Cases and authorities

APPEAL – competency – appeal brought purportedly as of right from summary dismissal of proceedings – appeal dismissed as incompetent

APPEAL – civil – application for leave – interlocutory decision of judge of Land and Environment Court in Class 1 jurisdiction – whether error in construction of savings provision of environmental planning instrument ENVIRONMENT AND PLANNING – development application – application prohibited as not conforming to land zoning plan following amendment to Wingecarribee Local Environmental Plan – application lodged prior to amendment – amendment specific to land subject of development application – whether savings provision operated to cause application to be determined as if amendment to environmental planning instrument had not commenced STATUTORY INTERPRETATION – environmental planning instrument – savings provision – whether “this Plan” referred to instrument as originally published or included amendments as incorporated – whether clause has ambulatory effect – cl 1.8A Wingecarribee Local Environmental Plan 2010

COSTS – offer of compromise – “walk-away” offer

CRIMINAL LAW – Crown appeal against sentence – two counts of supplying a large commercial quantity of methylamphetamine – whether sentencing judge properly assessed objective seriousness of offences – whether indicative sentences suggested error in aggregate sentence – whether notional accumulation inadequate – Crown bound by concessions made by it during sentence proceedings – notional accumulation indicative of error in aggregate sentence – residual discretion – onus discharged by Crown – sentences manifestly inadequate – need to re-sentence.

COSTS – s 98 Civil Procedure Act 2005 – claim for lump sum costs order

REAL PROPERTY - Easement- whether express easement exists as a matter of construction of conveyancing grant- HELD: No express easement. REAL PROPERTY- Easement- whether there is a prescriptive easement as a result of continued use by plaintiffs and their predecessors in title, issue of permission-HELD: Prescriptive easement established for two of the three properties belonging to the Plaintiffs. REAL PROPERTY - Easement- whether right to statutory easement exists under s.88K Conveyancing Act 1919 (NSW)- Whether ‘reasonable necessity, whether easement is inconsistent with public interest, whether all reasonable attempts made to obtain the easement- adequacy of amount not in issue-HELD: Easement granted for the benefit of the third property

DEFAMATION -

CRIMINAL LAW – serious sex offender – whether defendant a high risk sex offender – whether a high risk sex offender extended supervision order or continuing detention order should be made

REAL PROPERTY – mortgages - possession of land – pleading of defence – pleading that certain paragraphs were neither admitted nor denied – embarrassing pleading – pleading of estoppel by representation – no representations pleaded – defence struck out – leave to re-plead

PROCEDURE – pleading – application for order striking out further amended statement of claim in its entirety – pleading as a whole seriously deficient against the standard referred to in r 14.28(1)(b) – order made with liberty to replead – no matter of principle.

CIVIL LAW – application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – high risk violent offender - preliminary hearing – appointment of experts to conduct psychiatric examination

CIVIL LAW – Torts – Occupier’s liability – Negligence – Personal injury – Plaintiff visiting work premises occupied by defendants as a shop premises – Plaintiff not in the capacity of employee of the defendants – Crushing injury to plaintiff’s hand – No guarding or other safeguards in respect of operation of a juicing machine – Workers’ compensation paid by insurer of defendants – Issue as to possible double compensation on an award of common law damages – Plaintiff’s understanding to repay workers’ compensation insurer in circumstances where no statutory obligation arises under the Workers’ Compensation Act – Contributory negligence not established – Obvious risk not established – Damages for physical injuries including ring finger amputation and psychiatric injury

CRIMINAL LAW – bail – release application – terrorism charges – youth – no association with extremists – mental illness - whether exceptional circumstances exist – weak case – risk assessment – unacceptable risk of committing a serious offence and endangering the safety of the community established – bail refused

TAXES AND DUTIES —Section 107 of the Duties Act 1997 — Plaintiffs entered into a deed granting a call option to require a vendor to sell to them dutiable property — Plaintiffs entered into an agreement to rescind the deed on a third party entering into a contract to purchase the dutiable property from the vendor — Whether plaintiffs are to be treated as having assigned their right under the call option — Plaintiffs did not assign their rights under the call option — Plaintiffs did not nominate a purchaser on or in connection with the exercise of a call option — Assessment that plaintiffs liable for call option assignment duty revoked

