Cases and authorities

INSURANCE — liability insurance — exclusions — whether liability arose out of the rendering of or failure to render professional advice or service for a fee – whether SunWater itself rendered professional advice or service — act of subordinate was act of SunWater — whether exclusion confined to liability to client or extended to liability to third parties – whether exclusion clause excessively circumscribed cover if interpreted as insurers contended

MORTGAGES AND SECURITIES — mortgagee’s power of sale — whether mortgagee failed to act in good faith or take all reasonable care to sell property for not less than market value — significance of expert valuation evidence as to market price of property — no error in primary judge’s preference for respondents’ expert valuation evidence

TORTS – assault during domestic relationship – where appellant pushed respondent – where respondent fell and struck her head on a coffee table – where appellant claims to have acted in self-defence – whether trial judge erred in rejecting appellant’s evidence concerning his relationship with respondent as irrelevant to the issue of self-defence – whether trial judge erred in concluding that appellant did not act in self-defence – whether trial judge erred in finding appellant had “intent to cause injury” and that Civil Liability Act 2002 (NSW), s 3B(1) did not apply DAMAGES – assessment – past and future domestic assistance – whether medical practitioner qualified by respondent lacked expertise to express opinions on her need for domestic assistance – whether trial judge erred by failing to give sufficient reasons for award of damages

CRIME – SENTENCE – appeal against sentence – supply large commercial quantity of a prohibited drug – question of whether proper allowance made for future prospects or rehabilitation – question of whether a finding of remorse should have been made – question of whether greater allowance should have been made for “quasi-custody”

CRIME – appeals – appeal against sentence – parity – criminal drug syndicate – manufacture large commercial quantity of prohibited drug, 3,4-Methylenedioxyamphetamine, contrary to Drug Misuse and Trafficking Act (NSW), s 24(2) – participate in criminal ground contrary to Crimes Act 1900 (NSW), s 93T(1) – where cystic fibrosis “fundamental to subjective case” – whether justifiable sense of grievance in light of the sentence imposed on co-offenders

CRIME – appeals – appeal against sentence – parity – criminal drug syndicate – manufacture large commercial quantity of prohibited drug, 3,4-Methylenedioxyamphetamine, contrary to Drug Misuse and Trafficking Act (NSW), s 24(2) – reckless dealing with proceeds of crime on Form 1 – motivation for offending to repair financial damage caused by others – whether justifiable sense of grievance in light of the sentence imposed on co-offenders

CRIME – APPEAL – appeal against conviction – sexual intercourse without consent – verdict of guilty returned to one count and not guilty to two further counts – whether verdicts inconsistent – whether offence to which guilty verdict returned not supported by the evidence – whether error in refusal to allow evidence to be led of prior sexual activity

SUMMARY JUDGMENT – possession of land – no question of principle

Limitation of Actions — Voyager/Melbourne collision — where plaintiff brought proceedings over 50 years after expiry of applicable time limit — whether application satisfies requirements of s 60I Limitation Act 1969 (NSW) — whether application made within 3 years of time when plaintiff ought to have become aware of specified matters — whether discretion under s 60G may be exercised that requiring conclusion that it is just and reasonable to extend limitation period — where causation in relation to injuries and damages are in issue — where reliability of plaintiff’s evidence is in issue — leave refused.

SUCCESSION – Claim by widow, who was second wife of the deceased, for a family provision order – The value of the deceased’s estate small – Deceased’s Will made some provision for the Plaintiff, which, in events that have happened, amounts, effectively, to one-third of the value of the proceeds of sale of the principal asset, being real property owned by the deceased, with the balance of the proceeds to be shared equally between the Defendants, who are two children of the deceased’s first marriage and the executors – Relevance of testamentary freedom – Guidelines relating to widows’ claims – Whether adequate provision for proper maintenance and advancement made for the Plaintiff PROCEDURE – costs – costs in family provision cases where the value of the estate is less than $500,000

LEGAL PROFESSION – trust moneys – default – claim on fidelity fund – whether moneys entrusted in ordinary course of legal practice – claimant seeking visa to enter Australia – agent in China with agreement with Australian solicitor – solicitor not registered migration agent – unlawful to provide immigration assistance – assistance involved fraudulent employer sponsor agreements – whether claimant proved no money recoverable from agent

CIVIL PROCEDURE — Summary disposal under UCPR r 13.4 — Dismissal of cross-claim — Defective pleading concerning statutory duty under s 37 of the Design and Building Practitioners Act 2020 (NSW) — Whether Scott Schedule provided by the cross-claimant adequately identifies the precautions the building supervisor should have taken to manager the risk of harm

