Latest decisions of interest

11 November 2019 – 6 December 2019

NSW Court of Appeal

Gordon v Lever (No 2) [2019] NSWCA 275       
Real property: easements; reasonable necessity; conditions
The Court of Appeal has allowed an appeal in part brought by landowners seeking an easement over their neighbours land, holding that conditions imposed by the primary judge on the easement he granted were not practically workable in circumstances where the benefit of the easement was reasonably necessary at all times.

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Nagamuthu v Shanmugarajah [2019] NSWCA 288
Evidence: corroborative evidence; unjust enrichment
The Court of Appeal has dismissed an appeal brought from a decision of the District Court ordering Mr Nagamuthu to pay restitution, holding that the primary judge did not err in relying on corroborative evidence in the form of post-it notes and transcripts of recorded conversations for the purposes of establishing Mr Nagamuthu’s indebtedness to Mr Shanmugarajah.

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Todd Hadley Pty Ltd v Lake Maintenance (NSW) Pty Ltd [2019] NSWCA 262
Civil procedure: determination of separate questions
By majority, the Court of Appeal has allowed an appeal from a decision to refuse an application for a hearing of separate questions, holding that the primary judge’s dismissal of that application was vitiated by a material error, and that in the circumstances, an appropriately confined hearing on a separate question could save time and costs.

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Other Australian intermediate appellate decisions

Davis v Ryan, State Coroner [2019] QCA 282
Appeals: leave to appeal; refusal of application to order an inquest
The Queensland Court of Appeal has refused to grant leave to appeal against a discretionary decision of a District Court judge refusing to order an inquest into the death of Mrs Davis.

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Asia Pacific

Terekieu Clan v Ngirmeriil [2019] PWSC 37
Customary law: authority to dispose of clan property
The Supreme Court of the Republic of Palau has allowed an appeal brought on behalf of the Terekieu Clan, holding that the Trial Division erred in holding that Palauan customary law allowed a female titleholder to dispose of Clan assets as she wished in the circumstances of the case.

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Re Jurisdiction of the Public Services Commission [2019] PGSC 93
Constitutional law: government employment; powers of review
On a referral under s 19 of the Constitution, the Supreme Court of Justice of Papua New Guinea has determined that the Public Services Commission does not have jurisdiction to review any decision of the Public Solicitor or an officer or employee of the Office of Public Solicitor.

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Other international

Royal Mail Group Ltd v Jhuti [2019] UKSC 55
Employment law: unfair dismissal; reasons given for dismissal
The Supreme Court of the United Kingdom has determined that in a claim for unfair dismissal, if a person in the hierarchy of responsibility above the employee determines that she (or he) should be dismissed for a reason but hides it behind an invented reason which the ultimate decision-maker adopts, a court will consider that the true reason for the dismissal is the hidden reason not the invented one.

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Kosoian v Société de transport de Montréal 2019 SCC 59
Civil liability: unlawful arrest
The Supreme Court of Canada has allowed an appeal brought Ms Kosoian, holding that a police officer who arrested her for failing to hold a handrail on an escalator in a subway station committed a civil fault against her for which his employer and the relevant transport authority were also liable.

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