Cases and authorities

WORKERS COMPENSATION – compensation for non-economic loss – determining degree of permanent impairment – worker suffered injuries to shoulder and spine in an incident and suffered further injuries to spine in later incidents – whether WPI resulting from injuries should be aggregated – injuries from first incident materially contributed to injuries in later incidents – all injuries “resulted from” and “arose out of” first incident WORKERS COMPENSATION – proceedings before Commission – appeal against decision of presidential member in point of law – whether presidential member erred in construing s 322(2) and (3) of Workplace Injury Management and Workers Compensation Act 1998 – error of law established and issue in question potentially a matter of some significance – leave to appeal granted STATUTORY INTERPRETATION – presumption from amendment – whether absence of amendment indicates considered choice of legislature to adopt a certain interpretation – artificial and unpersuasive to attribute to Parliament a consciousness of the judicial interpretation contended to have informed the relevant amendments

CRIME – appeals – leave to apply to set aside judgments and orders – jurisdiction to reconsider appeal – vexatious application – no issue of principle

HIGH RISK OFFENDER – Final hearing – Terrorism (High Risk Offenders) Act 2017 – application for an extended supervision order – interim supervision order granted until final orders made

SUCCESSION – family provision – adult child – past drug addiction and alcohol problems – last Will left house to defendant, noting plaintiff had own business and house – plaintiff’s business failed and house sold due to financial difficulty – future employment prospects slim – defendant spent father’s money left to siblings in the Will – suitable accommodation suggested by plaintiff’s counsel insufficient for plaintiff’s needs and inconsistent with testator’s statements – provision made.

CRIMINAL LAW — parole — statutory interpretation — application for direction to State Parole Authority that information relied upon is false, misleading or irrelevant — applicant a serious offender as defined — where applicant impugns decision of parole authority to refuse to bring forward consideration of parole on the asserted basis of manifest injustice — whether information from Serious Offenders Review Council (SORC) shown to be false, misleading or irrelevant — whether refusal to bring forward consideration of parole is refusal to grant parole — whether combined effect of Act and its Regulation permits early consideration of release to parole of serious offender on asserted basis of manifest injustice when SORC opposes release to parole

CIVIL PROCEDURE – equity – trust administration proceedings – order appointing trustee on basis of undertakings not to bring legal proceedings without obtaining judicial advice – orders for “variation” of undertakings made on application of trustee – application to set variation orders aside – necessary parties – finality of undertakings – grounds upon which undertakings may be modified – whether “variation” (rather than discharge) of undertakings permissible

EVIDENCE – documents produced by former solicitor for cross claimant – whether cross claimant has waived privilege

COSTS – proceedings commenced alleging that a mortgage was an alienation of property with intent to defraud creditors – no letter of demand issued prior to commencement – mortgage discharged soon after commencement – proceedings discontinued – appropriate order for costs is that defendants pay two-thirds of plaintiff’s costs

HIGH RISK OFFENDERS – Preliminary hearing - Serious sex offender – Interim detention order – Assessment of risk

COSTS – costs thrown away by the adjournment – whether such costs confined to costs incurred prior to the adjournment – whether such costs include costs not yet incurred but which would not have been incurred but for the adjournment

ADMINISTRATIVE LAW – Workers Compensation – Medical Assessment and arguability of appeal ground – jurisdictional error and error of law on the face of the record – Psychiatric Impairment Rating Scale (PIRS) – wrong classification – irrelevant consideration – failure to disclose part of reasoning.

CORPORATIONS – Voluntary administration – Deed of company arrangement

ANTON PILLER – real estate agent obtains ex parte search order against former employee and new employer – alleged misuse of confidential information – relied on letters handed over by employee 2 years earlier, on joining new employer, terminating property management of 9 properties – letters provided by employee’s friends and family – not disclosed that the clients were the employee’s friends and family, and thus unlikely to have been approached using confidential information – principles at [4]-[9] – non-disclosure of material fact – does not matter whether search order may have been made anyway.