CRIMINAL LAW – evidence – application to cross-examine the accused to rebut evidence of good character – whether accused intentionally raised evidence of good character generally or specifically – whether leave should be granted – whether the probative value of the evidence outweighed by the danger of unfair prejudice – leave to cross-examine granted on a limited basis

TORTS – negligence – personal injury – respondent injured while working at premises occupied by appellant and at direction of appellant – respondent not employed by appellant – system of work not unsafe – failure by respondent to work in accordance with system as designed – failure of appellant to supervise implementation of system – breach of duty – whether primary judge failed to make findings of fact regarding appellant’s breach of duty – Supreme Court Act 1970 (NSW), s 75A(6) – inadequacy of supervision – no formalised system of supervision TORTS – negligence – causation – Civil Liability Act 2002 (NSW), s 5D – risk of harm to respondent from lifting bags of dextrose was foreseeable and not insignificant – harm could have been avoided through adequate supervision TORTS – negligence – contributory negligence – failure of primary judge to address plea of contributory negligence – power of Court of Appeal to determine plea of contributory negligence – Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728 – respondent not liable in contributory negligence WORKERS COMPENSATION – joint tortfeasors – Workers Compensation Act 1987 (NSW), s 151Z(2) – whether s 151Z(2) applied – respondent’s employer not a joint tortfeasor – appellant not entitled to reduction under s 151Z(2)(c) – appeal against liability dismissed DAMAGES – challenge to assessment of damages – cause of respondent’s ongoing symptoms – whether primary judge erred in finding that respondent’s injury constituted a serious aggravation of pre-existing degenerative condition in respondent’s lumbar spine – aggravation of pre-existing condition serious not temporary – appeal against damages dismissed

PROTECTIVE JURISDICTION – where applicant is the subject of a managed estate order and has been appointed a tutor for the purposes of litigation – applicant a protected person under the NSW Trustee and Guardian Act 2009 (NSW) – application for leave to appeal without tutor – whether the primary judge should have made arrangements to hear the oral evidence of the applicant’s treating psychiatrist – whether the applicant was denied procedural fairness

CONTEMPT – Appeal Bail sought – jurisdiction to grant bail considered – exercise of jurisdiction assigned to Court of Appeal – possible hiatus in power of Court of Appeal to re-sentence – operation of s 101(5) of Supreme Court Act 1970 – appeal rendered nugatory if stay or bail not granted.

CORPORATIONS – winding up – statutory demand – application for order setting aside – whether genuine dispute as to existence of debt – no matter of principle

PROCEDURE – where documents required by usual order for hearing not received by day preceding that appointed for hearing – inquiries by judge’s associate elicits information that plaintiff became subject to winding up after commencement of proceedings and that its solicitor has no instructions – letter addressed to judge then received direct from plaintiff’s liquidator asserting that the proceedings are stayed by s 471B and asking the judge whether the proceedings will be now discontinued – a pointless and unhelpful letter inappropriately sent – solicitor for plaintiff appears at hearing but has no instructions – no appearance by or for liquidator – solicitor for defendant seeks dismissal with costs – such orders made.

WILLS & ESTATES - construction of will creating testamentary trusts - existence and scope of power to appoint and remove trustees - whether a power to appoint a replacement trustee includes a power of removal of original trustees COSTS - where proceedings concern construction of powers conferred in relation to testamentary trust - whether departure from general rule that costs follow the event justified by “probate exception” - whether conduct of proceedings by first and second appellants involved “delinquency” justifying order for costs on indemnity basis

CRIME – appeal – sentencing – offender entitled to discount of 25% for early guilty plea – failure of sentencing judge to refer to discount in reasons – whether discount applied – error requiring resentencing

CRIMINAL LAW – Crown appeal against sentence – whether sentence manifestly inadequate – aggravated indecent assault of a person under the age of 16 – Crimes Act s 66M(2) – aggravated sexual intercourse with a child under the age of 10 years – Crimes Act s 66A(2) – whether sentencing Judge correctly assessed the objective seriousness of indecent assault offence – whether sentences adequately reflected objective seriousness of sexual intercourse offences – whether sentencing Judge erred in consideration of respondent’s likelihood of re-offending and prospects of rehabilitation – whether sentencing Judge erred in failing to accumulate sentences

CRIMINAL LAW –audio link – non-publication orders – undercover police officer – assumed identity –XX.

