Cases and authorities

SUMMONS - Supreme Court Act 1970, s 69 - application to quash decision of District Court - appeal to District Court from Consumer, Trader and Tenancy Tribunal - appeal lies where Tribunal decides a question with respect to a matter of law - District Court erred in law - appeal never properly determined - whether appropriate to remit to District Court - assessment of realistic prospects of success if remitted MOTOR VEHICLE - vehicle a “repairable write off” - Competition and Consumer Act 2010 (Cth), Sch 2, s 18 and s 54 - conduct of applicant not misleading or deceptive - statutory guarantee as to acceptable quality - remittal to the District Court unlikely to be successful - decision of the District Court quashed - first respondent’s appeal from the CTTT to District Court dismissed COSTS - success in lower court founded on an erroneous basis - costs awarded to the applicant

NEGLIGENCE - cleaner slipped and fell on box in school classroom - neither employer nor State found to be liable for breach of duty - whether denial of procedural fairness - whether insufficient reasons - whether employer knew or ought to have known of box in classroom - whether a reasonable person would take precautions in relation to an obvious hazard - appeal dismissed

ADMINISTRATIVE LAW – judicial review – grounds – jurisdictional fact – whether fact extrinsic to the power conferred on the decision-maker or part of the function conferred – whether validity of certificate depends on certifier’s satisfaction that proposed development is a “complying development” – relevance of inconvenience and uncertainty as factors APPEAL – interlocutory decision – determination of separate question – whether complying development certificates issued by accredited certifier invalid – whether characterisation of development as “complying development” a jurisdictional fact – issue clearly arguable – case of public importance – whether leave should be granted CONSTITUTIONAL LAW – privative clause – State legislation limiting time for review of decision – whether limitation effective – whether limitation removes defining characteristic of Supreme Court – Environmental Planning and Assessment Act 1979 (NSW), s 101 – Kirk v Industrial Court of New South Wales [2010] HCA 1; 228 CLR 651 referred to ENVIRONMENT AND PLANNING – development control – complying development – certificate issued by accredited certifier – Council challenged validity of certificate – Council alleged development not “complying development” under relevant planning instruments – Environmental Planning and Assessment Act 1979 (NSW), ss 76A, 85A – Woolworths Ltd v Pallas Newco Pty Ltd [2004] NSWCA 422; 61 NSWLR 707 distinguished STATUTORY INTERPRETATION – whether characterisation of proposed development as “complying development” is a jurisdictional fact – whether “complying development” a generic label or an operative precondition to exercise of power – whether reasoning by analogy from development consent procedure permissible WORDS AND PHRASES – “complying development” – Environmental Planning and Assessment Act 1979 (NSW), s 76A – “jurisdictional fact”

PRACTICE AND PROCEDURE – application for leave to amend defence – application made very late – new factual issues – whether granting leave to amend would be consistent with the “dictates of justice”

COSTS – Calderbank letter – whether on proper construction Calderbank letter was inclusive of costs – whether unreasonable for plaintiff not to accept Caldberbank letter – whether Court should exercise discretion to award indemnity costs.

JUDICIAL REVIEW – determination of CTTT – application to recover possession of caravan site – whether occupancy governed by Holiday Parks (Long-Term Occupation) Act or Residential Parks Act.

CIVIL LAW – personal injury claim – cross vesting – where collision occurred in South Australia – middle of nowhere – nearest major town in New South Wales – Broken Hill – where plaintiff sued in New South Wales – interests of justice – factors militating both ways

CIVIL LAW – extended supervision order – sex offender –chronic paedophilia – positive approach to previous order – no offences for 5 years – unacceptable risk persists – variations made to orders sought by state – length of order reduced to three years – no question of principle

CRIMINAL LAW – Crown appeal against sentence – manifest inadequacy – residual discretion

CRIMINAL LAW – multiple counts of indecent assault and sexual intercourse without consent – offences arising out of one encounter of short duration – not guilty verdicts on seven counts with guilty verdict on one count – inconsistent verdicts – whether any rational explanation for verdicts - no objective or other evidence to explain the guilty verdict - whether guilty verdict unreasonable – trial judge’s opinion on verdicts – appellant sentenced to s.10 bond – length of jury deliberations - verdict set aside

