NSWCA

Catchwords: PRACTICE AND PROCEDURE – appeal – stay – medical practitioner – finding of professional misconduct – order suspending registration – period of suspension likely to expire before appeal determined – appeal reasonably arguable – misconduct involved single incident three years before order made – order the suspension not commence for 30 days – no evidence of immediate risk to patients or parents ...

Catchwords: APPEALS – leave to appeal – utility – where substantive dispute concerns Greens list of nominees for election already held – whether any utility in considering whether list of nominees determined consistently with party constitution – whether dispute likely to recur – whether any errors sufficiently arguable to justify leave COSTS – party/party – exceptions to general rule that costs follow the event – public interest – where proceedings had a “public interest” element – whether arguable error in primary judge declining to make no order as to costs COSTS – party/party – multiple parties – whether arguable error in allowing multiple sets of costs to defendants with similar interests ...

Catchwords: ANIMALS — prevention of cruelty to animals — private prosecution under Prevention of Cruelty to Animals Act — guilty verdict — charges subsequently dismissed under Mental Health (Forensic Provisions) Act 1990 (NSW), s 32 TORTS — malicious prosecution — malicious criminal proceedings — elements of tort — application for summary dismissal — whether s 32 dismissal constitutes a termination of proceedings in favour of a plaintiff ...

Catchwords: BUILDING AND CONSTRUCTION – Contract – Home Building Act 1989 (NSW) – Statutory warranties – whether contract confined to negotiated scope of works or expanded to include other works by virtue of the implied statutory warranties – whether building in breach of statutory warranties CONTRACTS – Remedies – Damages – where loss claimed would have been suffered if contract had been properly performed ...

Catchwords: ANIMALS - Cruelty to animals – consideration of the element of “intention of inflicting severe pain” in s 530(1) of Crimes Act 1900 (NSW) - defences to offence of serious cruelty to animals under s 530(2) of the Crimes Act 1900 (NSW) – meaning of “pest animals” – meaning of “in the course of or for the purposes of extermination of pest animals” – whether animal killed was a “pest animal” within the meaning of s 530(2) of the Crimes Act – whether killing of animal was “in the course of or for the purposes of extermination of pest animals” – statutory context – context includes other legislation addressing cruelty to animals CRIMINAL LAW – cruelty to animals – offence of serious cruelty to animals – elements of offence - consideration of the element of “intention of inflicting severe pain” in s 530(1) of Crimes Act - statutory defence – whether animal killed was a “pest animal” within the meaning of s 530(2) of the Crimes Act – whether killing of animal was “in the course of or for the purposes of extermination of pest animals” STATUTORY INTERPRETATION – where provision in question one of a number of provisions in various statutes concerned with prevention of cruelty to animals – other statutes forming part of the statutory context – consideration of the use of dictionaries in statutory interpretation WORDS AND PHRASES – “pest animal” – “extermination” – “in the course of or for the purposes of extermination of pest animals” ...

Catchwords: CONTRACT – oral contracts concerning debt, joint venture to exploit inventions and rural properties – primary judge rejected claims in contract – no claim advanced in equity for partnership or breach of fiduciary duty – such claim renounced by senior counsel appearing at trial – no error in primary judge declining to address such claim – no error in rejection of oral contracts – appeal dismissed RESULTING TRUST – presumed resulting trusts – cross-appellant purchased rural lands and placed in joint names of him and first cross-respondent, or in sole name of second cross-respondent – primary judge found presumption of resulting trust rebutted – whether appellable error in so finding – testimonial evidence by cross-respondents – cross-appellant gave no evidence – one cross-respondent not cross-examined on her evidence of beneficial ownership – documents supported rebuttal of presumption – cross-appeal dismissed ...

Catchwords: CIVIL PROCEDURE – stay of proceedings – applicant a medical practitioner facing disciplinary proceedings in Tribunal and pending criminal proceedings – both proceedings to deal with the same alleged misconduct – application of Zhao (2015) 255 CLR 46 – applicant would suffer prejudice if disciplinary proceedings not stayed until criminal proceedings resolved – applicant’s registration as a medical practitioner suspended – delay in resolving disciplinary proceedings a relevant but not critical factor ...

Catchwords: JUDICIAL REVIEW – application to review numerous matters related to criminal prosecutions – need to identify decisions – need to identify grounds – repetition of grounds previously dismissed – abuse of process JUDICIAL REVIEW – application to review sentence imposed by district Court – operation of statutory stay – stay following grant of bail – Supreme Court Act 1970 (NSW), ss 69, 69A, 69C PRACTICE AND PROCEDURE – bail – pending application for special leave to appeal to the High Court – no evidence that application filed – special circumstances PRACTICE AND PROCEDURE – repeat application for judicial review – reopening dismissed application – whether frivolous and vexatious – Uniform Civil Procedure Rules 2005 (NSW), r 13.4 ...

Catchwords: COSTS – partial success of appellants on appeal – determination of costs of appeal and re-exercise of discretion as to costs at trial – second appellant not originally joined to proceedings at trial – first appellant played no role in proceedings after hearing of principal appeal – successful point not raised until first day of trial – whether global order as to costs, or orders relating to particular aspects of the litigation, should be made ...

Catchwords: CONTRACTS – construction – whether mistake in written agreement can be rectified by construction – inconsistency concerning right to terminate on face of document – primacy given to handwritten amendments COSTS – appeal books – unnecessary reproduction of thousands of pages already reproduced in appeal books – whether special order as to costs warranted DEEDS – delivery – whether deed restating terms of joint venture delivered to other side in escrow – whether terms of document precluded finding of delivery in escrow – whether deed even if not delivered effective as simple contract ELECTION AND WAIVER – where one party continued to perform work and incur expenses pursuant to joint venture after a contractual right of termination had accrued – absence of any reservation of rights – significance of “no waiver” clause EQUITY – ancillary liability – liability for procuring or inducing breach of trust or breach of fiduciary duty – whether requirement that third party be “dishonest” – whether separate bases of liability for procuring as opposed to inducing breach – whether director of company acting as such capable of procuring or inducing breach of trust by director's company EQUITY – rectification – whether contract should be rectified in equity if mistake incapable of being corrected by construction EQUITY – unconscionability – statutory unconscionability – joint venture to develop land for resale – offer made to one party to sell part of joint venture land at profit – offer communicated to other party with invitation to share profit – other party sought to persevere with joint venture – first party purported to terminate and sell land – finding that first party believed entitled to terminate – in fact first party not entitled to terminate – first party’s conduct not unconscionable contrary to s 21 of Australian Consumer Law ...

