Latest decisions of interest

22 October – 2 November 2018

NSW Court of Appeal

Scenic Tours Pty Ltd v Moore [2018] NSWCA 238
Representative proceedings; consumer law; damages: Civil Liability Act 
The Court of Appeal has found that s 16 of the Civil Liability Act 2002 (NSW) is picked up under the Australian Consumer Law as a surrogate federal law, such that damages for distress and disappointment arising out of breaches of statutory guarantees occurring outside of Australia were not available to group members in a representative action conducted in the NSW Supreme Court.
Council of the Law Society of New South Wales v Levitt [2018] NSWCA 247
Administrative law; statutory interpretation; legal profession
The Court of Appeal has held that the Council of the Law Society of New South Wales erred in failing to consider the summary dismissal procedure under s 540 of the Legal Profession Act 2004 (NSW), in the course of determining whether to commence proceedings in the NSW Civil and Administrative Tribunal under s 537.

Other Australian intermediate appellate decisions

Commissioner of the Australian Federal Police v Kalimuthu [2018] WASCA 192
Crime: proceeds of crime, third parties; statutory interpretation
The Western Australian Court of Appeal has considered the operation of s 330(4)(a) of the Proceeds of Crime Act 2002 (Cth), in the course of finding that two individuals were not “third parties”, such that their interests in certain bank accounts were not liable to be excluded from restraining orders made against them.
Botsman v Bolitho & Ors [2018] VSCA 278
Representative actions: approval of funder’s commission and legal costs
The Victorian Court of Appeal has held that it was within its power under the Supreme Court Act 1986 (Vic), ss 33V and 33ZF, to approve the overall settlement sum in a representative action, whilst declining to approve the distributions from the settlement in respect of the funder’s commission and legal costs.

Asia Pacific and other international

Vinmar Overseas (Singapore) Pte Ltd v PTT International Trading Pte Ltd [2018] SGCA 65
Private international law: contract, exclusive jurisdiction clauses
The Singapore Court of Appeal has departed from previous authority to hold that the merits of the defence are irrelevant to the question whether there is “strong cause” to refuse a stay of proceedings brought in breach of an exclusive jurisdiction clause.
Lee Kwok Wa v The Securities and Futures Commission [2018] HKCFA 45
Crime: securities, insider trading; statutory construction
The Hong Kong Court of Final Appeal has held that a transaction for the purposes of s 300 of the Securities and Futures Ordinance, encompasses dealings with a view to profit or avoidance of loss by the use of inside information, and is wide enough to include conduct taking place before the purchase and sale of securities.
Abdul Kahar bin Othman v Public Prosecutor [2018] SGCA 70
Constitutional law: judicial power; courts: criminal appeal
The Singapore Court of Appeal has considered the test for re-opening and reviewing a concluded criminal appeal, in the course of rejecting challenges to the constitutionality of the sentencing regime for drug trafficking offence brought by a person facing the death penalty.
Churchill Falls (Labrador) Corp v Hydro-Québec, 2018 SCC 46
Contracts: good faith, duty to re-negotiate, unforeseeability
The Supreme Court of Canada has held that there was no basis upon which it could make orders requiring the parties to renegotiate the price fixing mechanism in a long-term contract concerning a hydroelectric plant, where there had been “unforeseeable” changes in the electricity market since when the contract had been signed.