCEDURE – transfer of proceedings – application to transfer proceedings from District Court to Supreme Court – Summons dismissed

CIVIL PROCEDURE – proceedings commenced on behalf of person under legal incapacity – settlement approval application – Court to consider the best interests of plaintiff – settlement approved

COSTS – by consent – order for quantified amount

CORPORATIONS — deregistration — application for reinstatement under s 601AH(2) of the Corporations Act 2001 (Cth) — where applicant seeks declaration that he is the beneficial owner of all shares in the company — where applicant seeks removal and replacement of director upon reinstatement — HELD — application for reinstatement and declaratory relief granted; court unable to remove and replace director in light of s 601AH(5) and the absence of any specific power

CHILD WELFARE – adoption – order – whether in children’s best interest that adoption order be made – whether adoption order clearly preferable – whether consent of mother and father should be dispensed with – whether adoption plan should be approved

CRIMINAL PROCEDURE – judge alone trial – murder – directions – rulings before formal arraignment to commence trial – defence of mental health impairment – s 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – where accused said to have been suffering from a substance-induced psychotic disorder at the time of the relevant acts – expert evidence – where psychiatrists agreed that accused had a mental health impairment as defined STATUTORY INTERPRETATION – meaning of s 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – whether s 4(2)(d) operates to exclude an impairment arising from a temporary substance-induced disorder from the definition of a mental health impairment under the Act – objective intention of Parliament based on words of statute – example that features a negative attribute in 4(2)(d) not to play an excluding role STATUTORY INTERPRETATION – interpretation of exclusion from definition of mental health impairment in s 4(3) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – whether onus falls upon prosecution or accused – “caused solely” – whether further criterion for other cause should be read into section – nullification of carveout in 4(3) not confined to causes that are significant for clinical diagnostic purposes

CONSUMER LAW – enforcement and remedies – application to transfer Local Court proceedings to Supreme Court – declarations – Australian Consumer Law – Fair Trading Act 1987 (NSW) – whether declaratory relief necessary– claim that standard small business contract unfair and void – claimed unconscionable conduct – whether other claimed agreements came into existence CIVIL PROCEDURE – severance of proceedings – cannot justly be ordered CIVIL PROCEDURE – jurisdiction – transfers to and from other courts – whether claims within jurisdiction of Local Court– whether claims within jurisdiction of District Court – proceedings transferred to District Court

