Cases and authorities

COURT OF DISPUTED RETURNS - costs - unsuccessful petition - public interest - expense to defendant - petitioner to pay costs - evidence filed in support of petition raises issues concerning propriety of election practices - recommendation that costs be paid by the Crown

DEFAMATION - actions for defamation - verdict for defendants - costs - claim for indemnity costs - plaintiff unrepresented on application - allegations of misuse of superior financial position and conflict of interest - relevance of settlement attempts made by plaintiff prior to commencement of proceedings - refusal of "settlement offers" not unreasonable within s 40(2)(b) Defamation Act 2005 - application of rule 42.15A Uniform Civil Procedure Rules 2005 - characterisation of various "offers of compromise" - genuine offer rejected by plaintiff - costs ordered - to be assessed on indemnity basis following offer

PROCEDURE - civil - judgments and orders - reopening hearing after judgment delivered - application dismissed

Appeal from Psychologists Tribunal of New South Wales - professional misconduct - protective order - statutory test for professional misconduct - failure to give adequate reasons - insufficient evidentiary basis - failure to resolve critical factual disputes - civil standard of proof in Briginshaw v Briginshaw - denial of procedural fairness - mandatory reporting - failure to report under s 27 of the Children and Young Persons (Care and Protection) Act

CRIMINAL LAW - appeal on sentence - whether maximum discount for utilitarian plea of guilty ought to have been imposed - delay in fitness hearing for mental health assessment - applicant with severe mental illness - appeal upheld

PRACTICE AND PROCEDURE - Proof of Insurance Contract necessary - Whether Workers Compensation Nominal Insurer existed at time of accident - Leave to commence proceedings to enforce statutory charge.

Practice and procedure - vacation of hearing dates.

REAL PROPERTY - easements - right of carriageway - application for extinguishment or modification of easement benefiting local Council - whether easement has been abandoned pursuant to s 89(1A) and (1)(b) of the Conveyancing Act 1919 (NSW) - whether easement is obsolete pursuant to s 89(1)(a) - whether there would be substantial injury to the Council in the case of extinguishment pursuant to s 89(1)(c) - whether order for extinguishment could be made subject to a condition for relocation of easement - HELD - application dismissed - no intentional abandonment of easement established - doubt as to whether non-use for 20 years - even if deeming provision applied and no use for 20 years, discretion would not be exercised in favour of extinguishment - easement continues to serve useful purpose and has not become obsolete - additional costs likely to be incurred by the Council should extinguishment take place means that it cannot be said that extinguishment would cause no substantial injury - order for extinguishment subject to a condition for relocation would amount to modification of easement outside the Court's power CIVIL PROCEDURE - whether for purposes of deeming provision in s 89(1A) an application is made when summons filed or when plaintiff moves on motion - HELD - obiter dicta - deeming provision can operate provided that as at the date when the plaintiff moves on the application, there has been at least 20 years of non-use

PROCEDURE - civil - commercial list statement - strike out application - no issue of principle

CORPORATIONS - application for access to confidential affidavits filed pursuant to section 596C(1) of the Corporations Act 2001 (Cth) - application to set aside examination summonses and orders for production - HELD - arguable case of improper purpose and access necessary so as fairly to dispose of application - access to confidential affidavits granted - plaintiff failed to establish that predominant purpose of liquidator in issuing examination summons and orders for production is an improper purpose - application to set aside examination summonses and orders for production dismissed - orders for production to plaintiff and others read down

RETAIL LEASES - section 68 - Retail Leases Act -whether mediation is a condition precedent to commencing proceedings.

CRIMINAL LAW - Crimes (Serious Sex Offenders) Act 2006 - serious sex offence - preliminary hearing - orders sought for examination by psychiatrists - defendant on parole - objects of Act - despite consent of defendant, need for Court to be satisfied under s7(4) of the Act.