CIVIL PROCEDURE — Representative proceedings — Proceedings commenced by plaintiff with statutory right of appeal from a decision of the Appeal Panel of the NSW Civil and Administrative Tribunal — No other group member exercised statutory right — Orders made dismissing the plaintiff’s appeal — Parties agreed that consequential orders should be made binding the group members — Orders made under ss 177 and 179 of the Civil Procedure Act 2005 (NSW) LEASES AND TENANCIES — Legislation protecting tenants — Residential (Land Lease) Communities Act 2013 (NSW)

CONTRACTS – remedies – damages – proof of loss or damage – developer promised to pay amounts owing by builder to subcontractors – builder issued payment schedules – subcontractors received some payments from builder and developer – whether “previous payment” in payment schedules referred to payments paid CIVIL PROCEDURE – pleadings – calculation of loss or damage – whether appellants’ case in final submissions was pleaded or run at trial – amount owing under payment schedules deducting amounts paid to appellants – case not materially different – sufficient notice – evidence supported calculations EVIDENCE – documentary evidence – business records – payment schedules – no issue of authenticity or sufficiency – no need to prove extraneously matters disclosed in payment schedules

OCCUPATIONS – health practitioners – misconduct and discipline – disciplinary proceedings – Director of Proceedings’ decision to commence NCAT disciplinary proceedings – application alleging unsatisfactory professional conduct and professional misconduct – whether allegations of professional misconduct were legally unreasonable ADMINISTRATIVE LAW – reviewability – grounds of review – subject matter of power or decision – prosecutorial decision – whether Director of Proceedings’ decision should be treated as final – statutory interpretation – prosecutorial powers largely immune from judicial review but subject to NCAT control – legislature did not intend Court to determine which applications may be considered by specialist tribunal – decision is non-justiciable ADMINISTRATIVE LAW – remedies – certiorari –decision to refer complaint had no effect on medical practitioner’s legal rights – no power to make fact findings or affect registration – no relief in certiorari ADMINISTRATIVE LAW – remedies – discretionary factors – failure to make strike out application in NCAT – discretion to refuse relief

CRIME – appeals – Land and Environment Court – s 5F of the Criminal Appeal Act 1912 (NSW) – applicants charged with two offences against s 120(1) of the Protection of the Environment Operations Act 1997 (NSW) – offences relate to pollution of water during construction of dirt road on applicants’ property – where primary judge granted leave to respondent to amend summonses – where applicants alleged amended summonses changed the location of the offences by substituting new locations – where amended summonses were based on aerial inspection of applicants’ property by a drone – use of statutory powers to inspect during criminal proceedings – whether the advantage obtained by prosecutor in using statutory powers amounted to a contempt of court - where judgment concerned interlocutory decision concerning practice and procedure – principle of restraint from interference by appellate court – whether factual findings of primary judge regarding location of offences were open to the judge – leave to appeal refused

CRIME — sentence — appeal against sentence — error in backdating sentence of imprisonment — Crown conceded the error — contention it was necessary to re-exercise the sentencing discretion — held error did not affect sentencing discretion — intervention limited to correction of the error

CRIMINAL LAW — Appeals — Appeal against sentence — Recklessly deal with proceeds of crime — Where applicant sentenced on the erroneous basis of joint criminal enterprise — Substantial personal sacrifice to make reparation to the victim — Re-sentence — Where lesser term of imprisonment warranted — Whether appropriate to proceed by way of Intensive Correction Order — Where applicant’s offending so serious that the only appropriate sentence is one of full-time imprisonment

CRIME – appeals – appeal against sentence – extension of time in which to appeal – sentenced and notice of intention filed in 2018 – appeal filed in 2021 – extension granted CRIME – appeals – appeal against sentence – multiple offences – where background of very substantial disadvantage taken into account – whether error in application of Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 principles – whether error in not reducing offender’s moral culpability – no error shown CRIME – appeals – appeal against sentence – assistance to authorities – provision of phone number resulting in sentencing of another offender for drug and other offences – whether 5% discount manifestly inadequate – no misapplication of principle or error shown CRIME – appeals – appeal against sentence – multiple offences – custodial conditions significantly worse than contemplated – whether evidence “new” or “fresh” – whether evidence should be admitted – not “exceptional” – evidence not admitted – ground dismissed CRIME – appeals – appeal against sentence – parity – specially aggravated kidnapping – whether sentencing judge failed adequately to consider each offender’s level of criminality and subjective cases – no justifiable sense of grievance

