Previous decisions of interest

4 March 2019 – 15 March 2019

NSW Court of Appeal

Roads and Maritime Services v United Petroleum Pty Ltd [2019] NSWCA 41
Land: compulsory acquisition; heads of compensation under Land Acquisition (Just Terms Compensation) Act 1991 (NSW)
The Court of Appeal has allowed an appeal brought by Roads and Maritime Services, setting aside an award of compensation made by the Land and Environment Court in favour of United Petroleum Pty Ltd.

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State of New South Wales v Dargin [2019] NSWCA 47
Civil procedure: determination of a separate question; framing of questions; appropriateness of separate question mechanism in the circumstances
The Court of Appeal has allowed an appeal brought from a District Court’s judge’s determination of a separate question, holding that it was inappropriate to answer the question as put.

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Other Australian intermediate appellate decisions

Fahme v Minister for Home Affairs [2019] FCAFC 41
Administrative law: migration; relationship between Migration Act 1958 (Cth) and Migration Regulations 1994 (Cth); jurisdiction of Administrative Appeals Tribunal
The Full Court of the Federal Court has dismissed an appeal brought by an applicant for a medical protection visa, holding that his application for review by the AAT was brought out of time.

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Hanson & Anor v Goomboorian Transport Pty Ltd & Ors [2019] QCA 41
Equity: tracing; life insurance policies; application of principles in Foskett v McKeown [2001] 1 AC 201; [2000] 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.

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Asia Pacific

Akitaya & Ors v Obichang [2019] PWSC 8
Public law: freedom of information; Open Government Act 1 PNC §§ 901-908
The Supreme Court of Palau has dismissed an appeal brought by five senators seeking to obtain documents pursuant to the provisions of the Open Government Act.

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Office of the Attorney-General & Ors v Digicel Fiji Limited [2019] FJCA 39
Contracts: government contracts; authority to contract
The Court of Appeal of Fiji has dismissed an appeal brought by three government bodies seeking to deny liability under a contract for telecommunications services.

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Other international

KV (Sri Lanka) (Appellant) v Secretary of State for the Home Department (Respondent) [2019] 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.

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Singh v Reddy 2019 BCCA 79
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.

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18 February 2019 – 1 March 2019

NSW Court of Appeal

Jain v Amit Laundry Pty Ltd [2019] NSWCA 20
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.

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Globe Church Incorporated v Allianz Australia Insurance Ltd [2019] NSWCA 27
Contracts: insurance; time at which an insured’s cause of action for breach of contract under an indemnity policy of property insurance accrues; Limitation Act 1969 (NSW) s 14
The Court of Appeal has, by majority, answered questions for separate determination in terms that mean a plaintiff’s claims under their insurance policy are statute-barred.

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Other Australian intermediate appellate decisions

Director-General, Community Services Directorate v WS [2019] 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.

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Harding v Commissioner of Taxation [2019] 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.

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Asia Pacific

Republic of Palau v Ngarchelong State Government [2019] 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.

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H (SC 52/2018) v Refugee and Protection Officer [2019] 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.

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Other international

Timbs v Indiana 586 U.S. ___ (2019)
Constitutional law: application of Excessive Fines clause of US Constitution to state legislatures
The Supreme Court of the United States has held that the 8th Amendment’s prohibition on excessive fines applies to the states.

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Cameron v Liverpool Victoria Insurance Co Ltd [2019] 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.

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28 January – 15 February 2019

NSW Court of Appeal

Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (In liquidation) [2019] 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.
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Kai Ling (Australia) Pty Ltd v Rosengreen [2019] 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.
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Other Australian intermediate appellate decisions

Minister for Immigration and Border Protection v Gill [2019] 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.
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Hocking v Director-General of the National Archives of Australia [2019] 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.
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Asia Pacific

Hong Kong Special Administrative Region v Chu Tsun Wai [2019] 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.
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Dominion Insurance Ltd v Housing Authority [2019] 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.
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Other international

Price Security Holdings Inc v Klompas & Rothwell 2019 BCCA 36
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.
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Attorney General of Trinidad and Tobago (Respondent) v Maharaj (Appellant) [2019] 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.
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19 November – 17 December 2018

NSW Court of Appeal

Banerjee v Commissioner of Police [2018] NSWCA 283
Constitutional law: inconsistency; corporations, voluntary administration
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).
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Kempsey Shire Council v Five Star Medical Centre Pty Ltd [2018] 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.
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Cisera v Cisera Holdings Pty Ltd [2018] NSWCA 286
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; [2014] NSWCA 367 was correctly decided.
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State of New South Wales v Cuthbertson [2018] NSWCA 320
Damages: legal costs, exemplary damages; torts: wrongful arrest
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; [2005] NSWCA 247 should not be followed on this point.
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Other Australian intermediate appellate decisions

