Latest Decisions of Interest

20 June – 3 July 2020

NSW Court of Appeal Decisions

Ea v Diaconu [2020] NSWCA 127

Tort: misfeasance in public office

The Court of Appeal allowed an appeal against the summary dismissal of proceedings alleging misfeasance in public office by an AFP officer due to her conduct in the public gallery during a criminal trial. The Court held that there is sufficient doubt regarding the law of the tort of misfeasance in public office to warrant the claim going to a hearing and to enable the possible development of the law.

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Ghosh v Medical Council of New South Wales [2020] NSWCA 122

Administrative Law: health profession regulation

The Court of Appeal allowed an appeal brought by a medical practitioner challenging an NCAT decision that confirmed the non-practising condition on her practising certificate. The Court held that NCAT erred in its consideration of the evidence and did not address the essential question of whether there was such unacceptable risk as to require immediate suspension.

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Jackmain (a pseudonym) v R [2020] NSWCCA 150

Evidence: previous sexual activity

The Court of Criminal Appeal unanimously dismissed an appeal from a decision which held that evidence sought to be adduced by the accused was inadmissible as it was evidence of the complainant’s sexual experience or sexual activity. The Court held that the current judicial interpretation of the provision is not plainly wrong, considering the recent legislative reform that did not reject the judicial interpretation.

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Australian Intermediate Appellate Decisions

Walker v State of Queensland [2020] QCA 137

Torts: false imprisonment

The Queensland Court of Appeal allowed an appeal in part challenging the dismissal of a claim for damages for false imprisonment by police officers. The Court held that the officers exceeded their power of restraint in the circumstances, and that the judge’s directions to the jury resulted in a miscarriage of justice.

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Maguire v Parks Victoria [2020] VSCA 172

Administrative Law: standing

The Victorian Court of Appeal refused leave to appeal challenging a decision that a neighbour lacked special interest in proceedings brought by him in relation to Parks Victoria’s decision to cull feral horses in the Alpine National Park. The Court held that his interest in the decision was not special or above any other member of the community and therefore he lacked standing to bring the proceedings.

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Asia Pacific Decision(s)

Kerr v Police [2020] NZCA 245

Constitutional Rights: legal advice

The New Zealand Court of Appeal allowed an appeal and entered an acquittal in relation to a conviction for refusing to permit a blood specimen to be taken. The Court held that the right to receive legal advice was not upheld by the police, and therefore the evidence of the refusal to permit a blood specimen could not be used, leaving no evidence upon which the conviction could be based.

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International Decision(s)

June Medical Services L.L.C. v. Russo 591 U.S. ___ (2020)

Constitutional Law: right to an abortion

The US Supreme Court reversed a decision of the Court of Appeals which held that Louisiana’s abortion law had dramatically less impact than the similar Texas law on abortion and therefore precedent did not bind to make the Act unconstitutional. The Court held that the laws were nearly identical, imposing an undue burden on the right to an abortion, and the Louisiana law was therefore constitutionally invalid.

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Regeneron Pharmaceuticals Inc v Kymab Ltd [2020] UKSC 27

Intellectual Property: patents

The UK Supreme Court has allowed an appeal brought by a pharmaceutical company challenging a decision that patents relating to transgenic mice had been infringed. The Court held that the teaching in the patent did not disclose enough to enable the public to make the product and therefore it did not pass the sufficiency test, precluding patent infringement.

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