Hanson & Anor v Goomboorian Transport Pty Ltd & Ors  QCA 41
Equity: tracing; life insurance policies; application of principles in Foskett v McKeown  1 AC 201;  UKHL 29
The Queensland Court of Appeal has allowed an appeal concerning the proceeds of a life insurance policy, holding that the primary judge erred in his construction of the policy, and so erred in how he then traced into the proceeds.
KV (Sri Lanka) (Appellant) v Secretary of State for the Home Department (Respondent)  UKSC 10
Adminstrative law: migration; Istanbul Protocol; role of medical experts in tribunal decision-making
The UK Supreme Court has allowed an appeal brought by an applicant for asylum, holding that the Court of Appeal erred in its treatment of a medical expert’s evidence concerning whether scars on the applicant’s body were consistent with his claims of being tortured.
Evidence: inferences from failure to call witness; intentional torts – battery
The Court of Appeal for British Columbia has dismissed an appeal, finding that the primary judge did not err in declining to draw an adverse inference against a plaintiff who chose not to call a witness.
Equity: presumption of resulting trust; meaning of ‘immediate and unconditional beneficial interest’ in Muschinski v Dodds
The Court of Appeal dismissed an appeal and cross-appeal concerning beneficial interests in a property, finding that there was no common intention amongst the contributors to the purchase price of the property such as to displace the operation of the presumption of resulting trust.
Director-General, Community Services Directorate v WS  ACTCA 4
Appeals: competence of appeal; distinction between orders and reasoning
The ACT Court of Appeal has dismissed an appeal brought by the Director-General of the Community Services Directorate on the basis that the appeal was incompetent, as it did not challenge any order of the judge below.
Harding v Commissioner of Taxation  FCAFC 29
Tax: meaning of ‘resident or resident of Australia’ in s 6 Income Tax Assessment Act 1936 (Cth)
The Full Court of the Federal Court allowed an appeal brought by a taxpayer, holding that a ‘place of abode’ includes a country or town when determining whether a person is a resident of Australia for income tax purposes.
Republic of Palau v Ngarchelong State Government  PWSC 5
Constitutional law: powers of parliament to retroactively authorise appropriations; separation of powers
The Supreme Court of Palau dismissed an appeal brought by the Office of the Special Prosecutor, holding that there was no constitutional barrier to the Ngarchelong State Assembly retroactively authorising a pay increase that the Governor gave himself.
H (SC 52/2018) v Refugee and Protection Officer  NZSC 13
Administrative law: judicial review; migration; whether failure to exercise merits review rights precludes judicial review under Immigration Act 2009 (NZ)
The Supreme Court of New Zealand has allowed an appeal brought by an applicant seeking recognition as a refugee, holding that in the circumstances, his failure to exhaust all merits review avenues did not preclude him from seeking judicial review.
Cameron v Liverpool Victoria Insurance Co Ltd  UKSC 6
Civil procedure: unnamed defendants; motor vehicle accidents
The UK Supreme Court has allowed an appeal brought by an insurer in the context of litigation concerning a hit and run motor accident, holding that only in exceptional circumstances should a court permit an unnamed defendant to be sued.
Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In liquidation)  NSWCA 11
Building and construction: entitlement of company in liquidation in insolvency to progress payments
The Court of Appeal has allowed an appeal brought by Seymour Whyte Constructions Pty Ltd, holding that the primary judge erred in ordering rectification of building contract. On the question of whether a builder or subcontractor is entitled to the benefit of progress payments, the Court declined to follow the Victorian Court of Appeal’s approach.
Kai Ling (Australia) Pty Ltd v Rosengreen  NSWCA 3
Contracts: requirements for effective novation
The Court of Appeal has dismissed an appeal brought by Kai Ling (Australia) Pty Ltd, finding that the requirements for an effective novation had not been met in a series of transactions concerning an option to purchase certain land granted that Mr Rosengreen had granted to a third party.
Minister for Immigration and Border Protection v Gill  FCAFC 9
Administrative law: migration, Tribunal relying on information supplied anonymously, legal unreasonableness
The Full Court of the Federal Court has allowed an appeal brought by the Minister for Immigration and Border Protection from a decision of the Federal Circuit Court. The Federal Circuit Court had found that the Administrative Appeals Tribunal, through its reliance on anonymous information, fell into jurisdictional error in making a visa decision concerning Mr Gill. The Full Court held that the Tribunal’s decision was not affected by any such error.
Hocking v Director-General of the National Archives of Australia  FCAFC 12
Public law: administrative law – meaning of “Commonwealth Record” under Archives Act 1983 (Cth); constitutional law – relationships between Governor-General and Commonwealth, and Governor-General and Queen
The Full Court of the Federal Court (Allsop CJ and Robertson J, Flick J dissenting) has dismissed an appeal from a decision of the Federal Court, upholding a decision of the National Archives of Australia to refuse Professor Jennifer Hocking access to Sir John Kerr’s correspondence with the Queen.
Hong Kong Special Administrative Region v Chu Tsun Wai  HKCFA 3
Criminal law: appeal, Computer Crimes Ordinance 1993, Distributed Denial of Service attack
The Hong Kong Court of Final Appeal has dismissed an appeal brought by Chu Tsun Wai, finding that though the Distributed Denial of Service attack on the servers of the Shanghai Commercial Bank that he took part in was effectively a failure, the appellant had nonetheless caused the Bank’s servers to function in a way other than what the owners had intended, and his conduct thus fell within the statutory definition of damage to property.
Dominion Insurance Ltd v Housing Authority  FJCA 3
Contract: insurance, interpretation, interest on judgment sum
The Court of Appeal of Fiji has dismissed an appeal brought by an insurer, and allowed a cross-appeal brought by the respondent Housing Authority as to the interest on the judgment sum. The Court held that the policies in issue did not entitle the insurer to raise premiums at any point during the year, and that the insurer had not validly terminated the policies.
Equity: trusts, whether beneficial owner of a building can directly sue a third party debtor of the trust
The Court of Appeal for British Columbia has allowed an appeal brought by a debtor to a trust, holding that the primary judge erred in the application of the principles concerning the circumstances in which a beneficiary of a trust will be permitted to directly sue a third party debtor of the trust.
Attorney General of Trinidad and Tobago (Respondent) v Maharaj (Appellant)  UKPC 6
Constitutional law: interpretation, appointments to Judicial and Legal Service Commission for Trinidad and Tobago
The Judicial Committee of the Privy Council has allowed an appeal from the Court of Appeal of the Republic of Trinidad and Tobago, finding that retired judges may not be appointed to the Judicial and Legal Service Commission for Trinidad and Tobago under s 110(3)(b) of the Constitution.
The Court of Appeal has rejected a challenge to the constitutional validity of the Security Industry Act 1997 (NSW) and the Security Industry Regulation 2016, holding that impugned provisions were not inconsistent with the Corporations Act 2001 (Cth).
Kempsey Shire Council v Five Star Medical Centre Pty Ltd  NSWCA 308
Torts: negligence, duty to warn of obvious risk, public authorities
The Court of Appeal has found that a Council, which owned and controlled an aerodrome, did not breach its duty of care to aerodrome users after the respondent’s aircraft was damaged on landing at the aerodrome when it collided with a kangaroo.
Equity: trusts, powers of trustees, Trustee Act 1925 (NSW), s 81
The Court of Appeal has held that Trustee Act 1925 (NSW), s 81, did not confer power on the court to extend the vesting date of a trust, and that the decision in Re Dion Investments Pty Ltd (2014) 87 NSWLR 753;  NSWCA 367 was correctly decided.
The Court of Appeal has held a person could not recover by way of damages in subsequent civil proceedings the costs incurred in successfully defending criminal proceedings, and that State of New South Wales v Koumdjiev (2005) 63 NSWLR 353;  NSWCA 247 should not be followed on this point.
Representative proceedings: permanent stay of competing actions
The Full Court of the Federal Court has dismissed an appeal against a decision ordering the permanent stay of two of the three ‘open’ shareholder class actions which had been commenced in the Federal Court against GetSwift Limited.
The State of Western Australia v Cunningham (No 3)  WASCA 207
Torts: malicious conduct of police officers; damages
The Western Australian Court of Appeal has held that the Police Act 1982 (WA), s 137(5), did not have the effect of altering the common law rule of solidary liability. Damages caused by acts done by police officers with malice were not to be apportioned from the damage caused by acts done without malice.
The New Zealand Court of Appeal has found that certain real estate agency companies had come to an arrangement or understanding with price fixing as its purpose, effect, or likely effect under the Commerce Act 1986 (NZ), ss 27 and 30, after they agreed to not absorb or pass on to vendors the proposed new fees of a specialist property listing service.
