Cases and authorities

NEGLIGENCE – occupier’s liability – plaintiff slipped while descending stepped aisle at outdoor stadium – whether reasonable occupier would have installed a handrail – identification of risk of harm – significance of obviousness of risk – no evidence of other persons slipping on stepped aisle – stadium certified as compliant with Building Code of Australia – appeal allowed and judgment for defendant entered

COURTS AND JUDGES — Jurisdiction — Supreme Court — whether decision to decline to grant a costs certificate pursuant to the Costs in Criminal Cases Act is an exercise of judicial or administrative power COURTS AND JUDGES — Jurisdiction — Supreme Court — where application for costs pursuant to Costs in Criminal Cases Act 1967 (NSW) determined by trial judge in the Supreme Court — whether appeal lies to Court of Criminal Appeal pursuant to s 5F of the Criminal Appeal Act 1912 (NSW) — whether decision to decline application for costs certificate an interlocutory decision — whether decision to decline application for costs certificate is an order given or made in the proceeding for the prosecution of the offender on indictment CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 — where applicant’s defence largely funded by legal aid — whether a legally aided applicant can recover costs pursuant to the Costs in Criminal Cases Act 1967 — whether public policy considerations weigh against grant of certificate to legally aided applicants — whether Court should exercise residual discretion to decline to grant certificate to legally aided applicants CRIMINAL PROCEDURE — Costs — Costs in Criminal Cases Act 1967 — whether it would have been unreasonable for a hypothetical prosecutor in possession of all the facts to institute proceedings against the applicant — no question of principle COSTS — Party/Party — Criminal cases — Statutory power to award costs — where applicant’s defence largely funded by legal aid — whether a legally aided applicant can recover costs pursuant to the Costs in Criminal Cases Act 1967

CRIME – appeals – appeal against sentence – manifest excess – applicant entered pleas of guilty to two offences of supplying methylamphetamine – total of 24.35 grams sold through multiple transactions spanning 11 weeks – low-level street dealer – criminal history of property offences – strong subjective case – appeal allowed

CRIME – appeal against sentence – multiple aggravated break and enter offences – associated larceny offences – custodial offences – question of correctness of findings on sentence concerning features of statutory aggravation – in company – use or threaten to use weapon – relevance of Form 1 offences to the assessment of objective seriousness – principal offences inextricably linked to Form 1 offences – impact of COVID-19 – no evidence before the sentencing court as to the effect of COVID-19 on conditions in custody – general claim of hardship is insufficient – leave granted – applicant re-sentenced

CRIME – appeals – appeal against conviction –where applicant convicted of manslaughter by unlawful and dangerous act – joint criminal enterprise – agreement to intimidate – offence arising from fatal motor vehicle collision during high speed chase – whether jury verdict unreasonable – focus upon CCTV evidence and credibility of Crown witnesses – where CCTV footage shows applicant and co-offender interacting with the deceased and other witnesses shortly before the fatal collision – argument that no intimidation can be discerned from the CCTV product – where witnesses were dishonest to police or provided conflicting evidence or both – open to jury to be satisfied of applicant’s guilt on the evidence provided at trial – verdict not undermined by CCTV footage – appeal dismissed

CRIMINAL PROCEDURE – trial – jury – discharge of individual juror – juror misconduct – communication by body language with accused – juror discharged

EVIDENCE – various objections – difficulty in hearing recordings – propriety of transcript – versions – unfair prejudice – rulings

CIVIL PROCEDURE — plaintiff sought leave to commence proceedings as a person in custody whilst convicted of a serious indictable offence nunc pro tunc — not an abuse of process and there is a prima facie case

CIVIL PROCEDURE — plaintiff sought leave nunc pro tunc to commence proceedings as a person in custody whilst convicted of a serious indictable offence — application supported by expert evidence

CIVIL PROCEDURE — plaintiff sought leave nunc pro tunc to commence proceedings as a person in custody whilst convicted of a serious indictable offence CIVIL PROCEDURE — claims for personal injury — gunshot wound from police — application for separate hearings of liability and quantum — by consent — the assessment of the full extent of injuries would delay the proceedings

COSTS — Party/Party — Where plaintiffs seek different costs order to s 88K(5) Conveyancing Act 1919 (NSW) — Where plaintiffs seek an order that they pay the defendant’s costs as if a litigant in person — Whether defendant behaved unreasonably in litigation — Where plaintiffs ordered to pay the defendant’s costs save for costs relating to some evidence LAND LAW — Easements — Creation of easements — Creation by order of court

JUDGMENTS AND ORDERS – reasons relating to admissibility of tendency evidence – where plaintiff allowed to adduce tendency evidence relating to second defendant’s conduct

