Commissioner of Police, New South Wales Police Force v Holdsworth [2019] NSWCATAP 167

APPEAL – interlocutory decision to extend time – whether leave should be granted to appeal – whether discretion miscarried

Dr Christos Mantziaris represented the applicant.

The reasons for the decision can be found here.

Carvajal v Lamba [2019] NSWDC 284

TRAFFIC LAW AND TRANSPORT – motor accident legislation – liability – plaintiff injured as a result of motor vehicle accident – whether plaintiff’s or defendant’s version of events is accepted

TORTS – negligence – damages – non-economic loss – out-of-pocket expenses – economic loss – gratuitous care – Motor Accidents Compensation Act 1999

EVIDENCE – credibility – plaintiff and defendant

Dr Juliet Lucy represented the Defendant.

Reasons for the decision can be found here.

MASSON AND PARSONS & ORS [2019] HCA 21

Constitutional law (Cth) – Courts – Federal courts – Federal jurisdiction – Matter arising under Commonwealth law – Where Commonwealth law provides rules in respect of parentage of children born of artificial conception procedures – Where State law provides irrebuttable presumption that biological father of child conceived by fertilisation procedure is not father in specified circumstances – Whether s 79(1) of Judiciary Act 1903 (Cth) operates to pick up and apply text of State law as Commonwealth law – Whether State law regulates exercise of jurisdiction – Whether Commonwealth law has "otherwise provided" within meaning of s 79(1) of Judiciary Act – Whether tests for contrariety under s 79(1) of Judiciary Act and s 109 of Constitution identical – Whether State law applies of its own force in federal jurisdiction.

Family law – Parenting orders – Meaning of "parent" – Where Family Law Act 1975 (Cth) presumes best interests of child served by shared parental responsibility – Where s 60H of Family Law Act provides rules in respect of parentage of children born of artificial conception procedures – Where appellant provided semen to first respondent to conceive child with belief that he was fathering child – Where appellant had ongoing role in child's financial support, health, education and general welfare and enjoyed extremely close and secure attachment relationship with child – Where first respondent later in de facto relationship with second respondent – Where appellant found to be "parent" within ordinary meaning of word but not under s60H – Whether s60H exhaustive of persons who may qualify as "parent" of child born of artificial conception procedure – Whether "parent" used in Family Law Act according to ordinary meaning except as otherwise provided – Whether appellant is "parent" within ordinary meaning – Whether ordinary meaning of "parent" excludes "sperm donor" – Whether appellant is "sperm donor".

Constitution, s 109.
Family Law Act 1975 (Cth), ss 4, 60B, 60EA, 60G, 60H, 61D, 61DA. Judiciary Act 1903 (Cth), s 79(1).
Status of Children Act 1996 (NSW), Pt 3 Div 1.

Michelle McMahon, Dr James Stellios led by Brett Walker SC represented the first and second respondents.

Reasons for the decisions can be found here.

IAG Limited t/as NRMA Insurance v Jammal [2019] NSWSC 676

ADMINISTRATIVE LAW – judicial review – decision under the Motor Accident Compensation Act 1999 – SIRA proper officer refused application for further assessment of a medical dispute – whether proper officer’s decision affected by error of law on the face of the record or jurisdictional error – failure to address substantial, clearly articulated argument – error established – decision set aside and matter remitted for redetermination according to law

Mark Robinson SC and Dr Juliet Lucy represented the Plaintiff.

Reasons for the decision can be found here.

In the matter of Garfox 86 Pty Limited [2019] NSWSC 442 (18 April 2019)

CORPORATIONS — Dissolution — Reinstatement — Where company twice deregistered administratively for non-payment of fees — Company holds real property — Company solvent — Corporations Act 2001 (Cth) s 601AH(3)(d) — Scope of Court’s power — Orders made for re-organisation of shareholding and officeholding to reflect parties’ dealings.

K J Young represented the Plaintiff.