The Singapore Court of Appeal has clarified the law on unconscionabliity in Singapore, considering that Singapore should not adopt a ‘broad’ doctrine of unconscionability as exemplified in Commercial Bank of Australia v Amadio (1983) 151 CLR 447.
Secretary of State for Justice v MM  UKSC 60
Statutory interpretation: principle of legality; human rights
The United Kingdom Supreme Court has held that there is no power to release a person on a conditional discharge under the Mental Health Act 1983 (UK) on conditions that would amount to a deprivation of liberty under the European Convention on Human Rights, Art 5, even with the consent of the patient.
THE UK WITHDRAWAL FROM THE EUROPEAN UNION (LEGAL CONTINUITY) (SCOTLAND) BILL – A Reference by the Attorney General and the Advocate General for Scotland (Scotland)  UKSC 64
Government: legislative competence of Scottish Parliament, ‘Brexit’
The United Kingdom Supreme Court has held the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill, as a whole, was not outside the competence of Scottish Parliament under the Scotland Act 1988 (UK).
The Court of Appeal has held that the NSW Civil and Administrative Tribunal had been exercising judicial power in making certain orders under the Residential Tenancies Act 2010 (NSW), but that it did not have the jurisdiction to do so, because it was not a “court of a State” for the purposes of s 77(ii) of the Constitution and s 39(2) of the Judiciary Act 1903 (Cth).
Defamation: offers of amends; statutory interpretation
The Court of Appeal has held that an offer of compromise made under the Uniform Civil Procedure Rules 2005, r 20.26, did not constitute an implicit rejection of an offer of amends previously made by the opposing party under the Defamation Act 2005 (NSW), Pt 3, Div 1.
Ian Street Developer v Arrow International  VSCA 294
Statutory interpretation: effect of non-compliance with statutory requirement
The Victorian Court of Appeal has held that the failure of an adjudicator to determine a disputed payment under the Building and Construction Industry Security of Payment Act 2002 (Vic) within the stipulated time limit did not render that adjudication void.
The Full Court of the Federal Court has held that Mr Auimatagi, an organiser for the CFMMEU, did not engage in adverse action or coercion contrary to the Fair Work Act 2009 (Cth) with respect to his role in encouraging the employees of sub-contractors of John Holland to protest the operation of one of John Holland’s work health and safety policies.
Human rights: bill of rights, remedies, formal declaration of inconsistency
The New Zealand Supreme Court has held that the High Court of New Zealand has jurisdiction to make a standalone declaration that a legislative provision is inconsistent with rights under the Bill of Rights Act 1990 (NZ), notwithstanding the fact that such a declaration could not trigger invalidity or a reconsideration of the legislation under the parameters of the scheme.
The United States Supreme Court has construed the definition of employer in the Age Discrimination and Employment Act, to find that there was no restriction on the number of employees required to engage the protections where the relevant employer was a State or political subdivision.
Regency Villas Title Ltd and others (Respondents/Cross-Appellants) v Diamond Resorts (Europe) Ltd  UKSC 57
Real property: easements, recreational and sporting rights
The United Kingdom Supreme Court has held that a transfer purporting to grant residents of timeshare apartments access to sporting and recreational facilities on adjacent land amounted to a valid easement within the principles established in In Re Ellenborough Park  Ch 131.
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.
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.
Commissioner of the Australian Federal Police v Kalimuthu  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.
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.
Vinmar Overseas (Singapore) Pte Ltd v PTT International Trading Pte Ltd  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  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.
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.
Robinson v State of New South Wales  NSWCA 231
Torts: false imprisonment and wrongful arrest; statutory interpretation
The Court of Appeal has found that the arrest of a person without warrant was not lawful under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 99, because no decision whether to charge the appellant had been made at the time of the arrest.
Talifero v Asbestos Injuries Compensation Fund Limited as Trustee for the Asbestos Injuries Compensation Fund  NSWCA 227
Trusts: compensation scheme for victims of asbestos-related diseases
The Court of Appeal has construed three inter-related instruments comprising a scheme to compensate victims of asbestos-related diseases, to find that Mr Talifero’s estate was entitled to the full amount of damages awarded to it in the Dust Diseases Tribunal, notwithstanding that some of his exposure to asbestos was during his time overseas.
Minister for Immigration and Border Protection v Egan  FCAFC 169
Administrative law: mandatory considerations; migration and citizenship
The Full Court of the Federal Court has found that the Administrative Appeals Tribunal failed to take into account the mandatory consideration that a person would automatically be granted an ex-citizen visa under the Migration Act 1958 (Cth), s 35(5) upon revocation of citizenship by conferral, pursuant to the Australian Citizenship Act 2007 (Cth), s 34(2), when determining whether it would be contrary to the public interest for a person to remain a citizen.
The Full Court of the Tasmanian Supreme Court has found that “offences involv[ing] violence” for the purposes of a victims’ compensation scheme only encompassed physical violence or the threat of physical violence, and did not extend to economic abuse, emotional abuse, or other expanded notions of domestic and family violence.
Defamation: against public officials; recklessness
The Supreme Court of Palau has found that an appellant acted with reckless disregard about the truth or falsity of his statements when he made allegations against a public official, and that there was no absolute privilege afforded in the law of defamation to make statements about public individuals in relation to matters of public concern.
The Privy Council has found that apparent bias was made out, in circumstances where a judge who had presided at an earlier, aborted, jury trial, sat on an appeal against the subsequent convictions of defendants on the same charges in a later trial in which that judge played no part.
Lee v Ashers Baking Company Ltd & Ors (Northern Ireland)  UKSC 49
Discrimination: sexual orientation; rights to freedom of religion and expression
The Supreme Court of the United Kingdom has found that the refusal of a Christian bakery to supply the appellant with a cake iced with the slogan ‘Support Gay Marriage’ did not discriminate against the appellant on the grounds of sexual orientation, political opinion, or religious belief.
Secretary, Department of Family and Community Services v Hayward (a pseudonym)  NSWCA 209
Care and protection; criminal procedure; statutory interpretation
The Court of Appeal has held that a court in a criminal case does not have power to direct disclosure of the identity of a person who makes a risk of significant harm report under the Children and Young Persons (Care and Protection) Act 1998 (NSW).
Fuller-Wilson v State of New South Wales  NSWCA 218
Negligence: duty of care, police officers; procedure: summary dismissal
The Court of Appeal has held that a primary judge should not have summarily dismissed a claim in which the appellants alleged that police officers owed them a duty to take reasonable care to protect them from psychological harm, in circumstances where they attended an accident scene where the remains of their deceased relative had not been removed and they had not been warned of this fact.
Qld Law Group – A New Direction Pty Ltd v Crisp  QCA 245
Legal profession: limitation period on costs assessment, itemised bills
The Queensland Court of Appeal has held that the 12 month limitation period on applying for costs assessment under the Legal Profession Act 2007 (Qld), s 335(5)(a) does not ‘reset’ when a person makes a request for an itemised bill.
United Firefighters’ Union v Victorian Equal Opportunity and Human Rights Commission  VSCA 252
Administrative law: judicial review, ultra vires
The Victorian Court of Appeal has held that a review by the Victorian Equal Opportunity and Human Rights Commission into discrimination, sexual harassment and victimisation amongst firefighters in Victoria was invalid, because the review was not authorised by relevant provisions of the Equal Opportunity Act 2010 (Vic).
NZME Limited v Commerce Commission  NZCA 389
Competition: mergers, loss of media plurality; statutory interpretation
The New Zealand Court of Appeal has held that non-economic considerations, such media plurality, may be relevant in the course of determining whether an acquisition is likely to result in a benefit to the public under the Commerce Act 1986 (NZ), s 67, and that the Commerce Commission had acted properly in denying authorisation for the proposed merger between two major New Zealand news media providers.
The Singapore Court of Appeal has clarified the test for apparent bias in Singapore, finding that there was no basis to find that a judge had been biased in the course of hearing matters ancillary to the resolution of acrimonious divorce proceedings.
Chagnon v Syndicat de function publique et parapublique de Québec, 2018 SCC 39
Constitutional law: parliamentary privilege, scope of privilege
The Supreme Court of Canada has held that the President of the National Assembly of Québec’s decision to dismiss security guards employed by the Assembly was not immune from review under parliamentary privilege over the management of employees or parliamentary privilege to exclude strangers from the Assembly.
Justice K S Puttaswamy (Retired) v Union of India, 2018
Constitutional law: right to privacy, bills of appropriation
The Supreme Court of India has found that the Aadhaar scheme, under which Indian citizens are issued with a unique biometric identifier in order to access welfare payments and social services, is not in violation of the fundamental constitutional right to privacy.
