Latest decisions of interest

24 June 2019 – 5 July 2019

NSW Court of Appeal

White v Redding [2019] NSWCA 152
Torts: assessment of damages; non-economic loss; standard of review
The Court of Appeal has dismissed an appeal brought by Mr White, holding that the primary judge did not err in assessing the damages to which Ms Redding was entitled after being struck in the eye by a tennis ball hit by Mr White.

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Landpower Australia Pty Ltd v Penske Power Systems Pty Ltd [2019] NSWCA 161
Civil procedure: apportionable claims; concurrent wrongdoers
The Court of Appeal has allowed an appeal brought by Landpower from a decision of a judge of the District Court to summarily dismiss Landpower’s cross-claim against Penske Power Systems Pty Ltd, in circumstances where Penske had been named by Landpower in its defence as a concurrent wrongdoer.

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Photios v Photios [2019] NSWCA 158
Civil procedure: revocation of grant of probate; leave to amend cross-claim
The Court of Appeal has allowed an appeal brought by Mr David Photios, holding that the primary judge erred in refusing to allow an amendment to a statement of cross-claim that sought revocation of a grant of probate in common form, in circumstances where there was a prima facie case that the deceased lacked testamentary capacity at a relevant time.

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Other Australian intermediate appellate decisions

Waterfront Place Pty Ltd v Minister for Planning & Ors [2019] VSCA 156
Statutory interpretation: interpretation statutes; counting rules
The Victorian Court of Appeal has refused an application for leave to appeal from a decision of a judge of the Supreme Court, holding that the VCAT Act 1998 (Vic) does not contain an intention to displace the operation of relevant provisions of the Interpretation of Legislation Act 1984 (Vic).

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Douglas v Morgan [2019] SASCFC 76
Evidence: legal professional privilege; investigative report
The Full Court of the Supreme Court of South Australia has dismissed an appeal brought by Ms Douglas and her insurer’s claims agent, holding that an investigative report commissioned by the agent was not protected by legal professional privilege.

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Asia Pacific

Ruiren Xu and Diamantina Trust Limited v IAG New Zealand Limited [2019] NZSC 68
Insurance: assignment of replacement benefits
The Supreme Court of New Zealand has dismissed an appeal, holding that an entitlement to replacement benefits that is expressed to be conditional upon reinstatement by the insured cannot be assigned where no such reinstatement has occurred.

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Other international

Mitchell v Wisconsin 588 U.S. ___ (2019)
Constitutional law: Fourth Amendment; warrantless searches
The Supreme Court of the United States has remanded Mr George Mitchell’s case, with a plurality holding that where a driver is unconscious and police suspect that their blood alcohol concentration exceeds the legal limit, it will almost always be permissible for police to order that a blood test be taken without a warrant.

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Tillman v Egon Zehnder Ltd [2019] UKSC 32
Contracts: employment; restraint of trade; shareholding; severance
The Supreme Court of the United Kingdom has allowed an appeal brought by an employer, holding that certain words were severable from a non-compete clause, such that the clause was not an unreasonable restraint on trade.

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