Latest Decisions of Interest

6 November 2023 – 12 February 2024

NSW Court of Appeal Decisions

Civil Procedure: Permanent stay of proceedings

CM v Trustees of the Roman Catholic Church for the Diocese of Armidale [2023] NSWCA 313

The Court of Appeal (Leeming, Payne JJA and Harrison CJ at CL) has granted leave to appeal a permanent stay of civil child sex abuse proceedings, and has ruled on the impact of the recent High Court decision GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32. The Court confirmed that the effluxion of time, its impoverishing effect on evidence, and the “burdensome effect” this may have on the defendant, can no longer be considered “exceptional” for the purposes of grounding a permanent stay of proceedings. On that basis, the Court found that the arguments made in the primary proceedings could no longer support such a stay.


Equity: Set-off

Mao v Bao [2023] NSWCA 278

The Court of Appeal (Ward ACJ, White and Mitchelmore JJA) has ruled on the requisite conditions for a claim for equitable set-off, and the applicability of the Brickenden principle in Australia. This dispute concerned a claim for non-payment of a private loan by Bao, and unauthorised drawdowns on a loan facility by Mao. Contrary to the conclusions of the primary judge, the majority (Ward ACJ, Mitchelmore JJA) found that intuitive unfairness alone is insufficient to found an equitable set-off, and the requisite interdependence between the two claims was not established. Separately, the majority determined that the Brickenden principle has little application, if any, in Australia.


Limitation of actions: Overpaid rates

Mangoola Coal Operations Pty Ltd v Muswellbrook Shire Council [2023] NSWCA 275

In August 2017, Muswellbrook Shire Council recategorised farm land owned by Mangoola as mining land. In protest, Mangoola continued to pay higher rates in accordance with a farmland categorisation. Following a successful challenge, Mangoola sought to recover the overpaid-rates via s 527 of the Local Government Act 1993 (NSW). The Court of Appeal (Leeming, Payne and Mitchelmore JJA) held that the statutory limitation period in s 2(1) of the Recovery of Imposts Act 1963 (NSW) applies to both statutory and common law claims, such that Mangoola was barred from recovery. Whilst not determinative in light of the aforementioned finding, the Court also held that s 527 of the Local Government Act does not confer a right to a refund or credit of overpaid rates.


Equity: Proprietary estoppel

Kramer v Stone [2023] NSWCA 270

The Court of Appeal (Ward P, Leeming and Kirk JJA) has drawn a distinction between the requisite level of knowledge of detrimental reliance for two forms of proprietary estoppel: by encouragement and by acquiescence. In the latter, knowledge of acts in reliance on the representation (or assumed state of affairs) is a necessary element, whereas in the former, it is not a necessity, given the representor’s conscience has been enlivened by the initial act of encouragement. In both instances, knowledge on the part of the defendant is relevant to the question of unconscionability, although proof of knowledge is not essential in encouragement estoppel.


Australian Intermediate Appellate Decision(s)

Administrative Law: Judicial review; Error of law

Armitage v Parole Board Queensland [2023] QCA 239

The Queensland Court of Appeal (Mullins P, Flanagan and Boddice JJA) has held that the term “remains”, for the purposes of the “no-body, no-parole” provisions in the Corrective Services Act 2006 (Qld), is distinct from, and something less than, a person’s body. The correct interpretation of s 175C(b)(ii) is that when any missing part of a body or a victim’s remains no longer exists, and the balance has been located, then on the ordinary meaning of the section, all of the “remains” have been located. Under the section, a prisoner should not be declared a “no-body, no-parole” prisoner if the remains have been located.


Asia Pacific Decision(s)


Better Public Media Trust v Attorney-General [2023] NZCA 553

Better Public Media Trust, whose purpose is to advance public media, applied to be registered as a charity under the Charities Act 2005 (NZ). Its application was dismissed by the Charities Registration Board, and so too was the Trust’s appeal to the High Court. By contrast, the Court of Appeal (Courtney, Collins and Katz JJ) held that the Trust’s objectives, namely to enhance democratic and social values through the advancement of public media, are capable of being categorised as charitable.


International Decision(s)


Popoviciu v Curtea De Apel Bucharest (Romania) (Rev 1) [2023] UKSC 39

In 2019, Mr Popoviciu was arrested in the UK pursuant to a European Arrest Warrant issued by the Bucharest Court of Appeal for the purposes of Mr Popoviciu being brought back to Bucharest to serve a 7-year prison term. Mr Popoviciu appealed this extradition in the High Court and brought evidence alleging that there was an improper and corrupt relationship between the judge who presided over Mr Popoviciu’s criminal trial in Bucharest and a key prosecution witness. The High Court found in favour of Mr Popoviciu. On appeal by the Bucharest Court, the Supreme Court held that the High Court had applied the wrong standard of proof in applying the “real risk that the trial was fragrantly unfair” test, and should’ve applied the “balance of probabilities’ test. Nonetheless, the warrant had been revoked by this stage, and so the appeal was dismissed.


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