CRIMINAL LAW – murder – crown case that accused deliberately struck the victim with his motor vehicle – whether reckless indifference should be left to the jury – no basis in evidence for reckless act – crown opening – reckless indifference not left to jury

CRIMINAL LAW – application for judge alone trial

ADMINISTRATIVE LAW – judicial review of decision of NSW Civil and Administrative Tribunal’s Appeal Panel to terminate a Residential Tenancy Agreement

PRACTICE & PROCEDURE – amendment – late amendment – whether proposed amendments create new case or regularise approach taken by parties and upon which expert witnesses have reported in conclave – whether plaintiff entitled to rely on further evidence not previously permitted by order of the court

MENTAL HEALTH - Guardians, committees, administrators, managers and receivers – Appointment - Application for appointment of a protected estate manager - Application made in anticipation of personal injury compensation – Protected person without other property - Application adjourned until after resolution of compensation litigation

COSTS – discontinuance of proceedings – application for alternative cost order made by plaintiff under UCPR r 42.19(2) – whether plaintiff should pay defendant’s costs – consideration of circumstances of discontinuance – held reasonable commencement of proceedings – held plaintiff failed to achieve practical success by the commencement of proceedings – held no unreasonable conduct by the defendant – application for alternative cost order not made out – plaintiff to pay defendant’s costs of the proceedings and the notice of motion

CRIMINAL LAW – evidence – references tendered by offender on sentence – open justice - whether access to material should be given to non-parties

SUCCESSION – FAMILY PROVISION – Claim for family provision order under Part 3.2 of the Succession Act 2006 (NSW) by child of the deceased – The Defendants are the executors of the Will of the deceased – Probate granted – Second Defendant the sole beneficiary of the major asset - Whether adequate and proper provision not made in Will of the deceased for the Plaintiff – Nature and quantum of provision, if any, that ought to be made for the Plaintiff.

CRIMINAL LAW – sentence – robbery in company –where offender part of a conditional agreement to rob – where not known that co-offenders were carrying weapons – where victim died from stab wounds – accessory after the fact to murder – where offender harboured principal for three days and failed to bring him to the attention of police – mental illnesses and significant drug addiction at the time of the offences – good prospects of rehabilitation – special circumstances – limited scope for general deterrence – genuine remorse – extra curial punishment – newspaper campaign – damaging headlines and articles exposing offender to psychological distress and unwanted attention from inmates and prison staff – harsh custodial conditions – where significant time spent in protective custody and solitary confinement –delay in bringing proceedings

ADMINISTRATIVE LAW– contempt proceedings from judgment enforcing decision of the NCAT – where question of validity of judgment due to question of jurisdiction of the NCAT – where similar question may be referred to the Court of Appeal PROCEDURE – adjournment of proceedings– where remittal of separate questions to the Court of Appeal– further hearing adjourned until questions determined

APPEAL – leave to appeal – extension of time to commence proceedings for compensation – whether respondent gave full and satisfactory explanation for delay – whether respondent aware of time limit for bringing proceedings – leave refused MOTOR ACCIDENT – delay in commencing proceedings – whether full and satisfactory explanation – timely claim made – claim referred for assessment – assessment process pursued – calculation of time for commencement of court proceedings

PRACTICE – appeals – competency – matter at issue amounting to $100,000 – separate plaintiffs in single proceeding seeking to appeal – proceedings originally commenced seeking leave to appeal – whether appeal as of right – appeal to be heard concurrently with application for leave to appeal PRACTICE – security for costs – plaintiffs relatively impecunious – questions of general importance – fourteen day trial and substantial costs order – State's earlier application for security had been refused – application for security for costs dismissed

CORPORATIONS – registered managed investment scheme – meeting of members – voting rights of responsible entity – Corporations Act 2001 (Cth), s 253E – references therein to “the responsible entity and its associates” – whether an entity within that group is precluded from voting only if it is that entity itself that has a non-member interest in the matter before the meeting PROCEDURE – costs – question of statutory construction meriting analogy with “testator’s fault” probate proceedings at first instance – whether that analogy applies on appeal

PRACTICE AND PROCEDURE – civil – Notice of Motion seeking orders restraining the plaintiff from dealing with property and staying a default judgment for the plaintiff pending an appeal to the Court of Appeal – whether the points to be raised on appeal are reasonably arguable – whether the balance of convenience favours making the orders