SUCCESSION — Executors and administrators — Proceedings against executors and administrators RESTITUTION — Restitution for wrongdoing — Tort — Mesne profits COSTS —Bases of quantification — Indemnity basis

APPEALS – Procedural fairness – Summary judgment

CRIMINAL PROCEDURE – Election – Time limit – Where in the case of a plea of guilty the presentation of the facts relied on by the prosecution to prove the offence had already occurred – s263(3) of the Criminal Procedure Act 1986 (NSW) CRIMINAL PROCEDURE – Ex officio indictment

CRIMINAL LAW – jury request for transcripts of addresses – no provision in Jury Act – discretion to provide – long and complex trial – careful and thorough addresses – discretion exercised to comply with jury request

ASSOCATIONS AND CLUBS – Jurisdiction of the Courts – Interference in internal management - Appointment of receiver and manager to conduct a court-supervised election – Court’s jurisdiction to appoint receiver to facilitate fresh election

SUCCESSION – Wills, probate and administration - Caveat against grant in response to each of two applications for probate – Wrong form of caveat filed - Notice of motion filed by each of the applicants for order that caveat cease to be in force – No issue of due execution of each of the Will and Codicil - Caveator resists each application on the ground that last Will and Codicil was executed at time when the deceased lacked testamentary capacity - Whether the caveator has satisfied court of doubt as to whether the grant of the deceased’s Will and the Codicil ought to be made

APPEALS – Leave to appeal – No arguable case – Solicitors – Advocate’s immunity

TORTS – negligence – duty of care – scope of duty of landowner to neighbouring landowner for fire – vicarious liability – non-delegable duty – controlled burn by Rural Fire Service on private land – reignition and spread of undetected fire – damage to neighbouring property – RFS with statutory immunity to liability – RFS exercised reasonable care – whether landowner liable TORTS – nuisance – private nuisance – controlled burning – whether controlled burning can constitute private nuisance – whether strict liability TORTS – property damage – apportionable claim – concurrent wrongdoers – whether a party with statutory immunity can be a concurrent wrongdoer

APPEAL – sentence – applicant convicted of offences of possessing and uttering counterfeit money and producing false documents – applicant sentenced prior to decision in Xiao v R – regard not had to utilitarian value of Applicant’s pleas of guilty – Xiao v R error demonstrated – consideration of factors relevant to sentence for counterfeiting and identity fraud offences – general and specific deterrence significant factors on sentence – applicant resentenced

APPEAL – sentence – applicant pleaded guilty to Commonwealth and New South Wales child abuse material offences – whether error concerning co-operation with law enforcement authorities – error not demonstrated – whether sentences manifestly excessive – individual sentences and total effective sentence not manifestly excessive – appeal dismissed

APPEAL – conviction – Applicant convicted of murder – Applicant suffocated his wife – partial defence of substantial impairment relied upon unsuccessfully at trial – partial defence of extreme provocation not relied upon at trial – contended on appeal that extreme provocation should have been left to jury – consideration of partial defence of extreme provocation in s 23 Crimes Act 1900 (NSW) – proper construction and operation of s 23 – held that partial defence of extreme provocation not raised on evidence at trial – miscarriage of justice not established – leave refused under Rule 4 Criminal Appeal Rules – leave to appeal against conviction refused

CRIME – appeals – appeal against sentence – manifest inadequacy – whether there was a misapplication of principle – objective seriousness – where objectiveness seriousness above the midrange CRIME – appeals – appeal against sentence – manifest inadequacy – comparative cases – whether comparable cases provide a meaningful range of sentences as a yardstick

CRIMINAL LAW – Offences – Sentence – Application for leave to appeal against sentence – Where applicant pleaded guilty to one count of stealing from the person of another and one count of robbery in company – Additional count of robbery in company contained in a Form 1 – Robbery at a convenience store – Where the applicant snatched a wallet from a customer before returning to the store and producing a knife and threatening the proprietors – Where the applicant threatened the safety of the proprietors’ four year old child if his demand for money was not met – Where the applicant was aged 18 at the time of the offending and had a significantly disadvantaged upbringing in which he was consistently exposed to abuse – Where the applicant had a lengthy criminal history and was on bail and on probation at the time of the offending – Whether the sentencing judge was “distracted” from a proper consideration of the applicant’s subjective case by his application of the relevant guideline – Whether the sentencing judge failed to properly analyse the applicant’s lengthy criminal history – Whether sentence was manifestly excessive bearing in mind the applicant’s subjective case – Leave to appeal granted - Appeal dismissed

CRIME – appeals – appeal against sentence by Crown – recklessly causing grievous bodily harm – baby shaken like a ragdoll – finding of objective seriousness not open – discount for assistance to authorities should not have been given – failure to consider Crimes (Sentencing Procedure) Act 1999 (NSW) s 23 – misunderstanding of R v Ellis – onus on offender to establish discount for assistance to authorities – direct evidence from investigating police officers needed to prevent speculation – manifest inadequacy – resentence appropriate SENTENCING – relevant factors on sentence – objective seriousness – baby victim and permanent brain injury important considerations

