ADMINISTRATIVE LAW – judicial review – procedural fairness – duty to obtain documents – motor accident – medical dispute – determination of Review Panel under Motor Accidents Compensation Act 1999 (NSW) – parties requested to supply further documents in four categories – no documents provided in three categories – other documents not available to parties – whether reviewable error in Panel determining dispute without further material –whether procedure unfair to insurer – whether non-compliance with Medical Assessment Guidelines – legal status of Guidelines
PROCEDURE – civil – judicial review – adequacy of pleading – specifying grounds – Uniform Civil Procedure Rules 2005 (NSW), r 59.4(c)
ADMINISTRATIVE LAW – Freedom of Information – access to information – secrecy provision in other legislation – whether overriding public interest against disclosure – form of access – provision of alternative form of access
APPEAL — Appeal from Local Court to Supreme Court — Local Court Act 2007 (NSW) ss 39(1) and 40(1) — Whether question of law or question of mixed fact and law raised — Concession judgment at first instance was erroneous — Inadequate reasons — Court unable to make factual findings on appeal — Opportunity for parties to reach agreement on amount of judgment following from findings
CONTRACTS — Formation — Formation of contract inferred from conduct
APPEALS – Judicial review – Application for leave to appeal from a decision of an Appeal Panel of the New South Wales Civil and Administrative Tribunal – Civil and Administrative Tribunal Act 2013 (NSW), s 83 – Appeal on a question of law – Home Building Act 1987 (NSW) – Whether the Appeal Panel erred in reversing the onus of proof of the date of practical completion of the works under s 3B – Whether the alleged defects were “major defects” under s 18E(4) – Relevance of expert evidence to a determination of whether a defect “causes, or is likely to cause” the consequences in s 18E(4)(a)(i)-(iii)
PERSONAL PROPERTY – Title – Particular kinds of personalty – Prize money won by race horse – Ownership of horse – Entitlement to prize money
FUNDS IN COURT – Payment out – Competing claims – Identification and determination
BUILDING AND CONSTRUCTION – payment claims under the Building and Construction Industry Security of Payment Act 1999 (NSW) – adjudication determination – whether email and attached schedule sent by project manager a payment claim under s 13(1) – whether defendant was person who sent documents it asserts was a payment claim – whether multiple payment claims served in respect of one reference date
HEALTH – Public hospitals — Local Health Districts – Health services provided in public hospitals to persons ineligible under Medicare arrangements – Liability of ineligible persons to pay for health services provided at public hospitals — Guarantees procured by Local Health Districts from third parties in respect of health services provided to ineligible persons — Whether policy directives required guarantees to be procured — Whether procuring guarantees inconsistent with, or repugnant to, Health Services Act 1997 (NSW), sections 70 and 71 – Whether guarantees otherwise void or unenforceable
Administrative Law – Civil and Administrative Tribunal – administrative review jurisdiction – enabling legislation - no jurisdiction to review a decision with respect to a planning approval made under Part 1 of Chapter 7 of the Local Government Act 1933 – no jurisdiction to review a decision made with respect to an Application for Heritage Exemption under the Mosman Local Environmental Plan 2012.
CIVIL PROCEDURE – Court of Appeal – Application for leave to appeal – whether the appeal points to any error of principle on the part of the primary judge in the exercise of judicial discretion – whether the applicant had sufficient opportunity to file the relevant evidence.
COSTS – party/party – general rule that costs follow the event – where mixed outcome in proceedings – plaintiffs’ contempt motion and first defendant’s abuse of process motion both unsuccessful – whether abuse of process motion should be treated as part of a successful defence to contempt motion – where criminal contempt charges against second defendant not upheld but finding of breach of undertaking – held that the general rule should apply on each motion – costs assessed and payable forthwith pursuant to Practice Note SC Eq 3
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury
SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – appropriate penalty
COSTS – prosecution costs
OTHER – underground coal mine – collisions between transport vehicles and roof infrastructure – resulting fracture of W-strap – driver of transport vehicle injured by damaged W-strap
LAND LAW – contract for sale of land – claim for rescission pursuant to the rule in Flight v Booth (1834) 1 Bing (NC) 370 – plaintiffs entered into a contract to purchase a proposed lot in an unregistered plan of subdivision – where contract promised that the lot would contain an outdoor area covered by lawn – where defendant changed the location of the on-site stormwater detention tank – tank now built under outdoor area in such a way as to preclude a lawn – all access grates for tank located on the lot – whether material and substantial discrepancy between the subject matter of the contract and the property available to be conveyed – material and substantial discrepancy established – plaintiffs establish entitlement to rescind
ADMINISTRATIVE LAW – administrative tribunals – Civil and Administrative Tribunal (NSW) – duty to give reasons for decision – reasons inadequate – appeal allowed; COSTS – indemnity costs – no reasons given for award of indemnity costs – no justification for award of costs on the indemnity basis
CRIMINAL LAW – procedure – judgment on appeal – application to set aside or vary orders – jurisdiction to reconsider appeal – principle of finality – entry of orders – claim that two grounds not addressed in judgment – leave granted – Criminal Appeal Rules, r 50C
CRIMINAL LAW – appeal against conviction – charges of (i) conspiracy to import firearm parts, (ii) conspiracy to possess firearm parts and (iii) knowingly taking part in the sale of a pistol to another person on three or more occasions in a 12 month period – whether charge (ii) should have been stayed – whether charge (iii) an aggravated form of charge (ii) – whether charge (ii) a necessary part of charge (i) – whether extended definition of sale should have been left to jury
COMPLYING DEVELOPMENT CERTIFICATE - solar voltaic array erected in R4 Large Lot Residential Zone - array erected relying on complying development certificate issued pursuant to State Environmental Planning Policy (Exempt and Complying Development) 2008 - policy not available to permit construction of the array - complying development certificate invalid - second complying development certificate issued - second complying development certificate relies on State Environmental Planning Policy (Infrastructure) 2007 - solar voltaic array rendered permissible in the R4 Zone despite being otherwise prohibited - validity of second complying development certificate - issue of whether State Environmental Planning Policy (Infrastructure) 2007 rendered solar voltaic array complying development - construction of provision of State Environmental Planning Policy (Infrastructure) 2007 - solar voltaic array complying development - second complying development certificate valid - summons dismissed
CIVIL PROCEDURE – summary disposal – defence based on limitation period – issues of fact or law to be determined – suitability for summary determination
LIMITATION OF ACTIONS – limitation period for personal injury actions – when cause of action is “discoverable” – when the plaintiff “knows” that the injury was “caused by the fault of the defendant” –sufficiency of knowledge based on incomplete information – Limitation Act 1969 (NSW), ss 50C and 50D
WORDS AND PHRASES – “discoverable” – “knows” – “fact”
Basten JA at ;
Macfarlan JA at ;
Leeming JA at 
HIGH RISK OFFENDER – preliminary hearing – where the State seeks an order that the defendant be subject to an extended supervision order – orders opposed – whether matters alleged in the supporting documentation would, if proved, justify the making of extended supervision order – summons dismissed
CONTEMPT – criminal contempt – contumacious breach of orders – refusal to vacate premises owned by plaintiff scheduled for demolition
CONTEMPT – criminal contempt – penalties – imprisonment – no other penalty appropriate in the circumstances
CORONERS – Coroners Act 2009 (NSW) – meaning of “reportable death” in s 6(1)(b) and/or s 6(1)(c) – jurisdiction of coroner under s 21 – application to Supreme Court under s 84 – scope of "the interests of justice"
APPEAL – where appellant appealed from two interlocutory decisions – where substantive hearing complete except for providing written submissions – whether leave should be given to appeal from two interlocutory decisions
Hennessy ADCJ, Deputy President
P Molony, Senior Member