Lordianto v Commissioner of the Australian Federal Police  NSWCA 199
Crime: Proceeds of Crime Act 2002 (Cth), s 330(4)(a); exclusion orders
The 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 had each acquired an “interest” in “property” each time a relevant deposit was made into their bank account, and that such interests were not liable to be excluded from restraining orders made against them.
Note: The applicants have applied for special leave to the High Court in this matter.
Choy v Tiaro Coal Ltd  NSWCA 205
Corporations: interaction between Corporations Rules and UCPR; service
The Court of Appeal has considered the interaction between the Supreme Court (Corporations) Rules 1999 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW), in the context of considering rules relating to the service of an originating process when proceedings are commenced under the Corporations Act 2001 (NSW).
Samwise Holdings Pty Ltd v Allied Distribution Finance Pty Ltd  SASCFC 95
Property: Personal Property Securities Act 2009 (Cth), s 62(2)(b)(i); priorities
The Full Court of the Supreme Court of South Australia has construed s 62(2)(b)(i) of the Personal Property Securities Act 2009 (Cth) to the effect that a Purchase Money Security Interest will have priority if is perfected by registration at the time the grantor gains possession of the inventory as a grantor, as opposed to at the time they gain possession simpliciter.
Hamersley Iron Pty Ltd v Forge Group Power Pty Ltd (In Liq) (Receivers and Managers Appointed)  WASCA 163
Insolvency: set-off; charges; Personal Property Securities Act 2009 (Cth)
The Western Australian Court of Appeal has found that Hamersley Iron Pty Ltd was entitled to set off its claims against those of Forge Group Pty Ltd (In Liq) under the Corporations Act 2001 (Cth), s 553C, notwithstanding the fact that a bank had a security interest in Forge’s property, which had been registered under the Personal Property Securities Act 2009 (Cth).
Unique International College Pty Ltd v Australian Competition and Consumer Commission  FCAFC 155
Consumer law: unconscionable system of conduct or pattern of behaviour
The Full Court of the Federal Court has held that the ACCC failed to demonstrate that a vocational education and training provider engaged in an unconscionable “system of conduct or pattern of behaviour” in the supply of vocational courses under s 21 of the Australian Consumer Law, although unchallenged findings of contravention had been made with respect to six individual consumers.
Robt. Jones Holdings Limited v McCullagh  NZCA 358
Corporations: insolvency, insolvent transactions, third party payments
The New Zealand Court of Appeal has held that for a third party payment to constitute an insolvent transaction under the Companies Act 1993 (NZ), s 292, it is not necessary for the liquidator to show a diminution in the net pool of assets available to creditors, only that the relevant creditor received a greater payment than it otherwise would have received in the liquidation.
The Supreme Court of Palau has held that it was not necessary to impose a “live controversy” limitation on the availability of declaratory relief under the Palauan Declaratory Judgment Act and relevant procedural rule.
Rogers Communications Inc. v Voltage Pictures, LLC, 2018 SCC 38
Copyright: infringement, Norwich orders, costs of compliance
The Supreme Court of Canada has held that Internet Service Providers (ISPs) are entitled to recover from copyright owners their reasonable costs of compliance with a Norwich order to disclose the identity of a subscriber, to the extent that steps taken in compliance do not overlap with those taken by ISPs to meet certain statutory obligations to notify subscribers of asserted copyright breaches, for which ISPs are prohibited from charging compliance fees.
Roads and Maritime Services v Desane Properties Pty Ltd  NSWCA 196
Public law: compulsory acquisition of property, improper purpose
The Court of Appeal has found that a Proposed Acquisition Notice issued to compulsorily acquire the respondent’s property for the NSW Government’s WestConnex project was not invalid for failure to comply with the Approved Form under the Land Acquisition (Just Terms Compensation) Act 1991 (NSW) and was not actuated by an improper purpose.
The Court of Appeal has found no basis upon which to restrain a major law firm from acting for the appellant, in circumstances where partners who had previously acted for the other side in an arbitration had moved to the appellant’s firm.
Class actions: competing actions; limitation periods; federal jurisdiction
The Full Court of the Federal Court has transferred four representative proceedings against AMP Limited to the Supreme Court of New South Wales, pursuant to the Corporations Act 2001 (Cth), s 1337H, and considered the impact of such a transfer on the suspension of limitation period provisions in the Commonwealth and New South Wales class action legislation.
Corporations: Corporations Act 2001 (Cth), s 597; discretionary trusts
The Full Court of the Federal Court has held that there was no basis to extend the scope of ‘examinable affairs’ under the Corporations Act 2001 (Cth), s 597(9) to include the financial documents of a trust, where the examinee has no proprietary interest in the trust assets but the liquidator contends those assets might be available to satisfy a prospective judgment debt.
The New Zealand Court of Appeal has found the tourist activity shark cage diving to be an offence under the Wildlife Act 1953 (NZ), s 63A, and that such an activity could not fall within the scope of s 53(1), which purported to authorise certain conduct that would otherwise be an offence under the Act.
PT Bayan Resources TBK v BCBC Singapore Pte Ltd  SGCA(I) 6
Contract: breach, damages; evidence: onus of proof
The Singapore Court of Appeal has dismissed an appeal brought by the appellant companies against a finding that they had repudiated a joint venture agreement with companies which were indirect wholly owned subsidiaries of a listed Australian company.
In the matter of an application by Siobhan McLaughlin for Judicial Review (Northern Ireland)  UKSC 48
Human rights: European Convention on Human Rights; social security
The United Kingdom Supreme Court has made a declaration of incompatibility under the European Convention on Human Rights, in relation to a social security scheme in which a widowed parent could only claim a particular benefit if they were married to or in a civil partnership with the deceased with whom they had children.
Constitutional law; human rights; Indian penal code
The Supreme Court of India has held s 377 of the Indian Penal Code to be invalid insofar as it criminalised consensual sexual conduct between adults of the same sex, overturning a previous decision from the Supreme Court which had upheld the constitutional validity of that section.
The Court of Appeal has found that the estate of a deceased worker was not entitled to compensation for “permanent impairment” under the Workers Compensation Act 1987 (NSW), where that worker’s impairment resulted from an injury so serious that death would inevitably follow, within a short time.
Gunasegaram v Blue Visions Management Pty Ltd; Blue Visions Management Pty Ltd v Chidiac  NSWCA 179
Equity: fiduciary duties, conflict of interest and duty; corporations; torts
The Court of Appeal has found that two men were not in breach of their fiduciary duties or the Corporations Act, s 182, in circumstances where they gave notice of their resignation from Blue Visions Management Pty Ltd, and subsequently set up a new company which took the benefit of part of Blue Visions’ contract with a government department by way of novation.
Industrial law: National Employment Standards, ‘casual employee’
The Full Court of the Federal Court has found that a fly-in, fly-out employee, classified as ‘casual’ under his employment contract, was not a “casual employee” under the National Employment standards, in circumstances where he worked regular and consistent shifts under a continuous roster arrangement, with rosters set 12 months in advance.
Bankruptcy: proof of debts, contingent liabilities, guarantee agreement
The Full Court of the Supreme Court of South Australia has found that supplies made after the date of bankruptcy under a continuing divisible guarantee agreement were not provable debts under s 82 of the Bankruptcy Act 1966 (Cth), such that a Personal Insolvency Agreement operated to release the respondent from the relevant debts.
Representative actions; securities, misleading and deceptive conduct
The New Zealand Supreme Court has considered the operation of the Securities Act 1978 (NZ), s 56 in the context of a representative action brought on behalf of shareholders alleged to have suffered loss after investing in an initial public offering on the faith of an offer document which contained misleading statements.
Chief Justice of Trinidad and Tobago v the Law Association of Trinidad and Tobago (Trinidad and Tobago)  UKPC 23
Constitutional law; the legal profession, natural justice
The Privy Council has found that the Law Association of Trinidad and Tobago was not precluded by the Constitution of Trinidad and Tobago and did not act outside its statutory powers in conducting an investigation into allegations of misconduct made against the nation’s Chief Justice.
The Owners – Strata Plan No 66375 v King  NSWCA 170
Building and construction: contract, warranties, statutory interpretation
The Court of Appeal has found that the previous owners of a residential development were “developers” as defined under the Home Building Act 1989 (NSW), s 3A, and that they were liable for certain “design defects” under the operation of a statutory warranty.