Perera v GetSwift Limited [2018] FCAFC 202
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.
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The State of Western Australia v Cunningham (No 3) [2018] 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.
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Asia Pacific

Commerce Commission v Lodge Real Estate Limited [2018] NZCA 523
Competition law: anti-competitive conduct, price fixing
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.
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BOM v BOK and another appeal [2018] SGCA 83
Trusts: setting aside trust deed, undue influence, unconscionability
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.
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Other international

Secretary of State for Justice v MM [2018] 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.
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THE UK WITHDRAWAL FROM THE EUROPEAN UNION (LEGAL CONTINUITY) (SCOTLAND) BILL – A Reference by the Attorney General and the Advocate General for Scotland (Scotland) [2018] 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).
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5 November – 16 November 2018

NSW Court of Appeal

Attorney General for New South Wales v Gatsby [2018] NSWCA 254
Constitutional law: jurisdiction, judicial power, tribunals
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).
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Nationwide News Pty Ltd v Vass [2018] NSWCA 259
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.
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Other Australian intermediate appellate decisions

Ian Street Developer v Arrow International [2018] 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.
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Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191
Industrial law, workplace right, adverse action, coercion
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.
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Asia Pacific

Attorney-General v Taylor [2018] NZSC 104
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.
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Lua Bee Kiang (administrator of the estate of Chew Kong Seng) v Yeo Chee Siong [2018] SGCA 74
Damage: pain and suffering, future loss
The Singapore Court of Appeal has considered the principles applicable to calculating an award of damages for pain and suffering, and in respect of future loss.
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Other international

Mount Lemmon Fire District v Guido, No 17-587
Anti-discrimination law: age, statutory interpretation 
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.
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Regency Villas Title Ltd and others (Respondents/Cross-Appellants) v Diamond Resorts (Europe) Ltd [2018] 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 [1956] Ch 131.
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22 October – 2 November 2018

NSW Court of Appeal

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

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

Vinmar Overseas (Singapore) Pte Ltd v PTT International Trading Pte Ltd [2018] SGCA 65
Private international law: contract, exclusive jurisdiction clauses
The Singapore Court of Appeal has departed from previous authority to hold that the merits of the defence are irrelevant to the question whether there is “strong cause” to refuse a stay of proceedings brought in breach of an exclusive jurisdiction clause.
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Lee Kwok Wa v The Securities and Futures Commission [2018] HKCFA 45
Crime: securities, insider trading; statutory construction
The Hong Kong Court of Final Appeal has held that a transaction for the purposes of s 300 of the Securities and Futures Ordinance, encompasses dealings with a view to profit or avoidance of loss by the use of inside information, and is wide enough to include conduct taking place before the purchase and sale of securities.
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Abdul Kahar bin Othman v Public Prosecutor [2018] SGCA 70
Constitutional law: judicial power; courts: criminal appeal
The Singapore Court of Appeal has considered the test for re-opening and reviewing a concluded criminal appeal, in the course of rejecting challenges to the constitutionality of the sentencing regime for drug trafficking offence brought by a person facing the death penalty.
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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.
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8 October – 19 October 2018

NSW Court of Appeal

Robinson v State of New South Wales [2018] 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.
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Talifero v Asbestos Injuries Compensation Fund Limited as Trustee for the Asbestos Injuries Compensation Fund [2018] 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.
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Other Australian intermediate appellate decisions

Minister for Immigration and Border Protection v Egan [2018] 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.
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Attorney-General (Tas) v CL [2018] TASFC 6
Criminal law: victims’ compensation; statutory interpretation, ‘violence’
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.
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Asia Pacific

Coconut Products Ltd v Markham Farming Co Ltd [2018] PGSC 60
Judgments: reasons for decision; tort: civil malicious prosecution
The Supreme Court of Papua New Guinea has recognised a tort of malicious prosecution of civil proceedings as forming part of the law in Papua New Guinea.
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Ngiraingas v Shmull [2018] PWSC 19
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.
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Other international

Stubbs v The Queen (Bahamas) [2018] UKPC 30
Courts: judges, administrative law: apparent bias
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.
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Lee v Ashers Baking Company Ltd & Ors (Northern Ireland) [2018] 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.
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24 September – 5 October 2018

NSW Court of Appeal

Secretary, Department of Family and Community Services v Hayward (a pseudonym) [2018] 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).
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Fuller-Wilson v State of New South Wales [2018] 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.
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Other Australian intermediate appellate decisions