CRIME – appeals – appeal against conviction – unreasonable verdict – jury verdicts of guilty for historical sexual offences committed against two complainants – where there were internal inconsistences in the evidence and directly contradictory evidence – unreasonable verdicts – verdict of acquittal entered
Payne JA at ; Button J at ; Lonergan J at 
ADMINISTRATIVE LAW – review under section 27(1) Child Protection (Working with Children) Act 2012 (NSW) child protection – working with children – risk to children whether risk real and appreciable – would a reasonable person allow unsupervised access to their own child in context of child related work
CONTRACTS — Formation — Agreement — Intersection of contract law with succession law — Enforceability of testamentary agreement — Agreement binding and plaintiff entitled to order that it be specifically performed — Standing of plaintiff under UCPR r 7.10(2)(b) to represent the estate for the purposes of this claim accepted — Standing of fourth defendant to resist this claim, accepted upon considerations of procedural fairness and natural justice — Enforceability of testamentary agreement upheld
SUCCESSION — Family provision — Claim by adult child — Proceedings not commenced within time — Whether sufficient cause shown to extend time — Extension of time permitted
SUCCESSION — Family provision — Claim by adult child — Claim made under Family Provision Act 1982 (NSW) — Whether adequate and proper provision made for the plaintiff — Where the course of the litigation itself over more than a decade, including and especially the amount of outstanding legal fees, has become a paramount factor in determining the material circumstances of the beneficiaries — Where plaintiff alleges that substantially all legal costs incurred are the fault of the first and fourth defendants — Where evidence shows failure of deed of release was substantially of plaintiff’s own making — Where plaintiff’s case has changed substantially over time, including by totally abandoning many claims — Where beneficiaries are in materially similar financial and personal circumstances — Consideration of whether claimant’s costs are permitted to be paid out of the deceased estate — No family provision ordered
ADMINISTRATIVE LAW – administrative tribunals – statutory appeals from administrative authorities to courts – leave to appeal only available for error of law – no error of law identified – leave to appeal refused
Torts – negligence – motor vehicle accident – liability not in dispute and contributory negligence percentage agreed – extent of the plaintiff's injuries arising from the accident – voluminous medical opinions expressing different views – domestic assistance – childcare assistance - loss of future earning capacity
COSTS –Party/Party – General rule that costs follow the event – Application of the rule and discretion – costs in relation to an application seeking general access to documents produced in answer to subpoena – whether the cross-claimants in pressing part of the relief sought in the application was so unreasonable as to warrant the payment of costs forthwith – held that the appropriate costs order is that the costs of (and incidental to) the hearing of a motion should be reserved – considered fairer to the parties that the costs be determined on the final determination of the substantive dispute between the parties in the proceedings.
SUPPRESSION AND NON-PUBLICATION ORDER –public interest in victims of alleged sexual assaults not being prevented from litigating claims because of fear that principles of open justice will expose them to psychological harm and embarrassment – orders made
ADMINISTRATIVE LAW – Judicial review – Motor Accidents Compensation Act 1999 (NSW) – Review of a certificate of a medical assessor of SIRA – Jurisdictional error – Failure to apply the Permanent Impairment Guidelines when determining causation – Failure to respond to substantial and clearly articulated arguments – Failure to set out lawful reasons – Legal unreasonableness – Whether the first defendant’s left hip pathology was caused by the subject accident
NEGLIGENCE – fishing charter vessel travelling through river bar – risk of suffering injury if large waves were encountered and passenger was not keeping a firm hold – risk unknown to an inexperienced person - passenger thrown to deck suffering injuries – need to provide a safety induction and to warn passengers of the dangers of the river bar – need to warn passengers to hold on to rails
NEGLIGENCE – Civil Liability Act 2002 (NSW) – ss 5B, 5D, 5E, 5F, 5G, 5H, 5I, 5J, 5L, 5M
DAMAGES – non-economic loss - past economic loss – future loss of earning capacity - Civil Liability Act 2002 (NSW) ss 13, 16
PROCEDURE – Contempt – applicant seeking orders that the respondent be found guilty of contempt of court for issuing a subpoena – whether issuing the subpoena was in breach of court orders– burden of proof rests upon the party alleging contempt of court – proof beyond reasonable doubt – criminal standard of proof for civil contempt – contempt must be wilful and not merely casual, accidental or unintentional.
FAMILY LAW - Children – Parens patriae jurisdiction –Child under the parental responsibility of the Minister in hospital for nearly nine months – Concurrent Children’s Court proceedings - Orders requiring Secretary to consent to proposed treatment plan to transition child from hospital
CRIMINAL LAW – mental health defence – psychiatric evidence – accused suffered defect of reasoning – accused unable to reason wrongfulness – accused mentally ill at time of offence – special verdict of not guilty – order pursuant to s 39 of the Mental Health (Forensic Provisions) Act
BUILDING AND CONSTRUCTION – application for summary judgment – claim by subcontractor against builder for unpaid tax invoice – whether valid construction contract was entered into – whether payment claim was served – whether claimant’s pleading precludes submission that payment claim was served.
PRACTICE AND PROCEDURE – application for defence to be struck out following non-compliance with self-executing order – history of non-compliance with orders by a self-represented litigant – defendant fails to attend court for the hearing of the application – case management consideration – defence struck out but defendant advised of entitlements under UCPR r 36.16
CIVIL PROCEDURE — Interim preservation — Appointment of receiver – in relation to a dissolved law practice – where principal proceedings include a claim against the applicant in relation to misappropriated partnership funds – whether a receiver will be appointed practically as a matter of course – whether would be futile to appoint a receiver – whether it would be ruinous to appoint a receiver – application dismissed with costs – not appropriate for a receiver to be appointed as not a proper use of partnership funds and not in the interests of the partnership’s creditors.
PRACTICE AND PROCEDURE – Application for approval of settlement of personal injury proceedings commenced on behalf of person under legal incapacity – Whether proposed settlement is beneficial to the interests of the plaintiff – Settlement approved
PERSONAL PROPERTY – property secured by finance agreement – default entitling bank to seize collateral – bank’s rights under s 123 of Personal Properties Securities Act 2009 (Cth) – declaration and associated orders made
PROFESSIONS AND TRADES – health care professionals – physiotherapists – where practitioner suffers a neurodegenerative disease – where Physiotherapy Council has removed suspension on practitioner’s registration and a request has been made to the Australian Health Practitioner Regulation Agency seeking surrender of the practitioner’s registration by his Attorney under Power of Attorney – appropriate for complaint to be dismissed.
REAL PROPERTY – indefeasibility – fraud exception to indefeasibility – Real Property Act 1900, s 42 – defendant and her late de facto partner (‘the deceased”) witness the affixation of a company seal of the corporate vendor to a memorandum of transfer of real property under the Real Property Act – memorandum of transfer registered – the defendant and the deceased thereby become tenants-in-common – but at the time of execution of the transfer, the company had already been deregistered – the defendant and the deceased occupy the property until his death in 2015 – shortly before his death, her tenancy-in-common with the deceased is converted to a joint tenancy – the defendant becomes the registered proprietor of the property by survivorship after his death – the plaintiff, the daughter of the deceased and executrix of his estate, seeks a declaration that the transfer and the later creation of the joint tenancy were void as a fraud upon the National Companies and Securities Commission, in whom the property was vested at the time of the 1986 transfer – whether the defendant was knowingly involved in any fraud associated with the transfer – whether the transfer and the later creation of the joint tenancy are defeasible at the suit of the plaintiff.