Onley v Catlin Syndicate Ltd as the Underwriting Member of Lloyd’s Syndicate 2003  FCAFC 119
Insurance: non-disclosure, payment of defence costs
The Full Court of the Federal Court has rejected an argument by Mr Onley and Mr Cranston that their insurer was required to indemnify them for defence costs, unless or until their fraudulent conduct was established by judgment or admitted, even if they had breached their disclosure obligations under the Insurance Contracts Act 1984 (Cth).
Commissioner of State Revenue v Mondous  VSCA 185
Issue estoppel: privity of interest; abuse of process: re-litigation, finality
The Victorian Court of Appeal has found that proceedings brought by respondent beneficiaries against the Commissioner of State Revenue which sought to re-agitate certain findings made in a previous proceeding between the Commissioner and the trust company were an abuse of process.
Turf Club Auto Emporium Pte Ltd v Yeo Boong Hua  SGCA 44
Equity: fiduciary duties; tort; contract: remedies, Wrotham Park damages
The Singapore Court of Appeal has held that Wrotham Park damages are part of the law of Singapore, being damages intended to compensate a plaintiff for the loss of the primary right to performance of the defendant’s obligation, which they have been deprived of due to the defendant’s breach of contract.
Court orders: withdrawal of medical treatment, best interests of patient
The United Kingdom Supreme Court has held that it is not mandatory to seek the court’s approval for the withdrawal of clinically assisted nutrition and hydration from a patient suffering from a prolonged disorder of consciousness, where the clinicians and family agree that withdrawal of treatment is in the best interests of the patient.
R (on the application of AR) v Chief Constable of Greater Manchester Police and Anor  UKSC 47
Human rights: disclosure, Enhanced Criminal Record Certificate
The United Kingdom Supreme Court has held that the disclosure on an Enhanced Criminal Report Certificate of the appellant’s acquittal on a rape charge did not breach his right to respect for private and family life under the European Convention on Human Rights
Isaac v Dargan Financial Pty Ltd ATF The Dargan Financial Discretionary Trust (ABN 68 702 047 521) (trading under the name of Home Loan Experts)  NSWCA 163
Contract; restraint of trade; equity: confidential information
The Court of Appeal has upheld the validity of a contractual non-solicitation restraint, whilst finding that there would be no utility in granting injunctive relief restraining the use and disclosure of a client list in circumstances where that information had entered the public domain after being tendered in open court.
Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer  NSWCA 146
Negligence: contributory negligence; damages: future economic loss
The Court of Appeal has considered the operation of s 13 of the Civil Liability Act 2002 (NSW) and whether damages for future earning capacity, future attendant care and future medical expenses should be assessed on the basis of that section.
The Western Australian Court of Appeal has allowed an appeal by liquidators against a finding that a company had established a defence under the Corporations Act 2001 (Cth), s 588FG(2) with respect to purported unfair preference payments.
Corporations: prohibition against financial assistance to acquire shares
The Victorian Court of Appeal has found the initiation and pursuit of proceedings by two companies to be in breach of the implied prohibition on giving financial assistance to acquire one’s own shares, under the Corporations Act 2001 (Cth), s 260A.
Trends Publishing International Limited v Advicewise People Limited  NZSC 62
Corporations: compromises, classification of creditors
The New Zealand Supreme Court has upheld a decision setting aside a creditors’ compromise in circumstances where insider and arm’s-length creditors were classed together and vastly different treatment was afforded to creditors depending on the size of their debts.
NTUC Foodfare Co-operative Ltd v SIA Engineering Co Ltd  SCGA 41
Torts: negligence, duty of care, economic loss
The Singapore Court of Appeal has reiterated the principles underlying a single test for determining duty of care, irrespective of the nature of loss or damage suffered, being the established position under the law of Singapore.
Banca Nazionale del Lavoro SPA v Playboy Club London Limited  UKSC 43
Torts: negligent misstatement, undisclosed principal
The United Kingdom Supreme Court has found that a bank did not owe a duty of care to a casino operator which suffered loss after relying on a reference obtained from the bank by an associated company which did not disclose the purpose of the reference or its true recipient when seeking the reference.
James-Bowen v Commissioner of Police of the Metropolis  UKSC 40
Torts: novel duties; implied term of trust and confidence
The United Kingdom Supreme Court has found that a Commissioner of Police did not owe a duty to her officers in the conduct of the defence of proceedings against her to protect them from economic or reputational harm.
The Court of Appeal has found that an insolvent sub-contractor was not party to payments from the head contractor to secondary subcontractors, such that the payments did not constitute unfair preferences under the Corporations Act 2001 (Cth), s 588FA.
Legal Services Commissioner v Nichols  QCA 158
Administrative law: judicial review, jurisdictional error; the legal profession
The Queensland Court of Appeal has found that the Legal Services Commissioner fell into jurisdictional error, because he had misapprehended the nature or limits or his functions or powers when dismissing a complaint under the Legal Profession Act 2007 (Qld).
Agtan Pty Ltd v Caltex Australia Petroleum Pty Ltd  VSCA 169
Contract: construction and interpretation
The Victorian Court of Appeal has found that Caltex did not breach a lease agreement in failing to repair a storage tank, because the relevant clause of the lease did not confer a free-standing repair obligation not subject to other provisos in that clause.
The Hong Kong Court of Final Appeal has found that the decision of the Hong Kong Director of Immigration to reject an application for a dependant spousal visa because she was in a same-sex relationship was legally unreasonable.
The Hong Kong Court of Final Appeal has held that the common law defence of absolute privilege does not extend to communications between a lawyer in court proceedings and a person who may not be a witness or potential witness but provides relevant information for possible use in those proceedings.
Goldman Sachs International v Novo Banco SA  UKSC 34
Private international law: jurisdiction; European Union Directives
The United Kingdom Supreme Court has found that an exclusive jurisdiction clause in a facility agreement did not apply to a purported transferee of a financial liability because English Courts were bound under a European Union Directive to recognise a Portuguese Central Bank decision finding that the transfer was prohibited under Portuguese law.
The Supreme Court of Canada has held that aggregate healthcare databases fell within the scope of statutory provision preventing the compellability of health care records relating to particular individual insured persons, notwithstanding that the data had been anonymised and could be relevant to the defence of the party seeking access.
Commissioner of Corrective Services v Liristis  NSWCA 143
Jurisdiction: inherent jurisdiction; crime: administration of prisons
The Court of Appeal has allowed an appeal against an order of the primary judge directing the Commissioner of Corrective Services to allow Mr Liristis to access his computer and a printer/scanner in custody to prepare for his District Court trial.
ARJ17 v Minister for Immigration and Border Protection  FCAFC 98
Administrative law; statutory interpretation
The Full Court of the Federal Court has found a policy which prevented all detainees from possessing mobile phones and SIM cards in immigration detention to be invalid, as it was not supported under the Migration Act 1958 (Cth).
BZD17 v Minister for Immigration and Border Protection  FCAFC 94
Migration: judicial review; practice and procedure: reasons for decision
The Full Court of the Federal Court has found that the Tribunal failed to give proper, genuine, and realistic consideration to critical evidence in a protection visa claim, thereby falling into jurisdictional error, and further, that a judge of the Federal Circuit Court had failed to engage with the grounds of judicial review of the Tribunal’s decision.
New Health New Zealand Incorporated v South Taranaki District Council  NZSC 59
Administrative law; statutory interpretation; Bill of Rights Act 1990 (NZ)
The New Zealand Supreme Court has found that a council had the statutory power to fluoridate water supplies under the Local Government Act 2002 (NZ), and that the exercise of such a power was not in breach of New Zealand’s Bill of Rights.
The Singapore Court of Appeal has reversed a judge’s award of substantial damages for wrongful termination of a contract by the respondent, on the basis that the appellant had failed to adduce evidence of the costs it would have incurred in performing the agreement.
Law Society of British Colombia v Trinity Western University, 2018 SCC 32
Administrative law: judicial review; the legal profession
The Supreme Court of Canada has found that the decision of the Law Society of British Colombia not to approve a law school which required its students and faculty to adhere to a religiously based code of conduct was valid and did not contravene the Canadian Charter of Rights and Freedoms.
Lewis Securities Ltd (in liq) v Carter  NSWCA 118
Equity: fiduciary duties, knowing assistance, limitation periods
The Court of Appeal has allowed an appeal by two companies in liquidation in relation to purported breaches of breaches of duty and accessorial liability of certain directors and officers of those companies.
The Court of Appeal has awarded an individual $30,000 in compensatory damages for wrongful arrest and false imprisonment, after he was arrested on the basis of a general description of the offender as provided by the victim.
Procedure: pleadings, striking out; private international law
The Queensland Court of Appeal has upheld an appeal in part relating to the striking out of certain pleadings in a defamation case brought by Mr Clive Palmer against the Honourable Malcolm Turnbull MP, Prime Minister of Australia.