CRIME – Appeals – Appeal against sentence – Parity – Joint criminal enterprise – Where differing degrees of involvement in offending – Where significant differences in subjective features in mitigation – Where all factual findings of sentencing judge open – Leave to appeal granted and appeal dismissed

CRIME – appeals – appeal against conviction – applicant charged with multiple counts of committing acts of indecency upon a child – charged conduct amounted to three incidents on separate days involving the same child – jury returned not guilty verdicts on charges relating to second and third incidents but guilty verdicts on charges relating to first incident – Crown case rested upon evidence of the child – whether guilty verdicts should be quashed as inconsistent with not guilty verdicts – whether guilty verdicts otherwise unsafe and unsatisfactory – not guilty verdicts explicable by reference to nature of complainant’s evidence – evidence capable of sustaining guilty verdicts – appeal dismissed

CRIME – appeals – appeal against sentence – possession of firearms – supply of drugs – proceeds of crime – offer to surrender firearms in exchange for favourable treatment to brother – purchased after receiving “bags and boxes of cash” – search warrant executed in meantime – undertaking to assist – undertaking contingent on agreement with police – purpose of possession – objective gravity – failure to quantify the reduction in penalty for assistance to authorities – finding that knowledge of illegality increased objective seriousness – resentence – no lesser penalty warranted – appeal dismissed CRIME – appeals – appeal against sentence – nature of review for error in an appeal about sentencing pursuant to ss 5(1)(a) and 6(3) of the Criminal Appeal Act 1912 (NSW) – error need not be jurisdictional – effect of s 23(6) of the Crimes (Sentencing Procedure) Act 1999 (NSW) Act – requisite significance of error to demonstrate miscarriage of discretion WORDS AND PHRASES – “undertaking to assist”

CRIME — Appeals — Appeal against conviction — jury directions — where jury provided written elements documents containing question trail to be followed — where document not orally explained to jury by trial judge — where such explanation required — error established CRIME — Appeals — Appeal against conviction — jury directions — where trial judge commented on how verdicts on various counts could be consistent — error established CRIME — Appeals — Appeal against conviction — whether evidence of disclosure wrongly ruled inadmissible — application of s 293 of the Criminal Procedure Act 1986 (NSW) — no error established

CRIME – appeals – appeal against sentence – application for leave to appeal out of time – unrepresented applicant – dishonestly obtain property by deception – supply prohibited drugs ongoing basis – supply commercial quantity of prohibited drug – knowingly deal with proceeds of crime – need for satisfactory explanation of late lodging – no explanation given – no merit in any of the grounds of appeal raised – leave to appeal refused CRIME – appeals – factual error – where sentencing judge found applicant participated in Drug Court program – where applicant sought on appeal to lead evidence that he had not been through program – evidence available at hearing but not given – whether absence of evidence constituted a miscarriage of justice – where applicant recidivist offender – applicant abusing illicit drugs since 2004 – offending related to that abuse – where other material demonstrates error of no real substance – no miscarriage of justice occasioned CRIME – appeals – where applicant alleged his lawyer failed to tender letter of remorse and character references – where letter of remorse reconstructed for appeal – where character references not available on appeal – where parties bound by manner cases conducted at first instance – reconstructed evidence rejected CRIME – appeals – whether sentencing judge took into account effects of Covid-19 on applicant’s time in custody – applicant in custody throughout pandemic – matters complained of by applicant both prior to and after sentence imposed – complaint relating to periods since applicant sentenced not admissible – matters prior to sentence not fresh evidence but new evidence – no miscarriage of justice caused by absence of evidence

CRIME – appeals – appeal against sentence – parity – two offences of supply commercial quantity of prohibited drug, cocaine and methylamphetamine, contrary to Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) – three offences on Form 1 – where sentencing judge did not refer to principles of parity in remarks on sentence – whether applicant’s case differentiated from co-offenders – whether applicant able to understand how case was differentiated CRIME – appeals – appeal against sentence – totality – two offences of supply commercial quantity of prohibited drug, cocaine and methylamphetamine, contrary to Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) – three offences on Form 1 – where sentencing judge did not refer to submissions on accumulation and concurrency, nor totality – whether degree of accumulation settled upon open in the exercise of sentencing discretion

CRIME — appeal against conviction – where the applicant convicted on four counts of sexual offending – whether the verdicts were unreasonable