CIVIL PROCEDURE - separate determination– where separate determination concerns question of whether the Commissioner of Police is entitled to use powers under the Proceeds of Crime Act 2002 (Cth) following the commencement of proceedings – whether separate determination would be just, quick and cheap – separate determination ordered

PRACTICE AND PROCEDURE – where principal proceedings were an action by the Crown for possession of land occupied by the defendant – where Summons correctly described the land but the orders ultimately made, by error, did not contain a full description of the land – HELD – orders corrected under the slip rule

EQUITY – trusts and trustees – application for judicial advice pursuant to s 63 of the Trustee Act 1925 (NSW) – practice and procedure in judicial advice proceedings – nature of and principles governing judicial advice – judicial advice on whether NSW Trustee and Guardian is justified in selling property part of the deceased’s estate – whether the Court should decline, in its discretion, to give the advice sought – whether advice in best interests of trust estate

BUILDING AND CONSTRUCTION — Adjudication — Security of Payment Act (SOPA) — Where plaintiff alleges the amount of the claim for offsite overheads and the declaration that the claim was made under the Act were unclear — Whether claimant engaged in misleading and deceptive conduct — Notice of adjudication application made clear claim was made under the Act BUILDING AND CONSTRUCTION — Adjudication — Judicial review — Security of Payment Act (SOPA) — Whether claim for offsite overhead costs relate to construction work or related goods and services — Adjudicator’s interpretation of what “cost” means under the construction contract is not reviewable — Whether adjudicator’s calculation of offsite overhead costs was unreasonable or capricious — Adjudicator’s acceptance of claimant’s unchallenged evidence and submissions was reasonable

CONSTITUTIONAL LAW — Federal jurisdiction — Diversity jurisdiction — Dispute between a State and a resident of another State — Jurisdiction of NSW Civil and Administrative Tribunal — Proceedings were of a kind falling within ss 75(iv) of the Constitution — Nature of the Burns v Corbett restriction CONSTITUTIONAL LAW — Federal jurisdiction — Government Information (Public Access) Act 2009 (NSW) — Reviewable decisions — Whether Tribunal exercising judicial power — Where reviewable decisions involve governmental administration — Where administrative schemes involve legal criteria — Where Tribunal is not enforcing pre-existing, distinct legal rights — Where Tribunal bears features characteristic of administrative tribunals in Australia — Where Tribunal’s task is to undertake merits review — Where tribunal is exercising non-judicial power — Burns v Corbett restriction does not apply — Powers may be validly exercised by the Tribunal in proceedings which, otherwise, would fall within federal jurisdiction CONSTITUTIONAL LAW — Federal jurisdiction — Privacy and Personal Information Protection Act 1998 (NSW) — Where context of the Act for government record-keeping is administrative — Damages sought under s 55(2)(a) of the Act — Damages is a remedy characteristically and historically awarded by courts — Where the Tribunal is making orders directed to the agency, rather than in lieu of the agency’s own decision — Where order made under s 55(2)(a) is to be certified under s 78(1) of the Civil and Administrative Tribunal Act 2013 (NSW) — Where the decision of an administrative body is given the effect of a decision of a court — Where exercise of judicial power if and when such an order is sought — No occasion to read down or sever s 78 — Burns v Corbett restriction applies

CRIME – appeals – appeal against sentence – alleged manifest excess – offending constituted by single 3½ hour domestic violence episode – multiple offences against estranged partner and sister – multiple property offences and offences against police – prior record of domestic violence – disadvantaged Indigenous applicant – aggregate sentence not manifestly excessive – leave to appeal granted – appeal dismissed

POSSESSION – application by mortgagee for possession after asserted default – where defendant claims mortgage entirely paid off twice by third party – where third party a charlatan with no evidence of such transfer

CRIMINAL PROCEDURE – trial – jury – discharge of individual juror – application – reasonable apprehension of bias – non-verbal communication between juror and an accused – capacity of judicial officer to rely on own observations – insufficient evidence currently – application adjourned

CIVIL PROCEDURE — application to set aside default judgment — loan made to corporate entity for the purpose of prestige car and other businesses — personal guarantee from company director and his wife — unsatisfactory explanation for delay in responding to default judgment — wife claimed the lender’s entry into her personal guarantee was unconscionable — she claimed to be at a special vulnerability vis a vis her husband and that the lender knew this — she claimed to be completely subservient to her husband — evidence at its highest fell short of proving a special vulnerability — claim in the alternative of an unjust contract based on the same underlying facts — no case established to set aside default judgment

CIVIL PROCEDURE – application for witness in Bangladesh to give evidence by audio visual link – where witness’ credit will be in issue – whether unfair to the defendant – application granted