Catchwords: APPEAL – stay – application for stay of garnishee pending appeal – appeal from judgment in Division on appeal from Local Court – respondent seeking to enforce costs orders – garnishee order issued – whether application for leave had reasonable prospects of success – small amount relative to statutory threshold for appeal as of right – no statement of specific grounds – likelihood of success leading to reversal of costs orders – evidence of non-recoverability if payments obtained PRACTICE AND PROCEDURE – subpoenas and notices to produce – application to issue for purposes of appeal – need to show arguable case for adducing further evidence on appeal PRACTICE AND PROCEDURE – appeal – submissions – application for waiver of rule limiting length of summary of argument – straightforward factual case – no basis for lengthy submissions ...

Catchwords: CONTRACTS – formation – intention to create legal relations – uncertainty and incompleteness – owners of three contiguous parcels of land dealt with development group in relation to proposed sale of land for redevelopment – where put and call option deeds entered into – where one owner entered into separate deed for the purchase back of five developed lots – where agreement reached on various matters between parties’ agents at later meeting– whether intention to create legal relations at later meeting – whether terms of agreement at meeting were void for uncertainty and incompleteness CONTRACTS – formation – whether deed which provided for purchase back of five lots abandoned by parties – whether purchaser entitled to damages for breach of deed – where primary judge left undetermined possible basis for finding damages for breach of deed – damages claim remitted for the determination ...

Catchwords: CIVIL PROCEDURE — Parties — Vexatious litigants – Vexatious Proceedings Act 2008 (NSW) – s 6 – meaning of “vexatious proceedings” – s 8(1) – meaning of “frequently instituted or conducted vexatious proceedings” – assessment of frequency CIVIL PROCEDURE — Parties — Vexatious litigants – exercise of discretion – balance between access to the processes of the law and restraint of unwarranted exercise of that access CIVIL PROCEDURE — Hearings — Procedural fairness – expansion of orders as compared to those sought – making an order in terms not foreshadowed during or after the hearing – no opportunity for parties to be heard ...

Catchwords: APPEAL – application for leave to appeal from a costs order – amount in issue substantially less than $100,000 – proper administration of justice required a grant of leave COSTS – party/party – rule in UCPR r 42.1 that costs prima facie follow the event – orders made by consent without contest or hearing as to the merits – no event for the purposes of UCPR r 42.1 – respondents’ commencement of proceedings precipitous – applicant did not act unreasonably – no order made as to first instance costs ...

Catchwords: APPEAL – burden of proof – elements of claim – evidence that floor safe when surface dry – failure of plaintiff to prove water on floor – weight of evidence did not support claim – admitted fact – inspection system adequate – no error in fact-finding TORTS – negligence – breach of duty – allegation of water on floor – management had system of inspection admitted to be adequate – no breach of duty to take reasonable care – Civil Liability Act (NSW) ss 5B, 5C TORTS – negligence – duty of care – slip and fall at shopping centre – duty of shopping centre manager – no duty to ensure floor surface dry – duty to take reasonable care to maintain dry surface – adequacy of system of inspection ...

Catchwords: CORPORATIONS — voluntary administration — Legal proceedings — moratorium on legal proceedings against company under administration — administrators appointed after publication of reasons but before final orders made — section 440D Corporations Act 2001 (Cth) — whether making orders a step in proceedings requiring leave — application for leave under s 440D — whether proposed orders of successful appellant reflect reasons given for appeal ...

Catchwords: COSTS — Party/Party — General rule that costs follow the event — Discretion – No presumption or default rule as to the basis of the award of costs STATUTORY INTERPRETATION – r 42.2 of Uniform Civil Procedure Rules 2005 (NSW) – whether s 98(1) of Civil Procedure Act 2005 (NSW) confines the judicial discretion in awarding costs – whether a judge must take as a starting point that costs are to be assessed on the ordinary basis and justify any departure from that position ...

Catchwords: NEGLIGENCE – duty of care to avoid economic loss – whether vulnerability required – applicants pleaded vulnerability as an essential element of duty – no obligation on primary judge to consider alternatives to that position – no relevant vulnerability due to applicants’ ability to protect themselves from consequences of liquidators’ actions CONSUMER LAW – misleading or deceptive conduct – whether reliance on accuracy of recitals to deed – clear inference from evidence that person knew of true position CONSUMER LAW – misleading or deceptive conduct – whether conduct “in trade or commerce” – court-appointed liquidators performing statutory functions – assignment of property with view to facilitating business interests of purchaser arguably had an essentially trading or commercial character CORPORATIONS – leave to commence action against court-appointed liquidators – governing principles – relevance of lengthy and inadequately explained delay ...

Catchwords: JUDICIAL REVIEW – adjournment – criminal proceedings – review of sentence appeal – applicant on bail – protracted procedural history – requirement for finality in criminal proceedings – claim to have lodged internal appeal from refusal of legal aid – bona fides of attempts to obtain legal representation – circumstances in which court may vacate hearing – Legal Aid Commission Act 1979 (NSW), s 57 ...

Catchwords: APPEAL AND REVIEW – District Court – criminal jurisdiction – sentence appeal from Local Court – judicial review of appeal judgment – privative provision – need to establish jurisdictional error – procedural unfairness – refusal of adjournment application in district Court – existence of application for review of refusal of legal aid APPEAL AND REVIEW – District Court – criminal jurisdiction – appeal from Local Court – whether appeal against conviction – form of notice of appeal – Crime (Appeal and Review) Act 2001 (NSW), s 14 APPEAL AND REVIEW – District Court – criminal jurisdiction – sentence appeal from Local Court – procedural unfairness – alleged incompetence of legal representative – failure to obtain psychologist’s report for application under Mental Health (Forensic Provisions) Act 1990 (NSW), s 32 APPEAL AND REVIEW – District Court – criminal jurisdiction – sentence appeal from Local Court – pre-sentence custody – failure to take into account under Crimes (Sentencing Procedure) Act 1999 (NSW), s 24 ...