Private international law: jurisdiction; defamation: online
The Supreme Court of Canada has stayed a defamation proceeding in Canada involving an article published online by an Israeli newspaper on the basis that Israel was a ‘clearly more appropriate’ forum for the claim.
In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland)  UKSC 27
Procedure: standing; European Convention on Human Rights; abortion
The United Kingdom Supreme Court has dismissed a challenge to the compatibility of Northern Ireland’s abortion laws with the European Convention on Human Rights on the basis that the applicant in the proceedings lacked the standing to bring the claim, although in any event considering the substantive arguments on compatibility.
Auburn Shopping Village Pty Ltd v Nelmeer Hoteliers Pty Ltd  NSWCA 114
Equity: remedies, relief against forfeiture
The Court of Appeal has upheld a finding that a company was not entitled to relief against forfeiture of its interest in certain permits, after the sale agreement giving effect to the option to purchase the permits was validly terminated by the seller.
Robinson v 470 St Kilda Road Pty Ltd  FCAFC 84
Consumer law: misleading and deceptive conduct; proportionate liability
The Full Court of the Federal Court has dismissed an appeal by a corporate officer against findings of liability and the extent of damages awarded for misleading and deceptive conduct stemming from a false statutory declaration as to the payment of sub-contractors.
Leda Commercial Properties Pty Ltd v Brenda Hungerford Pty Ltd  ACTCA 17
Misleading and deceptive conduct; case not on the pleadings
The Australian Capital Territory Court of Appeal has allowed an appeal against a finding of liability based on an argument not raised on the pleadings or acquiesced to by the impugned parties at trial.
Standing: entitlement to bring proceedings in custom; trusts
The Court of Appeal of the Solomon Islands has allowed an appeal against a finding that two individuals lacked standing to bring a claim against the trustees who held land on trust for the members of certain tribes.
The Supreme Court of Palau has upheld a decision not to award compensatory damages on the basis that the appellants did not base their claim for damages on any specific form of action that would entitle them to monetary relief.
The United States Supreme Court has found that arbitration agreements requiring individualised proceedings are enforceable, such that the employees as bound could not pursue claims through class or collective actions.
Navigators Insurance Company Limited v Atlasnavios-Navegacao LDA  UKSC 26
Insurance: scope of indemnity under marine insurance contract
The United Kingdom Supreme Court has found that the confiscation of a vessel by authorities after it was used by third parties for drug smuggling was not the kind of loss which was covered by standard marine insurance clauses.
Elzahed v State of New South Wales  NSWCA 103
Civil procedure: whether party could give evidence with face covered
The Court of Appeal has held that a primary judge did not err in the exercise of her discretion in rejecting an application by a party to proceedings to give evidence with her face (or than her eyes) covered by a niqab.
Weir Services Australia Pty Ltd v AXA Corporate Solutions Assurance  NSWCA 100
Insurance: legal liability insurance, ‘cap and collar’ agreements
The Court of Appeal has dismissed an appeal against findings that an insurance provider was not liable to indemnity the appellant for an amount payable under a ‘cap and collar’ agreement and the costs of defending arbitration proceedings.
The Full Court of the Federal Court has imposed a $46 million civil penalty with respect to cartel conduct engaged in by a Japanese company and its Australian subsidiary in the supply of wire harnesses for motor vehicles.
The Victorian Court of Appeal has held that a company did not waive legal professional privilege with respect to documents which may have been relevant to establishing its state of mind as to allegedly undisclosed matters in a sale transaction.
Designing Hong Kong Ltd v The Town Planning Board, Secretary For Justice  HKCFA 16
Costs: protective costs orders
The Hong Kong Court of Final Appeal has considered the circumstances in which it may be appropriate to look to the financial ability or resources of persons connected to a company involved in litigation, when that company applies for a protective costs order.
Misleading and deceptive conduct; the legal profession
The New Zealand Court of Appeal has found a legal practitioner liable for misleading and deceptive conduct, in circumstances where he failed to correct a client’s misrepresentations as to the amount of equity involved in a purchase, and drafted a convertible note for a lender of the basis of the false figures.
The United Kingdom Supreme Court has held that ‘no oral modification’ clauses are valid, such that a licensee was precluded from relying on a purported oral variation to modify a contract by changing the schedule of payments for rent.
AD v Commissioner of the Australian Federal Police  NSWCA 89
Constitutional law; statutory interpretation: Proceeds of Crime Act 2002 (Cth)
The Court of Appeal has held that there was no power under the Proceeds of Crime Act 2002 (Cth) to make an exclusion order with respect to restrained property which had already been forfeited, and has upheld the Constitutional validity of the forfeiture scheme.
The Full Court of the Federal Court has dismissed an appeal by ASIC against a finding that an officer of the Australian Wheat Board was not in breach of his directors’ duties in relation to payments made to the Iraqi government contrary to UN sanctions.
The Full Court of the Federal Court has found that a worker should not be compensated for an adjustment disorder, because the disorder resulted from reasonable administrative action taken by his employer.
Tebara Transport v Dominion Insurance Ltd  FJSC 11
Insurance: indemnification under third party motor vehicle policy
The Supreme Court of Fiji has found that an exclusion clause in a motor vehicle compulsory third party policy did not preclude an insurer from their liability to indemnify the relevant employer policyholder.
Private international law; trusts: trustee’s right of indemnity
The Privy Council has held that the Trusts (Jersey) Law 1984, Art 32, limits the liability of trustees to the trust assets, and not to their personal estates, but does not go so far as to create a direct action against the trust by a creditor.
The Court of Appeal has found that ICAC officials were not liable for the tort of misfeasance in public office, arising from certain conduct relating to the investigation of the activities of a company associated with the Obeid family.
South Western Sydney Local Health District v Gould  NSWCA 69
Negligence: Civil Liability Act 2002 (NSW) s 5O(2)
The Court of Appeal has held that the primary judge was wrong to reject expert medical evidence as to competent professional practice on the basis that the opinions were irrational under the Civil Liability Act 2002 (NSW), s 5O(2).
The State of South Australia v Roberts  SASCFC 25
Workers’ compensation: whether employment causative of injury
The Full Court of the South Australian Supreme Court has held that a Tribunal correctly applied a workers’ compensation statute in determining that a person’s employment was “a significant contributing cause” of her injury.
White, in the matter of Mossgreen Pty Ltd (Administrators Appointed) v Robertson  FCAFC 63
Corporations: administration, equitable lien
The Full Court of the Federal Court has held that the administrators of an auction-house could not assert an equitable lien for expenses incurred in the identification, preservation and distribution of consigned items.
Chahal Group Pty Ltd v 7-Eleven Stores Pty Ltd  NSWCA 58
Appeals: assessment of credibility by primary judge
The Court of Appeal has held that a primary judge did not err in assessing the evidence of witnesses in the course of determining that a 7-Eleven franchisee had fraudulently operated a ‘cash back’ scheme.
The Court of Appeal of Tonga has determined that a widow was not entitled to inherit her deceased husband’s town and tax allotments, because she was not a Tongan citizen at the time of her husband’s death.
The United States Supreme Court has held that a police officer was entitled to qualified immunity from civil suit in relation to his use of excessive force in violation of the Fourth Amendment of the Constitution.
Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Industrial Relations Secretary  NSWCA 39
Industrial law: powers of the Industrial Relations Commission
The Court of Appeal has found that the Industrial Relations Commission has the power to order an industrial organisation to refrain from directing its members to engage in or organise industrial action.
Costs: indemnity costs; indemnification by legal practitioner
The Court of Appeal has held that two practitioners representing the unsuccessful parties in legal proceedings should indemnify the successful parties under the Legal Profession Act 2004 (NSW), s 348 and the Civil Procedure Act 2005 (NSW), s 99.
Jones (Liquidator) v Matrix Partners Pty Ltd, in the matter of Killarnee Civil & Concrete Contractors Pty Ltd (in liq)  FCAFC 40
Corporations: insolvency; trustees
The Full Court of the Federal Court has found that a liquidator did not have the power under the Corporations Act 2001 (Cth), s 477, to sell trust assets in which the corporate trustee had had a proprietary interest by way of a lien to secure its right of exoneration.
Civil procedure: dealing with confidential documents
The Singapore International Commercial Court has discussed the principles applicable to ordering discovery or the preparation of an export report with respect to the confidential commercial and technical information of an electronic currency trader.
Corporations: insolvency: winding up on the “just and equitable” ground
The Singapore Court of Appeal has held that deadlocked shareholders could not wind up companies on the “just and equitable” ground when a buy-out mechanism existed in the companies’ articles of association.