PROCEDURE – civil – order seeking confirmation that stay on costs orders has been dissolved – alternative order sought to dissolve stay – stay made “until further order” – whether stay order made is still in existence – regard to principle of finality of litigation – held that an interlocutory order granted “until further order” ceases when proceedings are finally determined

PROCEDURE – civil – parties – joinder – amendment of pleadings

REAL PROPERTY – Torrens title - Leases – Determination – Re-entry - Sale and lease back transaction - Unregistered lease - Dispute regarding oral agreement as to rate of rent payable – Rectification EQUITY – Equitable remedies – Rectification

TORTS – negligence – householder engaged handyman to affix stove rangehood to wall in kitchen – three years later rangehood fell on tenant of home – whether householder in breach of occupier’s duty of care – whether householder negligent in not making enquiries as to the handyman’s qualifications and experience – appeal dismissed

PROCEDURE – judgment and orders – prejudgment interest

EQUITY – trusts – express trust – discretionary – construction – services trust used by large accounting firm – potential objects of trust included spouses of partners and persons nominated by partners – partner nominates spouse as a potential object – distributions paid to a bank account in joint names of the partner and their spouse – spouse unaware of entitlement or that distributions paid into joint account – whether the trust deed permitted interim distributions of ‘income’ – whether trustee had benefit of discharge afforded by the trust deed on payment of distributions into bank account – whether the trustee owed a duty to inform the beneficiary of their entitlement – whether trustee entitled to exemption from liability under the trust deed

CORPORATIONS – winding up – application to set aside a creditor’s statutory demand under s 459H(1)(b) of the Corporations Act – where offsetting claim was abandoned in earlier Federal Court proceedings – whether serious question to be tried where offsetting claim not available by reason of Anshun estoppel.

PRACTICE AND PROCEDURE – civil – notice of motion – order sought to dismiss claim for want of prosecution – reasonable explanation for delay – order declined – alternative order sought to have liability and quantum heard separately – significantly injured plaintiff who resides in China – plaintiff submits unreasonable burden to travel to Australia twice – preferable for hearing on liability to take place promptly – potential for long delay in determining case on damages – appropriate to separate liability and damages – no point of general principle

CRIMINAL LAW – practice and procedure – application for directed verdict of not guilty – murder – intention to cause grievous bodily harm – whether evidence is incapable of proving alleged offence – evidence to be taken at is highest – application refused

Non-publication orders – suppression orders – redaction of Judgment

PRACTICE & PROCEDURE – Self-represented Plaintiff at the hearing – On occasions prior to hearing, Plaintiff had pro bono assistance from counsel – Plaintiff terminated pro bono assistance shortly prior to hearing – Refuses offer of pro bono assistance at the hearing – Responsibility of the court to ensure fair hearing. PROBATE – Intestacy – Deceased died intestate in June 2013 – Plaintiff asserts he was a party to a domestic partnership with the intestate immediately before the intestate’s death in that he was in a de facto relationship which was in existence for continuous period of 2 years before her death and entitled under Succession Act 2006 (NSW), s 113, to the statutory legacy for spouse – Defendant denies the relationship. SUCCESSION – Claim for family provision order – Alternative claim for family provision – Reliance on different categories of eligibility – Defendant denies Plaintiff an eligible person within any category of eligibility but in the event that the court finds eligibility then factors warranting the making of the Plaintiff’s application not disputed. In that event, Defendants says provision out of the estate should be by way of modest lump sum.

CRIMINAL LAW – Sentence – Where previous orders of the Court imposed a total sentence of 3 years – Where no parole order was made – Statutory provision requiring the making of a parole order where a sentence of 3 years or less is imposed – Order made

CRIMINAL LAW – murder – appeal against conviction – whether judge erred in not giving specific alibi directions – whether jury verdict unreasonable – s 6 Criminal Appeal Act 1912 – appeal dismissed

APPEAL – applications for leave to appeal from judgment or order for winding up of corporation and from subsequent interlocutory decision – applicant an officer of the company – company in liquidation – whether error warranting appellate intervention demonstrated. CORPORATIONS LAW – meaning of determined in s 459R of the Corporations Act – whether winding up application determined when order pronounced or when, following discharge of a stay of that order, order takes effect.