Catchwords: LAND LAW – whether title to property acquired by fraud – deregistration of company under the 1981 Companies (New South Wales) Code – whether property of deregistered company vested in ASIC – effect of deeming provisions in s 459(6) of the Companies Code LIMITATION OF ACTIONS – operation of bar – any right to set aside transfer statute barred by virtue of s 27 or s 51 of the Limitation Act 1969 (NSW) ...

Catchwords: ENVIRONMENT AND PLANNING – words and phrases – whether primary judge erred in finding identification of “coastal wetlands and littoral rainforests area” in s 6 of the Coastal Management Act 2016 (NSW) being land identified by State Environmental Planning Policy (Coastal Management) 2018 (NSW) as “being land which displays the hydrological and floristic characteristics of coastal wetlands or littoral rainforests” or adjoining such land not a jurisdictional fact ENVIRONMENT AND PLANNING – words and phrases – whether the “proximity area” in the Coastal Wetlands and Littoral Rainforests Area Map corresponds in meaning to “adjoining” land in s 6(1) of the Coastal Management Act – whether proximity area or buffer zone is both rational and proportionate as a legislative device to serve the objects of both the Environmental Planning and Assessment Act and the Coastal Management Act ENVIRONMENT AND PLANNING – words and phrases – Governor’s power is to make an environmental planning instrument – whether Governor must have regard to, approve or do anything at all in relation to making the Coastal Wetlands and Littoral Rainforests Area Map ...

Catchwords: APPEALS – leave to appeal – application for leave – relief sought inappropriate on an interlocutory appeal in the absence of necessary and proper parties CIVIL PROCEDURE – parties – necessary and proper – where third-party lessees of premises not joined to proceedings for relief against forfeiture brought by earlier lessees EQUITY – equitable remedies – declarations – whether capable of being made on interlocutory basis REAL PROPERTY – landlord and tenant – agreements for lease – breach – Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) – where tenants in arrears before the relevant “prescribed period” – leave to appeal refused in circumstances where all necessary and proper parties not joined in proceedings ...

Catchwords: STRATA TITLES – obligation of owners corporation to maintain common property in good repair – owners corporation breached obligation, causing damage to lot owner – NCAT authorised to make orders to “settle” a complaint or dispute about strata scheme – whether NCAT authorised to award damages to lot owner – consideration of nature of lot owner’s cause of action – consideration of conferral of jurisdiction and power upon NCAT – consideration of legislative history – consideration of interaction of jurisdiction of courts and NCAT – appeal allowed, NCAT authorised to award damages. TORT – breach of statutory duty – statute authorised lot owner to recover damages for breach of statutory duty – consideration of nature of lot owner’s cause of action. ...

Catchwords: TORTS – detinue and conversion – property comprising four commercial trucks with trailers – claim for possession by financier – operating company in liquidation – vehicles disappeared – vehicles discovered in secluded location – whether defendant had possession, control or dominion of vehicles APPEALS – challenge to findings of fact – credibility of witnesses – basis for interfering with adverse credibility findings – admissions against interest – use of aerial photography to locate vehicles – all vehicles together – defendant’s admission of control of one vehicle – defendant’s offer to deliver all five vehicles for a fee or purchase vehicles ...

Catchwords: CIVIL PROCEDURE – Court of Appeal – application –assignment to the Court of Appeal for the punishment of contempt of the Court – assignment to the Court of Appeal of such matters as are necessary or convenient for the discharge of functions of the Court – notice of motion remitted to the Common Law Division of the Supreme Court CONTEMPT – Criminal contempt – contempt in the face of the court – here appellant was assaulted by first respondent at the appellant’s home far away from the court ...

Catchwords: APPEALS – interlocutory orders – appeal pending to High Court from permanent stay of one representative proceeding – interlocutory orders made in competing representative proceeding – whether House v King error in making orders which would render High Court appeal nugatory CIVIL PROCEDURE – representative proceedings – Pt 10 Civil Procedure Act 2005 (NSW) – orders and notices advising group members of representative plaintiff’s and defendants’ joint intention to apply for orders excluding group members who fail to register from participating in any settlement – whether orders beyond power – whether orders distinguishable from Haselhurst v Toyota Motor Corporation Australia Ltd [2020] NSWCA 66 ...

Catchwords: JUDGMENTS AND ORDERS – setting aside – consent judgment – general power to set aside judgment or order – challenge to validity of agreement – whether judgment based on agreement – Uniform Civil Procedure Rules 2005 (NSW), r 36.15(1) JUDGMENTS AND ORDERS – amending, varying and setting aside – consent judgement – orders entered – finality of entered orders CONTRACTS – grounds for setting aside – misleading or deceptive conduct – non-disclosure of information – relevance of actual or constructive knowledge of silent party as to complainant’s beliefs – relevance of undisclosed beliefs of complainant CIVIL PROCEDURE – Court of Appeal – leave to appeal – dismissal – lack of issue of principle, question of general public important or an injustice to the applicant going beyond merely arguable ...

Catchwords: APPEAL – determination of separate question –whether operators of Facebook pages published material posted by third parties – scope of separate question – findings going beyond scope of question CIVIL PROCEDURE – appearance – amici curiae – intervention by non-parties – non-party media companies who operate Facebook pages in similar circumstances to the applicant news companies – whether intervention appropriate –non-parties raising issues beyond the proposed appeal DEFAMATION – publication – internet technologies – operators of Facebook pages – whether operators published comments by third parties on news items posted on the pages – whether operators were instrumental in or participated in the publication of defamatory comments made by third parties MEDIA AND COMMUNICATIONS – broadcasting –operation of Broadcasting Act 1992 (Cth), cl 91 –liability of internet content hosts under state defamation law – issue not raised by parties in answering separate question ...

Catchwords: JUDGMENTS AND ORDERS — application to vary or set aside orders – whether orders for the delivery of vacant possession be set aside or varied in light of the COVID-19 pandemic – whether executive or legislative instruments responding to the COVID-19 pandemic suggest that the orders ought to be set aside or varied – where vacant possession ordered as a consequence of an order under s 66G of the Conveyancing Act 1919 (NSW) prior to the COVID-19 pandemic ...

Catchwords: CONTRACTS — Construction — Interpretation –– whether contract formed pursuant to the appellant’s offer or the respondent’s counter-offer – whether the proper construction of the contract required supply of building materials and services at a price per unit as required or at a fixed sum – where quantity of units required unknown at the time of contracting – where context and businesslike construction militate against fixed sum ...