CIVIL PROCEDURE – Default Judgment – Setting Aside – Delay – Bona fide arguable defence – Default Judgment Set Aside – Leave granted to file Defence and Cross-Claim

COSTS – application for a gross sum costs order – where procedural history complex, protracted, and foreshadowed to continue – where matter at hand significantly more confined – application granted

EVIDENCE – admissibility – cold case – statement of now deceased witness from 2008 – where statement details victim’s account to friend about meeting a taxi driver – where accused worked as a taxi driver – whether evidence admissible for non-hearsay purpose of supporting credibility of witness – whether risk of unfair prejudice to the accused in that jury might misuse evidence as truth of the representations to identify the accused as the taxi driver concerned

CIVIL PROCEDURE – cross-vesting – transfer to Federal Court – whether special federal matter – whether a matter arising under the Administrative Decisions (Judicial Review) Act 1977 (Cth) – whether a matter within the original jurisdiction of the Federal Court – where underlying proceedings concern an application for judicial review of a decision of a Supreme Court judge acting persona designate not to order a post-appeal inquiry in the Court of Criminal Appeal – s 78(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) – where post-appeal inquiry procedures “picked up” and applied as surrogate federal laws by virtue of s 68(1) of the Judiciary Act 1903 (Cth) in respect of convictions for Commonwealth offences – where proceedings on remitted from the High Court of Australia CIVIL PROCEDURE – cross-vesting – transfer to Federal Court – whether special reasons for the proceedings to be determined by the Court of Appeal – s 6(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) – where Commonwealth legislative scheme for criminal procedure favours territorial not national uniformity – where Court of Appeal possesses practical familiarity with the Crimes (Appeal and Review) Act 2001 (NSW) – where lengthy procedural history – where Applicant self-represented

CRIME – appeals – appeal against sentence – assistance to authorities – determination of discount under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW) – whether sentencing judge erred in determining that the applicant was not entitled to a discount for promised assistance in respect of unrelated offending – appeal upheld – applicant resentenced

CIVIL PROCEDURE – notice of motion seeking leave to obtain expert reports relating to economic loss and domestic assistance – where care claim is substantial – adjournment allowed – suppression orders by consent

JUDGMENTS AND ORDERS – form of final orders to give effect to judgment

ADMINISTRATIVE LAW – judicial review – decision of medical assessor referred to review panel – where review panel excluded the insurer’s medico-legal reports for alleged want of procedural fairness - whether the review panel misconstrued the Motor Accidents Compensation Act 1999 (NSW) – error of law made out ADMINISTRATIVE LAW – judicial review – whether review panel applied proper test for review panel – where review panel confined its consideration of evidence on causation – where review panel reversed onus of proof on causation – error of law on the face of the record

LAND LAW — easements — costs — where order made for imposition of easement in favour of plaintiff — whether departure from ordinary rule under s 88K(5) Conveyancing Act 1919 (NSW) warranted due to unreasonable conduct of defence to claim

SUCCESSION – contested probate – validity of codicil propounded by defendant/cross-claimant – codicil provided for defendant/cross-claimant to become sole executor of estate but did not operate to make him a beneficiary of estate – codicil otherwise amended prior will in various respects – whether deceased had testamentary capacity when he signed codicil – whether deceased knew and approved the contents of the codicil he signed – held that, despite a degree of cognitive impairment or deficit, the deceased had testamentary capacity – held further that, despite the deceased having an imperfect understanding of one of the changes effected by the codicil, the deceased should be regarded as knowing and approving of the contents of the codicil – probate granted to defendant/cross-claimant in respect of prior will and codicil

LEGAL PRACTITIONERS – solicitors – personal misconduct – criminal convictions – misconduct involving sexual abuse of young boys overseas – offending over a period of years – lengthy sentence of imprisonment – whether practitioner not “a fit and proper person” to remain on roll – whether “likely to be unfit for the indefinite future” – orders not opposed

CORPORATIONS — Winding up — Statutory demand — Application to set aside — Whether there is a genuine dispute about the existence or amount of the debt

EVIDENCE – probative value – unfair prejudice – evidence permitted to be adduced

EVIDENCE – public interest immunity – safety of witness – immunity upheld – disclosure not required

CIVIL PROCEDURE — plaintiff sought leave to commence proceedings as a person in custody whilst convicted of a serious indictable offence — application supported by expert evidence

CIVIL PROCEDURE – pleadings – whether pleadings disclose a reasonable cause of action – pleadings struck out

CHILDREN AND YOUNG PERSONS – Claim by Summons for writ of habeas corpus in relation to a child the subject of proceedings in the Children’s Court – assertions of vexatious proceedings and malicious prosecution by the Department of Communities and Justice and Children’s Court – habeas corpus not available – claims of serious misconduct not pleaded – absence of any material justifying allegations – HELD – the proceedings have no foundation and are an abuse of process and should be dismissed