PRACTICE AND PROCEDURE – power to transfer proceedings from District Court to Supreme Court – whether in the interests of justice to order that both proceedings be heard together – undesirable for claim for leave under s 151D of the Workers Compensation Act 1987 (NSW) to be heard together with action against solicitors for not bringing claim within time – applications for transfer and joinder refused
CHILD protection – Working with children – No real and appreciable risk – Criminal record – Assaults – Apprehended Violence Orders – Traumatic upbringing – Health worker – Support by Children’s Guardian for applicant.
CIVIL PROCEDURE — Pleadings — Amendment — Late application for amendment — No additional cost or delay and no prejudice identified — Leave to amend granted
CIVIL PROCEDURE — Directions as to conduct of hearing and joint experts’ conferences — Application seeking direction to limit number of Defendant’s experts on breach of duty — No suggestion of any relevant differences or nuances in experts’ experience or evidence — Defendant limited to calling evidence from no more than two experts on breach of duty
CIVIL PROCEDURE — Stay of proceedings — Inherent power — s.23 Supreme Court Act 1970 (NSW) — Discretion as to whether power should be exercised to stay proceeding until plaintiffs consent to interviews with treating doctors — Whether refusal to grant stay would result in unfair trial — Whether declarations should be made that defendant entitled to interview treating doctors — Richards v Kadian (2005) 64 NSWLR 204 applied
UNFAIR DISMISSAL – constructive dismissal – offer of extension of employment rejected – applicant resigned freely and without undue pressure – employer's conduct not the real and effective initiator of the termination of the contract of employment – application dismissed
Contract – principal and agent – action for recovery of commission by real estate agent – sale of property – whether agent was the effective cause of sale – form and effect of agreements signed by real estate agent – effect of conduct by unlicensed real estate agent – whether unlicensed real estate agent entitled to claim commission – whether unlicensed real estate agent paid commission - whether estoppel established
COSTS – apportionment of costs – plaintiff’s claim dismissed against the first defendant but successful against the second defendant – whether the defendants’ conduct of the proceedings caused a lengthening of the litigation – whether the defendants’ costs should be assessed together.
CORPORATIONS – winding up – public examination of directors, officers and others – application to set aside examination summonses and orders for production – consequential orders made.
COSTS – whether costs orders should be made in respect of application to set aside examination summonses and orders for production.
CIVIL PROCEDURE — Pleadings — Amendment — To correct misnamed defendant in application to set aside statutory demand — Whether misnomer or substitution — Where represented defendant had participated in proceedings — No confusion — Section 459G of the Corporations Act — Section 65(2) and (3) of the Civil Procedure Act mean that no infringement of 21-day limitation period — Leave to amend granted.
CORPORATIONS — Winding up — Statutory demand — Application to set aside — Whether application served within 21 days — Course of correspondence between parties by email to solicitors — Defendant’s solicitor agreed to accept service — Consent to electronic service implied – Application to set aside sent by email within 21 days — Solicitor for defendant did not open email until after expiry of 21 days — Where solicitor checking emails for another transaction only — Inference that email came to his notice — Service validly effected — Strike out application dismissed.
ASSOCIATIONS AND CLUBS — Racing clubs and associations — Validity of appointment of an administrator under s 24(1)(j) of the Greyhound Racing Act 2017 (NSW) — Interlocutory regime pending determination of validity of appointment – Dispute as to appropriate orders – Proposed orders
ADMINISTRATIVE LAW – alleged jurisdictional error arising from rent increase due to cancellation of rent rebate
LANDLORD AND TENANT – whether cancellation of rental rebate under Housing Act 2001 (NSW) requires notice to be given of rent increase under s 41 of Residential Tenancies Act 2010 (NSW)
LANDLORD AND TENANT – whether non-payment notice erroneous for inclusion of arrears from previous tenancy which were the subject of a repayment plan
PRACTICE AND PROCEDURE – appeal – new point raised in Supreme Court which had not been raised in the Tribunal or the Appeal Panel – relevance of prejudice to defendant
CIVIL PROCEDURE — cross-vesting — transfer to Federal Court — current proceeding related proceeding pending in the Federal Court — in the interests of justice that current proceeding be determined by the Federal Court
EVIDENCE — Admissibility — Exclusion of hindsight evidence by plaintiff under s 5D(3)(b) of the Civil Liability Act — whether applicable civil liability section is the law of forum — Corporate plaintiff — Whether statement by natural person within exclusion — Characterisation of relationship between natural person and corporate plaintiff — Evidence as to relationship inconclusive — Whether “statement made by the person” within the meaning of the Act — Not established that a statement by the witness was a statement by the plaintiff corporation — Evidence admitted.
COSTS – offer of compromise – first defendant accepts an offer of compromise issued under Uniform Civil Procedure Rules 2005 (“UCPR”), r 42.13A in a very small amount (namely $10) – first defendant would ordinarily be liable under r 42.13A for the plaintiff’s costs upon acceptance of the offer of compromise – whether the first defendant can invoke UCPR, r 42.34, and resist the making of any costs order, on the grounds that the amount of the judgment is less than $500,000 and the proceedings could have been brought in the District Court.
CRIMINAL LAW – sentence – where offenders pleaded guilty to manslaughter – where offenders liable on basis of joint criminal enterprise – whether offenders remorseful – whether offenders provoked or acting in self-defence – whether moral culpability of offenders equal – where manslaughter is above the mid-range of objective seriousness – whether need for general deterrence – offenders’ prospects of rehabilitation
CRIMINAL LAW – sentence – where offenders pleaded guilty to knowingly conceal a corpse – where offenders liable on basis of joint criminal enterprise – where deceased’s body has not been located – whether failure to disclose location of deceased’s body aggravates objective seriousness of the offence – where offence is above the mid-range of objective seriousness
CRIMINAL LAW – sentence – where offenders pleaded guilty to supplying a commercial quantity of methylamphetamine – where offenders supplied different quantities of drug – whether moral culpability of offenders equal – where Form 1 offences also taken into account – accumulation and concurrency of multiple sentences
PROFESSIONS AND TRADES — health practitioner — whether practitioner is guilty of unsatisfactory professional conduct
PROFESSIONS AND TRADES — disciplinary orders — difference between a caution and a reprimand
A Britton, Principal Member
D Armitage, Senior Member
V Gibson, Senior Member
B Seth, General Member
CRIMINAL LAW – sentence – murder – where the offender stabbed his de facto partner to death in their unit – offender unable to explain the motive for the offending – offender made frank admissions of guilt from the outset and pleaded guilty at the earliest opportunity – some evidence of cognitive deficits but no evidence of a causal link between those deficits and the offending – genuine remorse – low risk of reoffending and good prospects of rehabilitation – no criminal record – consideration given to general deterrence – age of offender taken into account on sentence – offender sentenced to non-parole period of 14 years’ imprisonment – balance of term of four years nine months
REPRESENTATIVE ACTIONS – property damage arising out of widespread urban flooding from Brisbane River escaping its banks in January 2011 – group defined by reference to ownership or interest in property affected by flooding and whether group members or their insurer signed litigation funding agreement – lead plaintiff owned store affected by flooding – determination of all issues of fact and law affecting lead plaintiff – determination of all issues other than quantum affecting a sample of group members – determination of all issues affecting the respective obligations of the defendants to each other – determination of common questions identified relevant to plaintiff and all or many group members
