1 September – 15 September 2021
NSW Court of Appeal Decisions
Statutory interpretation; Jurisdiction; Limitation of actions
Sydney Seaplanes Pty Ltd v Page  NSWCA 204
The Court of Appeal has allowed an appeal against an order under s 11 of the Federal Courts (State Jurisdiction) Act 1999 (NSW) transferring proceedings mistakenly commenced in the Federal Court to the NSW Supreme Court. The Court held that the s 11 order is only available to address the constitutionally invalid conferral of jurisdiction addressed by the High Court in Re Wakim; Ex parte McNally (1999) 198 CLR 511, and was not available to plaintiffs who had mistakenly commenced proceedings in the Federal Court in matters in which that Court lacked jurisdiction for some other reason.
Torts: standard of care of public authorities
Queensland Bulk Water Supply Authority t/as Seqwater v Rodriguez & Sons Pty Ltd  NSWCA 206
The Court of Appeal has allowed an appeal by the operator of two dams in South East Queensland against a finding that it was liable for losses incurred during the 2011 flooding of Brisbane and Ipswich. The Court held that the dam operator was subject to the attenuated standard of care for public authorities in s 36 of the Civil Liability Act 2003 (Qld), and that the counterfactual reasonable course of action relied upon by the plaintiffs did not suffice to show that the actual course of action taken by flood engineers was in breach of that standard.
Contract: specific performance
Paolucci v Makedyn Pty Ltd  NSWCA 215
The Court of Appeal has dismissed an appeal against a decision denying the plaintiff relief described as “partial specific performance”. The Court held that the order sought, compelling the defendant to perform a term of the parties’ agreement and pay Lord Cairns Act damages to compensate for non-performance of other terms, would be substantially different from the parties’ original bargain and was unavailable in circumstances where the historic breach relied upon had been long since remedied and the extant breach was reasonable on the basis of an ongoing dispute between the parties as to the proper construction of a term.
Environment and planning; Statutory interpretation
KEPCO Bylong Australia Pty Ltd v Bylong Valley Protection Alliance Inc  NSWCA 216
The Court of Appeal has dismissed an appeal brought by the proponent of a coal mine against a decision upholding the Independent Planning Commission’s decision to refuse development consent. The Court held that the IPC had considered a range of proposed conditions and found that none of them was directed to minimising the project’s downstream emissions (the vast majority of the project’s emissions), that there was no error in having regard to the NSW Climate Change Policy Framework in assessing the project’s emissions, and that it was open to find that there was no evidence capable of satisfying the IPC that, were the project to be refused, lower-quality coal for power generation would be sourced elsewhere.
Criminal procedure: referral of questions of law
Gibson v Director of Public Prosecutions (NSW) (No 2)  NSWCA 218
The Court of Appeal has dismissed a summons seeking judicial review of a District Court judge’s refusal to refer certain purported questions of law to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912 (NSW). The Court held that, while it is generally desirable for formal reasons to be given for judicial decisions, relief could be refused in the exercise of the Court’s discretion on the basis that the proposed questions were not questions of law, and that even if an error of law had been made in characterising the proposed questions, this would be an error of law within jurisdiction and thus not a jurisdictional error.
Private international law: appropriate forum; standard of proof
Joshan v Pizza Pan Group Pty Ltd  NSWCA 219
The Court of Appeal has allowed an appeal brought by the operators of a Pizza Hut restaurant in South Australia against the refusal of a stay under s 20 of the Service and Execution of Process Act 1992 (Cth) in proceedings brought against them under a franchise guarantee deed. The Court held that the primary judge, in requiring a “clear and compelling basis” for relief, applied the incorrect standard for a s 20 stay application, and that a non-exclusive jurisdiction clause in favour of NSW did not manifest a shared preference for that jurisdiction and said nothing as to the appropriate court to determine the proceedings.
Australian Intermediate Appellate Decision(s)
Limitation of actions: compensation to relatives; Statutory interpretation
Callow v Petersen  WASCA 167
The Western Australian Court of Appeal has allowed an appeal against an order in an action for compensation to relatives striking out references to family members who would have been unable to commence an action by reason of the statutory limitation period. The Court held that there is only one action for compensation to relatives, and that once validly commenced within time by a person able to do so there is no separate limitation as to the persons for whose benefit that action may be brought.
Statutory interpretation: planning schemes and instruments
Wilderness Society (Tasmania) Inc v Wild Drake Pty Ltd  TASFC 12
The Full Court of the Tasmanian Supreme Court has allowed an appeal against a decision holding that the “acceptable solution” under a planning scheme, requiring that certain development be carried out in accordance with a reserve management plan, would be satisfied if the development in question was subject to such a management plan. The Court held that satisfaction of the “acceptable solution” requires an evaluation of compliance with any prescriptive measures in the planning scheme, although not of conformity with any broad statements of values or aspirations.