NSWCA

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 – 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: 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: 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: 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: 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: 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 ...

Catchwords: JUDGMENTS AND ORDERS – question of discretionary relief remitted by Court of Appeal to single Judge of Appeal – whether open to appellants to contend that respondents should not be permitted to vary interlocutory regime so as to grant access for purpose of being heard as to discretionary relief – effect of orders and reasons of Court of Appeal POLICE – search warrant – computer seized by police pursuant to warrant – interlocutory injunctive relief granted preventing police from accessing computer – warrant later held to be invalid – owner sought return of computer and delivery up or destruction of image of its hard drive – whether representatives of police should be permitted to access computer for purpose of adducing evidence going on discretion ...

Catchwords: APPEALS – leave to appeal under Supreme Court Act 1970 (NSW) s 101(2)(r) - appeal against primary judge’s refusal to grant leave to appeal against decision of NSW Civil and Administrative Tribunal – primary judge refused leave for failure to identify questions of law on appeal as required by Civil and Administrative Tribunal Act 2013 (NSW) s 83(1) – no error in primary judge’s reasons for refusing leave – application for leave to appeal dismissed ...

Catchwords: CRIME – offences against police in execution of duty – whether police in execution of duty when alleged offences committed – accused arrested without warrant – whether arrest lawful – whether there was evidence on which the court could find, as required by s 99(1)(b) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), that the arresting officer was “satisfied” that arrest without warrant was “reasonably necessary” for a reason stated in that section – meaning of “reasonably necessary” – need for police officer to engage in a process of comparison and to make an evaluative judgment regarding proportionate response to risk. ADMINISTRATIVE LAW – judicial review of decision of the District Court dismissing appeal from the Local Court against conviction – review not available unless jurisdictional error established – where function of the District Court was to conduct appeal by way of rehearing “on the basis of” the evidence in the Local Court – where the District Court made a central finding of fact for which there was no basis in the Local Court evidence – whether error of law – whether jurisdictional error. ADMINISTRATIVE LAW – judicial review of decision of the District Court refusing to submit a question for determination by the Court of Criminal Appeal – whether refusal on erroneous basis that the question was obviously baseless was constructive refusal to exercise jurisdiction – whether jurisdictional error. ...

Catchwords: CIVIL PROCEDURE — Court of Appeal — Leave to appeal – whether leave to appeal be granted where applicant denied an adjournment before the primary judge leading to the matter proceeding to determination in the applicant’s absence – the applicant did not establish a case which goes beyond merely arguable – no issue of principle or question of public importance – leave refused ...

Catchwords: EQUITY – Equitable remedies – Relief against forfeiture – Doctrine confined to proprietary or possessory rights as distinct from mere contractual rights CONTRACTS – Remedies – Penalty – Doctrine extends beyond payment of a stipulated sum of money to deprivation of contractual rights – Application to deprivation of the benefit of restraint clause and warranties CONTRACTS – Construction – Interpretation – Dependent and independent obligations – Whether ‘clear words’ are required to find a relation of independency between obligations ...

Catchwords: TAXES AND DUTIES – Penalty proceedings under (CTH) Taxation Administration Act 1953 – Obligation to remit amounts withheld from wages and salaries paid to employee – Requirements of director penalty notice – Where amount claimed by Commissioner changed after giving director penalty notice – No requirement to give further notice before commencing recovery proceedings - No requirement to commence proceedings within a reasonable time after expiry of notice TAXES AND DUTIES – Penalty proceedings under (CTH) Taxation Administration Act 1953 s 269-20 –Defence of justifiable non-participation in management under (CTH) Taxation Administration Act 1953 s 269-35 – What constitutes participation in management for the purposes of the defence – The defence must be established for the entire period from the “due day” until at least the expiry of the director penalty notice ...

Catchwords: DEFAMATION – defences – common law qualified privilege – whether privileged occasion correctly identified – relevance of privileged occasion – malice DEFAMATION – remedies – damages – whether manifestly excessive DEFAMATION – remedies – damages – aggravated damages – where conduct not improper, unjustifiable or lacking in bona fides ...