FLOOD MITIGATION – dams located above major metropolitan area – dual function of water supply and flood mitigation – first defendant owner of dam and employer of two flood engineers on duty during flood event – second defendant contractor to first defendant and employer of senior flood operations engineer – third defendant employer of flood engineer – whether first defendant had statutory function of flood mitigation – statutory regulation of interference with watercourses – permissions granted to undertake flood mitigation – approval under statute of manual of flood operations – significance of manual to flood engineers controlling dams before, during and after flood events – manual does not have force of law but governs content of any duty of care and exempts dam owner from any liability if complied with – whether manual required use of rainfall forecasts in conduct of flood operations – whether manual required use of actual or predicted reservoir levels – role of experts in interpretation and application of manual – whether flood operations during previous flood events supported posited interpretation of the manual – relevance of events surrounding drafting of manual to its interpretation and application – whether flood engineers had reasonable belief as to construction and application of manual – whether peer professional practice at other dams permitted releases below full supply level
ADMINISTRATIVE LAW – whether regulatory regime permitted flood releases from below full supply level of each dam – validity of approval granted to dam owner to make releases for flood mitigation from below full supply level – role of discretionary bases for refusing relief in determining a collateral challenge to executive action
NEGLIGENCE – DUTY OF CARE – dams located above major metropolitan area – dams controlled approximately half of downstream river flows – ultimate control of outflows from dam during flood event retained by dam owner but shared with flood engineers operating under Manual - risk posed to property owners from Brisbane river breaking its banks depending on their proximity to river and elevation – downstream property owners and those with interest in property vulnerable to negligent exercise of control over dams – size of affected class does not render class indeterminate – relevance of fact that rate of flow released is less than peak flow rate if dam not present - alleged inconsistency between posited duty and statute – whether duty imposes inconsistent obligations in favour of persons at different downstream locations – whether duty imposed on flood engineers inconsistent with duties to their employers – scope of duty provided by contractor proving engineering services – held duty owed by dam owner and flood engineers – duty owed by contractor but only in respect of provision of flood management services under contract
NEGLIGENCE – DUTY OF CARE – whether duty owned by dam owner or contractor a non-delegable duty – nature of activity conducted on dam owner’s land – conduct of flood operations for ostensible benefit of downstream residents and property holders – not taking advantage of property to engage in dangerous activity – statutory provisions granting permission to dam owner to conduct flood mitigation not exhibiting strict non-delegability – held dam owner did not owe non-delegable duty – held contractor did not owe non-delegable duty
VICARIOUS LIABILITY – flood engineers – whether employee “pro hac vice” of second defendant – necessity for high degree of control over performance of duties – not established – whether flood engineers performed independent legal duty such that third defendant not vicariously liable for conduct of flood engineer it employed – whether point properly pleaded – independent legal duty only denies vicarious liability if employee performing duty imposed by statute or by common law – common law imposes duties on those holding office – flood engineers neither performing duties imposed by statute or by common law – held each defendant vicariously liable for flood engineer they employed
NEGLIGENCE – STANDARD OF CARE – flood engineers – Civil Liability Act 2003 (Qld); s 36(1) – whether proceeding based on an alleged wrongful exercise of or failure to exercise a function of a public or other authority – whether such exercise was so unreasonable that no such authority could properly consider the act or omission to be a reasonable exercise of its functions – whether section confined to actions for breach of statutory duty – held section not so limited but not engaged in respect of any vicarious liability that the public authority incurs for breach by an employee of a duty of care owed by the employee – whether proceedings “based on” exercise of a “function of a public authority” – requirement for function conferred by governmental authority – held defendants not exercising any such function – Civil Liability Act 2003 (Qld); s 22(1) – no breach of duty by professional if established that “acted in a way that...was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as a competent professional practice” – whether necessary to identify existing practice that was conformed with – practice of flood engineers and flood operations in Australia and overseas – all such practices conditioned by necessity to comply with water control manual – held in the absence of compliance flood engineers did not act in conformity with any practice – held relevant standard was that of the reasonably competent flood engineer
NEGLIGENCE – BREACH – allegations of breach governed by ss 9 and 10 of Civil Liability Act 2003 (Qld) – content of flood engineer’s duty involved compliance with the manual – whether allegations of breach tied to necessity for flood engineers to make releases in conformity with counterfactual flood operations proposed by plaintiff’s expert – not possible to comply throughout period of flood event as divergence between reservoir levels and counterfactual increased over time –counterfactuals and their reasoning inform allegations of breach – systemic failure of flood engineers to comply with manual over course of flood event – failure to select strategies and make releases by reference to rainfall forecasts – failure to conduct flood operations in accordance with priorities specified by manual – prioritisation of avoiding inundation of low lying bridges at expense of avoiding risk of urban inundation – breach established
NUISANCE – whether release of water from dam inundating plaintiff’s store was an unreasonable interference with its use and enjoyment – relevance of fact that rate of water flow released less than peak river flow rate if dam not present – scope of defence of statutory authorisation and necessity – held unreasonable interference not established – defences would have failed
TRESPASS – whether release of water from dam inundating plaintiff’s store was a trespass – necessity for intrusion to be immediate or direct result of defendant’s actions – held trespass not established
NEGLIGENCE – CAUSATION – Civil Liability Act 2003 (Qld); s11 – necessity to identify “particular harm” – counterfactual flood operations – plaintiff’s expert accepted – counterfactual simulation identified – use of hydraulic modelling to ascertain depth of flooding at relevant locations using simulated outflows from dam – reliability of modelling – approach to findings at particular locations – necessity to consider all the evidence relevant to each location as model not determinative – future assessments to be conducted by reference to all such evidence but consistent with findings to date and forensic choices made by the parties
NEGLIGENCE – CAUSATION – successive tortfeasors causing combined state of affairs that caused harm – s11(1)(a) – material contribution – Strong v Woolworths – “jointly sufficient to account for the occurrence of the harm” – set of conditions necessary to the occurrence of harm – each tortfeasor’s breach may not be sufficient to satisfy but combined effect of breaches of the tortfeasors are sufficient – held s 11(1)(a) established – scope of harm – s 11(1)(b) – whether individual tortfeasor responsible for harm caused by the combination of all such breaches – held attribution of liability for all harm caused appropriate
QUANTUM – loss of profits of business – out of date stock – treatment of charitable and similar payments that but for the flooding would not have been paid – grants made Rural and Regional Adjustment Act 1994 – statutory scheme for reimbursement of direct costs associated with flooding – held plaintiff and group members not entitled to recover costs the subject of grant payment - whether commercial cost of volunteers who cleaned plaintiff’s premises and stock recoverable – measure of damage – whether provision of services intended to operate in the interests of the defendant and diminish damages otherwise payable – held costs recoverable at commercial rate – whether plaintiff can recover amount representing commercial cost of free storage provided for damaged stock – not an expense or a true consequential loss – held not recoverable