CRIME – bail – release application – proposed conviction and sentence appeal – preliminary question of jurisdiction to hear and determine release application – no appeal “pending” before the Court – no jurisdiction to hear application – on the assumption that jurisdiction did exist – s 22 test not met by applicant – whether prospects of succeeding on appeals – where difficulty of preparing appeal in custody not special or exceptional circumstances

CRIME – charge of blackmail under s.249K(1)(a) and (2) Crimes Act 1900 – making unwarranted demand with menaces with intent to obtain a gain by accusation or threatened accusation – elements of offence – whether element of offence that accused knew amount of gain alleged at time when demand made – held no such element of s.249K(1)(a) and (2) offence

NEGLIGENCE - Occupiers’ Liability – Duty of Care of builder/occupier for hazard created during building works and causing damage to invitee after handover to Owners – relative liability of Owners, builder and contractor.

LAND LAW — Caveats — Extension of operation of caveat — Serious question to be tried — No issue of principle

PROFESSIONS AND TRADES – dentist’s application for reinstatement to register – application dismissed by NCAT – whether grounds of appeal were confined to questions of law – whether tribunal erred in not being satisfied appellant was fit and proper person – whether tribunal had power to impose conditions upon appellant’s registration – whether tribunal failed to consider whether risk of reoffending could be addressed by imposing conditions

COSTS – Party/Party – Costs orders in interlocutory proceedings – Costs in the cause – Bases of quantification – Indemnity basis – Timing – Costs payable forthwith

CONTRACTS – construction – interpretation – whether force majeure clause relieved carrier from liability to indemnify consignor for damage to goods arising from train derailment – force majeure clause not engaged as liability to indemnify not owing to carrier’s delay or failure to fulfil obligations owing to the derailment

CIVIL PROCEDURE – Terms of charge to reflect primary judgment – Variation of interlocutory regime

COSTS — Party/Party — Court’s discretion — whether there should be an order that each party pay their own costs or some apportionment SUCCESSION — Contested probate — Testamentary capacity — whether costs should be paid out of the estate or costs paid personally — if costs paid personally whether they should be on an ordinary or indemnity basis

ADMINISTRATIVE LAW – particular administrative bodies – NSW Civil and Administrative Tribunal – appeal under Health Practitioner Regulation National Law (NSW) s 159 against decision of Council under s 150 – hearing de novo – essential task of the Tribunal in such an appeal – error conceded – remittal of matter to the Tribunal

Courts – Abuse of process – Where Fair Work Commission approved enterprise agreement – Where approval of enterprise agreement supported by union – Where first respondent was longstanding member of union – Where first respondent brought proceedings seeking to quash approval of enterprise agreement – Where appellant sought summary dismissal of proceedings on basis they were abuse of process – Where proceedings funded by union – Where union unwilling to bring proceedings in own name because of risk of discretionary refusal of relief – Whether deployment of first respondent as "front man" for union amounted to abuse of process by bringing administration of justice into disrepute – Whether choice of first respondent as plaintiff prevented scrutiny of union's acquiescence in approval of enterprise agreement – Whether power to stay or summarily dismiss proceedings informed by considerations of deterrence or punishment. Words and phrases – "abuse of process", "administration of justice", "bring the administration of justice into disrepute", "deterrence", "discretionary grounds for the refusal of relief", "enterprise agreement", "forensic or juridical advantage", "front man", "illegitimate or improper purpose", "integrity of the court's own processes", "lack of candour", "motive", "punishment", "stay of proceedings", "summary dismissal", "trade union", "true moving party".

Immigration – Visas – Application for protection visa – Where s 36(2) of Migration Act 1958 (Cth) provides two criteria for grant of protection visa – Where s 36(2)(a) provides refugee criterion – Where s 36(2)(aa) provides complementary protection criterion – Where Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 ("Appellant S395") held asylum seeker cannot be expected to hide or change behaviour manifesting protected characteristic under Refugees Convention for purposes of assessing claim under s 36(2)(a) – Where s 36(2)(aa) requires assessment of whether "significant harm" a "necessary and foreseeable consequence" of applicant's return to receiving country − Where first appellant applied for protection visa under both ss 36(2)(a) and 36(2)(aa) – Where Immigration Assessment Authority found first appellant would modify behaviour on return to Iraq − Whether failure to consider principle in Appellant S395 under s 36(2)(aa) constituted jurisdictional error. Words and phrases – "absolute and non-derogable", "complementary protection", "Convention Against Torture", "cruel, inhuman or degrading treatment or punishment", "innate or immutable characteristics", "International Covenant on Civil and Political Rights", "manifestation of a Convention characteristic", "membership of a particular social group", "modification of behaviour", "necessary and foreseeable consequence", "non-refoulement obligations", "real chance", "real risk", "refugee", "Refugees Convention", "sale of alcohol", "significant harm", "well-founded fear of persecution". Migration Act 1958 (Cth), ss 5H, 5J, 36(2)(a), 36(2)(aa).

