Latest Decisions of Interest

10 October – 23 October 2022

NSW Court of Appeal Decisions

Criminal Procedure; Constitutional Law

Landrey v Director of Public Prosecutions (NSW) [2022] NSWCA 211

The Court of Appeal has dismissed a matter brought by Mr Landrey, which was removed into the Court of Appeal from the Supreme Court regarding the constitutional validity of ch 3, pt 2 of the Criminal Procedure Act 1986 (Cth). The Court found that committal proceedings are not an exercise of judicial power and ch 3, pt 2 does not create create circumstances where the judicial officer has been enlisted into the executive and given a non-discretionary duty to rubber-stamp a finding by an executive officer in breach of the principle in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 1.

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Contracts: breach; Corporations: financial services

Australia Capital Financial Management Pty Ltd v Australian Financial Complaints Authority Limited [2022] NSWCA 204

The Court of Appeal has dismissed an appeal brought by Australia Capital Financial Management Pty Ltd (“ACFM”) against a decision of the Supreme Court finding that Australian Financial Complaints Authority Limited (“AFCA”) had the jurisdiction to entertain a complaint lodged by Mr Bai and Ms Yang, which alleged unconscionable conduct by ACFM, and AFCA had the jurisdiction to award the remedy it did. The Court found that the judicial review of a decision by AFCA as to whether a complaint falls within the scope of its functions is subject to constraints on judicial intervention such that there was no reviewable error on the part of AFCA, the primary judge did not err in finding that the amount of compensation awarded did not exceed the $1 million limit and AFCA’s conclusion, that the guarantee and mortgages given by the appellants were unfairly obtained, was open to it.

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Negligence: motor vehicle accident

Zaya v Damirdjian [2022] NSWCA 203

The Court of Appeal has dismissed an appeal brought by Mr Zaya against a decision of the District Court finding that the white van which caused Mr Damirdjian to lose control of his motorcycle belonged to Mr Zaya. The Court found that the primary judge erred in finding that Mr Zaya was liable as the owner of the white van involved in the accident because the primary judge failed to give cumulative effect to several evidentiary matters which cast strong doubt on the reliability of evidence by a witness, Mrs Douglas. However, the Court further found that the primary judge did not err in concluding that Mr Damirdjian was not contributorily negligent.

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Contract: restraint of trade

McMurchy v Employsure Pty Ltd; Kumaran v Employsure Pty Ltd [2022] NSWCA 201

The Court of Appeal has granted leave to appeal and dismissed an appeal brought by Mr McMurchy and Mr Kumaran, who were employed by Employsure Pty Ltd (“Employsure”), against a decision of the Supreme Court finding that exclusive employment covenants in their employment contracts were reasonable, that Mr McMurchy breached those covenants, that a post-employment restraint for nine months was reasonable, that Mr McMurchy breached his contract by encouraging Mr Kumaran to leave his employment with Employsure and that the company to which they moved, ELMO Software Ltd, assisted in this breach. The Court found that Employsure’s legitimate interest in Mr McMurchy’s performance of his duties included that he devote the whole of his skill, time and attention to his duties, that he observe his obligations in respect of confidential information and that a post-employment restraint of nine months was reasonable for Mr McMurchy but not for Mr Kumaran who would not remember most of the confidential information. The Court further found that the primary judge did not err in finding that Mr McMurchy materially influenced Mr Kumaran’s decision to leave Employsure

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Australian Intermediate Appellate Decision(s)

Arbitration; Torts; Contracts

Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2022] SASCA 107

The South Australian Court of Appeal has answered “No” in relation to the question of whether part 3 of the Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA) (“the Law Reform Act”) and/or part VIA of the Competition and Consumer Act 2010 (Cth) (“CCA”) applied to a commercial arbitration proceeding conducted pursuant to that legislation and the Commercial Arbitration Act 2011 (SA) in relation to an ongoing arbitration between Tesseract International Pty Ltd (“Tesseract”) and Pascale Construction (“Pascale”). This arbitration was in relation to a dispute arising from a contract for the design and construction of a warehouse. The Court found that while the proportionate liability regimes under the Law Reform Act and CCA form part of the substantive law governing the resolution of the dispute between the parties under s 28(3) of the Commercial Arbitration Act 2011 (SA), that section does not require that every substantive law within that system be applied to the arbitration proceedings and the proportionate liability provisions in the Law Reform Act and the CCA do not apply to arbitration proceedings by force of their own terms in arbitration proceedings.

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Worker’s Compensation: termination of entitlement

WorkCover Queensland v Yang [2022] QCA 196     

The Queensland Court of Appeal has dismissed an appeal brought by WorkCover Queensland (“WorkCover”) against a decision of the Supreme Court of Queensland finding that s 168 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) refers to a person’s entitlement to compensation rather than the circumstances under which a person was found to have an entitlement to compensation and that WorkCover’s termination of Mr Yang’s entitlement to worker’s compensation be set aside. The Court found that once a claim is accepted, it cannot be unaccepted unless the incapacity for work related injury stops or other statutory limits are met or, subsequent to the provision of a notice of assessment. In dissent, Morrison JA found that WorkCover’s decision was not that an entitlement never existed, but rather that the claimed injury did not ground payments in the future.

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Asia Pacific Decision(s)

Admiralty and Shipping: arrest; practice and procedure of action in rem

The “Jeil Crystal” [2022] SGCA 66

The Court of Appeal of Singapore has allowed an appeal brought by Jeil International Co Ltd (“JIL”) from a decision by the High Court of Singapore upholding the warrant for arrest of The Jeil Crystal, a vessel owned by JIL, despite the original claim in the warrant for arrest having never existed. The Court found that the primary judge erred in assuming that an amendment to the relevant statement of claim would have a corresponding effect on the in rem writ and the warrant of arrest and that The Amigo [1991] 2 HKC 491 does not necessarily stand for the proposition that a subsequent amendment to pleadings cannot justify the issuance of a warrant of arrest that was wrongly issued.

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International Decision(s)

Equity: trusts; right of indemnity; priority

Equity Trust (Jersey) Ltd v Halabi (Jersey) [2022] UKPC 36

The United Kingdom Judicial Committee of the Privy Council has allowed an appeal brought in relation to two unconnected appeals which raise common issues about the nature and scope of the right of a trustee under Jersey law to recover from or be indemnified out of the trust assets in respect of liabilities and other expenditure properly incurred by the trustee. The Court found that the right of indemnity confers a proprietary interest in the trust property in favour of the trustee, the pari passu rule of priority should be preferred as it is more appropriate in the case of trustees all serving together, and where serving under a rolling succession. In dissent, Lord Richards, Sir Nicholas Patten and Lord Stephens, considered that there is no reason why the “first-in-time” rule should not apply.

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