CIVIL PROCEDURE – cross-claims – Civil Liability Act 2003 (Qld); ss 28(1), 31(1), 32A – plaintiff’s claim in negligence is proportionate claim – no claims in contribution maintainable – cross-claim by dam owner against contractor – seeking contractual indemnity for liability to plaintiff and group members as well as costs – contractual exclusion for “indirect and consequential loss” – held exclusion applies – cross-claim fails
LIMITATION PERIODS – Limitation of Actions Act 1974 (Qld) – whether institution of representative proceedings in Supreme Court of New South Wales meant that “action...[was] brought” by group members within relevant period – held action brought
CRIMINAL LAW – appeal – leave to appeal against sentence – intent to cause grievous bodily harm – whether sentencing judge erred in failing to give proper reasons for a finding of fact – whether sentencing judge erred in finding certain facts – whether sentencing judge erred in failing to find provocation as a mitigating factor – whether sentencing judge erred in failing to give proper consideration to applicant’s background as a mitigating factor – grounds of appeal not made out – leave to appeal granted – appeal dismissed
CIVIL PROCEDURE – hearings – adjournment – exercise of discretion – proper test for insufficient weight given to a relevant matter – proper test for plainly unreasonable or unjust – no point of principle
G Curtin SC, Senior Member
L Wilson, Senior Member
HUMAN RIGHTS – Discrimination - Grounds – Sexual-orientation discrimination – Whether complaint of suspected drug use was made against applicant police officers on the ground of their homosexuality – Identification of relevant comparator – Whether officers were subjected to a detriment – Anti-Discrimination Act 1977 s 49ZG, s 49ZH
HUMAN RIGHTS – Legislation – Anti-Discrimination Act 1977 (NSW) – Vicarious liability – Whether Police officers “employees” for the purposes of the Act – Whether Commissioner of Police liable for discriminatory acts of Police officer – Anti-Discrimination Act 1977 s 4B, s 53
HUMAN RIGHTS – Legislation – Anti-Discrimination Act 1977 (NSW) – Defences – Whether Police officer under statutory obligation to lodge discriminatory complaint – Anti-Discrimination Act 1977 s 54
HUMAN RIGHTS – Discrimination – Victimisation – Whether making of complaint against Police officer and making adverse comments on application for promotion after Police officer had raised possibility that he had been the subject of discrimination constituted victimisation – Anti-Discrimination Act 1977 s 50
D Robertson, Senior Member
Dr M Murray, General Member
MODIFICATION APPLICATION – mixed use development – conciliation conference – agreement between the parties – orders
DEVELOPMENT APPLICATION – mixed use development – conciliation conference – agreement between the parties – orders
APPEAL – appellants successful on grounds not raised in notice of appeal – held appellants entitled to partial costs order – held documentation produced by respondent satisfied order to produce short minutes of order
The Hon F Marks, Principal Member
L Wilson Senior, Member
CRIME – costs – application for certificate under s 2 of the Costs in Criminal Cases Act 1967 (NSW) – where offender charged with 7 counts – where offender is acquitted on 4 counts, convicted on 2 counts and the jury was unable to agree on the remaining count – where credibility of Crown witnesses poor – whether reasonable to institute proceedings
CONTRACTS – construction – scope and nature of commitment – defendant agreed to supply security services to plaintiff for the purpose of enabling the plaintiff to carry out head contract – whether defendant promised to provide plaintiff with the opportunity to do certain other work for it
Macfarlan JA at ;
Payne JA at ;
Emmett AJA at 
CRIMINAL LAW – application to direct an inquiry or to refer case to the Court of Criminal Appeal pursuant to s 78 Crimes (Appeal and Review) Act 2001 – whether there appears to be a doubt or question as to sentence – applicant convicted and sentenced for one count of knowingly taking part in the supply of a large commercial quantity of a prohibited drug – applicant was one of four co-offenders – applicant submitted he has a justifiable sense of grievance in the light of a sentence subsequently imposed upon a co-offender – the difference in sentences gives rise to the appearance of a doubt or question – case referred to the Court of Criminal Appeal
CRIMINAL LAW – sentence appeal – two counts of drug supply – offender on bail for first offence at time of second offence – offender had an extensive criminal record – aggregate sentence of imprisonment for 3 years and 4 months with a non-parole period of 2 years – whether sentence manifestly excessive – leave to appeal granted but appeal dismissed.
Hoeben CJ at CL at ;
Leeming JA at ;
Lonergan J at 
COSTS – security for costs – prejudice to defendants occasioned by plaintiff’s apparent impecuniosity and income in circumstances where plaintiff continues to receive financial support from family – future conduct of proceedings particularly uncertain – no evidence that order for costs would stultify proceedings – need to take into account disproportionality between costs required to be incurred to defend the proceedings and likely award of damages
CRIME — Appeals — Appeal against sentence — Child sex offences — Applicant diagnosed with terminal illness after sentence imposed — Whether sentence manifestly excessive — Whether applicant to be re-sentenced based upon fresh evidence — Sentence not manifestly excessive — Fresh evidence admitted — Discussion of principles relevant to subsequent development of illness taken into account at time of sentence — Held by majority that applicant be re-sentenced — Lesser aggregate sentence imposed
CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – workers injured
SENTENCING – aggravating factors – mitigating factors – objective seriousness – general deterrence –no record of previous convictions – good prospects of rehabilitation – plea of guilty – assistance to law enforcement authorities – remorse
APPEAL – stay of execution of judgment pending determination of appeal – appeal arguable – whether risk that if no stay is granted and appeal succeeds, appellant will be unable to recover from respondent – whether risk that if stay is granted respondent will later be unable to enforce judgment – stay granted
ADMINISTRATIVE LAW – judicial review – prerogative and declaratory relief – s 69 of the Supreme Court Act 1970 (NSW) – whether Appeal Panel had jurisdiction to make orders in relation to rental bond when the bond was not lodged with Rental Bond Authority – ss 175, 187, and 188 of the Residential Tenancies Act 2010 (NSW) – grant of relief by way of prohibition, certiorari or declaration is discretionary – summons dismissed – orders
MENTAL HEALTH – forensic patient – application for extension order pursuant to Sch 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) – whether the defendant poses an unacceptable risk of serious harm to others if he ceases to be a forensic patient – interim extension order imposed
JUDICIAL REVIEW – appeal pending in District Court – criminal jurisdiction – appeals from convictions and imposition of apprehended domestic violence order IN Local Court – review of interlocutory decisions – review of rejection of recusal application
PROCEDURAL FAIRNESS – bias – recusal application based on apprehended bias – appeal from refusal – when interlocutory appeal available
PROCEDURE – solicitor on record – professional responsibilities – instructions terminated after failed adjournment application – limiting scope of solicitor’s instructions – application of Uniform Civil Procedure Rules 2005 (NSW), Pt 7, div 7
Basten JA at ;
Leeming JA at ;
Payne JA at 
CRIMINAL LAW – guilty plea – sentence – murder – victim impact statement – objective features – objective seriousness – intention to kill – no premeditation and planning – high level violence – aggravation by weapon and victim’s home – mitigation – no criminal record – subjective features – no history of violence – protection of community – remorse – moral culpability and mental disorder – prospects of rehabilitation – general deterrence – maximum penalty – standard non-parole period – special circumstances – orders
EVIDENCE — Privilege — Litigation privilege — Communication between solicitor and expert — Report prepared and served but expert no longer proposed to be called — Expert then proposed to be called by other side — Dominant purpose of detailing aspects of expert’s retainer — Dominant purpose not providing professional legal services within s 119 of the Evidence Act — Claim for privilege not made out.