The United Kingdom Supreme Court has held that a solicitor was not liable for losses arising from a negligent misstatement made to the opposing party during the settlement of a loan agreement and release of securities.
Almazeedi v Penner and Ors (Cayman Islands)  UKPC 3
Administrative law: apparent bias
The Privy Council has held that a judge sitting in the Cayman Islands lacked independence in the conduct of a wind-up petition involving Qatari interests, in circumstances where he had become a supplementary judge on a Qatari court.
The Court of Appeal has found that a Review Panel constructively failed to exercise jurisdiction and denied procedural fairness to an individual in the process of reviewing an impairment assessment under the Motor Accidents Compensation Act 1999 (NSW).
The Full Court of the Federal Court has found that the Victorian Building Practitioners Board was not correct in refusing the registration of a NSW-licenced waterproofer in Victoria on the basis that he was not of “good character”.
Coumat Limited v Whitford Properties Limited  NZCA 15
Equity: breach of trust; knowing receipt
The New Zealand Court of Appeal has found a guarantor in breach of his duty to account for surplus proceeds of sale by reducing the price that should have been paid for the land through the provision of credit to other parties.
The Advocate General for Scotland v Romein (Scotland)  UKSC 6
Administrative law: citizenship
The United Kingdom Supreme Court has held that a historical registration condition does not apply when giving effect to the statutory assumption that citizenship by descent through the female line has always been available under the same terms as through the male line.
Julien and Ors v Evolving Tecknologies and Enterprise Development Company Limited (Trinidad and Tobago)  UKPC 2
Practice and procedure: limitation periods
The Privy Council has considered whether the knowledge of or discoverability of relevant facts by a sole shareholder should be attributed to the plaintiff company for the purposes of a limitation statute.
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union  FCAFC 4
Evidence: privilege against self-exposure to penalties
The Full Court of the Federal Court has held that the certificate process under s 128 of the Evidence Act 1995 (Cth) does not apply in circumstances where the witness is not compelled to give evidence.
The New Zealand Court of Appeal has found that the Ministry of Health erred in its interpretation of a disability funding instrument as it related to the provision of family care for an intellectually disabled individual.
The New Zealand Court of Appeal has upheld a finding that a terminally ill woman lacked testamentary capacity both when she instructed her solicitor about her final will, and at the time that will was executed.
Williams Lake Indian Band v Canada (Aboriginal Affiars and Northern Development), 2018 SCC 4
Indigenous law: fiduciary duty
The Supreme Court of Canada has upheld the decision of a Tribunal to award compensation to an Indigenous group for breaches of a fiduciary obligation owed to them by the Crown in relation to their traditional lands.
Valve Corporation v Australian Competition and Consumer Law Commission  FCAFC 224
Private international law; statutory interpretation; consumer law
The Full Court of the Federal Court has held that the consumer guarantees in the Australian Consumer Law apply to representations made by a United States company distributing games online to consumers in Australia.
Constitutional right to a fair hearing; professional misconduct
The Cook Islands Court of Appeal has held a finding of legal professional misconduct made “on the papers”, rather than by way of oral hearing, did not breach the Constitutional right to a fair hearing.
Perazzoli v BankSA, a division of Westpac Banking Corporation Limited  FCAFC 204
Evidence: legal professional privilege; class action proceedings
The Full Court of the Federal Court has held that certain documents were protected by legal professional privilege, despite the fact that the parties had not yet entered a formal retainer with the law firm or secured class action funding.
Kerkur Clain v Koror State Public Lands Authority  PWSC 28
Real property: claim for return of public land
The Supreme Court of Palau has held that to establish a claim for the return of public land, an applicant must establish that the land was wrongfully taken by the government; and that the applicants did not meet that burden in this case.
The UK Supreme Court has held that disciplinary proceedings brought against a barrister constitute a continuing act, rather than a series of discrete acts, for the purpose of assessing the applicable limitation period.
Torts: false imprisonment; police powers to detain
The Court of Appeal has held that the power of police to direct that a person produces evidence of their identity pursuant to s 77C of the Passenger Transport Regulation carries an implied power to detain the person whilst those steps are undertaken.
Kawasaki Heavy Industries, Ltd v Laing O’Rourke Australia Construction Pty Ltd  NSWCA 291
Arbitration: interlocutory injunction; whether serious question to be tried
The Court of Appeal has held that to determine a case “as if” on a final basis would be inconsistent with a Consortium Agreement which entrusts an arbitral tribunal with the determination of all disputes.
Perez v Minister for Immigration and Border Protection  FCAFC 180
Migration law: domestic violence spousal visa
The Full Court of the Federal Court has held that when determining an application for a domestic violence spousal visa, the issue is whether the appellant suffered family violence – the whole or part or of which occurred during the relationship.
Private international law: registration of New Zealand judgment
The Full Court of the Federal Court has held that registration of a judgment, where the applicant was barred from participation in the hearing due to a failure to pay adverse costs orders, is not contrary to public policy in Australia.
Class actions: consent to commence representative action
The Supreme Court of Papua New Guinea has held that where a class action contains a mixture of plaintiffs’ representatives that have or have not obtained consent, the action may continue in respect of those representatives that have obtained authorisation.
Ahelmhalahlah v Republic of Vanuatu & Ors  VUCA 50
Appeals: strike out application; adequacy of pleadings
The Court of Appeal of Vanuatu has held that a proceeding brought by an ex-Magistrate against the State of Vanuatu, Chief Justice and Chief Magistrate should be re-heard by a judge from outside the jurisdiction.
State Information Technology Agency SOC Limited v Gijma Holdings (Pty) Limited  ZACC 40
Administrative law: organ of state seeking review of own decision
The South African Constitutional Court has held that where a state organ seeks review of its own decision, the matter should be decided in terms of the principle of legality, and not in terms of the Promotion of Justice Act 3 of 2000.
Fisherman and Friends of the Sea v The Minister of Planning, Housing and the Environment (Trinidad and Tobago)  UKPC 37
Administrative law: validity of “prescribed fee” in environmental regulations
The Privy Council has held that the fixed fee structure prescribed by the Water Pollution (Fees) Regulations is inconsistent with the “Polluter Pays Principle”, as contained within the National Environmental Policy of Trinidad and Tobago.
Professions and trades: suspension of medical practitioner; stay of suspension decision
The Court of Appeal has held that the Health Practitioner Regulation National Law is intended to deal exhaustively with the circumstances in which a decision to suspend a medical practitioner can be stayed, terminated or waived.
Hancock Prospecting Pty Ltd v Rinehart  FCAFC 170
Arbitration: commercial arbitration; prima facie and merits approach
The Full Court of the Federal Court has held that a commercial relationship is not a necessary or separate pre-requisite of a commercial arbitration within the meaning of s 8(1) of the Commercial Arbitration Act 2012 (WA).
The New Zealand Court of Appeal has held that where a jury returns an incomplete set of answers in a defamation matter, it does not amount to a verdict capable of being enforced by a deceased person’s representative.
Tudor Capital Australia Pty Limited v Christensen  NSWCA 60
The Court of Appeal has held that the Deputy President of the Workers Compensation Commission erred in finding that the “injury” for the purpose of a workers compensation claim was the deceased’s experience of stress, which made him susceptible to contract a virus.
Outback Ballooning Pty Ltd v Work Health Authority and Bamber  NTCA 7
Constitutional law: inconsistency of Commonwealth and Territory legislation
The Northern Territory Court of Appeal has held that the Civil Aviation Act (Cth) and associated regulatory regime is a complete statement of the law governing the safety of air navigation, including the safety of an aircraft on the ground and the embarkation of passengers
Australian Olympic Committee v Telstra Corporation  FCAFC 165
Consumer law: misleading and deceptive conduct
The Full Court of the Federal Court has found that Telstra did not breach s 36 of the Olympic Insignia Protection Act 1987 through an extensive marketing campaign promoting the availability of live events streamed from the Rio Olympics.
Northern Sydney Local Health District v Amaca Pty Ltd  NSWCA 251
Dust diseases: damages; apportionment between joint tortfeasors; double compensation
The Court of Appeal has held that recovering both workers compensation payments and a proportion of the proceeds of proceedings against Amaca Pty Ltd does not amount to “double recovery” or overcompensation.
The Full Court of the South Australian Supreme Court has held that Google was a secondary publisher of defamatory material because it facilitated the reading of the material in a substantial and proximate way and provided instantaneous access to it through a hyperlink.