Catchwords: CIVIL PROCEDURE – time – extension of time – costs assessment – statutory appeal to District Court from determination of review panel – application for leave to appeal was filed 30 days late – whether primary judge erred in law in declining to grant an extension of time COSTS – party/party – appeals – appeal from costs assessment – nature of appeal from review panel to District Court – Legal Profession Uniform Law Application Act 2014 (NSW), s 89(1) JUDICIAL REVIEW – review of dismissal of appeal to District Court – grounds of review – whether errors of law on the face of the record limited to non-jurisdictional errors of law STATUTORY INTERPRETATION – amendment and repeal – changes to provisions governing appeals from costs assessments – relevance of other legislative provisions – applicability of decisions considering earlier statutory regimes ...

Catchwords: TAXES AND DUTIES – administration of federal tax legislation – collection and recovery of taxes – PAYG tax – estimates provisions – where Notice of Estimate issued – where company did not pay the amount of the Notice of Estimate – where Director Penalty Notices issued – where appellants placed company into liquidation – whether Director Penalties were remitted pursuant to s 269-30(1) of Schedule 1 to the Taxation Administration Act 1953 – whether trial judge erred in finding that s 269-30(2) Item 2 of Schedule 1 to the Taxation Administration Act 1953 applied in respect of the Director Penalties TAXES AND DUTIES – administration of federal tax legislation – collection and recovery of taxes – PAYG tax – averments under s 255-50 of Schedule 1 to the Taxation Administration Act 1953 – where averments made as to unpaid PAYG amounts withheld – whether averments themselves sufficient evidence that the company had withheld PAYG amounts and not paid those amounts to the Commissioner ...

Catchwords: PROCEDURE – bias – application for disqualification for apprehended bias – where judge formerly retained by a particular law firm on behalf of a particular client – where client and law firm alleged to be involved in procurement of vexatious proceedings order – where no basis for allegation made out – consideration of principles concerning apparent bias in circumstances where judge formerly acted for a particular client or was retained by a particular law firm. PROCEDURE – Vexatious Proceedings Act 2008 (NSW) – whether leave required prior to commencement of proceedings for judicial review – consequence of failing to obtain leave. VEXATIOUS PROCEEDINGS – party subject to earlier vexatious proceedings order commencing judicial review proceedings in Court of Appeal – where leave to bring proceedings had not first been obtained – consequences of failure to obtain leave – proceedings taken to have been dismissed. ...

Catchwords: BUILDING AND CONSTRUCTION – claim for progress payment – reference date – whether claim with respect to an available reference date – inclusion of three days’ interest accruing after reference date – whether claim invalid – Building and Construction Industry Security of Payment Act 1999 (NSW), ss 13(7) and (8) BUILDING AND CONSTRUCTION – claim for progress payment – service of claim – supporting statement – requirements for valid supporting statement – consequence of failure to serve valid statement – whether payment claim invalid BUILDING AND CONSTRUCTION – claim for progress payment – variations – whether sums claimed under the contract or for quantum meruit – whether the claim invalid if amounts not owing under the contract – statutory scheme for adjudication of payment claim disputes – Building and Construction Industry Security of Payment Act 1999 (NSW), ss 14 and 15(4) STATUTORY INTERPRETATION – penalty provision – implied civil consequences – whether intention to invalidate step creating civil obligation – breach of requirement to serve compliant supporting statement – whether claim invalid – Building and Construction Industry Security of Payment Act 1999 (NSW), ss 13(7) and (8) ...

Catchwords: ADMINISTRATIVE LAW – bias rule – actual or apprehended – apprehended – where apprehended bias alleged on basis of interest incompatible with role – whether primary judge erroneously considered notion of degree of closure of mind ADMINISTRATIVE LAW – whether reviewable error of law – jurisdictional error – whether NCAT constructively failed to exercise jurisdiction ...

Catchwords: CONTRACTS — Construction — Interpretation –whether proper construction required that when a liability was incurred under the clause it was incurred collectively by all three promisees regardless of the promisees’ contribution to that liability – whether proper construction of the phrase ‘collectively and individually, as the case may be’ was akin to joint and several liability – where value of the liability was contingent on calculating the commissions earned by each promisee individually - where the promisees’ dealings resulted in an unequal contribution to the total size of the liability incurred CONTRACTS — Construction — Interpretation – whether promise by seller to indemnify the buyer against liabilities incurred by the company prior to completion was also a promise to the company – where liability potentially incurred prior to completion but not acquitted in final settlement calculations CONTRACTS — Construction — Interpretation – whether a contract to pay commission on Net Cash generated by introduced clients created a liability upon entry into the contract – where at the time of entry no clients had been introduced – where numerous contingencies must eventuate for a liability to crystallise CONTRACTS — Construction — Interpretation – whether email correspondence amounted to a Notice of Proposed Change of Control pursuant to the contract – where emails not expressed to be such a notice – where context in which the emails were sent militated against the conclusion that they were contractual notices CORPORATIONS — Directors and officers — Directors’ duties — Duty to act in good faith in the best interests of company – whether failure to cause company to issue a contractual notice to defer the incurrence of a liability was a breach of duty – whether company sustained loss for the purposes of a statutory action for damages ...

Catchwords: APPEAL – application for leave to appeal – proposed appeal from order dismissing summons for judicial review – decision of the Legal Services Commissioner not to conduct an internal review of a decision of the Law Society to close a complaint against a solicitor –power to conduct a review at the “absolute discretion” of the Commissioner – no arguable error identified in primary judge’s decision to dismiss the summons ...

Catchwords: ADMINISTRATIVE LAW – judicial review – whether primary judge and Delegate of the Registrar of the Workers Compensation Commission misconstrued the role of the Registrar – whether Delegate’s decision contained jurisdictional error – whether Delegate failed to consider that approved medical specialist took into account irrelevant considerations and failed to take into account relevant considerations – whether Delegate erred in deciding that which matters were relevant to the categories in the Psychiatric Impairment Rating Scale was a matter of discretion. WORKERS COMPENSATION – Workers Compensation Guidelines – whether Delegate failed to consider that approved medical specialist took into account irrelevant considerations and failed to take into account relevant considerations when assessing whole person impairment – whether or not characterisation of conduct into one of the “scales” under the Guidelines is a matter of discretion. ...