CRIME — Appeals — Appeal against conviction — Whether tendency evidence wrongly admitted — Whether primary judge erred in directing the jury that there was evidence of a tendency when the applicant was intoxicated CRIME — Appeals — Appeal against conviction — Unreasonable verdict — Whether the verdict of guilty on one count of sexual intercourse without consent was inconsistent with the verdicts of not guilty on the other two counts of sexual intercourse without consent CRIME — Appeals — Appeal against conviction — Extension of time in which to appeal — where delay is ameliorated to some degree by attempts to locate the primary judge’s reasons

CRIME — Appeals — Appeal against conviction — Inconsistent verdicts — Applicant charged with one count of intentionally choking, one count of aggravated sexual assault and nine counts of sexual intercourse without consent — Jury found the applicant guilty of intentionally choking but not guilty of each other count — Where the events founding the 11 counts were intertwined temporally and contextually — Whether there was any logical basis to distinguish the verdicts — Distinguishing factors included the different elements of the offences, the different availability and quality of objective evidence and the different quality of complaint evidence — Appeal dismissed

CRIME — Appeals — Appeal against conviction — whether failure to direct jury on accused’s right to silence occasioned a miscarriage of justice — where direction not given when evidence adduced — where hypothetical direction given in summing up — where trial counsel did not seek direction — where no miscarriage of justice CRIME — Appeals — Appeal against conviction — forensic disadvantage caused by delay direction — application of s 165B of the Evidence Act 1995 (NSW) CRIME — Appeals — Appeal against conviction — Unreasonable verdict — where open to jury to find guilt beyond reasonable doubt

CRIME – Appeals – Appeal against sentence – Manifest excess – Parity – Misapplication of principle – Error in fact finding – Where two judges sentenced co-offenders separately – Where appellate court does not go behind fact finding – Evaluative assessment of each sentencing judge as to objective findings and weight given to subjective features – Appeal dismissed

Insurance – Contract of insurance – Where insured body corporate knew that apartment buildings had serious non-structural defects which it did not disclose to insurer – Where cyclone caused substantial damage to apartment buildings and exposed defects – Where insurer advised insured that it would provide indemnity despite non‑disclosure – Where extent of indemnity ambiguous – Where dispute arose as to sequence of repair works and distribution of costs – Where insurer proposed settlement on particular terms and advised that, if insured did not accept, it would rely on s 28(3) of Insurance Contracts Act 1984 (Cth) and reduce liability based on non‑disclosure – Whether insurer bound by representation of indemnity due to waiver, election or estoppel – Whether insurer failed to act with utmost good faith. Words and phrases – "completed exercise of a legal power", "detriment", "duty of utmost good faith", "election", "election by affirmation", "estoppel", "extinguishment of rights", "full satisfaction of alternative rights", "inconsistent sets of rights", "indemnity", "irrevocable waiver", "non‑disclosure", "policy of insurance", "revocation", "waiver". Insurance Contracts Act 1984 (Cth), ss 13, 14, 28(3).

PRACTICE & PROCEDURE – Dismissal of proceedings sought in email correspondence addressed to the Court by the Plaintiff, a litigant in person – Court did not act on email correspondence previously sent as it did not appear that the Plaintiff understood potential risk as to costs following dismissal or discontinuance unless otherwise order were made – At directions hearing offer made by Defendant executor of estate, which offer was rejected by Plaintiff who required various things to be done by the Defendant in the administration of the estate – Discussion and proposed orders and directions about additional information to be provided to the Plaintiff who considers proposed orders and directions to be not what he sought and to be of minimal assistance – Plaintiff then repeats request to have proceedings dismissed and rejects any opportunity to withdraw request.

ADOPTION – Aboriginal child – whether consultation requirements under s 33 of Adoption Act 2000 (NSW) satisfied

CIVIL PROCEDURE — Interlocutory applications — Ex parte — Application to release plaintiff’s lawyers from confidentiality undertakings — Application for search order for documents sought to be relied upon to determine whether to join an additional party to the proceedings CIVIL PROCEDURE — Interlocutory applications — Ex parte — Application to amend claim to join individual the subject of earlier search orders as a defendant — Application for search orders against prospective defendant — Strong prima facie case against prospective defendant to satisfy threshold requirement for granting of a search order