Development Bank of Solomon Islands v Zalao  SBCA 10
Banking and finance: instruments; loan facilities; force majeure
The Solomon Islands Court of Appeal has held that the decision to freeze interest payments during a period of ethnic violence means that the interest was foregone by the bank and could not be recovered at a later stage.
Civil procedure: limitation periods; meaning of bodily injury
The Canadian Supreme Court has held that for the purpose of article 2930 of the Civil Code of Quebec, it is the nature of the initial interference, rather than the head of damages being claimed, that results in the injury being characterised as “bodily injury”.
Aboriginals: settlement of class action; destruction of records
The Canadian Supreme Court has affirmed a decision that documents containing sensitive information in relation to the Indian Residential Schools Settlement Agreement should be destroyed after a 15-year limitation period.
The Victorian Court of Appeal has held that damages may be awarded for inconvenience following breach of a building contract where the physical inconvenience or mental distress is directly related to those inconveniences caused by the breach of contract, but did not award damages in this case.
Jurisdiction: accrued federal jurisdiction in defamation claim
The Full Court of the Federal Court has found that the Federal Court had jurisdiction to determine a defamation claim on the basis of accrued jurisdiction from an Australian Consumer Law claim, which was poorly pleaded but based on a common substratum of facts.
Tozzi Srl v Bumi Armada Offshore Holdings Ltd and Anor  SGHC(I) 8
Contracts: subject to contract clause
The Singapore International Commercial Court has held that a right of first refusal is capable of being a standalone agreement in circumstances where other terms of the negotiations are still subject to formal agreement.
The Constitutional Court of South Africa has found that section 12(3) of the Prescription Act 1969 only requires a claimant to have knowledge of the identity of the party and the facts giving rise to the debt before prescription starts running.
Motor Accidents Insurance Board v Bricknell  TASFC 7
Statutory interpretation: whether cost of rental property claimable as reasonable medical expense
The Full Court of the Tasmanian Supreme Court has held that rental expenses incurred for the purpose of obtaining medical treatment are recoverable under the Motor Accidents (Liabilities and Compensation) Regulations 2010.
Torts: trespass to land; joint and several liability
The Court of Appeal of Tonga has held when awarding damages for trespass by virtue of unauthorised quarrying operations on the respondent’s land, the appropriate sum is the net value of the rock removed, allowing for the cost of extraction.
Human rights: private international law; extradition
The Supreme Court of Canada has found that orders made by the Minister of Justice allowing the extradition of two Canadian citizens to India on charges of conspiracy to murder fell within a range of reasonable outcomes.
Bankruptcy: prescription of debt; payment on demand
The Constitutional Court of South Africa has held that on a holistic reading of the loan agreement, the parties did not intend to delay the due date of the debt by providing that the creditor could issue a letter of demand.
Secretary, Department of Family and Community Services v Smith  NSWCA 206
Family law and child welfare: paramountcy principle
The Court of Appeal has refused leave to appeal a decision refusing a permanent injunction that would have prevented publication of information conveying that a missing child was placed in foster care.
Circular Heads Fencing Pty Ltd v Motor Accidents Insurance Board  TASFC 6
Negligence: whether expert knowledge is attributable to the reasonable person
The Tasmanian Court of Appeal has confirmed that “fitness for purpose” should be assessed with reference to knowledge held by a person in the position of the defendant, rather than an expert called in the trial to present detailed technical knowledge.
Yau Wai Ching v Chief Executive of the Hong Kong Special Administrative Region, Secretary for Justice  HKCFA 54
Constitutional law: non-intervention principle
The Hong Kong Court of Final Appeal has held that the principle of non-intervention does not preclude courts inquiring into whether two Legislative Councillors delivered their parliamentary oath according to law.
Fair Trading Commission v Digicel Jamaica Limited  UKPC 28
Media and communications: competition in telecommunications market
The Privy Council has held that the existence of the Jamaican Telecommunications Act does not also preclude the Fair Trading Commission of Jamaica commencing enforcement proceedings against a telecommunications company under the Fair Competition Act.
Jordaan and Ors v City of Tshwane Metropolitan Municipality and Others  ZACC 31
Human rights: arbitrary deprivation of property
The Constitutional Court of South Africa has held that, to ensure consistency with the Bill of Rights, s 118(3) of the Local Government: Municipal Systems Act must be interpreted to mean that the unregistered charge is only enforceable against the property so long as the original owner holds title.
South Western Sydney Local Health District v Sorbello  NSWCA 201
Negligence: damages for future economic loss; reductions for chance
The Court of Appeal has found that once a loss of earning capacity has been established by a plaintiff, the onus of demonstrating a failure to exploit residual earning capacity lies with the defendant.
Kok v Resorts World at Sentosa Pte Ltd  WASCA 150
Judgments and orders: enforcement of foreign judgment; public policy
The Western Australian Court of Appeal has found that loan contracts providing credit for the purpose of gambling in casinos are not contrary to public policy for the purpose of s 7 of the Foreign Judgments Act 1991 (Cth).
Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum  WASCA 153
Administrative law: failure to consider most recent information; procedural fairness
The Western Australian Court of Appeal has found that a valid exercise of ministerial power under the Mining Act 1978 (WA) is not conditioned on a requirement to consider the most recent financial information available.
CPIT Investments Limited v Qilin World Capital Limited  SGHC(I) 07
Judgments and orders: whether absence of financial records sufficient ground to stay execution of judgment
The Singapore International Commercial Court has refused to grant a stay of enforcement pending appeal, finding that courts should not draw an inference that a company does not have assets where its financial information is protected by registration in a foreign jurisdiction.
Human rights: electoral rights of prisoners, indirect racial discrimination
The New Zealand Court of Appeal has found that s 80(1)(d) of the Electoral Act 1993 does not directly or indirectly discriminate on the basis of race, and was not required to be passed by a supermajority of New Zealand Parliament.
Limpopo Legal Solutions v Vhembe District Municipality and Others  ZACC 30
Human rights: standing to commence constitutional challenge
The Constitutional Court of South Africa has found that a voluntary human rights association has sufficient standing, as a matter of public interest, to commence proceedings on behalf of a local community.
State of New South Wales v Bouffler  NSWCA 185
Torts: breach of the peace; trespass to land; trespass to person
The Court of Appeal has held that each individual officer who exercises an arrest function must hold the requisite state of mind in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), that breach of the peace encompasses a threat of self-harm, and that the power to enter “to arrest” a person does not encompass entry to merely facilitate an arrest being affected.
Chen v Health Care Complaints Commission  NSWCA 186
Occupations: whether probably permanently unfit test applies to medical profession
The Court of Appeal has held that it is not appropriate to curtail the Civil and Administrative Tribunal’s power to cancel a medical practitioner’s registration by implying a “probably permanently unfit to practice” test.
Kamm v State of New South Wales (No 4)  NSWCA 189
Constitutional law: Kable principle. Administrative law: procedural fairness; requirement to provide reasons; legal unreasonableness
The Court of Appeal has held that s 5C of the Crimes (High Risk Offenders) Act 2006 (NSW) does not infringe the Kable principle by denying an essential characteristic of a court exercising federal jurisdiction or attacking a State Court’s institutional integrity.
Hunter’s Hill Council v Minister for Local Government; Lane Cove Council v Minister for Local Government; Mosman Municipal Council v Minister for Local Government; North Sydney Council v Minister for Local Government; Strathfield Municipal Council v Minister for Local Government NSWCA 188
Administrative law: amalgamation of local government; procedural fairness
The Court of Appeal has upheld the appeals of Hunter’s Hill and Lane Cove Councils, finding the areas are not a “single area of contiguous land” for the purpose of s 204 of the Local Government Act 1993 (NSW). The Court of Appeal also dismissed challenges by Mosman and North Sydney Councils regarding the validity of the delegate’s process of examination and reporting, but upheld a challenge by Strathfield Council on the basis the delegate uncritically adopted financial analysis in the proposal document.
Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union  FCAFC 113
Industrial law: unlawful industrial action, single or aggregate penalties
The Full Federal Court has held that two unions were liable for each contravention of s 38 of the Building and Construction Industry Improvement Act 2005 (Qld) by construction workers engaging in unlawful industrial action, and that it was not appropriate to impose a single penalty on the unions in respect of the multiple contraventions.
Yarra City Council v Metropolitan Fire and Emergency Services Board  VSCA 194
Environmental law: liability of successors in title; retrospective legislation
The Victorian Court of Appeal has ordered Yarra City Council to pay compensation under the Environmental Protection Act 1970 for pollution created by its predecessor the City of Richmond, and that the legislation is not impermissibly retrospective.
Appeals: standards of review; duties owed to self-represented litigants
The Palauan Court of Appeal has articulated applicable standards of review in appeals, and found that the Court owes a special duty to self-represented litigants which it did not fail to discharge in this case.