COSTS – motion to strike out paragraphs in List responses – motion not pressed in full – balance of impugned paragraphs in List Responses not pressed

PRACTICE AND PROCEDURE – disclosure of documents – whether plaintiff should make further disclosure of documents

NEGLIGENCE — alleged failure to repair forklift when fault identified four days previously — whether fault could be replicated — circumstances in which negligence can be proved although precise mechanism unknown — superior knowledge of employer not passed on to repairer of forklift NEGLIGENCE / TORTS — Defences — Contributory negligence — plaintiff’s conduct in applying brake to forklift reasonable and motivated by concern for other workers in vicinity NEGLIGENCE — Damages — Economic loss — Earning capacity — no residual earning capacity — no viable alternative occupation proposed or available TORTS — General principles — Damages LIMITATION OF ACTIONS — Discoverability — Personal injury — Knowledge of fault of defendant — evaluative judgment requiring legal advice — relationship between ss 50C and 50D of Limitation Act 1969 (NSW) and s 347 of Legal Profession Act 2004 (NSW) — provisions enacted by the same Parliament to be read harmoniously

CIVIL PROCEDURE – Application for summary dismissal – Second further amended statement of claim – Claim in tort of misfeasance in public office – Where police officers refused to release plaintiff from custody unless he signed Bail Acknowledgement Form – Where no evidence of other documents the plaintiff says he was compelled to sign – Where police officers advised plaintiff not to record interview – Whether an “aggressive tone” capable of constituting intimidation under the circumstances alleged – Reasonable cause of action disclosed – Application dismissed

INTEREST – successful plaintiff claims additional interest at “contractual rate” before accrual of cause of action – no contractual entitlement – claim not pleaded – claim refused COSTS – party/party – plaintiff successfully sues two defendants – first defendant unsuccessfully cross-claims back against plaintiff – issues overlap between action and cross-action and between plaintiff’s claims against defendants – allocation of costs between action and cross-action – allocation of costs of action between plaintiff’s claims against first defendant and plaintiff’s claims against second defendant – plaintiff entitled against second defendant to all costs except those solely referable to costs of claims against first defendant alone and of first defendant’s cross-claim – no reduction on account of plaintiff’s failure on specific issues arising on claims against first and second defendant but not affecting outcome of those claims – indemnity costs refused

CRIME – appeals – appeal against sentence – applicant pleaded guilty to six offences – two indictable offences of assaulting a police officer one contrary to s 60(2) – four summary offences of possessing a prohibited drug – aggregate sentence imposed - whether sentencing judge erred in declining to fix a non-parole period – whether sentencing judge took into account irrelevant considerations and did not take into account relevant considerations – where sentencing judge not advised that s 60(2) offence carried a standard non-parole period - whether error in not indicating a non-parole period for indicative sentence for s 60(2) offence – where any error would have had no effect on the aggregate sentence – whether sentence was manifestly excessive

COMMERCE — Restraint of trade — Enforcement and remedies — Interlocutory injunction – Grant of further specific interlocutory injunction where necessary to uphold existing interlocutory injunction CONTEMPT — Civil contempt — Breach of interlocutory injunction — Clarity of terms

BUILDING AND CONSTRUCTION – contract – damages – variation – where parties agreed that the Fit Out Agreement (FOA) Contract Price was $2.171 million – dispute as to the scope of work to be done for the FOA Contract Price – whether variations claimed by developer were in respect of work to be done for the FOA Contract Price

CIVIL PROCEDURE — Court of Appeal — leave to appeal — application for concurrent hearing of leave application and appeal — application for expedited hearing — no issue of principle CIVIL PROCEDURE — Court of Appeal — application for stay of care orders made by Children's Court pending determination of appeal proceedings — no issue of principle CIVIL PROCEDURE — Court of Appeal — application to set aside order appointing guardian ad litem — no issue of principle

CONTRACT - unitholders agreement - one unitholder wished to exit - agreement contained provision for valuation of units of exiting unitholder - unitholders agreement also contained provision prohibiting trustee from effecting decisions in respect of Major Policy Issues without unanimous unitholder resolution - construction of those provisions determined as separate questions - whether valuer required to be satisfied that decisions made by trustee had complied with clause concerning Major Policy Issues APPEAL - leave - cross-claim dismissed following answers to separate questions - whether appeal as of right - requirement to show matter at issue to value of $100,000