CIVIL PROCEDURE – costs sought on an indemnity basis – Civil Procedure Act 2005 (NSW), s 98 – three Calderbank letters forwarded at different stages of the proceedings – whether it was unreasonable for the plaintiff to fail to accept the offers – where plaintiff’s claim summarily dismissed due to being statute-barred – where the first offer was made three weeks after commencement of the proceedings – whether second offer was a compromise and/or provided adequate time for acceptance – fact that defendant indicated preparedness to bear own costs at early stage despite significant costs incurred by the time of the third letter – indemnity costs of the proceedings to be paid by the plaintiff from the date of the first offer

CONTRACTS - contract to make a will – a woman, now deceased, receives a loan from her father to assist her to acquire a property, in exchange for what is said to be a promise by her that she would leave the property by will upon her death to her two step- brothers, both of whom are now deceased, although one of the stepbrothers was alive when she died – upon the woman’s death the property was not left to the stepbrothers – whether the woman made the promise upon her acquisition of the property – whether there is an enforceable contract to leave the property by will – whether to enforce the contract a constructive trust should be declared over the property in favour of the first plaintiff and the estate of the deceased stepbrother, the third plaintiff. EQUITABLE ESTOPPEL – constructive trust – whether in the alternative to the claims in contract the estates of the stepbrothers may seek relief under doctrines of equitable estoppel and common intention constructive trust arising out of the same circumstances as the contract claim. FAMILY PROVISION – Succession Act 2006, Chapter 3 – a stepbrother of the deceased, the first plaintiff, and his son, the second plaintiff, apply for further provision out of the estate of the deceased – the first plaintiff dies in the course of the proceedings and his claim is withdrawn – the second plaintiff claims to be an eligible person under Succession Act, s 57(e) as a member of the same household as the deceased and dependent upon her – whether the second plaintiff is an eligible persons – whether the second plaintiff has shown factors warranting the bringing of his claim.

LAND LAW — caveats — removal of caveat — removal by order of court — whether serious question to be tried — whether the balance of convenience is in favour of the caveats being maintained — where alternative security has been offered

BUILDING AND CONSTRUCTION – service of payment claim under the Building and Construction Industry Security of Payment Act 1999 (NSW) – where payment claim delivered to office of superintendent – where delivery to superintendent not effective service – where payment claim subsequently came to notice of respondent – where respondent served payment schedule asserting service of payment claim not effective – whether the provisions of the Act enlivened – whether respondent should be taken then to have been served – where claimant then served second payment claim – where adjudication proceeded on basis of that second payment claim BUILDING AND CONSTRUCTION – adjudication – whether adjudicator had jurisdiction – whether s 13(1C) of the Building and Construction Industry Security of Payment Act engaged – proper construction of s 13(1C) of the Act – whether s 13(1C) of the Act permits service of only one payment claim after termination of a construction contract – whether adjudicator failed to exercise jurisdiction – reasons given by adjudicator MISLEADING OR DECEPTIVE CONDUCT – whether s 18 of the Australian Consumer Law engaged – whether by service of its payment schedule plaintiff represented that payment claim not validly served – whether defendant relied on any such representation to make its decision not to proceed to adjudication based on that payment claim

JUDGMENT AND ORDERS – stay pending appeal – judgment debt of $9 million – defendants mortgage property to secure $99 million loan in breach of freezing order – defendant disclaims knowledge of mortgage – defendant disclaims signature where witnessed by solicitor – defendants’ net assets of $16 million – highly leveraged – offer of unregistered third mortgage likely a default under first mortgages – not satisfied that defendants cannot provide cash or security in support of a stay – evidence as to financial position selective – stay granted on payment of judgment sum into Court in two instalments.

CRIME – sentence – five co-offenders – another co-offender sentenced previously for murder – pleas of affray and manslaughter – offenders attendees at a 16th birthday party – three offenders observed punching kicking and stomping on deceased – two offenders otherwise involved in the affray - youthful offenders – offence concerned frequently engaged in by young men fuelled up on drugs of alcohol or both – apparently random attack – deceased died at the scene – where conduct of various participants will not always call for differentiation in penalty – moral culpability – conduct of group significant – significance of effect of attack on persons on the scene –wider focus than direct victim – discounts for plea of guilty CRIME – sentence – plea of guilty to manslaughter – where contribution to joint criminal enterprise kicking and stomping on deceased a number of times whilst deceased lying on the ground – offence serious – where court satisfied that special circumstances justify offender serving remainder of his sentence as juvenile offender – risks of placing young men in adult correctional facilities