Reasons for the decision can be found here.

AAI Limited v Feng [2019] NSWSC 535

STATUTORY INTERPRETATION – definition – whether “fault” is synonymous with liability or means, in the context of the tort of negligence, breach of duty – whether fault includes causation 
  
ADMINISTRATIVE LAW – judicial review – application for mandatory and discretionary exemption from CARS assessment – no reasons required when discretionary exemption refused – reasons of claims assessor to be read fairly as a whole – no error established

Mark Robinson SC and Dr Juliet Lucy represented the First Defendant.

Reasons for the decision can be found here.

Ample Source International Limited v Bonython Metals Group Pty Limited (in liquidation), in the matter of Bonython Metals Group Pty Limited (in liquidation) (No 10) [2019] FCA 533

BANKRUPTCY AND INSOLVENCY – where liquidator seeks order to pay distributions into Court pursuant to r 18.03(1)(b) of the Federal Court Rules 2011 – whether there are competing claims concerning distributions per r 18.01(b)(ii) of the Rules – where liquidator claims no interest in property – interpleader relief granted by way of payment of distributions into Court 

Dr Christos Mantziaris represented the Plaintiff.

Reasons for the decision can be found here.

IAG Limited t/as NRMA Insurance v Qianxia Lou [2019] NSWSC 382

ADMINISTRATIVE LAW - Judicial Review - first defendant sought damages for injuries sustained in a motor vehicle accident – application by plaintiff that the claim be exempt from informal assessment process on the grounds that first defendant made false and misleading statements – question of error of law or jurisdictional error on the part of the Assessor - whether Assessor asked the correct question - errors established - matter remitted for determination according to law

Mark Robinson SC and Dr Juliet Lucy represented the Plaintiff.

Reasons for the decision can be found here.

IAG Limited t/a NRMA Insurance v Khaled & ors [2019] NSWSC 320

Administrative Law – Judicial Review – Where first defendant sought damages for injuries sustained in a motor vehicle accident – Where plaintiff sought that the claim be exempt from informal assessment process on the grounds that it was not suitable for assessment in that way due to the plaintiff’s false and misleading statements – Whether there was error of law or jurisdictional error on the part of the Assessor – Whether the Assessor asked the correct question – Whether the Assessor’s reasons were adequate – Errors established – Matter remitted for determination according to law 
  
Practice and procedure – Costs – Where first defendant filed an appearance submitting to all orders of the Court – Where plaintiff succeeded in obtaining the relief sought – No reason for the plaintiff not to be awarded costs in its favour 

Mark Robinson SC and Dr Juliet Lucy represented the Plaintiff.

Reasons for the decision can be found here.

Ample Source International Limited v Bonython Metals Group Pty Limited (in liquidation), in the matter of Bonython Metals Group Pty Limited (in liquidation) (No 9) [2019] FCA 287

BANKRUPTCY AND INSOLVENCY - application for judicial advice as to conduct of liquidation - where liquidator seeks order pursuant to s 488(2) Corporations Act 2001 (Cth) to distribute surplus - whether to grant special leave - leave granted.

Dr Christos Mantziaris represented the Plaintiff.

Reasons for the decision can be found here.

Insurance Australia Limited t/as NRMA v Howard [2019] NSWSC 224

ADMINISTRATIVE LAW – judicial review – application for exemption from CARS assessment – allegations of false or misleading statements by claimant – whether error of law or jurisdictional error – alleged legal unreasonableness – beneficial construction to be applied to reasons of decision-maker – no error established

Mark Robinson SC and Dr Juliet Lucy represented the Plaintiff.

Reasons for the decision can be found here.