Qld Law Group – A New Direction Pty Ltd v Crisp [2018] 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.
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United Firefighters’ Union v Victorian Equal Opportunity and Human Rights Commission [2018] 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).
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Asia Pacific

NZME Limited v Commerce Commission [2018] 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.
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BOI v BOJ [2018] SGCA 61
Courts: judges, apparent bias, recusal
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.
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Other international

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.
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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.
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10 September – 21 September 2018

NSW Court of Appeal

Lordianto v Commissioner of the Australian Federal Police [2018] 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.
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Note: The applicants have applied for special leave to the High Court in this matter.
Choy v Tiaro Coal Ltd [2018] 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).
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Other Australian intermediate appellate decisions

Samwise Holdings Pty Ltd v Allied Distribution Finance Pty Ltd [2018] 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.
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Hamersley Iron Pty Ltd v Forge Group Power Pty Ltd (In Liq) (Receivers and Managers Appointed) [2018] 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).
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Unique International College Pty Ltd v Australian Competition and Consumer Commission [2018] 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.
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Asia Pacific and other international

Robt. Jones Holdings Limited v McCullagh [2018] 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.
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Klobak v Ueki [2018] PWSC 17; 2018 Palau 17
Courts: appellate review; customary law; collateral estoppel; damages
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.
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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.
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27 August – 7 September 2018

NSW Court of Appeal

Roads and Maritime Services v Desane Properties Pty Ltd [2018] 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.
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Técnicas Reunidas SA v Andrew [2018] NSWCA 192
Contract; solicitors: client conflict, confidentiality
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.
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Other Australian intermediate appellate decisions

Wileypark Pty Ltd v AMP Limited [2018] FCAFC 143
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.
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Pleash (Liquidator) v Tucker [2018] FCAFC 144
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.
READ MORE
Doughty-Cowell (Victoria Police) v Kyriazis [2018] VSCA 216
Administrative law: procedural fairness, self-represented litigant
The Victorian Court of Appeal has held that a County Court judge did not deny a self-represented litigant a fair hearing and there was no basis for concluding that the judge had shown ostensible bias.
READ MORE

Asia Pacific and other international

Pauamac5 Incorporated v Director-General of Conservation [2018] NZCA 348
Statutory interpretation; administrative law: considerations
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.
READ MORE
PT Bayan Resources TBK v BCBC Singapore Pte Ltd [2018] 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.
READ MORE
In the matter of an application by Siobhan McLaughlin for Judicial Review (Northern Ireland) [2018] 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.
READ MORE
Navtej Singh Johar v Union of India (2018)
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.
READ MORE

13 August – 24 August 2018

NSW Court of Appeal

Hunter Quarries Pty Ltd v Alexandra Mexon as Administrator for the Estate of the Late Ryan Messenger [2018] NSWCA 178
Statutory interpretation: workers’ compensation, ‘permanent impairment’
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.
READ MORE
Gunasegaram v Blue Visions Management Pty Ltd; Blue Visions Management Pty Ltd v Chidiac [2018] 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.
READ MORE

Other Australian intermediate appellate decisions

WorkPac Pty Ltd v Skene [2018] FCAFC 131
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.
READ MORE
Darwin Foods Pty Ltd v Gray [2018] SASCFC 84
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.
READ MORE

Asia Pacific and other international

Lee Tat Development Pte Ltd v Management Corporation Strata Title Plan No 301 [2018] SGCA 50
Tort: abuse of process, malicious prosecution, issue estoppel
The Singapore Court of Appeal has declined to extend the tort of malicious prosecution to civil proceedings or recognise a separate tort of abuse of process.
READ MORE
Houghton v Saunders [2018] NZSC 74
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.
READ MORE
Chief Justice of Trinidad and Tobago v the Law Association of Trinidad and Tobago (Trinidad and Tobago) [2018] 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.
READ MORE
Low Heng Leon Andy v Low Kian Beng Lawrence (administrator of the estate of Tan Ah Kng, deceased) [2018] SGCA 48
Equity; damages: estoppel, equitable compensation, non-financial detriment
The Singapore Court of Appeal has considered the appropriate approach to assessing equitable compensation for proprietary estoppel.
READ MORE

30 July – 10 August 2018

NSW Court of Appeal

The Owners – Strata Plan No 66375 v King [2018] 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.
READ MORE
Lavender v Director of Fisheries Compliance, Department of Industry Skills and Regional Development [2018] NSWCA 174
Constitutional law: extra-territorial operation of legislation, inconsistency
The Court of Appeal has found that the Fisheries Management (Abalone Share Management Plan) Regulation 2000 (NSW) was valid and its operation supported outside the limits of New South Wales.
READ MORE