Catchwords: SUCCESSION – probate and administration – informal document – dispensing with requirements for execution of a will pursuant to Succession Act 2006 (NSW), s 8 – intention that document form a will – where no findings as to how intention formed – where primary judge found it more likely that deceased had not seen document propounded as will – where evidence did not permit a finding as to what might have caused deceased to believe she had executed a will – where evidence did not permit a finding that deceased intended that any particular document would operate as her will ...

Catchwords: BUILDING AND CONSTRUCTION – construction contracts – Building and Construction Industry Security of Payment Act 1999 (NSW) – whether right to suspend work validly exercised – whether unpaid interest on late payment of “scheduled amount” forms part of the scheduled amount – the definition of “scheduled amount” does not include interest payable under s 11 on the unpaid amount of a progress payment unless that amount is included in a “scheduled amount” CONTRACT – Breach of Contract – whether ‘show cause notice’ was validly issued in circumstances where the power to issue the notice was conferred on the principal’s representative – where principal was involved in the principal’s representative’s decision to issue the notice – notice validly issued as principal’s representative gave adequate and proper consideration to issuing the notice and it would be inconsistent with the principal’s right to see that its representative acts properly if it could not be involved in the decision CONTRACT – Breach of Contract – whether ‘take out notice’ was validly issued where its validity was contingent on the principal’s representative being satisfied that the default that was the subject of the ‘show cause notice’ had not been remedied or the contractor had otherwise failed to show cause – not shown that the principal’s representative failed to give adequate and proper consideration to the issues – not shown that the principal’s representative did not possess the relevant satisfaction EVIDENCE — Privileges — Without prejudice privilege – whether information obtained during the course of ‘without prejudice’ meetings can be used for purposes other than settlement – ‘without prejudice’ privilege is not based upon an implied agreement that if the negotiations do not result in an agreement for settlement of the dispute, the parties will make no use of what has been disclosed by the other party in the negotiations ...

Catchwords: WORKERS COMPENSATION – s 151Z Workers Compensation Act 1987- recovery action – whether occupier liable to indemnify employer for workers compensation payments as tortfeasor who, if sued by the worker for negligence, would have been liable to pay damages to the worker TORTS — negligence — Civil Liability Act 2002 –foreseeability of risk – whether occupier had actual knowledge of a risk when risk was earlier reported to person whose employment was taken over by occupier – knowledge of the employee imputed to the occupier TORTS — negligence — Civil Liability Act 2002 –whether obviousness of the risk ought to have led to conclusion risk was insignificant – risk not obvious – risk not insignificant TORTS — negligence — whether employer breached duty of care owed to worker – employer not negligent TORTS — negligence — contributory negligence – whether contributorily negligent in knocking a locking bar when descending a ladder that falls and injures the worker – no contributory negligence as mere accidental inadvertence ...

Catchwords: CONTRACT - real estate agent buyers agreement - entitlement to commission - agreement between property developer and real estate agent - agent to acquire options over seven contiguous parcels of land - options acquired over some of land - options never exercised by developer - agent rendered invoices for commission as options acquired - some invoices paid - whether agent entitled to commission for obtaining options which were never exercised MISLEADING AND DECEPTIVE CONDUCT - agent made demands for commission - whether demands misleading or deceptive contrary to s 18 Australian Consumer Law - whether demands were expressions of opinion of agent's legal entitlement ...

Catchwords: APPEALS - time for commencing appeal - orders made dismissing applicants’ claims - costs orders made months later - whether time for appeal only ran from costs orders - whether applicants should have an extension of time - whether applicants had sufficiently explained delay - extension of time for appeal refused JUDICIAL REVIEW – applicants’ land claimed to be affected by Minister’s plan made under Water Management Act 2000 (NSW) - applicants brought judicial review proceedings challenging numerous decisions including making of the Minister’s plan - proceedings dismissed as not brought within 3 months as required by s 47 - application to reopen after judgment reserved refused - all bases of judicial review rejected - whether primary judge erred in finding proceedings statute-barred - whether Minister entitled to make decisions to make a plan at “high level” - whether Minister had duty to classify water sources of the State - whether first applicant should have been issued with a licence expressed in terms of unregulated water - whether error in refusing application to adduce further evidence - extension of time for appeal refused ...