CORPORATIONS – charges, debentures and other borrowings – security interests – registration – extension of time – application pursuant to (CTH) Corporations Act 2001, s 588FM – inadvertence – where security interest initially registered against grantor’s ABN, not ACN – prejudice – where no apparent prejudice to creditors by delay in obtaining effective registration – where no defendant joined – held, appropriate to exercise discretion under s 588FM to fix later time, but grantors must be joined and afforded opportunity to be heard COMMERCIAL LAW – Personal Property Securities – (CTH) Personal Property Securities Act 2009 – extension of registration time for PMSIs pursuant to PPSA, s 293 – relevant considerations – where need for extension is due to inadvertence – prejudice – prejudice in s 293(3)(b) differs from s 588FM(2)(a)(ii) – prejudice not conclusive because necessary consequence of remedy is prejudice to other secured parties – prejudice significant where coupled with reliance – reliance – expert evidence that financiers search against ABN as well as ACN – whether other secured parties should be joined before or after orders made – held, their interests are liable to be affected and they must be joined – held, just and equitable to grant extension – order made ex parte, reserving liberty to apply to set aside or vary

CRIMINAL LAW – Practice and Procedure – Application to vacate trial - Obligations of disclosure – Deceased killed in 2009 – Accused charged with murder and intimidation in 2010 – Where certain events came to the attention of police in 2013 – Where those events were material to significant issues in the accused’s trial – Where events were investigated by a designated task force in 2013 and 2014 – Where members of that task force did not include officers engaged in the investigation of the deceased’s murder - Voluminous material obtained by the end of 2014 – Where police investigating the deceased’s murder and the Crown sought the material between 2014 and 2016 – Where some of the material was disclosed to the police investigating the deceased’s murder in about mid June 2016 – Entirety of material provided to those police after that time - Where the entirety of the material was not provided to the Crown until early July 2016 - Where material was disclosed to the accused on the morning of the first day of his trial in July 2016 – Where the disclosure of the material necessitated an adjournment of the trial to allow the material to be analysed – Where the nature of the material gave rise to the need to issue a number of subpoenas and make further pre-trial applications – No evidence was placed before the Court to attempt to explain the reasons behind the delay in the material being disclosed - Where the trial was not in a position to proceed as a result of late disclosure – Trial vacated – Jury discharged – Orders made to facilitate the immediate progress of the matter with a view to setting a new trial date – Observations as to the importance of adherence to disclosure obligations and the consequences of the late vacation of trials

Evidence Act s192A – hearsay evidence of children – tendency and coincidence

COSTS ‑ appeal dismissed – respondent established part of its notice of contention – leave to cross-appeal on costs order below

APPEAL – preparation of appeal books – inclusion of unnecessary material – failure to comply with Uniform Civil Procedure Rules 2005 (NSW), r 51.29 – whether to impose sanction on practitioner PRACTICE AND PROCEDURE – costs – inclusion in appeal books of documents not relevant and necessary for conduct of appeal – whether order should be made denying solicitor right to recover costs of preparation of appeal books from client WORDS AND PHRASES – “relevant and necessary”

APPEAL – application for leave to appeal – primary judge found no equitable transfer of equitable interest in shares valued at approximately USD 12,000 – whether leave to appeal should be granted in respect of property not having a value of $100,000 or more pursuant to Supreme Court Act 1970 (NSW) s 101(2)(r)(ii)

TORTS – negligence – personal injury – slip and fall – where parties failed to refer to provisions of the Civil Liability Act in pleadings and at trial – where primary Judge failed to refer to the Civil Liability Act in judgment – whether primary Judge erred in failing to refer to the Civil Liability Act – whether primary Judge failed to elaborate the nature, content and scope of the duty of care – whether primary Judge failed to make finding on causation – whether primary Judge made findings outside of the plaintiff’s case as pleaded – whether primary Judge made erroneous findings of fact

DEFAMATION – defamatory meaning – capacity of matter complained of to carry imputations specified by plaintiff

DEFAMATION – pleadings – whether imputations capable of arising from matter complained of – no question of principle

Judge alone trial - Mental Health Fitness Hearing – Accused’s fitness to stand trial

PROCEDURE – notice of motion – separate determination of a liability – utility of separate questions – whether will avoid costs – effect on application for security for costs – motion dismissed

CRIMINAL LAW – evidence – objection to telephone intercept – dispute over what was said by accused – whether open to the jury to accept the prosecution version – whether words constitute admission – where parties hear different things – role of judge and jury