CRIME – sentence after trial by jury – verdict of guilty – murder – elements of murder – post-trial fact-finding – principal in the first degree – intention to kill – objective seriousness – whether offender used a weapon – whether provocation established – absence of motivation – whether offence committed in company – whether committed in deceased’s home – reliability of Crown witnesses – mid-range of offending – subjective factors – no evidence of remorse – very guarded prospects of rehabilitation – serious criminal history – need for general and personal deterrence – pre-sentence custody for Victorian offences – whether appropriate to backdate and serve concurrently – impact of COVID-19 – delay – victim impact statement – parity – special circumstances – sentenced to a term of imprisonment – consideration of Crimes (Sentencing Procedure) Act 1999 (NSW) ss 21A(2)(c), 21A(2)(e), 21A(2)(ea), 21A(2)(n), 21A(3)(c), 21B

HIGH RISK OFFENDER – preliminary hearing – Court not satisfied to a high degree of probability that defendant poses an unacceptable risk of committing another serious violence offence if not kept under supervision under the order – application dismissed

APPEAL — application for extension of stay pending determination by High Court of application for special leave to appeal — no significant prospect of obtaining special leave — extension of stay refused

EMPLOYMENT AND INDUSTRIAL LAW — long service leave — competing case authorities — whether period of service of employee in India to be counted as part of “continuous service” with the same employer for the purposes of calculating long service leave entitlements under the Long Service Leave Act 1955 (NSW) STATUTORY INTERPRETATION — where statute makes no express provision as to territorial reach of its subject matter — “hinge” or “central conception” of the statute to be identified to enable territorial connection to be considered

CONTRACT – breach of contract – construction – where appellants as sellers of nine childcare centres executed Term Sheet with respondent as prospective buyer in sale process which called for expressions of interest – where Term Sheet gave respondent the benefit of six-week period during which discussions and communications between appellants and other interested parties were to be terminated – where appellants continued to communicate with other such parties during exclusivity period – whether primary judge erred in holding exclusivity obligations breached – whether primary judge erred in holding that such breaches enlivened obligation to return $500,000 deposit

JUDGMENTS AND ORDERS — Amending, varying and setting aside — For irregularity, illegality, or bad faith

TORTS – motor vehicle accident – personal injury – where appellant injured in single vehicle motorbike accident – whether primary judge erred in finding appellant was driver of motorbike at time of accident rather than pillion passenger COSTS – offer of compromise – where joint offer made – where one offeror settles proceedings before trial and other offeror proceeds to judgment – where plaintiff’s outcome in each case no more favourable than offer – whether other offeror entitled to order for indemnity costs under UCPR r 42.15A

NEGLIGENCE — Breach — Standard of care — Professional negligence — Where respondent neurosurgeon performed lumbar surgery on the appellant on the basis that MRI scans showed nerve root compression in the lumbar spine — Where appellant’s lumbar disc herniation caused leakage of the nucleus pulposis and associated irritation — Where appellant suffered from an undiagnosed lesion in the thoracic spine — Whether preoperative diagnostic assessment inadequate — Whether lumbar surgery unnecessary — Whether respondent breached duty of care owed to the appellant — Whether respondent acted in a manner widely supported by peer professional opinion as competent professional practice NEGLIGENCE — General principles — Professional negligence — Section 5O of the Civil Liability Act 2002 (NSW) — Whether the interpretation of s 5O in McKenna v Hunter and New England Local Health District [2013] NSWCA 476 ought to be overturned

LEGAL PRACTITIONERS — disciplinary proceedings — practitioner convicted of offences under s 192E(1)(b) of the Crimes Act 1900 (NSW) of dishonestly obtaining an advantage — sentence of imprisonment — declaration that the practitioner is not a fit and proper person to remain on the roll of Australian lawyers

CRIME – appeals – appeal against sentence – knowingly take part in supply of prohibited drug – conspiracy to manufacture prohibited drug – low purity of drug - relevance to objective seriousness – no evidence of standard purity of methylamphetamine – no error CRIME – appeals – appeal against sentence – manifest excess – parity considerations – dramatic differences in charges faced by co-offenders – stark differences in sentencing outcomes – appeal allowed – resentencing SENTENCING – appeal against sentence – limited weight given to evidence of remorse and contrition where offender did not give evidence in sentencing proceedings – proper exercise of sentencing discretion – no error SENTENCING – appeal against sentence – non-parole period – error regarding application of inapplicable non-parole period conceded – whether conspiracy offences are subject to a non-parole period – no need to determine issue