Catchwords: CORPORATIONS – winding up – leave to appeal from decision setting aside a statutory demand – Corporations Act 2001 (Cth) s 459G – where offsetting claim to retention monies founded on contractor’s acceptance of owner’s repudiation of construction contract – whether affidavit “supported” the s 459G application – whether necessary for supporting affidavit to contain the legal basis of the claim – challenge to primary judge’s factual finding that affidavit supported the s459G application – whether injustice demonstrated ...

Catchwords: ARBITRATION – multi-tiered dispute resolution clause – clause included as a component an arbitration clause for certain types of disputes – proper construction of arbitration clause and its scope – principles applicable to the construction of such clauses. CONTRACT – dispute resolution clause – clause contemplating court proceedings in some circumstances and arbitration proceedings in other circumstances – proper construction of the clause – whether a claim for damages for breach of contract “concerned” a “monetary amount payable and/or owed” “under” the agreement. CONTRACT – construction and interpretation – multi-tiered dispute resolution clause – principles applicable to construction of dispute resolution clauses. CONTRACT – waiver – whether commencement of earlier court proceedings seeking declarations as to breach of contract resulted in waiver of right to submit claim for damages for breach of contract to arbitration. ...

Catchwords: ADOPTION – “Aboriginal child” - whether necessary to identify ancestor who was a member of Aboriginal race, identified as Aboriginal and was recognised by Aboriginal community - consideration of text, context and purpose of s 4 of Adoption Act 2000 (NSW) - sufficient to show child was descended from people who lived in Australia before British colonisation - Fischer v Thompson (Anonymised) [2019] NSWSC 773 disapproved APPEAL - leave - procedural fairness - applicant alleged submissions supplied after hearing not considered by primary judge - significance of failure to apply to primary judge and delay - whether proper outcome could be reached without a rehearing - leave refused ...

Catchwords: ARBITRATION – multi-tiered dispute resolution clause – clause included as a component an arbitration clause for certain types of disputes – proper construction of arbitration clause and its scope – principles applicable to the construction of such clauses. CONTRACT – dispute resolution clause – clause contemplating court proceedings in some circumstances and arbitration proceedings in other circumstances – proper construction of the clause – whether a claim for damages for breach of contract “concerned” a “monetary amount payable and/or owed” “under” the agreement. CONTRACT – construction and interpretation – multi-tiered dispute resolution clause – principles applicable to construction of dispute resolution clauses. CONTRACT – waiver – whether commencement of earlier court proceedings seeking declarations as to breach of contract resulted in waiver of right to submit claim for damages for breach of contract to arbitration. ...

Catchwords: APPEAL – application for leave to appeal – proposed appeal from appeal on question of law under Civil and Administrative Tribunal Act 2013 (NSW), s 83(1) – where appeal grounds without merit – where arguable errors by Tribunal not relied on in proposed grounds of appeal – where those errors not raised before Tribunal or likely to have been material to outcome – leave refused ...

Catchwords: TORTS – Professional negligence – valuers – duty of care – valuation prepared for mortgage security purposes – where mortgage property sold for significantly less than valuation – accrual of cause of action – whether cause of action against valuer for negligent valuation accrues by no later than sale of mortgaged property or only when it becomes reasonably ascertainable that lender will not be able to recover from mortgagor under personal covenant. LIMITATION OF ACTIONS – Professional negligence – valuer – valuation obtained for mortgage security purposes – whether lender sustained loss or damage for the purpose of its claims against the valuer by the time of entering into contract for sale of mortgaged property or only when it became reasonably ascertainable that shortfall on loan secured by mortgage could not be recovered from borrower. MORTGAGES AND SECURITIES – Mortgages – valuation of property for mortgage valuation purposes – when causes of action in negligence and for damages for misleading or deceptive conduct arose against the valuer – whether or not any cause of action accrued prior to it becoming reasonably ascertainable that mortgagee would not be able to recover from mortgagor borrower under personal covenant. VALUERS – duty of care – valuation prepared for mortgage security purposes – where mortgage property sold for significantly less than valuation – accrual of cause of action – whether cause of action against valuer for negligent valuation accrues by no later than sale of mortgaged property or only when it becomes reasonably ascertainable that lender will not be able to recover from mortgagor under personal covenant. ...

Catchwords: PRACTICE AND PROCEDURE – stay of judgment pending appeal – capacity of appellant to pay debt –net worth in illiquid form – liquidation of personal assets during COVID-19 pandemic – short delay pending hearing of appeal – creditor a US citizen – stay of buy-out orders – conditions of stay ...

Catchwords: CIVIL PROCEDURE – application to vacate hearing date – COVID-19 pandemic – appellant with chronic medical condition living in the country – difficulty in coming to Sydney to prepare court books and seek legal advice – date fixed in absence of appellant through no fault on his part CIVIL PROCEDURE – federal jurisdiction – application to remove matter to High Court – whether Judiciary Act 1903 (Cth), s 40(2) engaged – failure of respondent to file appearance in High Court – summary judgment sought in default of appearance –removal to the High Court not ordered CONSTITUTIONAL LAW – federal jurisdiction – jurisdiction of Supreme Court to make order which could be made by a Justice of the High Court sitting in chambers – whether Judiciary Act 1903 (Cth), s 17 engaged – jurisdiction of High Court to control its business – Constitution, s 73 ...

Catchwords: JUDICIAL REVIEW – application for judicial review of District Court decision resentencing applicant on an appeal from the Local Court – whether unreasonable for District Court to have taken into account specific deterrence – Minister for Immigration and Citizenship v Li – whether District Court failed to consider alternatives to custodial sentence and whether sentence of imprisonment should be served by way of an ICO ...