COMMERCIAL — Investment arrangements — D1, a licensed real estate agent, and D2, a solicitor trading as Oracle Law, secured office premises in Queensland and worked from separate parts of the premises — D1 assisted D2 to set up office, referred conveyancing matters to Oracle Law, was given title “business development manager” and used an Oracle Law email address — D1 met P1’s director and stated he was a lawyer — D1 assisted P1 with loan arrangements regarding two associates of P1 — D1 and D2 subsequently left office premises and parted ways — D1 sought from D2 and was permitted to retain use of Oracle Law email address — P1’s director introduced P2 to D1 — D1 presented investment proposals to plaintiffs — P1 paid $10,000 and P2 paid $200,000 to D1 to be invested by him via a trading platform under asset management agreements (“AMAs”) and funds were not repaid — Plaintiffs claim that D1 represented to them that he was a lawyer, that the investments were risk-free or virtually risk-free, would give 100% return after 90 days, and were government controlled (“representations”) — Plaintiffs seek to recover against D1 based on contract, guarantee, breach of fiduciary duties or misrepresentation, pursuant to s 1041I(1) of the Corporations Act 2001 (Cth) (“Corporations Act”) and s 236 of the Australian Consumer Law (“ACL”) and for negligence — Plaintiffs allege that D1 was an employee or officeholder of Oracle Law and seek to recover against D2 under the compensatory limb of the Court’s inherent supervisory jurisdiction, and by negligence, with alternative claims based on vicarious liability and breaches of the ACL — D2 cross-claims against D1 for contribution or indemnity EVIDENCE — Privilege against self-incrimination — There is a distinction between the prohibition against drawing an adverse inference from a claim of privilege and adverse inferences that may arise from the absence of evidence which a party or witness could be expected to give (Jones v Dunkel) — It is not permissible to draw an adverse inference from a witness’ exercise of his or her privilege against self-incrimination CONTRACT — Construction — Issues regarding aspects of AMAs that bear upon repayment — Whether trade period had commenced — “official start date” an undefined term but no real dispute that the 90-day period had commenced — Whether “return” refers to the initial investment or also the profit on the initial investment — Properly construed, “return” only refers to the profit component, accordingly, there was an unqualified obligation under the AMAs to pay back the initial invested capital after 90 days — Judgment in favour of plaintiffs against D1 — Unnecessary to address guarantee claim EQUITY — Fiduciary duties — Duties allegedly owed by D1 as asset manager said to arise from contractual terms, being duties to disclose matters, to communicate information to the plaintiffs and to commence proceedings to recover invested funds — Fiduciary duties are proscriptive in nature, not prescriptive — Plaintiff failed to elaborate claim regarding fiduciary duties or address alleged breach — Contractual claim succeeded so unnecessary to make findings, particularly in absence of submissions addressing whether proscriptive duties may take on a positive character in relation to alleged duties EQUITY — Rescission — Claims that D1’s representations were made knowing them to be false or recklessly as to their truth upheld — Finding that D1’s misrepresentations contributed to plaintiffs entering into AMAs, but no indication that the plaintiffs had purported to rescind the AMAs prior to them filing their claims — Plaintiffs either affirmed, or at least made no election to rescind, the AMAs — Court declines to make any declaration as to rescission FINANCIAL SERVICES — Chapter 7 provisions of the Corporations Act are plausibly of some application to the present case — However, no submissions were made regarding claims for breach of the financial services provisions of the Corporations Act against D1 — Given findings in relation to the plaintiffs’ contractual claim and misrepresentation claim, the Court declines to make any findings as to this alternative claim CONSUMER LAW — Misleading or deceptive conduct — Plaintiffs failed to distinguish between the operation of the ACL as a law of the Commonwealth and as a State “application” law — The Court proceeds on the basis that the claim is under the ACL as a law of the Commonwealth — Finding that alternative claim against D1 under ACL succeeds but damages no different — Claims against D2 fail NEGLIGENCE — D1 owed a duty of care arising out of the AMAs — Finding that alternative claim against D1 succeeds but damages no different to contractual damages NEGLIGENCE — Alleged duty of care owed by solicitor, D2, to the plaintiffs, who were not established to be the solicitor’s clients, and who suffered economic loss — Cases outside recognised or well-established cases of duty of care require focus upon and articulation of the scope and content of the duty of care — Failure of plaintiff to identify the scope and content of the duty of care of a solicitor in absence of any retainer — Duty of care not established LEGAL PRACTITIONERS — Meaning of “client” discussed — Principles regarding implied retainers and general retainers LEGAL PRACTITIONERS — Claim made against D2 under the compensatory limb of the Court’s inherent supervisory jurisdiction — Distinction between cases involving intentional conduct by a solicitor (such as breach of an undertaking, or egregious conduct, such as gross overcharging) and cases involving non-intentional conduct that falls short of a particular standard of care — Compensation under supervisory jurisdiction for breach of professional duty by negligence requires something more than “mere” negligence, the negligence must be of a “culpable quality” amounting to a “serious dereliction of duty” — Failure of plaintiffs to address requirements of “culpable quality” or gross negligence — Claim not established PARTNERSHIP — Indicia of partnership discussed VICARIOUS LIABILITY — Proper approach to determining employment relationship — Whether D1 in an employment relationship with D2 requires focus on the characterisation of their respective rights — Finding that there was no contract between D1 and D2 — Relationship between D1 and D2 was not one of employment — Whether tortious acts and omissions of D1 were committed in the course or scope of employment — Whether employment relationship terminated — Held tortious acts occurred after employment relationship, assuming one existed, terminated — In any case, acts were not in the course and scope of the employment and had no connection with what D1 would have been employed to do CIVIL PROCEDURE — Agreed list of issues — Discussion of obligation of parties in conferring with each other and framing lists of issues — Failure of plaintiffs to identify essential aspects of causes of action in the pleadings — Inadequate listing and framing of issues by parties and, in any event, submissions not made by express reference to issues — Pleading and issue listing inadequacies places the Court in an invidious position in addressing the claims CIVIL PROCEDURE — Court Book — Court Book did not heed the pre-trial directions for the email chains to be disassembled and placed in chronological sequence and for the Court Book not to contain duplicates of the same document — Numerous copies of certain emails and other documents scattered through the Court Book and email chains often in reverse chronological order — Non-compliant Court Book inhibited the efficient and smooth running of the hearing and did not facilitate the Court’s consideration of the evidence and the issues, or the preparation of reasons for judgment COSTS — Preliminary observations regarding costs of the proceedings when contractual claims propounded by P1 of $10,000 and P2 of $200,000 against D1 straightforward — Balance of claims against D1 and claims against D2 more complicated, and some failed to identify essential issues of claims — Court Book contained 2,745 pages of materials (many duplicated) and hearing extended to 7 days (3 days beyond original estimate) — Presentation of Court Book not conducive to just, quick and cheap disposition of real issues — Parties directed to address proportionality provisions of s 60 of the Civil Procedure Act 2005 (NSW) in addressing issues of costs