CIVIL PROCEDURE – Service outside Australia – whether to set aside service of originating process – ex parte application for substituted service – duty of candour owed to the court – whether there was a failure to disclose relevant information at hearing of ex parte application
PRIVATE INTERNATIONAL LAW – Jurisdiction – service outside of jurisdiction without leave of the court – whether service of originating process valid – whether to set aside service – whether schedule 6 of the Uniform Civil Procedure Rules applies
PRIVATE INTERNATIONAL LAW – Jurisdiction – Forum non conveniens – whether to stay proceedings – rule 11.6 of the Uniform Civil Procedure Rules – whether New South Wales is inappropriate forum for the trial of the proceeding – connecting factors
SUCCESSION – family provision – claim by adult son – evidence of difficult relationship between plaintiff and deceased before estrangement – evidence that plaintiff subjected to physical abuse by the deceased during childhood – scope of the deceased’s moral obligation to provide for the plaintiff – where plaintiff has significant financial need – where plaintiff has experienced periods of drug addiction and incarceration – where plaintiff had made past contributions to estate – causes of estrangement – no competing claims on the estate – where deceased had offered to help the plaintiff prior to estrangement
COSTS — Party/Party — Bases of quantification — Ordinary basis – order that the defendant pay 90% of the plaintiff’s costs of the proceedings on the ordinary basis – held 10% discount on the costs order appropriate in circumstances where the defendant had been successful on a discrete issue – separate costs order without any discount in relation to the strike-out motion that was not pressed at the hearing.
PRACTICE AND PROCEDURE – Amendment of pleadings – application for leave to file an Amended Statement of Claim – procedural motions brought by opposing parties – whether proposed amendments to the Statement of Claim are bound to fail – whether proposed amendments to the Statement of Claim are properly and sufficiently pleaded – appointment of representatives for two estates involved in litigation – who should be appointed to represent the estates – what conditions should be imposed before representatives of the estates are appointed – production of and access to subpoenaed documents – width of subpoenas – whether subpoenas should be set aside.
CRIME - Appeal and review - Appeal from Local Court to District Court – By person convicted against conviction- District Court’s powers on rehearing - application of principle - identification evidence – alibi.
TORTS – Negligence – Road accident cases
Liability – where plaintiff’s vehicle travelling through intersection – where plaintiff’s vehicle struck by the defendant’s vehicle turning across his lane – competing evidence of forensic traffic engineers – factual findings in relation to the plaintiff’s speed at relevant times – Jones v Dunkel inference against the defendant – liability established
Damages – Future economic loss– where plaintiff was and continues to be employed as a train driver – where plaintiff has returned to his pre-injury duties – where plaintiff continues to live a physically active lifestyle – no diminution in working life proved – Other heads of damage – past out of pocket expenses agreed – future out of pocket expenses subject to Medical Assessment Service (MAS) certificates – no evidence of past economic loss
CRIMINAL LAW – accused not fit to plead – special hearing – knowingly taking part in supply of prohibited drugs – whether a sentence of imprisonment would have been imposed – consideration of limiting term – significance of mental illness.
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
PROCEDURE – civil – appeal pending – interim orders – order required to preserve subject-matter of appeal
LEGAL PROFESSION – barrister’s disciplinary matter – administrative review of decisions of the NSW Bar Council – unsatisfactory professional conduct – pressure applied to third party funder/relative to pay fees – charging for unnecessary work – reprimand – order to refund portion of fees
The Hon F Marks, Principal Member
P Durack SC, Senior Member
M Bolt, General Member
PRACTICE AND PROCEDURE – adjournment of proceedings – application for judicial review of administrative decision of the Minister for Agriculture and Forestry (“the Minister”) to close a Crown road and sell the land comprising the road to adjoining owners – plaintiff is one of the adjoining owners – Minister is the first defendant and has filed a submitting appearance – the other adjoining owner is the second defendant – the Minister’s failure to appear at the hearing makes it more difficult for the Court to determine what material was before the Minister at the time the challenged decision was made – Minister’s assistance sought to accurately determine the scope of the material before the decision-maker – what procedural directions should be undertaken to give the Court clarity about what materials were before the Minister at the time the decision was made.
COSTS – party/party – appeals – orders seeking declaratory and injunctive relief about a costs order made over three months prior dismissed as the issue was not raised in the appeal proceedings – order seeking variation of the costs order incompetent as filed out of time – Suitors’ Fund certificate granted
APPEAL – development application – existing use as place of public worship – enlargement of existing use – acoustic impacts – traffic and parking impacts – development control plan parking requirements – whether on-street parking is adequate
CONSUMER LAW – motor vehicle repair services – supply of specified services – obligation to investigate and report issues unrelated to services requested – subsequent failure of engine – liability of repairer.
M Harrowell, Deputy President
M Anderson, Senior Member
CIVIL – Crimes (High Risk Offenders) Act 2006 – preliminary hearing – interim relief – application for appointment of qualified psychiatrists and/or registered psychologists under s 7(4) – application for interim detention order pursuant to ss 18A and 18C – application for interim supervision order pursuant to ss 10A and 10C – principles re preliminary hearings – mandatory considerations – orders
PRACTICE AND PROCEDURE – application pursuant to ss 64(2) Civil Procedure Act 2005 (NSW) to correct a mistake in the name of a party to the proceedings – whether defendant named by mistake – whether the mistake was neither misleading nor such as to cause reasonable doubt as to the identity of the person intended to be made a party – whether discretion should be refused pursuant to ss 56-58 and 65(2)(b) – leave sought to discontinue against the current defendants and to join the named new defendants granted
MENTAL HEALTH – forensic patient – limiting term – application under the Mental Health (Forensic Provisions) Act 1990 (NSW) – application for interim extension order – preliminary hearing – where the index events involved charges of child sexual abuse – where the defendant was found unfit to be tried and a qualified finding of guilt was made – where the defendant has a limited criminal history – Court satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others – discretion not to impose IEO regardless exercised – application refused
TORT – defamation – application to pursuant to s 56A(2) Limitation Act 1969 (NSW) to extend the limitation period provided by s 14B of the Defamation Act 2005 (NSW) – limitation period expired on 6 September 2016 – amended statement of claim filed without leave on 30 August 2019 and rejected by the Registry – whether orders should be made for the irregularly filed pleading under ss 16 and 63(2) Civil Procedure Act 2005 (NSW) – whether an extension under s 56A should be granted – whether the court should extend the limitation period to the date the plaintiffs filed the amended statement of claim commencing defamation proceedings or is required to choose the date to which the limitation period is extended – whether there were unexplained delays at a time when the plaintiffs were aware of all the matters related to the defamation – whether plaintiffs’ knowledge of the likely contents of the matter complained of sufficient – plaintiffs warn of an application for preliminary discovery but fail to seek orders - whether preliminary discovery an obvious step – “not reasonable” in the circumstances for the plaintiffs to have delayed past October 2018 after their solicitors had written to the defendants’ solicitors on 8 June 2018 showing an appreciation of their clients’ entitlements to bring an application for preliminary discovery – application for extension of time refused
CONSUMER LAW – misleading or deceptive conduct – loss and damage – representations found to be misleading and deceptive – whether loss claimed was “because of” the fifth defendant’s conduct
CONSUMER LAW – apportionment – where apportionment not pleaded
EQUITY — Alleged unconscionable conduct or undue influence — Whether the Court should make interlocutory orders restraining the first defendant from dealing with certain of his assets pending final determination of proceedings for the restoration by the defendant of funds allegedly misappropriated by the defendant to the estate of the parties’ deceased mother — Where it appears the plaintiff has a good arguable case, and the defendant has not satisfactorily explained the disbursement of a substantial part of the deceased’s funds
APPEAL – corroborative evidence – whether evidence relied upon by primary judge corroborated evidence of the plaintiff which primary judge was not prepared to accept absent corroboration – meaning of corroborative evidence – corroboration by circumstantial evidence
UNJUST ENRICHMENT – monies admitted to be owing arising from participation in a “seetu” – admission that at least $100,000 owing – organiser of seetu refusing to pay – claim for monies had and received – restitution properly ordered
Bell ACJ at ; Meagher JA at ; Barrett AJA at 
COSTS – proceedings resolved without a determination on the merits – where plaintiff alleged the existence of an agreement made in 1995 whereby the defendant and plaintiff’s mother agreed to transfer a half share in a property to the plaintiff and his wife – where transfer form signed but not registered – plaintiff commenced proceedings seeking orders for the enforcement of the agreement – where proceedings settled and consent orders entered which required the defendant to facilitate a transfer to the plaintiff with the Summons otherwise dismissed – whether prior to commencement of the proceedings the defendant had unreasonably delayed effecting a transfer – where court not in a position to make findings about the terms of the 1995 agreement – neither party held to have acted unreasonably in the proceedings – orders made that each party pay its own costs
PROCEDURE – appeal against stop work order in Class 1 proceedings – unilateral assumption of nullity of development consent and invalidity of construction certificates by local council underpinning stop work order – all issues arising should be determined in Class 4 proceedings
CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – application under s 411 of the Corporations Act 2001 (Cth) for orders convening meeting of members to consider and, if thought fit, approve a proposed scheme of arrangement – whether requirements to order scheme meeting are satisfied.
CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – application for orders approving scheme of arrangement – where formal requirements satisfied – whether scheme of arrangement should be approved.
CORPORATIONS – arrangements and reconstructions – schemes of arrangement or compromise – application under s 411 of the Corporations Act 2001 (Cth) for orders approving scheme of arrangement – where formal requirements satisfied – whether scheme of arrangement should be approved.
CORPORATIONS – managed investments – application for judicial advice by responsible entity under s 63 of the Trustee Act 1925 (NSW) – where procedural requirements to obtain approval of unitholders has been satisfied – whether responsible entity would be justified in implementing the proposed trust scheme – whether advice sought should be given.
COSTS – party/party – unfair dismissal – application for costs – senior firefighter reinstated – alleged unreasonable failure to agree to a settlement – no evidence of settlement negotiations – whether Commission can draw inference from conduct of case that respondent had no intention to settle
CIVIL PROCEDURE – judicial review – vacation of hearing date – amendment of summons in course of hearing – no basis to delay hearing – summons sought to be amended to add challenge to refusal to state a case to Court of Criminal Appeal – no evidence of application nor of a material question of law
COSTS – party/party – general rule that costs follow the event – application of the rule and discretion – where both parties partially successful – where one notice of motion abandoned prior to hearing – no question of principle
DEVELOPMENT APPEAL – residential apartment development – apartment design guide – SEPP 65 – a mixed use development – heritage conservation – conciliation conference – agreement between the parties – orders
LEGAL PRACTITIONER – application for legal funding on behalf of client – allegations that practitioner had altered date of audiogram, had created client statement that was false and that application form was misleading all to secure funding – circumstantial evidence – held allegations proven to Briginshaw standard – finding of professional misconduct – proceedings stood over for stage 2 hearing and costs
The Hon F Marks, Principal Member
P Moran, Senior Member
J Schwager AO, General Member
PROFESSIONS AND TRADES – proprietor pharmacist – supervision of employed pharmacists – accuracy of drug registers – compliance with legislation – dispensing of non-compliant prescriptions – unsatisfactory professional conduct – whether unsatisfactory professional conduct is sufficiently serious to amount to professional misconduct
S McIllhatton, Senior Member
M Cross, Senior Member
E Anderson, Senior Member
H Schutz, General Member
CIVIL PROCEDURE – default judgment – leave to appeal from interlocutory decision refusing to set aside – where dispute concerned unpaid commissions in real estate agency agreement – where defendant failed to file defence – where inadequate explanation for delay – consideration of length of delay and any special prejudice to plaintiff – where primary judge found bona fide defence on the merits – dictates of just, quick and cheap resolution of proceedings – where plaintiff conceded portion of judgment debt not properly supported on grounds argued below – whether unjust to permit plaintiff to retain entirety of default judgment – appropriate costs orders where defendant sought an indulgence and plaintiff had reasonably opposed – default judgment varied
Gleeson JA at 
Brereton JA at 
Simpson AJA at 
PROSECUTION - amendment of charges - charges held to be duplicitous - application to amend charges - application seeks to substitute multi-count charges for single count in each instance - application to reopen amendment application - Prosecutor makes application to reopen - application to rely on affidavit and supporting material - objection by Company - Company submits supporting material unlawfully obtained - taking Prosecutor's case at its highest, affidavit and supporting material would not assist in establishing a basis to permit multi-count amendment - application to reopen refused - consideration of whether multi-count amendment would effect injustice on the Company - multi-count amendment would be unjust - Prosecutor seeks single-count amendment in the alternative in each instance - single-count amendments not unjust - single-count amendments within power - single-count amendments permitted
COSTS - parties equally successful on applications to amend - no order for costs
TORTS – damages – motor vehicle accident – plaintiff sustained lower back injury – whether plaintiff also sustained injury to neck – few initial complaints of neck injury – whether trial judge addressed the significant medical evidence – adequacy of findings of reliability of plaintiff – reasoning insufficient to justify conclusion
TORTS – damages – quantification of loss of earnings – calculation of lost earnings based on workers compensation payments – lack of evidence of actual earnings – whether residual earning capacity properly assessed – basis of trial judge’s calculations not specified – matter remitted to District Court
Basten JA at ;
Leeming JA at ;
Barrett AJA at 
Aviation law – personal injury to plaintiff – claim by defendant of contributory negligence of plaintiff – whether an “accident” to the plaintiff within the Montreal Convention 1999 - whether injury to plaintiff extended beyond injury to right thumb to injuries to right wrist and arm and right shoulder – whether plaintiff entitled to commercial domestic assistance – amount of buffer to be awarded, if any, for loss of future earning capacity.
CORPORATIONS — Oppression — Where father of plaintiff had business partnerships with defendant — Several American and Australian companies — Defendant had day-to-day control of interests in Australia — Australian shareholdings approximately 50/50 — Father passed away — Heads of Agreement and Shareholders Agreement to govern future management of Australian companies — Long course of non-communication by defendant — Suit prompted by large number of irregular transactions.
CORPORATIONS — Oppression — Conduct relevant to finding of oppression — Failure to provide information in breach of Shareholders Agreement — Failure to appoint plaintiff as director in breach of Shareholders Agreement — Failure to pay dividends declared to plaintiff where defendant’s dividends fully paid — Large loans to defendant — Use of company funds for defendant’s private ventures — Irrecoverable loans by defendant brought onto the books of the company — Sale of company property at undervalue to related parties — “Adjustments” to defendant’s loan account said to reflect undocumented historical payments — Some transactions conceded by defendant as oppressive — Declaration of oppression made.
CORPORATIONS — Oppression — Defences — Construction arguments raised in defence of breach of Shareholders Agreement — Estoppel by convention — Whether necessary to prove detriment — Delay, acquiescence and laches — Relevance of plaintiff’s conduct — No defence established.
CORPORATIONS — Oppression — Remedies — Plaintiff seeks buyout order — Relevance of defendant’s ability to meet such an order — Group of companies whose principal asset is real property — Appropriate valuation methods — Property holding companies valued on the basis of assets held — Trading company valued as going concern —Determining value but for the oppressive conduct — Fefendant maintained spreadsheet with estimated value of companies’ property and investments —Whether spreadsheet as basis for fair value of property and investments — Whether recoverability of loans properly recorded in financial statements — Appropriate method of determining EBITDA where trend in earnings — Buyout order made.