MT Højgaard A/S v E.ON Climate & Renewables UK Robin Rigg East Limited and Anor  UKSC 59
Contract: subjective and objective interpretation; inconsistent terms
The UK Supreme Court has held that a contractual term requiring an item to comply with prescribed criteria was not invalid due to its purported inconsistency with another term mandating certain design specifications.
Rolleston v Insurance Australia Ltd  NSWCA 168
Evidence: opinion evidence; expert opinion
The Court of Appeal has held that s 79 of the Evidence Act 1995 (NSW) requires an expert report to set out its reasoning process, as well as indicate how the expert’s area of specialised knowledge relates to the facts of the case and opinion provided.
The Court of Appeal has held that Mr Tiley is a person subject to an assessment requirement under the Child Protection (Working with Children) Act 2012, and that “offence committed as an adult” refers to when an alleged offence occurred, not whether there was a finding of guilt.
Land law: customary ownership; whether claim res judicata
The Court of Appeal of the Republic of Vanuatu has held that a decision as to the customary ownership of land does not render res judicata outstanding questions as to fraud and mistake involving land dealings.
Kwok Cheuk Kin v Secretary for Constitutional and Mainland Affairs  HKCFA 44
Constitutional law: impact of extensive political debate on constitutionality of legislation
The Hong Kong Court of Final Appeal has held that legislation barring a legislator who resigns from the Legislative Council to stand in the by-election does not breach the constitutional right to participate in public life.
Isak Baron and Others v Claytile (Pty) Limited and Anor  ZACC 24
Land law: eviction of employees; constitutional protections
The Constitutional Court of South Africa has held that the City of Capetown Municipality owes a constitutional duty to provide suitable alternative accommodation to citizens who are evicted by private landowners.
Trade and commerce: misleading and deceptive conduct; causation
The Court of Appeal has held that solicitors who gave a misleading estimate of the costs of litigation, and failed to provide updated estimates, were not liable to their clients because it was not shown that the impugned conduct caused loss or damage.
The Court of Appeal has held that Mr Duncan Priestley is beneficially entitled to property in his deceased father’s estate, which was left to him in an earlier will but later left to the deceased’s wife.
Crowe Horwath (Aust) Pty Ltd v Loone  VSCA 181
Contract: enforceability of restraint of trade
The Victoria Court of Appeal has held that Crowe Horwath could not enforce a restraint of trade clause against its former employee because the employment was terminated by the employee accepting Crowe Horwath’s repudiation of the employment contract.
Romero v Farstad Shipping (Indian Pacific) Pty Ltd (No 3)  FCAFC 102
Contract: damages for breach of contract of employment
The Full Court of the Federal Court has held that a term of an employment contract requiring compliance with a Workplace Harassment and Discrimination Policy was not an essential term such that any breach justified termination.
Goh Chan Peng and others v Beyonics Technology Ltd and another and another appeal  SGCA 40
Corporations: directors duties
The Singapore Court of Appeal has held that Mr Goh breached his fiduciary duties owed as a director, that his breaches did not disentitle him from his contractual right to payment of his salary, and that the “single economic entity” concept is not recognised by Singapore law.
Lakes International Golf Management Limited and Anor v Hartley Clendon Vincent  NZSC 99
Real property: enforcement and interpretation of covenants
The Supreme Court of New Zealand has held that a covenant was not enforceable against Mr Hartley Vincent because the covenant required payments to an incorporated golf club, when the golf club in question was in fact run through an unincorporated proprietary club.
The Supreme Court of Canada has upheld a decision to grant an interlocutory injunction enjoining Google from displaying, in any of its search results worldwide, any part of the websites of a company which was using those websites to unlawfully infringe another company’s intellectual property.
Trinity Lutheran Church of Columbia, Inc. v Comer, 582 (US) 2017
Constitutional law: Free Exercise Clause of the First Amendment; disfavoured treatment on the basis of religious status
The Supreme Court of the United States has held that a Missouri state department policy of denying the applications of religious entities in relation to grants for the use of recycled rubber tires imposed a penalty on the free exercise of religion which was not justified by a state interest.
Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd  NSWCA 151
Building and construction: prevention principle
The Court of Appeal has dismissed an appeal against a refusal to quash an adjudication determination made under the Security of Payment Act. The adjudicator had applied the “prevention principle” in finding in favour of the subcontractor.
New Galaxy Investments Pty Ltd v Thomson & Ors  NSWCA 153
Real property: whether caveats lodged without reasonable cause
The Court of Appeal has held that New Galaxy Investments is not liable to pay compensation under s 74P of the Real Property Act. The Court held that the respondents had failed to prove that New Galaxy lodged caveats without reasonable cause.
Commissioner of Australian Federal Police v Elzein  NSWCA 142
Constitutional law: Chapter III; Proceeds of Crime Act 2002 (Cth)
The Court of Appeal has held that ss 180, 39(1) and 319 of the Proceeds of Crime Act permit orders to be made against a defendant in pending criminal proceedings, and these sections do not contravene Ch III of the Constitution.
Workers compensation: “in the course of or arising out of employment”
The Court of Appeal has held that a casual employee’s injury, which was sustained when she attended work on a day off and assisted in cleaning up, did not arise out of and was not in the course of her employment.
Australian Securities and Investments Commission, in the matter of Whitebox Trading Pty Ltd v Whitebox Trading Pty Ltd  FCAFC 100
Corporations; whether criminal fault elements apply to civil penalty proceedings under ss 1041A and 1041B Corporations Act 2001 (Cth)
The Full Court of the Federal Court has overturned obiter observations in Gore v ASIC  FCAFC 13. The Full Court held that ASIC need not prove criminal fault elements in civil proceedings for contravention of ss 1041A and 1041B of the Corporations Act.
Private international law: jurisdiction; forum non conveniens
The Hong Kong Court of Final Appeal has held that, where jurisdiction is established as of right, the Family Court is bound to acknowledge this jurisdiction unless the proceedings should be stayed on forum non conveniens principles.
B v Waitemata District Health Board  NZSC 88
Human rights: right to smoke in ICU of mental health unit
The Supreme Court of New Zealand has held that a no smoking policy in the ICU of a mental health institution is not inconsistent with the Smoke-free Environments Act1990 (NZ) or the New Zealand Bill of Rights.
The Supreme Court of the United States has held that, where a defendant’s right to public trial is violated but this was not raised at trial or on direct review, the defendant must demonstrate prejudice to secure a new trial.
The Court of Appeal has dismissed an appeal against an order for the rectification of a contract for sale of land. The primary judge had held that the common intention of the parties at the time of contract was that the purchase price be exclusive of GST.
Daniel Smith by his tutor Debra Smith v South Western Sydney Local Health Network  NSWCA 123
Torts: negligence; new point raised on appeal; causation
The Court of Appeal has dismissed an appeal brought by Mr Smith, who sustained injuries when he attempted to commit suicide. The primary judge held that the respondent was not negligent in relation to instructions given to Mr Smith’s parents.
The Court of Appeal has allowed an appeal against orders partially rescinding a deed on the basis of a finding of fraud. The Court of Appeal held that fraud was not adequately pleaded or specifically alleged against Mr Nadinic at trial.
The Queensland Court of Appeal has held that a jury’s finding was perverse, and ordered a retrial. The jury had found that none of the meanings conveyed in a letter about a school principal were defamatory.
Australian Building and Construction Commissioner v Powell  FCAFC 89
Industrial law: right of entry; interaction of Fair Work Act 2009 (Cth) and State OHS legislation
The Full Court of the Federal Court has held that a union official required a permit under the Fair Work Act 2009 (Cth) before he could attend a building site pursuant to a request made under State OHS legislation.
Commissioner of Inland Revenue v Fugle  NZCA 230
Tax: meaning of “last payment”
The Court of Appeal of New Zealand has held that the act of crediting money to Mr Fugle’s shareholder current account, in circumstances where the debtor company did not have sufficient funds to pay that amount in full, was not the “last payment” of that company’s debt to Mr Fugle.
Judicial review: failure to appeal decision under review
The Supreme Court of Papua New Guinea has set out the principles for determining whether leave should be granted for judicial review pursuant to the inherent powers of the Supreme Court (s 155(2)(b) of the Constitution) in circumstances where the applicant failed to lodge an appeal in time.
Constitutional law: fourteenth amendment due process clause
The Supreme Court of the United States has held that the fourteenth amendment’s guarantee of due process does not permit a State court to hale an out-of-State corporation before its courts when the corporation is not “at home” in the State and the episode-in-suit occurred elsewhere.