Catchwords: APPEAL – grounds – order of consideration – bias – effect on trial – need to address first BIAS – prejudgment – trial judge expressed views based on filed evidence – views expressed to counsel in chambers – reliance on statements in judgment – reliance on overriding purpose in Civil Procedure Act 2005 (NSW), Pt 6 – acquiescence or waiver – statements revealing legal error, not prejudgment REAL PROPERTY – easements – compensation – assessment of compensation for owner of servient tenement – application of valuation principles in determining compensation payable – need to determine terms and conditions of easement before assessing compensation – Conveyancing Act 1919 (NSW), s 88K(4) REAL PROPERTY – easements – whether reasonably necessary – terms and conditions of easement – need to determine when deciding whether easement reasonably necessary – drainage works – joint report of expert engineers rejected – need for remittal – Conveyancing Act 1919 (NSW), s 88K(3) COSTS – easement application – statutory entitlement of land owner – objection based on joint report of experts – whether conduct of land owner unreasonable – basis for departure from statutory entitlement – Conveyancing Act 1919 (NSW), s 88K(5) PRACTICE AND PROCEDURE – open justice – holding “informal directions hearings” in chambers – no access for public – absence of parties – no record of conversation – risk of participants becoming witnesses – practice decried ...

Catchwords: CIVIL PROCEDURE – representative proceedings – Part 10 Civil Procedure Act – group members – s 183 – interlocutory order made to facilitate settlement at proposed mediation – registration of group members – group members who did not register barred from receiving any settlement amount – order that group members barred from bringing subsequent proceedings against defendant – power to make order CIVIL PROCEDURE – representative proceedings – Part 10 Civil Procedure Act – group members – s 183 – registration of group members – group members who did not register barred from receiving any settlement and from bringing subsequent proceedings against defendant – whether discretion to make order miscarried ...

Catchwords: CIVIL PROCEDURE – appeal – question of law – request to issue subpoena – refusal of request by Registrar – review of Registrar’s decision CIVIL PROCEDURE – application to vacate hearing date – termination of residential tenancy agreement – effect of COVID-19 pandemic – whether moratorium on rental tenancy evictions – Residential Tenancies Regulation 2019 (NSW), Pt 6A CIVIL PROCEDURE – appearance – failure to file notice of appearance – Uniform Civil Procedure Rules 2005 (NSW), rr 51.5; 6.9; 6.11 CONSTITUTIONAL LAW – operation of State law – whether inconsistent federal law – Government policy not a law – no notice given to Attorneys General – Judiciary Act 1903 (Cth), s 78B – Constitution, s 109 – no inconsistency ...

Catchwords: APPEAL – application for leave to appeal – appeal from summary dismissal of amended claim – where original claim alleging republications subject to defences of absolute privilege – where amended claim alleging only original publication time barred – whether summary dismissal on the basis of amended pleading involved error or was procedurally unfair – leave refused ...

Catchwords: EVIDENCE - expert evidence - trial judge rejected expert report as beyond witness’ expertise and not disclosing reasoning process - Evidence Act 1995 (NSW), s 79 - no error established NEGLIGENCE - personal injury - plaintiff’s horse fell while warming up before competing in equestrian events – plaintiff’s horse “spooked” by noise made by children near warm-up area - whether plaintiff participating in dangerous recreational activity - whether plaintiff’s harm resulted from materialisation of obvious risk - appropriate level of generality or particularity of “obvious risk of harm” and “dangerous recreational activity” - Civil Liability Act 2002 (NSW), ss 5F, 5K and 5L considered - whether plaintiff had established a reasonable person in defendant’s position would have taken precaution of stationing marshals in warm-up area - significance of risk warning signed by plaintiff as a precaution - Civil Liability Act s 5B(1)(c) considered - appeal dismissed ...

Orders: 1. Order that the Director of Public Prosecutions (NSW) be substituted for the “Office of the Director of Public Prosecutions” as first respondent. 2. Direct both parties to file and exchange by 4.00pm on Monday 27 April 2020, written submissions on the question of: (i) whether or not leave pursuant to the Vexatious Proceedings Act 2008 (NSW) was required to commence judicial review proceedings; and (ii) what consequence, if any, flows from the failure to obtain such leave. 3. Direct any...

Catchwords: ADMINISTRATIVE LAW – judicial review – applicant subject to vexatious proceedings order – whether applicant required leave under the Vexatious Proceedings Act 2008 (NSW) to institute an appeal to the District Court against her convictions and sentences in the Local Court - whether applicant required leave under the Vexatious Proceedings Act to commence judicial review proceedings in the Court of Appeal in circumstances where she did not require leave to commence proceedings in the court whose decision was the subject of the application for judicial review. VEXATIOUS PROCEEDINGS – applicant subject to vexatious proceedings order – whether applicant required leave under the Vexatious Proceedings Act 2008 (NSW) to institute an appeal to the District Court against her convictions and sentences in the Local Court - whether applicant required leave under the Vexatious Proceedings Act to commence judicial review proceedings in the Court of Appeal in circumstances where she did not require leave to commence proceedings in the court whose decision was the subject of the application for judicial review. ...

Catchwords: COSTS – appeals – costs of proceedings at first instance – where judgment overturned on appeal – whether successful appellant’s conduct as defendant invited litigation so as to disentitle it to costs at first instance – whether respondent had partial success as plaintiff at first instance on issue of substance – whether proceedings of “public importance” so as to warrant departure from ordinary rule that costs follow the event – no departure justified – respondent ordered to pay costs of proceedings at first instance ...

Catchwords: BUILDING & CONSTRUCTION – appeals – payment claim referred for adjudication – where available reference date under construction contract – Building and Construction Industry Security of Payment Act 1999 (NSW) – where adjudicator determined entitlement to payment claim by reference to an unavailable reference date – jurisdictional error – where available reference date under contract not the reference date addressed by the adjudicator – whether adjudication determination also involved a denial of natural justice ...

Catchwords: APPEAL – requirement of leave – many proposed grounds of appeal – question whether NCAT had power to make costs order in proceedings based on federal law of general importance – although question not raised at first instance, question would arise between the same parties when costs order was sought to be enforced – no other question warranting grant of leave. ...

Catchwords: COSTS ? Appeals ? whether Court should make order as to costs of the proceedings below where no order was made by the primary judge ? where on appeal the Court was not informed of the reason for not making an order as to costs at the time of the principal judgment ? cost should follow the event ? no issue of principle ...

Catchwords: APPEAL - further evidence - special grounds - whether further evidence relevant to appeal confined to question of law - whether further evidence not obtainable with reasonable diligence - Supreme Court Act 1970 (NSW), s 75A(8) WORKERS COMPENSATION - appeal from Workers Compensation Commission constituted by President - appeal confined to question of law - whether President erred in disregarding evidence of psychiatrist - distinction between identifying meaning of expert report and evaluating evidence - whether predisposition to bipolar disorder itself a disease which could be aggravated, accelerated, exacerbated or deteriorated during employment - definition of injury in (former) s 4(b)(ii) of Workers Compensation Act 1987 (NSW), considered ...