EVIDENCE — Rule in Browne v Dunn — Business record demonstrably wrong — Author of document gave oral evidence —Not necessary to put inaccuracy of business record prepared years earlier to witness as a matter of fairness.
CIVIL PROCEDURE — Pre-judgment interest — Difference between dividends declared and paid credited to loan account — Loan repayments made from time to time — No consent to treat dividends in this way — Whether “running account” within the meaning of Clayton’s Case — Clayton’s Case not applicable — Interest calculated on balance from time to time from date when debt first arose.
Two offences of aggravated indecent assault; one count of use carriage service to solicit child pornography material; one count of transmit indecent communication to person under 16 years; young offender.
SEPARATE QUESTION – proposed separate question not dispositive of proceedings – necessity for expert evidence on separate question – likelihood of appeal of any determination of separate question – no significant saving of time – separate question not appropriate
CIVIL PROCEDURE – personal injury litigation –declaration sought by defendant that it is permitted to interview plaintiff’s former treating doctors – resisted by plaintiff on basis of doctor-patient confidentiality – where no relationship of confidentiality between the doctor and the plaintiff existed at the relevant time –defendant entitled to interview doctors – where such interviews vital to efficient conduct of proceedings – declaration made
TORTS - Negligence
PROFESSIONS AND TRADES – health care professionals – medical practitioners – privilege
BUILDING AND CONSTRUCTION – adjudication determination under Building and Construction Industry Security of Payment Act 1999 (NSW) – whether determination void – jurisdictional error – whether denial of natural justice – whether failure by adjudicator to provide parties with opportunity to make submissions with respect to choice of reference date relevant to payment claim – whether open to claimant to support determination with reference to different reference date than that relied on by adjudicator – whether open to adjudicator to justify determination on basis that it was a determination of a payment claim by reference to other reference date
BUILDING AND CONSTRUCTION – adjudication determination under Building and Construction Industry Security of Payment Act 1999 (NSW) –whether determination void – whether payment claim referrable to work completed after relevant reference date – construction of sections 8 and 13 of the legislation – Southern Han Breakfast Point Pty Ltd (In Liq) v Lewence Construction Pty Ltd and other authorities considered – whether payment claim may only relate to work done before reference date in respect of payment claim was served
BUILDING AND CONSTRUCTION – adjudication determination under Building and Construction Industry Security of Payment Act 1999 (NSW) – whether to grant conditional relief – power of court to sever part of determination which is within jurisdiction from that part which is not – recent authority
COSTS – departure from the usual rule – application by plaintiffs to vary costs order – where plaintiffs commenced proceedings for specific performance of a contract for sale of land – where plaintiffs later amended claim to seek loss of bargain damages instead – where the plaintiffs were unsuccessful in obtaining relief – whether defendant should pay the plaintiffs’ costs for part of the proceedings – plaintiffs held to have been justified in commencing and maintaining proceedings for a period – order that each party pay their own costs in respect of that period
COSTS – departure from the general rule – offers of compromise – Calderbank letters – application by defendant for indemnity costs – defendant made offer of compromise and Calderbank letter in similar terms – neither offer accepted by the plaintiffs – defendant obtains judgment more favourable than offers – whether offers constituted genuine compromises – whether it was reasonable to not accept either offer – offers held to be genuine compromises – indemnity costs ordered
ENVIRONMENTAL OFFENCE – protection of the Environment Operations Act – pollution of waters – breach of license – plea of guilty – discharge of treated sewage effluent into Perisher Creek – objective seriousness of the offence – prior convictions – discount for early guilty plea – assistance to authorities – monetary penalty imposed – principle of totality – publication order made
DEVELOPMENT APPLICATION – rooftop parking with elevated driveway (bridge) over lower footpath for approved dual occupancy – impacts on public domain particularly existing footpath and landscaped reserve – view impacts – whether in keeping with existing or desired future character – height exceedence – requirement for a clause 4.6 request to be upheld – whether compliant with LEP requirement for dual occupancy in low density zone to appear as a dwelling – precedent – public interest
DEFAMATION – where oral communications made by officer of financial regulator to stockbrokers – whether communications conveyed defamatory imputations – where communications expressed regulator’s concern regarding possible manipulation of Australian stock market – whether plaintiffs identified by the communications
DEFAMATION – defences – justification – common law qualified privilege defence established – defence of statutory qualified privilege established
TORT – injurious falsehood – elements – malice not proved
PRACTICE AND PROCEDURE – settlement agreement contained release of claims made in proceedings – party alleged to have subsequently breached orders subject of settlement agreement –
whether parties can prevent bringing of contempt proceedings by settlement agreement – whether contempt proceedings amount to a breach of settlement agreement and may be restrained by injunction – whether Supreme Court Act (1970) NSW, s 61 appropriate basis for application.
DEVELOPMENT APPLICATION – construction of a manufactured home estate – Longyard golf course – proposed development near Tamworth’s Sports and Entertainment Precinct – compatibility with adjoining land uses – playability of the golf course – consideration of impacts relating to acoustics, transport, town planning, stormwater and sewerage, amenity and lighting – site suitability
Crime — appeals — appeal against sentence — application for leave to appeal — two counts of aggravated kidnapping in company contrary to s 86(2)(a) of the Crimes Act 1900 (NSW) — whether sentencing judge failed to have regard to community safety as paramount consideration in accordance with s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW) in considering whether to make an Intensive Correction Order — where s 68 of the Crimes (Sentencing Procedure) Act 1999 (NSW) precluded the making of an Intensive Correction Order — whether sentencing judge misapplied the principle of parity — whether sentencing judge failed to properly account for applicant's mental health — whether sentencing judge failed to give adequate reasons
Gleeson JA at 
Johnson J at 
Cavanagh J at 
CONTRACTS – construction – interpretation – shareholder agreement – where agreement stated that it was the intention of the parties to achieve an exit that maximises shareholder value – whether an obligation thereby imposed on exiting party to maximise shareholder value
Crime — appeals — appeal against sentence — application for leave to appeal — recklessly inflict grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW) — whether sentencing judge erred in assessment of objective seriousness of the offence — no principle that the nature of injuries sustained necessarily determines the assessment of objective seriousness — where offender was correctional officer in position of trust and authority over the victim who was an inmate — whether sentence imposed was manifestly excessive — not demonstrated that sentence was unreasonable or plainly unjust
Macfarlan JA at 
Johnson J at 
Cavanagh J at 
PUBLIC SECTOR DISCIPLINARY APPEAL – Assistant Principal demoted to classroom teacher – sustained allegations of misconduct – not all sustained allegations proven on the evidence before the Commission – appeal allowed
CIVIL PROCEDURE — Appearance — Withdrawal of appearance — Leave of court – further application to withdraw – client unable or unwilling to provide meaningful instructions – whether client fit to attend trial – appointment of tutor pursuant to Court’s parens patriae jurisdiction.
HIGH RISK OFFENDER – final hearing – application for extended supervision order – defendant subject to an interim supervision order – defendant does not contest application – whether Court satisfied to a high degree of probability that defendant poses an unacceptable risk of committing another serious offence if not kept under supervision
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury
SENTENCE – objective seriousness – mitigating factors – aggravating factors – plea of guilty – general deterrence – specific deterrence – appropriate penalty
COSTS - prosecution costs
OTHER – fall from height over unprotected edge
ADMINISTRATIVE REVIEW – accredited certifier – whether construction certificate plans inconsistent with development consent – whether development consent authorised variations – finding of unsatisfactory professional conduct – appropriate penalty
K Ransome, Senior Member
P O’Carrigan, Senior Member