ADMINISTRATIVE LAW – workers compensation – judicial review of Medical Appeal Panel decision – where Appeal Panel issued medical assessment certificate determining worker’s whole person impairment at 14% after a 10% deduction under s 323 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) – whether failure to give adequate reasons – whether jurisdictional error or error of law on the face of the record in application of s 323 – relevant error established – Medical Assessment Certificate set aside

APPEALS – appeal from Local Court to Supreme Court – proceedings for recovery of approximately $11,500 – where defendant supplied 55 wood folding utility tables – where plaintiff alleges tables were defective from the outset – no evidence of neglect, misuse or excessive use – plaintiff claims cost of replacement and hire tables – implied statutory warranties – terms of use include 3 month commercial warranty – Magistrate dismissed claim – held Magistrate erred by (1) failing to determine how statutory warranties applied to the claim and (2) concluding there was no warranty about commercial use – errors mixed questions of law and fact – whether leave should be granted – where Magistrate also ordered plaintiff to pay costs of $15,000 plus disbursements of $6,130 – costs order almost double the amount of the claim – where prima facie position under Local Court Practice Note 1 is $2,500 maximum – sufficient injustice to grant leave to appeal – appeal upheld – judgment set aside JUDGMENT AND ORDERS – amending, varying and setting aside – whether proceedings should be remitted to the Local Court – further hearing inconsistent with s 56 of the Civil Procedure Act – where no cross-examination occurred – this Court in as good a position to determine the matter – no reason to reject unchallenged evidence of the plaintiff’s director – plaintiff entitled to replacement and compensation – terms of the judgment varied – judgment for the plaintiff in the sum of $11,461.86

APPEALS – fact-finding – challenge to genuineness of belief – witness’ credibility – belief not glaringly improbable – whether belief objectively unreasonable – witness with expertise to form belief – no expert evidence to contradict reasonableness CONTRACTS – commercial lease – construction – implication of terms – landlord’s power to issue notice where leased property suffered fire damage – effect of notice to allow landlord to terminate lease – criterion for issue of notice was landlord’s belief that repair “impracticable or undesirable” – whether belief to be objectively reasonable – whether belief to be formed in good faith LEASES AND TENANCIES – termination without default – leased property damaged by fire – lessor’s power to serve notice if repair impracticable or undesirable – effect of notice to allow termination – whether notice given within reasonable time – period of reasonable time commencing when damage occurred – further period from time when lessor formed opinion permitting service of notice

CIVIL PROCEDURE — Court of Appeal — whether appeal should be dismissed as incompetent where leave to appeal not sought — whether leave to appeal was required — Supreme Court Act 1970 (NSW) s 101(2)(r) — whether value of matter in issue was less than $100,000 — where evidence of quantum of compensation not controverted at first instance — where appellant not entitled to claim compensation in respect of easement — where costs order does not count towards s 101(2)(r) threshold

CRIMINAL APPEAL – review of procedural decisions of Registrar – no question of principle

CRIME – costs – appeal – applicant acquitted at trial of a charge of manslaughter – subsequent application for costs refused – appeal against refusal of costs certificate – interlocutory appeal – leave required – application to rely on further evidence

CRIME – appeals – appeal against sentence – where sentencing judge considered material from a previous sentence over which they presided – whether sentencing judge erred in denying applicant procedural fairness CRIME – appeals – appeal against sentence –whether sentencing remarks demonstrate that the Form 1 offence was taken into account as a matter of aggravation when assessing the objective seriousness of the primary offence CRIME – appeals – appeal against sentence – whether there was an excessive degree of notional accumulation of indicative sentences – whether sentence imposed is manifestly excessive