Catchwords: CIVIL PROCEDURE ? Court of Appeal ? Leave to appeal ? whether appeal incompetent ? notice of appeal ? application filed out of time ? where no application has been made for an extension of time or explanation given ? no evidence appeal involves matter at issue of value of $100,000 or more DEFAMATION ? whether denial of procedural fairness ? whether conclusions open to be drawn by primary judge in absence of cross-examination ? whether appellant had adequate opportunity to explain his position ? where trial judge did not notify the appellant of her doubts concerning his evidence DEFAMATION ? Defences ? honest opinion ? whether defamatory matter was statement of fact or opinion/comment ? where matters of opinion intermingled with statements of fact ? whether defamatory matter or defamatory meaning as found focus of inquiry DEFAMATION ? Defences ? honest opinion ? whether fairness or honesty of comment must be responsive to the defamatory meaning as found or the defamatory matter ? whether comment or opinion based on proper material DEFAMATION ? Defences ? fair report ? whether defamatory matter a fair report where it is a substantially accurate report in fact ? where not a substantially accurate report of the meaning conveyed by the report DEFAMATION ? Defences ? statutory qualified privilege ? whether failure to seek comment from the appellant was not reasonable ? where Royal Commission proceedings were a matter of public interest ? where evidence of the appellant was ongoing ? where appellant contacted through a conduit and published a statement in same publication as appeared the defamatory matter ...

Catchwords: STATUTORY INTERPRETATION – whether reference to “compensation” in s 134AB(1) of the Accident Compensation Act 1985 (Vic) is a reference to compensation under that Act or to compensation whether or not awarded under the Act or the Act of some other state or territory – expressio unius reasoning inappropriate where dealing with interpretation of a “patchwork” statute. WORKERS COMPENSATION – whether worker who was injured in Victoria but was not entitled to compensation under Victorian workers compensation legislation was nevertheless required to pass through statutory gateways under Victorian legislation when seeking common law damages – where worker had received compensation under NSW workers compensation scheme – whether reference to “compensation” in s 134AB(1) of Accident Compensation Act 1985 (Vic) is a reference to compensation under that Act or to compensation whether awarded under that Act or the Act of some other state or territory. ...

Catchwords: WORKERS COMPENSATION ­– determination of arbitrator – appeal to Deputy President – appeal limited to error of fact, law or discretion – whether Deputy President misunderstood scope of her jurisdiction – Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 352 WORKERS COMPENSATION – entitlement to compensation – deceased worker employed to work at home – deceased killed by co-worker and de-facto partner – attack inspired by his paranoid delusions – delusions related to work and personal relationship – whether evidence of causal link between worker’s employment and harm suffered – evidence of substantial contributing factor – whether Deputy President erred in finding as to evidence – Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 4 and 9A ...

Catchwords: ADMINISTRATIVE LAW – denial of procedural fairness – whether common law right to procedural fairness excluded by statute – Environmental Planning and Assessment Act 1979 (NSW) Sch 5 – legislative intent plain ENVIRONMENT AND PLANNING – statutory interpretation – whether carving into cement render of wall constitutes “development” – Environmental Planning and Assessment Act 1979 (NSW) s 4.2 – whether development consent obtained ...

Catchwords: JUDICIAL REVIEW – remedies – materiality – review of appeal of costs assessment – incorrect application of repealed statute – application of the correct statute would have led to the same order – whether error jurisdictional – refusal of relief on discretionary grounds COSTS – appeal – cost assessment – costs assessment appeal – repealed Legal Profession Act 2004 (NSW) applied instead of Legal Profession Uniform Law Application Act 2014 (NSW) – effect of savings provisions – Interpretation Act 1987 (NSW), s 30 COSTS – appeal to District Court – indemnity costs ordered – incorrect law relied on by successful party – correct law resulted in same substantive order – costs of successful party WORDS AND PHRASES – “proceeding” – “proceedings to which the costs relate commenced” – Legal Profession Uniform Law Application Regulation 2015 (NSW), cl 59 ...

Catchwords: DEFAMATION – defences – offer to make amends – concerns notice – whether statement of claim a concerns notice – offer to be made within 28 days of receiving concerns notice – no valid offer where made after 28 days – Defamation Act 2005 (NSW), s 14(1) DEFAMATION – defences – offer to make amends – whether made as soon as reasonably practicable after defendant aware that matter might be defamatory –offer made one year after action commenced – Defamation Act 2005 (NSW), s 18(1) JUDGMENT – findings at trial that elements of claims made out – defence relied on by trial judge not available – other pleaded defences not pursued – defendant forwent opportunity to appear at trial – plaintiff entitled to judgment on liability PRACTICE AND PROCEDURE – procedural fairness – bias – actual or apprehended – other proceedings affected – other parties not heard – whether allegations should be resolved ...

Catchwords: APPEAL – Leave to appeal – whether matter at issue amounting to or of the value or involving $100,000 or more – need for party seeking to appeal to demonstrate that jurisdictional threshold satisfied CONSTITUTIONAL LAW – whether Part 3A of Civil and Administrative Tribunal Act 2013 (NSW) unconstitutional – whether, notwithstanding Part 3A, NCAT invested with federal jurisdiction – whether Part 3A entails discrimination contrary to s 117 of the Commonwealth Constitution COURTS AND TRIBUNALS – whether Local Court of New South Wales has jurisdiction to entertain a diversity suit involving publication on the internet of matters alleged to contravene s 49ZS of the Anti-Discrimination Act 1977 (NSW) DISCRIMINATION LAW – whether complaint by a resident of New South Wales against a resident of Queensland referred by President of Anti-Discrimination Board to NCAT could be heard by Local Court of New South Wales ...

Catchwords: LAND LAW — Co-ownership — Resulting trust – whether proceeds from sale of property be distributed in accordance with the legal title – where property held as tenants in common – where unequal contributions by co-owners to acquisition costs– whether arguable that presumption of resulting trust not rebutted LAND LAW — Co-ownership — Statutory trust for sale – whether share of property held on trust for other co-owner – whether arguable defence to an application under s 66G Conveyancing Act 1919 (NSW) for appointment of trustees for sale ...