REAL PROPERTY - where the plaintiff lodged a caveat over the defendant's property as security for monies payable by the defendant pursuant to a costs agreement - where that first caveat lapsed as the costs agreement was not stamped in accordance with statutory requirements - application by the plaintiff under s 74O of the Real Property Act 1900 (NSW) for leave to lodge a further caveat in identical terms as the first caveat - where the defendant refused to give an undertaking not to deal with the property prior to a final hearing on the validity of the plaintiff's charge over the property

ADMINISTRATIVE LAW - serious offender - decision refusing reduction in classification - whether recommendation of Serious Offenders Review Council taken into consideration - whether rule or policy as to sex offenders who deny sexual component of offence inflexibly applied - decision of Review Council not to recommend consideration for parole - adequacy of reasons

PRACTICE AND PROCEDURE - security for costs - Plaintiff returns to Ireland while proceedings on foot - no longer ordinarily resident in New South Wales - protection of Defendants from unacceptable disadvantage resulting from Plaintiff leaving jurisdiction - order made confined to costs of enforcement of judgment in Ireland

CONTRACT - termination - abandonment - school operated on leased premises - whether transfer of school to plaintiff prior to assignment of lease was abandonment of lease - no abandonment. CONTRACT - termination - affirmation - allegations of breaches for number of years - continued to accept rent and exercise rights under contract - affirmed lease. ENVIRONMENTAL AND PLANNING - development control - consent - subdivision - lease of part of land for over 5 years requires development consent - s 76(A) and s4B of Environmental Planning and Assessment Act (EPA) 1979 - whether lease excluding building or part of building effects subdivision of land - definition of "land" for purpose of EPA - lease effects subdivision. STATUTORY INTERPRETATION - principles - whether Act renders agreement void - s 76A(1) of EPA - agreements made in breach of s76A(1) not void. CONTRACT - implied terms - agreement to do all things reasonable to give effect to agreement - term requiring lessor to do all things reasonable to obtain development consent to be implied

PROCEDURE - civil - jurisdiction - transfer of proceedings - application to transfer proceedings pending in the Dust Diseases Tribunal of New South Wales to the Supreme Court of South Australia - application dismissed

PROCEDURE - civil - jurisdiction - transfer of proceedings - application to transfer proceedings pending in the Dust Diseases Tribunal of New South Wales to the Supreme Court of South Australia - application dismissed

PROCEDURE - civil - summary disposal - dismissal - reasonable cause of action; whether - setting aside - plaintiff's claim for declaratory relief does not involve a legal controversy with any foreseeable consequence

CROSS-VESTING APPLICATION - proceedings commenced in Dust Diseases Tribunal of NSW - plaintiff in those proceedings suffering from mesothelioma - application to transfer proceedings to Supreme Court of South Australia - interests of justice - special procedures to facilitate hearing available in both jurisdictions - importance of coincidence of lex loci delicti and lex fori - natural forum is South Australia - proceedings should be transferred.

REAL PROPERTY - easements - right of carriageway - right of carriageway includes right to pass and to go and impliedly extends to right to stop for a short period - right of carriageway does not encompass right to park where vehicle can reasonably be parked wholly on dominant tenement's land - driving a private motor vehicle on right of carriageway for part of its length over which sandstone pavers have been laid not an unreasonable use of right of carriageway - injunction to restrain parking on sandstone pavers laid on right of carriageway not warranted

COSTS - indemnity costs - offer of compromise by plaintiff - whether genuine compromise - defendant abandoned cross claim for rectification - whether had no reasonable prospect of success - no indemnity costs ordered

CONTRACT - Principles of Construction - Implied Terms - Specific Performance - Principles in Granting Specific Performance - Right to Terminate

CONSENT - Judgment - Setting Aside - Principles Applied

Application to Restrain Legal Practitioner from Acting - Principles to be Applied

PROCEDURE - civil - amendment of pleadings - seek order that consent judgment be set aside - whether arguable case that judgment obtained contrary to settlement agreement - whether settlement agreement contained implied term incorporating Banking Code of Practice - no arguable case - summary disposal - proceedings dismissed

CRIMINAL LAW - sentence appeal - whether sentencing judge erred in not ordering the sentence to commence at an earlier date - whether some other sentence was warranted in law and should have been passed - appeal allowed in part - sentence backdated by 1 month and 13 days

CRIMINAL LAW - Appeal against sentence - sexual assault - indecent assault - offender father of victim. SENTENCING - absence of special circumstances warranting departure from statutory ratio - sentence imposed erroneously extended non-parole period beyond statutory ratio.