Catchwords: APPEAL – whether permanent stay of proceedings should be granted – civil claims arising from alleged sexual assaults up to 40 years ago – where alleged perpetrator dead but had been charged with regard to some of the underlying complaints prior to his death – where perpetrator had admitted some of the acts but asserted that they were consensual – where each of the plaintiffs was a minor at the time of the alleged assaults CIVIL PROCEDURE – historic sexual assault – claim against Estate – where alleged perpetrator dead TORTS – sexual assault – alleged consent – where plaintiffs were minors at the time of alleged consent – whether consent by a minor is a defence to a civil claim for damages for sexual assault ...

Catchwords: COURTS - jurisdiction - proceedings between former de facto partners in Supreme Court concerning ownership of property – primary claim in equity – alternative claim under Family Law Act 1975 (Cth) – primary judge upholds claims in equity and makes contingent findings under Family Law Act – defendant files appeal confined to challenging orders based in equity – plaintiff/respondent files notice of contention based on Family Law Act contingent findings – whether appeal lay to Court of Appeal – whether even if appeal required to be instituted in Court of Appeal, notice of contention required its transfer to Family Court – prohibition on instituting and determining certain appeals in Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 7 construed and applied – appeal transferred to Family Court ...

Catchwords: APPEAL – application for leave to appeal from summary dismissal of proceedings – proceedings dismissed because rights to sue vested in applicants’ trustees in bankruptcy, and because of earlier litigation – no basis for grant of leave – in any event, any appeal would lie to Federal Court by reason of s 7(5) of Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) ...

Catchwords: APPEAL – leave to appeal – judgment in supervisory jurisdiction – review of refusal to award costs of unsuccessful prosecution – applicant’s focus on decision under review, not judgment under appeal – need to show error in judgment under appeal – issues raised not subject of judgment under appeal – scope of judicial review where tribunal not satisfied of preconditions to power to award costs CRIMINAL PROCEDURE – costs – defendant’s costs of unsuccessful prosecution for summary offence – whether magistrate erred in refusing to award costs – honest belief of prosecutor – whether prosecution initiated without reasonable cause – scope of Criminal Procedure Act 1986, s 214(1)(b), (d) ...

Catchwords: MENTAL HEALTH – forensic patients – expiry of limiting term – extension of status as forensic patient – whether extension order can be made with respect to a person who has ceased to be a forensic patient APPEALS – appeal from refusal to make an interim extension order under the Mental Health (Forensic Provisions) Act 1990 (NSW) – source of right to appeal – whether subject to leave – limited grant of leave STATUTORY INTERPRETATION – principle of legality – fundamental rights and freedoms – intention to confer power to infringe liberty – application to extension orders under the Mental Health (Forensic Provisions) Act 1990 STATUTORY INTERPRETATION – use of defined term – whether used as label – whether context and subject matter show intention that definition not apply – application of Interpretation Act 1987 (NSW), s 6 WORDS & PHRASES – “may” – power conferred on Supreme Court to make interim extension order with respect to forensic patient – whether coupled with duty to make order where pre-conditions satisfied – Mental Health (Forensic Provisions) Act 1990, Sch 1, cl 10 ...

Catchwords: SUCCESSION — Family provision — Appeals — appeal from orders made in chambers approving s 95 Succession Act releases — whether primary judge failed to consider each of the matters listed in s 95(4) Succession Act — appeal dismissed — application for leave to amend grounds of appeal denied — cross-appeal — change of position/ estoppel defence to restitution of moneys paid pursuant to impugned orders ...

Catchwords: EMPLOYMENT AND INDUSTRIAL LAW – Public sector – Police – Misconduct and unsatisfactory performance – Powers of Commissioner – Power to order transfer of non-executive police officer to another position in case of “misconduct” – Whether particular transfer a “non-disciplinary transfer” – Meaning of “non-disciplinary transfer”. ...

Catchwords: CONSUMER LAW – misleading or deceptive conduct – where parties engaged in joint venture – where subsequently parties entered deed of settlement to resolve disputes – where one party misunderstood financial position of an entity being acquired under deed – where that party did not make inquiries to verify position – where other party participated in causing the misunderstanding, was aware of it and failed to correct it – whether conduct misleading or deceptive TAXES AND DUTIES – GST – input tax credits – entitlement to refunds ...