Catchwords: DEFAMATION – appeals – publication – Facebook – where defamatory posts made on public Facebook page styled “Narri Leaks” – evidence of publication – whether evidence outside particularised case – proof of extent of publication – whether respondent’s wife was acting on behalf of respondent in downloading the posts – whether answers to interrogatories evidence of proof of extent of publication – whether appropriate to draw Jones v Dunkel inference where plaintiff did not give evidence DEFAMATION – appeals – imputations – whether error in finding three imputations were conveyed by fifth matter complained of DEFAMATION – appeals – defences – common law qualified privilege – where posts made on public Facebook page – whether excessive publication – where posts downloaded by people outside Narrabri Shire – whether privileged occasion – whether error in rejecting defence of common law qualified privilege DEFAMATION – appeals – defences – statutory qualified privilege – Defamation Act 2005 (NSW) s 30 – where finding that publication was unreasonable – whether presumption of honesty – significance of failure to contact plaintiff prior to publication DEFAMATION – application for leave to appeal – publication – secondary participant in publication –whether endorsement of defamatory statements – Facebook comments – whether question of principle or of public importance involved – where small amount in issue – whether injustice if refusal of leave ...

Catchwords: TORTS – general principles – vicarious liability – workplace – liability of builder for negligent acts of supervisor on building site – supervisor employed by independent contractor – supervisor under builder’s control – whether employer of supervisor vicariously liable for negligence of supervisor TORTS – negligence – apportionment of responsibility between tortfeasors – both parties occupied parts of building site – liability of head contractor – liability of subcontractor undertaking building work – heavy metal plate covering penetration into underground retention pit removed – replacement with empty pallet – delivery driver injured by fall into pit TORTS – negligence – contributory negligence – injury to driver of truck – delivery of supplies to building site before dawn – driver clearing site of empty pallet – concealed penetration into underground retention pit – Civil Liability Act 2002 (NSW), s 5R TORTS – negligence – employer – duty of corporate alter ego of sole employee to provide safe system of work – business involved delivery of supplies to building sites – assessment of risks at sites not controlled by employer – Civil Liability Act 2002 (NSW), s 5B ...

Catchwords: COSTS – appeals – offers of compromise – where respondent (plaintiff) achieved a result on appeal no less favourable than his rejected offer of compromise – where application of UCPR r 42.14 as modified by r 51.48(1) engaged – where appellant’s rejection of offer unreasonable – where respondent’s “favourable” judgment, measured by reference to that offer, also represented a successful outcome to appellant (defendant) in the appeal – discretion to “order otherwise” in relation to costs of appeal, both before and after making of offer ...

Catchwords: APPEAL – civil – notice of appeal – extension of time to apply for leave to appeal – where notice of appeal filed almost two years after the material date – where government respondent consented to late filing – relevance of model litigant policy VALUATION – compulsory acquisition of land – assessment of compensation – market value – role of “judicial valuer” – valuation of non-marketable parcel – assessment of value before and after acquisition – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), s 56(1) VALUATION – compulsory acquisition of land – assessment of compensation – disturbance – where acquired land included resource – assessment of value where resource only had value because of the carrying out of the public purpose for which the land was acquired – whether claimed disturbance related to “actual use” of acquired land – Land Acquisition (Just Terms Compensation) Act 1991 (NSW), ss 55(d) and 59(f) ...

Catchwords: COMMISSIONS OF INQUIRY – inquiry established under Casino Control Act 1992 (NSW) – whether conferral of powers and authorities of a commissioner under the Royal Commissions Act 1923 (NSW) included power to compel testimony or production of documents irrespective of claim of legal professional privilege – meaning of s 143A of Casino Control Act – whether a witness summoned by or appearing before the person presiding at an inquiry entitled to claim legal professional privilege. PRIVILEGE – legal professional privilege – whether s 143A of Casino Control Act operated to abrogate legal professional privilege – whether s 143A of Casino Control Act conferred power to compel production of documents irrespective of legal professional privilege. STATUTORY INTERPRETATION – whether s 17(1) of the Royal Commissions Act conferred a power or authority on a commissioner – whether s 143A of the Casino Control Act picked up s 17(1) of the Royal Commissions Act and abrogated legal professional privilege – principle of legality – legislation to be construed in context of case law existing at time of enactment – meaning of “protection” afforded to a witness in s 11(3) of Royal Commissions Act – permissible use of extrinsic materials. ...

Catchwords: TORTS – negligence – motor vehicle accidents – recovery proceeding by workers compensation nominal insurer – worker drove into stationary oversize truck while latter stopped at intersection – trailer protruded from right turning lane into worker’s through lane – whether truck driver breached duty by failing to advance into intersection beyond unbroken stop-line – whether truck driver breached duty by failing to activate hazard lights – whether failure to activate hazard lights caused collision – appeal allowed and judgment entered for truck driver ...

Catchwords: TORTS – Negligence – apprentice worker required to insert sausage mince into a machine and link sausages - failure properly to clean the meat room floor by another employee – apprentice worker slips on a piece of sausage mince - Contributory negligence - failure of the apprentice worker to clean the meat room floor TORTS – Negligence – Apportionment of responsibility and damages - apprentice worker employed by a third party – liability of employer for non-delegable duty of care - apportionment pursuant to s 151Z Workers Compensation Act 1987 (NSW) INSURANCE – Exclusion clause – Shopping Malls Combined Liability Policy - exclusion of liability for injury to a person under a contract for the provision of labour only services to the insured - whether injured apprentice worker employed by a third party a person under a contract for the provision of labour only services to the insured ...

Catchwords: COSTS – party/party – general rule that costs follow the event – appeal upheld in part – whether issues severable – partly successful appellant to pay bulk of respondent’s costs COSTS – party/party – exceptions to general rule that costs follow the event – offers of compromise – whether failure to accept offers unreasonable – offers not specifying costs consequences of non-acceptance – offers to discontinue appeal if entitlement to trial costs foregone COSTS – party/party – exceptions to general rule that costs follow the event – recovery limited to $20,000 –total amount payable to multiple defendants exceeded $500,000 – Uniform Civil Procedure Rules 2005 (NSW), r 42.34 not engaged ...