CRIMINAL LAW - appeal against sentence - possession of child pornography - use of carriage service to access child pornography - plea of not guilty. SENTENCING - plea of not guilty - claims of innocence made by offender - deterrence of claims of innocence not a function of sentencing.

CRIMINAL LAW - Appeal against sentence - appeal dismissed - robbery and subsequent offences demand property with menaces against same victim - form 1 offences taken into account - plea of guilty on first day of trial - utilitarian discount of 10% appropriate -sentencing judge did not err in referring to threat of use of weapon by offender as an aggravating feature - sexual abuse as a child not a distinct class of mitigation.

Sentence appeal - firearm offences - relevance of reasons for possession of firearms - significance of inoperability - whether more extensive reasons are required for departing from standard non-parole period than for other discretionary decisions

Sentence appeal - adequacy of reasons - mental illness

NEGLIGENCE - breach of duty of care - whether mine operator breached duty of care to plaintiff employee of labour hire company - plaintiff fell from steep ladder on dump truck while gaining access to its cabin - ladder too steep and lacking handrail extending to prescribed height in breach of Australian Standards - whether conclusion of breach made with hindsight NEGLIGENCE - breach of duty of care - defect in means of access to cabin of dump truck - design flaw in vehicle manufactured by reputable business - whether mine operator breached duty of care NEGLIGENCE - breach of duty of care - where risk that person in the plaintiff's position could fall from the ladder while climbing - whether reasonable person in position of mine operator would have taken precaution of installing transverse stair access system - relevance of common practice - relevance of Australian Standards - ss 5B, 5C, Civil Liability Act 2002 (NSW) NEGLIGENCE - causation - whether primary judge could conclude as a matter of direct evidence or legitimate inference that installation of transverse stair access system would have prevented or minimised plaintiff's injuries- s 5E, Civil Liability Act 2002 (NSW) APPEAL - "no evidence" point not taken at trial sought to be raised on appeal - interests of justice - whether point if taken at trial would have been fatal to respondent's case

COSTS - trial and appeal costs - professional disciplinary proceedings - general rule that costs follow event - Commission partly successful against the practitioner - full costs not recoverable. PROFESSIONS & TRADES - professional discipline - medical practitioners - imposing conditions on registration - conditions relating to practice as psychiatrist - requirement of supervision.

LIMITATION OF ACTIONS - claim in tort - time of accrual of cause of action - when link between the physical manifestation and the underlying defect is known or ought to be known - what relevant knowledge is as to actual physical defect in the structure, not legal responsibility for the cause of the defect. TORTS - joint or several tort-feasors - contribution - other tort-feasor sued unsuccessfully not liable for contribution - Law Reform (Miscellaneous Provisions) Act 1946 (NSW), ss 5(1)(c) and 5(2). WORDS AND PHRASES - "date on which cause of action first accrues" - Limitation Act 1969 (NSW), s 14(1). WORDS AND PHRASES - "any other tort-feasor who is...liable" - Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5(1)(c).

FAMILY LAW - de facto relationship - adjustment of interests of parties in property - respective contributions of parties - Property (Relationships) Act 1984, s 20 - whether order of the trial judge for adjustment was just and equitable - whether trial judge erred in failing to set out asset pool and resources of parties - no error in trial judge's assessment of parties' contributions - trial judge made reference to all of the assets of the parties - trial judge determination involved exercise of discretion - no requirement that the Court deal with assets in a particular manner FAMILY LAW - de facto relationship - adjustment of interests of parties in property - respective contributions of parties - Property (Relationships) Act 1984, s 20 - money from joint bank accounts spent on gambling activities - significance of gambling activities