EQUITY – equitable remedies – injunctions – application for injunction to restrain auction sale of property – whether serious question to be tried – dispute as to beneficial ownership of shares – balance of convenience – whether prejudice to defendant of granting injunction outweighs prejudice to plaintiff of not granting injunction – where prospect of appreciation of property speculative – impact of mortgage outgoings on property’s value – whether risk of sale at undervalue – held, application for injunction restraining sale refused; injunction retraining disbursement of proceeds granted.

CORPORATIONS – creditor’s statutory demand – application to set aside statutory demand – where affidavit verifying debt executed one day before demand – requirement that affidavit speak to debt at time of demand – insufficiency of updating affidavit served after demand – irrelevance of absence of ‘substantial injustice’ in not setting demand aside – held, demand defective.

PROCEDURE – summary disposal – want of due despatch – purpose of Civil Procedure Act and UCPR – purpose of Practice Note SC CL 4 – where plaintiffs failed to comply with directions of the Court – requirements of dictates of justice

PROCEDURE – adjournments – application to vacate hearing date – new solicitors acting for Plaintiff – file only recently delivered from former solicitors – failure of former solicitors to comply with procedural directions to prepare matter for trial. COSTS – late application to vacate trial – fault of Plaintiff’s former solicitors – costs payable by Plaintiff on indemnity basis – whether costs should be payable forthwith.

MORTGAGES – rights of the mortgagee – further application to stay mortgagee’s auction of the property – no additional evidence – no unconditional offer of finance – no offer to redeem mortgage – application refused

PROCEDURE – Civil – Personal injury proceedings – Plaintiff alleges liability of defendant for workplace accident – Application by defendant to join insurer of deregistered company to proceedings pursuant to s 601AG Corporations Act 2001 – Defendant proposed cross-claim against insurer - Whether there was a prima facie case of liability against deregistered company involved in workplace as subcontractor so as to allow claim against insurer – Whether there was an insurance policy in place – Prima facie case made out – Leave granted to defendant to join insurer under s 601AG

WORKPLACE SAFETY – Statutory powers of investigation – Power of a Regulator to issue Notices under s 155 Workplace Health and Safety Act 2011 – Prosecution for failure to comply with Notices – whether Notices under s 155 were beyond power and therefore invalid – Scope of the coercive power under s 155 is determined by the conditions specified in the section including the existence of ‘reasonable grounds for belief’ as specified in s 155(1) as to the capacity of a person to give information, provide documents etc in relation to the specified wide-ranging functions of the Regulator – the Notices issued under s 155 were within power – Notice to recipient to produce ‘Board Minutes’ within power – Recipient not entitled to refuse production on the basis of relevance – Confidentiality provisions in the Act provide necessary protection in respect of confidentiality of documents and other records – No extraterritorial operation of the Notices – Appeal against conviction dismissed – Whether penalties imposed were excessive – Whether principle of totality reflected in penalties – Failure to provide the same documents in response to Notices under s 155(1) amounted to two separate acts of criminality – Penalties within available range and properly reflected overall criminality – No error demonstrated - Penalties were not excessive. CRIMINAL LAW – Appeal from Local Court against conviction– Failure to comply with Notices to Produce issued under s 155(1) Work Health and Safety Act 2011 – Convicted of offences under s 155(5) – Whether right to appeal under Crimes (Appeal and Review) Act 2001 applied – Whether the issues raised as to construction of the limitations on s 155(1) WHS Act amounted to question of law alone or a question of mixed law and fact for the purposes of appeal COSTS – Appeal from costs order made by Local Court Magistrate – Prosecutor had provided Magistrate with a ‘Schedule of Costs’ - Whether costs sought in the Schedule were ‘just and reasonable’ – Respondent had been given hearing on costs and had made submissions – No objection raised to the costs in the ‘Schedule’ – Magistrate had relevant information to determine that the costs sought were just and reasonable in all the circumstances – Leave to appeal from costs order refused.