PHAN V R [2018] NSWCCA 225

CRIME – conviction appeal – attempt to possess a commercial quantity of an unlawfully imported border controlled substance contrary to ss 11.1 and 307.5 of the Criminal Code (Cth)

CRIME – procedure – four accused – verdicts returned against two accused when jury was constituted by 12 jurors – lengthy jury deliberations – jury notes – Black direction in respect of co-accused – “partial” Black direction in respect of co-accused and appellant – discharge of juror – order that trial continue with 11 jurors – Black direction in respect of co-accused and appellant – discharge of another juror – order that the trial continue with 10 jurors – illness of juror in jury room – jury allowed to separate over Christmas – upon return of jury, third juror discharged – order that trial continue with 9 jurors – note from juror – examination by judge of juror and foreperson – jury discharged in respect of coaccused – jury not discharged in respect of appellant – guilty verdict returned shortly thereafter

CRIME – s 53C Jury Act – discharge of jurors – consideration of risk of substantial miscarriage of justice – secrecy of jury deliberations – maintenance of a fair trial – trial in progress beyond 2 months – order of jury deliberations – whether error in ordering continuation of trial with 9 jurors – anxiety disorder of discharged juror – unprecedented length of jury deliberations – reasonableness and well-being of remaining jurors – whether discharge of three jurors upset the balance of the remaining jurors – whether error in declining to discharge the jury following receipt of juror’s note and examination of juror and foreperson – whether error in continuing trial after discharge of jury in respect of coaccused – whether discharged juror may have been a dissentient juror – benefit of hindsight – whether error in confining consideration of discharge to the likelihood of reaching a unanimous verdict – s 56(3) Jury Act – House v The King error – failure to consider whether the ability of the nine remaining jurors to carry out their function had been compromised – substantial miscarriage of justice – guilty verdict quashed

Dr James Stellios represented the First Intervenor.

Reasons for the decision can be found here.

Nithianantha v Commonwealth of Australia [2018] FCA 2063

ADMINISTRATIVE LAW – Judicial Review – Professional Services Review Scheme under Part VAA of the Health Insurance Act 1973 (Cth) – where Professional Services Review Committee found applicant doctor engaged in "inappropriate practice" as defined in s 82(1)(a) – where Committee found that applicant engaged in a prescribed pattern of services by rendering more than 80 services on each of 20 or more days in the review period – where Committee found that there were no exceptional circumstances under reg 11(b) of the Health Insurance (Professional Services Review) Regulations 1999 (Cth) because there was not an absence of other medical services for the applicant's patients – whether the Committee erred by finding an alternative medical centre provided a readily and reasonably available alternative for the applicant's patients – whether applicant bears the burden of proving the existence of exceptional circumstances – whether reg 11(b) required the Committee to consider whether alternative medical services were available on each and every day in the review period – whether the Committee impermissibly considered practice management considerations 

ADMINISTRATIVE LAW – Judicial Review – Professional Services Review Scheme under Part VAA of the Health Insurance Act – procedural fairness – where Committee called a witness to give evidence which contradicted the applicant's evidence a week before the last day of hearing – where notice did not encompass all evidence given by the witness at the hearing – where Committee relied on the witness' evidence to find that exceptional circumstances did not exist – whether the Committee was required to give the applicant a further opportunity to respond to witness' evidence – whether the finding was an adverse conclusion which was not obviously open on the known material

HEALTH LAW – Health Insurance (General Medical Services Table) Regulations 2012 (Cth) – construction of reg 2.15.1 and MBS item 597 – whether urgency is assessed when a practitioner determines to make an attendance or whether it is assessed at the time of an examination of the patient 

Conclusion: application dismissed.

Dr Juliet Lucy represented the Applicant.

Reasons for the decision can be found here.

Royal Botanic Gardens and Domain Trust v The Attorney General of New South Wales [2018] NSWSC 1666 (31 October 2018)

EQUITY — charitable trusts — Validity and practicability — Administrative scheme ordered for a scholarship bequest for the purposes of the Mt Tomah Garden administered by the Royal Botanic Garden and Domain Trust.

Dr Christos Mantziaris represented the Attorney General (NSW).

Reasons for the decision can be found here