SUCCESSION - executors and administrators - administration - administrator pendente lite - application for orders pursuant Trustee Act 1925, s 81 that plaintiff have certain powers as administrator pendente lite of estate - where prudent for plaintiff to seek to refinance of mortgage debt to avoid the possibility of mortgagees exercising their power of sale - orders made giving plaintiff powers conferred on executor by will to sell, mortgage, lease, exchange or otherwise dispose of whole or part of the estate as necessary or expedient and the power to borrow

CRIMINAL LAW - evidence - late objection to evidence known for months to be part of Crown case - chronological compilation of CCTV footage recorded by security cameras - whether misleading or incomplete - whether in the nature of a Crown submission

Statutory demand - application to set aside - cross examination

Practice and procedure - vacation of hearing dates.

LANDLORD & TENANT - option to renew - test for validity - characterisation - significance of context - relevance of subsequent conduct NOTICE - electronic communications - whether email "signed" - whether required to be physically delivered

PRACTICE AND PROCEDURE - service of originating process on the defendant who resides overseas and who has not entered an appearance - whether the Court should grant leave to the plaintiff to proceed pursuant to rule 11.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) - whether personal service is required REAL PROPERTY - where the defendant and her ex-husband are co-owners of a property - where the ex-husband has been made bankrupt and his trustee in bankruptcy seeks sale of the property as tenant-in-common - where the trustee in bankruptcy has asked the defendant whether she would like to buy out her ex-husband's interest in the property but received no reply - whether trustees for the sale of the property should be appointed

DAMAGES – calculation of annual increase in wages – base earnings without overtime of comparable employee

PROCEDURE - Costs - whether defendants' Calderbank offer to "walk-away" with no order as to costs was unreasonably rejected - no new principles

FAMILY LAW - de facto relationship - adjustment of interests of parties in property - respective contributions of parties - Property (Relationships) Act 1984 (NSW), ss 19 and 20 - whether order of the trial judge for adjustment was just and equitable - trial judge erred in failing to consider evidence concerning matters occurring after the termination of the relationship up to the date of trial - trial judge erred in failing to have regard to s 19 - discretion re-examined - appeal allowed

PROCEDURE - stay - pending application to High Court for special leave to appeal - prospects of success - balance of prejudice. PROCEDURE - stay - assessment of prejudice to parties - stay on conditions - provision of security. PROCEDURE - stay - costs of application.

COSTS - limit on the maximum amount for costs in connection with a claim for "personal injury damages" - Legal Profession Act 2004 (NSW), s 338 -- claim for false imprisonment is not claim for "personal injury damages", at least where the damages claimed include damages for wrongful deprivation of liberty and loss of dignity - where such a claim is included in a claim for damages and is not a severable part of that claim, the claim for damages is not a claim for "personal injury damages" COSTS - limit on the maximum amount for costs in connection with a claim for "personal injury damages" - Legal Profession Act 2004 (NSW), s 338 - "personal injury damages" defined to have same meaning as in Part 2 Civil Liability Act 2002 - whether maximum costs limitation applies to awards of personal injury damages resulting from intentional acts - correctness of Cross v Certain Lloyds Underwriters [2011] NSWCA 136 STATUTORY INTERPRETATION - principles - reading provision in context - whether, when operative statute adopts a term "as defined in" a source statute, account must be taken of the operation of that phrase in the source statute STATUTORY INTERPRETATION - principles - meaning of statutory provision able to be ascertained by tracing the evolution of statutory provisions from initial enactment and through subsequent amendments STATUTORY INTERPRETATION - principles - reading provision in context - fundamental difference between the meaning of a word or expression and the scope of application of a legal principle

COSTS - motion seeking production of file from former solicitors - entitlement of former solicitors to secure their costs - whether gross sum costs order was appropriate - whether costs should be paid forthwith.

PROCEDURE - objection to competency - appeal involving an amount at issue of less than $100,000 - whether correct to add both parties claims - whether greater amount a realistic possible outcome