PROCEDURE – Summary dismissal of Statement of Claim – Professional negligence– Civil – Application for summary dismissal of Statement of Claim by defendant/solicitor on the basis that limitation period had expired – Additionally, application made for striking out of Statement of Claim due to embarrassing or defective pleadings – plaintiff claimed damages on the basis of pleaded causes of action in tort, breach of contract and misleading and deceptive conduct arising from failure to register a transfer of title into the joint names of her former husband and herself as joint tenants – Whether causes of action statute barred by s 14(1) Limitation Act 1969 – Dispute as to when the cause of action accrued – Plaintiff had arguable case that proceedings were brought in time – summary determination of the limitation issue is not appropriate – Undesirable for the limitation issue to be dealt with on an application for summary dismissal – Plaintiff conceded that defects existed in the pleadings – Leave granted to the plaintiff to amend defects in Statement of Claim – Application dismissed

ADMINISTRATIVE LAW – judicial review – motor accident damages – decision of claims assessor – whether infected by jurisdictional error – whether the claims assessor took into account an irrelevant consideration or failed to take into account a relevant consideration – whether referral was “grossly illogical” – whether error of law TRAFFIC LAW – Motor Accidents Compensation Act 1999 – motor accident damages – where claimant “bullied” following motor vehicle collision – referral to proper officer under s 62(1)(b) for reassessment by claims assessor – where claims assessor wrote letter outlining background and posing questions for proper officer to answer

APPEAL FROM LOCAL COURT – civil – contract dispute – error of law – leave required to appeal questions of mixed law and fact - inadequate reasons – cross-appeal

PRACTICE AND PROCEDURE – Plaintiff charged with Commonwealth and State offences – All offences prosecuted at committal by the Commonwealth Director of Public Prosecutions – Where plaintiff challenged the right of the Commonwealth Director of Public Prosecutions to prosecute state offences – Where challenge rejected by Magistrate – Appeal brought against that decision before the Magistrate had been asked to consider whether the plaintiff should be committed for trial – Whether relief available pursuant to s. 53(3)(a) of the Crimes (Appeal and Review) Act 2001 – Whether Magistrate’s conclusions were an “order” for the purposes of that section – Whether relief available under s. 69 of the Supreme Court Act 1970 – Relief not available on either basis – Summons dismissed WORDS AND PHRASES – “order”

CONTRACTS – general contractual principles – construction and interpretation of contracts – identification of parties to the agreement – whether exclusivity period and right to commission can be read independently CONTRACTS – general contractual principles – abandonment – whether agreement was abandoned by parties attempting to procure a purchase in terms other than those described in the agreement – whether agreement was abandoned by parties seeking to negotiate an alternative agreement TRADE AND COMMERCE – misleading or deceptive conduct – turns on own facts PROFESSIONS AND TRADES – auctioneers and agents – remuneration – Property, Stock and Business Agents Act 2002 (NSW) s 8 – whether plaintiffs precluded from recovering commission for services performed as a real estate agent – whether plaintiffs were real estate agents as per the Act

CRIMINAL LAW – sexual intercourse without consent – complainant was adult niece of appellant – complainant unable to remember sexual intercourse by reason of alcohol consumption – whether consent given – whether appellant reckless as to consent – whether appellant reasonably believed consent given – summing-up – whether fair and balanced – whether verdict unreasonable

APPEAL – interlocutory – defendant’s pleading struck out – whether defence available at law – whether pleading had tendency to prejudice, embarrass or cause delay DEFAMATION – defences – whether David Syme & Co Ltd v Hore-Lacy [2000] 1 VR 6 stated a separate common law defence of justification – whether defendant bound by plaintiff’s pleadings – whether defendant able to plead and justify alternative imputations not substantially different from plaintiff’s imputations – English authorities reviewed PRACTICE AND PROCEDURE – defamation – defence – pleading imputation – whether defendant able to plead alternative imputations not substantially different from plaintiff’s imputations – whether Uniform Civil Procedure Rules 2005 (NSW), rr 14.30-14.32 preclude such pleading STATUTORY INTERPRETATION – uniform defamation laws – interrelationship of statute and common law – effect of common purpose of uniform legislation in interpretation of Defamation Act 2005 (NSW) – meaning of “the general law” as preserved by the Defamation Act, s 6 and s 24 – whether reference to general law includes judicial exegesis of statutory provisions – whether preserved general law reflects modifications by legislative instruments or by acts of Parliament only – whether Uniform Civil Procedure Rules affected common law defence of justification WORDS AND PHRASES – “the general law” – “the common law and equity” – Defamation Act 2005 (NSW)

EVIDENCE – whether evidence tendered is tendency evidence within s 97(1) of the Evidence Act 1995 (NSW) – evidence not tendered to prove propensity but as direct evidence of a business conducted in contravention of s 911A(1) of the Corporations Act 2001 (Cth) – evidence admitted

