Latest Decisions of Interest

15 February – 28 February 2021

NSW Court of Appeal Decisions

Administrative Law: judicial review; Motor Accidents Compensation Act 1999

AAI Ltd t/as AAMI v Chan [2021] NSWCA 19

The Court of Appeal has allowed an appeal brought by an insurer against a judicial review decision in favour of a claimant challenging the original decision-maker’s refusal to allow a further medical assessment under the Motor Accidents Compensation Act 1999. The Court held that the issue in proceedings for judicial review was not the correctness of the opinion but its proper formation according to law, and that the primary judge had failed to identify any error of law.

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Evidence: standard of proof; Jones v Dunkel inference

Musa v Alzreaiawi [2021] NSWCA 12

The Court of Appeal has dismissed an appeal brought by a plaintiff who had made unsuccessful allegations of fraud in respect of a signature on a document transferring his interest in a property. The Court held that the plaintiff below had failed to discharge the onus of proof in relation to an allegation of fraud or serious misconduct, which the primary judge had correctly applied.

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Interpretation: development consent

Settlers Estate Pty Ltd v Penrith City Council [2021] NSWCA 13

The Court of Appeal has dismissed an application for leave to appeal brought by a developer from a decision of the Land and Environment Court finding that a drainage channel had not been constructed in accordance with the development consent. The Court held that the discharge point of the drainage line was a fundamental aspect of the development consent, and that it was irrelevant to the question of liability under the Environmental Planning and Assessment Act 1979 that it might be impossible to comply with all of the parameters of the consent.

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Defamation: defences; defence of contextual truth

Hutley v Cosco [2021] NSWCA 17

The Court of Appeal has allowed an appeal brought against a finding of liability in a defamation action arising from the broadcasting of an interview in which various imputations were made concerning the plaintiff’s conduct in a dispute between neighbours. The Court held that the defence of substantial truth was made out in respect of most of the imputations, and that the defence of contextual truth was made out in respect of the remaining imputations.

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Australian Intermediate Appellate Decision(s)

Contracts; general principles; statutory interpretation

Cheshire v Jennings [2021] SASCFC 11

The Full Court of the South Australian Supreme Court has allowed an appeal brought by purchasers of land located near an Airforce base the subject of a Department of Defence investigation into PFAS contamination, where the vendors had denied awareness of any environmental assessments of the land on a statutory form. The Court held that the question on the statutory form should be given a broad interpretation so as to encompass investigations beyond those related only to the land in question or involving testing performed on that land.

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Workers compensation: statutory interpretation; beneficial construction

Coad v Tasmania [2021] TASFC 2

The Full Court of the Tasmanian Supreme Court has allowed an appeal brought by an injured worker against a decision of the Workers Rehabilitation and Compensation Tribunal in relation to the combination of physical and psychiatric impairments for the purposes of meeting the minimum thresholds for entitlement to lump sum compensation. The Court held that the legislative provisions in question, whilst giving rise to a genuine ambiguity, should be construed in accordance with the statute’s beneficial purpose in favour of the injured worker.

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Asia Pacific Decision(s)

Torts: invasion of privacy

Hyndman v Walker [2021] NZCA 25

The New Zealand Court of Appeal has dismissed an appeal brought by an unsuccessful plaintiff in a tort action for breach of privacy. The Court held that, although there were powerful arguments in favour of developing the tort of breach of privacy by removing the “highly offensive” limb of the tort, the present case did not raise sufficient considerations of public interest or freedom of expression to provide a suitable vehicle for such a potential development.

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International Decision(s)

Statutory Interpretation: meaning of “worker”

Uber BV v Aslam [2021] UKSC 5

The United Kingdom Supreme Court has dismissed an appeal brought by Uber against findings of the employment tribunal that London Uber drivers are “workers” for the purposes of various statutes conferring rights and protections. The Court held that the question was to be approached as a matter of statutory, rather than contractual interpretation, and that the position of vulnerability and dependence in which drivers find themselves attracts the legislative definition of “worker”.

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