CONTRACTS — interpretation — commercial lease — implied requirement that landlord’s right to demand payment of outgoings be exercised within a reasonable time — legal meaning of reasonable time — reasonable time as a question of fact CONSUMER LAW — misleading or deceptive conduct — no question of principle LEASES AND TENANCIES — repudiation — where tenant terminated commercial lease after landlord asserted and threatened to exercise right to terminate lease by re-entry if tenant failed to pay sum demanded by landlord and its predecessor in title in respect of outgoings payable by tenant under previous, expired leases — whether landlord’s conduct demonstrated willingness to perform the lease only in a manner substantially inconsistent with landlord’s obligations — where landlord claimed that tenant repudiated lease by giving notice of termination, vacating the premises and ceasing to pay rent — held that lease was repudiated by landlord and validly terminated by tenant — tenant’s loss of bargain damages not proved — tenant’s termination for landlord’s repudiation discharged parties from performance of executory obligations, including tenant’s make good obligations LEASES AND TENANCIES — fixtures and fittings — tenant’s fixtures — no question of principle

CRIMINAL LAW – application for return of property seized pursuant to warrant – where electronic devices seized from victim of suspected attempted murder – where victim practises as a solicitor relying upon the use of the devices to store and share data in the conduct of his practice – where police retrieved data by download – where devices possibly contain evidence of commission of a crime – whether return of property should be ordered

JUDGMENTS AND ORDERS – amending, varying and setting aside – powers of NCAT – correction under slip rule –proceedings remitted by Appeal Panel without considering fundamental jurisdictional issue – power to vary order and issue second decision LAND LAW – strata title – caretaker agreements – power to terminate – agreement entered into prior to statutory power to terminate – application by owners corporation to NCAT – power under Strata Schemes Management Act 2015 (NSW), s 72 to terminate agreement STATUTORY INTERPRETATION – amendment and repeal – caretaker agreement entered into in 2001 – effect of transitional provisions – whether transitional provision applying to one class of earlier agreements by implication excluded other agreements

CIVIL PROCEDURE – suppression and non-publication – whether necessary to make order pursuant to the Court Suppression and Non-publication Orders Act 2010 with respect to documents produced under subpoena – order not made – instead, confidentiality regime imposed with respect to those who accessed the documents

EVIDENCE — objection made to ‘Corner Report’ annexed to a solicitor affidavit — admitted into evidence — competing version of the science — question one of weight not admissibility

CIVIL PROCEDURE – Pleadings – Amendment – where plaintiff seeks to amend particulars – where plaintiff seeks to rely on an expert report received after pre-filing statement – s 318 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) – meaning of “materially different” to pre-filing statement – meaning of "the material concerned" which was not reasonably available to the party at the time of the pre-filing statement – whether the substance of the material was reasonably available at the time of the pre-filing statement

COSTS – application by party entitled to costs under judgment for gross sum costs order – where proceedings have a tortured procedural history – whether appropriate to make order – gross sum costs order made

JUDGMENTS AND ORDERS – reasons – orders necessary to give effect to principal judgment

FAMILY LAW AND CHILD WELFARE — Adult adoption — Proper applicant — Whether s 24 Adoption Act 2000 (NSW) (Adoption Act) permits an adult child to be the applicant for his or her adoption — Section 24 envisages that the applicant for the adoption will not be the child but rather the person who cared for the child as his or her or their child prior to the child reaching the age of 18 years STATUTES — Construction — Whether s 24 Adoption Act permits an adult child to be the applicant for his or her adoption — Section 24 envisages that the applicant for the adoption will not be the child but rather the person who cared for the child as his or her or their child prior to the child reaching the age of 18 years FAMILY LAW AND CHILD WELFARE — Practice and procedure — Preliminary hearing to be conducted with as little formality as the judge considers appropriate — Preliminary hearing may provide a quick, beneficial and relational means of addressing issues

APPEALS – leave to appeal from decisions of NSW Civil and Administrative Tribunal (“NCAT”) Appeal Panel to Supreme Court – whether Appeal Panel gave adequate reasons – statutory obligation on Appeal Panel to provide the reasoning process that led it to the conclusions in made in its written reasons – review of written reasons as a whole – leave to appeal granted – appeal allowed.

MORTGAGES AND SECURITIES — mortgages — duties, rights and remedies of mortgagee — where mortgaged properties have been sold CONTRACTS — remedies — liquidated damages — debt — where properties subject to mortgage have been sold and appropriate remedy is balance due under the deed of loan LAND LAW — conveyancing — agreement to create or dispose of interest in land — oral agreement found in respect of one property and not in respect of the other