REAL PROPERTY – Torrens system – whether caveatable interest – failure to state quantum of equitable interest claimed AGRICULTURE – share farming agreement – the rights to grow crops – not a profit à prendre – mere licence – no interest in land CONTRACT – false label – parties’ statement that farmer has a caveatable interest in the land not conclusive

CRIMINAL LAW – EVIDENCE – admissibility – crime scene photograph – whether the probative value of the evidence is outweighed by the danger of unfair prejudice to the defendant

MORTGAGES – rights of the mortgagee – sale of security property – application to postpone auction by mortgagor – conditional offer of finance to person said to be purchasing on mortgagor’s behalf – conditions unfulfilled – no other offer to redeem mortgage – application refused

CRIMINAL LAW – application pursuant to the Crimes (Appeal and Review) Act 2001 (NSW), s 78 – applicant convicted by a jury of one offence against Crimes Act 1900 (NSW), s 61I and two offences against Crimes Act, s 319 – whether applicant has demonstrated that there is a doubt or question as to his guilt, as to any mitigating circumstance or as to any part of the evidence in relation to any of the three offences – no question of principle – application refused

PROCEDURE – costs – each party bears its own costs concerning substantive notice of motion – plaintiff seeks costs thrown away – defendant required to amend its pleadings – defendant to pay additional costs of the plaintiff regarding pleading amendments

CONTRACT – guarantees under a facility agreement discounting rendered invoices – assignment and novation by creditor to 3rd party – whether effective against debtor and guarantors – consent in advance

CRIMINAL LAW – Application to appeal against sentence – Applicant convicted of five counts of drug importation – Whether the sentencing judge erred in taking into account the applicant’s use of innocent agents in sentencing – Applicant submitted that there was no direct evidence to establish a factual finding as to the use of innocent agents in the importation of drugs – Evidence had been tendered as to addresses for consignments later found to contain drugs, some of which were addresses of apparently innocent agents – Held that it was open to the sentencing judge to find the use of innocent agents on the basis of that evidence – Whether sentencing judge erred in accumulating the sentences to the extent she did – Held that while the offences formed part of an ongoing scheme or enterprise they were nonetheless separate, discrete offences – Held that the mere temporal relationship between the offences does not mean they are not separate acts of criminality – Sentencing judge did not err in accumulating the sentences – Whether the sentencing judge erred by taking into account the fact of the offences not being ‘isolated’ in her assessment of both the objective seriousness of the offences and the degree of accumulation to be applied and whether this amounted to ‘double counting’ – Held that no double counting had occurred – Whether the sentencing judge’s reference to the offences being ‘not isolated’ was a reference to uncharged conduct being taken into account – Held that the sentencing judge’s reference to the conduct not being isolated in this context was a reference to the other offences charged on the indictment – No other uncharged conduct was taken into account – Whether the sentence was manifestly excessive – Reliance on categories set out in De La Rosa is of limited assistance and that decision is not a guideline judgment – No error established in sentencing judge’s approach – Held that sentence was not manifestly excessive – Appeal dismissed

CRIMINAL LAW – procedure – extension of time to appeal – whether leave be granted CRIMINAL LAW – appeal against conviction – solicit to murder –- bias – whether actual bias – whether apprehended bias - trial judge’s discretion to admit evidence – tendency and coincidence evidence – evidence of prior conviction of solicit to murder – audio recordings – adequacy of summing up – rulings at trial - conduct of defence at trial – conduct of Crown at trial – duty of disclosure – conduct of defence counsel CRIMINAL LAW – appeal against conviction – application to adduce fresh evidence

CRIMINAL LAW - sentence appeals - Applicants pleaded guilty to serious drug supply offences - Applicant Eldridge contends that sentencing Judge erred in failing to take into account her remorse and prospects of rehabilitation - ex tempore remarks on sentence concerning multiple offenders - held not demonstrated that sentencing Judge failed to take these factors into account - whether sentence manifestly excessive - held sentence not manifestly excessive - each Applicant advanced parity ground - claim of legitimate sense of grievance when comparing their sentences with those imposed on other co-offenders - parity ground made out - leave to appeal granted - appeals allowed - both Applicants resentenced