Latest decisions of interest

19 November – 17 December 2018

NSW Court of Appeal

Banerjee v Commissioner of Police [2018] NSWCA 283
Constitutional law: inconsistency; corporations, voluntary administration
The Court of Appeal has rejected a challenge to the constitutional validity of the Security Industry Act 1997 (NSW) and the Security Industry Regulation 2016, holding that impugned provisions were not inconsistent with the Corporations Act 2001 (Cth).
Kempsey Shire Council v Five Star Medical Centre Pty Ltd [2018] NSWCA 308
Torts: negligence, duty to warn of obvious risk, public authorities
The Court of Appeal has found that a Council, which owned and controlled an aerodrome, did not breach its duty of care to aerodrome users after the respondent’s aircraft was damaged on landing at the aerodrome when it collided with a kangaroo.
Cisera v Cisera Holdings Pty Ltd [2018] NSWCA 286
Equity: trusts, powers of trustees, Trustee Act 1925 (NSW), s 81
The Court of Appeal has held that Trustee Act 1925 (NSW), s 81, did not confer power on the court to extend the vesting date of a trust, and that the decision in Re Dion Investments Pty Ltd (2014) 87 NSWLR 753; [2014] NSWCA 367 was correctly decided.
State of New South Wales v Cuthbertson [2018] NSWCA 320
Damages: legal costs, exemplary damages; torts: wrongful arrest
The Court of Appeal has held a person could not recover by way of damages in subsequent civil proceedings the costs incurred in successfully defending criminal proceedings, and that State of New South Wales v Koumdjiev (2005) 63 NSWLR 353; [2005] NSWCA 247 should not be followed on this point.

Other Australian intermediate appellate decisions

Perera v GetSwift Limited [2018] FCAFC 202
Representative proceedings: permanent stay of competing actions
The Full Court of the Federal Court has dismissed an appeal against a decision ordering the permanent stay of two of the three ‘open’ shareholder class actions which had been commenced in the Federal Court against GetSwift Limited.
The State of Western Australia v Cunningham (No 3) [2018] WASCA 207
Torts: malicious conduct of police officers; damages
The Western Australian Court of Appeal has held that the Police Act 1982 (WA), s 137(5), did not have the effect of altering the common law rule of solidary liability. Damages caused by acts done by police officers with malice were not to be apportioned from the damage caused by acts done without malice.

Asia Pacific

Commerce Commission v Lodge Real Estate Limited [2018] NZCA 523
Competition law: anti-competitive conduct, price fixing
The New Zealand Court of Appeal has found that certain real estate agency companies had come to an arrangement or understanding with price fixing as its purpose, effect, or likely effect under the Commerce Act 1986 (NZ), ss 27 and 30, after they agreed to not absorb or pass on to vendors the proposed new fees of a specialist property listing service.
BOM v BOK and another appeal [2018] SGCA 83
Trusts: setting aside trust deed, undue influence, unconscionability
The Singapore Court of Appeal has clarified the law on unconscionabliity in Singapore, considering that Singapore should not adopt a ‘broad’ doctrine of unconscionability as exemplified in Commercial Bank of Australia v Amadio (1983) 151 CLR 447.

Other international

Secretary of State for Justice v MM [2018] UKSC 60
Statutory interpretation: principle of legality; human rights
The United Kingdom Supreme Court has held that there is no power to release a person on a conditional discharge under the Mental Health Act 1983 (UK) on conditions that would amount to a deprivation of liberty under the European Convention on Human Rights, Art 5, even with the consent of the patient.
THE UK WITHDRAWAL FROM THE EUROPEAN UNION (LEGAL CONTINUITY) (SCOTLAND) BILL – A Reference by the Attorney General and the Advocate General for Scotland (Scotland) [2018] UKSC 64
Government: legislative competence of Scottish Parliament, ‘Brexit’
The United Kingdom Supreme Court has held the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, as a whole, was not outside the competence of Scottish Parliament under the Scotland Act 1988 (UK).