Other Australian intermediate appellate decisions

Onley v Catlin Syndicate Ltd as the Underwriting Member of Lloyd’s Syndicate 2003 [2018] 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).
READ MORE
Commissioner of State Revenue v Mondous [2018] 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.
READ MORE

Asia Pacific

Durie v Gardiner [2018] NZCA 378
Defamation: public interest defence, responsible communication
The New Zealand Court of Appeal has recognised a standalone defence of public interest communication in defamation actions.
READ MORE
Turf Club Auto Emporium Pte Ltd v Yeo Boong Hua [2018] 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.
READ MORE

Other international

An NHS Trust & Ors v Y & Anor [2018] UKSC 46
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.
READ MORE
R (on the application of AR) v Chief Constable of Greater Manchester Police and Anor [2018] 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
READ MORE

16 July – 27 July 2018

NSW Court of Appeal

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) [2018] 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.
READ MORE
Avopiling Pty Ltd v Bosevski; Avopiling Pty Ltd v The Workers Compensation Nominal Insurer [2018] 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.
READ MORE

Other Australian intermediate appellate decisions

Hayden Leigh White in his capacity as Joint and Several Liquidator of Port Village Accommodation Pty Ltd (in liq) -v- ACN 153 152 731 Pty Ltd (in liq) [2018] WASCA 119
Corporations: insolvency; unfair preferences, uncommercial transaction
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.
READ MORE
Slea Pty Ltd v Connective Services Pty Ltd [2018] VSCA 180
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.
READ MORE

Asia Pacific

Trends Publishing International Limited v Advicewise People Limited [2018] 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.
READ MORE
NTUC Foodfare Co-operative Ltd v SIA Engineering Co Ltd [2018] 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.
READ MORE

Other international

Banca Nazionale del Lavoro SPA v Playboy Club London Limited [2018] 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.
READ MORE
James-Bowen v Commissioner of Police of the Metropolis [2018] 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.
READ MORE

2 July – 13 July 2018

NSW Court of Appeal

Hosking v Extend N Build Pty Ltd [2018] NSWCA 149
Corporations: winding up, voidable transactions, unfair preferences
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.
READ MORE
Pentelow v Bell Lawyers Pty Ltd [2018] NSWCA 150
Costs: barristers, Chorley exception
The Court of Appeal has held by majority that the Chorley exception, whereby self-represented solicitors are entitled to professional costs, extends to barristers.
READ MORE

Other Australian intermediate appellate decisions

Legal Services Commissioner v Nichols [2018] 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).
READ MORE
Agtan Pty Ltd v Caltex Australia Petroleum Pty Ltd [2018] 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.
READ MORE

Asia Pacific

Director of Immigration v QT [2018] HKCFA 28
Administrative law: judicial review, unreasonableness; discrimination
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.
READ MORE
Chang Wa Shan v Esther Chan Pui Kwan [2018] HKCFA 29
Defamation: absolute privilege, innuendo; malicious falsehood
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.
READ MORE

Other international

Goldman Sachs International v Novo Banco SA [2018] 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.
READ MORE
British Colombia v Philip Morris International, 2018 SCC 36
Civil procedure: discovery; privacy: aggregate databases
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.
READ MORE

18 June – 30 June 2018

NSW Court of Appeal

Minister for Local Government v Blue Mountains City Council [2018] NSWCA 133
Courts: jurisdiction; Land and Environment Court; injunctions
The Court of Appeal has allowed an appeal against by the Minister of Local Government, setting aside an injunction preventing her from suspending Blue Mountains City Council.
READ MORE
Commissioner of Corrective Services v Liristis [2018] 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.
READ MORE

Other Australian intermediate appellate decisions

ARJ17 v Minister for Immigration and Border Protection [2018] 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).
READ MORE
BZD17 v Minister for Immigration and Border Protection [2018] 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.
READ MORE

Asia Pacific

New Health New Zealand Incorporated v South Taranaki District Council [2018] 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.
READ MORE
Biofuel Industries Pte Ltd v V8 Environmental Pte Ltd [2018] SCGA 28
Contract: breach, repudiation, remedies, damages
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.
READ MORE

Other international

Trump v Hawaii, (2018) 17-965
Constitutional law: executive power; immigration
The United States Supreme Court has upheld President Trump’s Executive Order placing entry restrictions on the nationals of eight foreign states, the majority of which are predominantly Muslim states.
READ MORE
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.
READ MORE

4 June – 15 June 2018

NSW Court of Appeal

Lewis Securities Ltd (in liq) v Carter [2018] 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.
READ MORE
Lule v State of New South Wales [2018] NSWCA 125
Torts: false imprisonment, wrongful arrest; damages
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.
READ MORE

Other Australian intermediate appellate decisions

Palmer v Turnbull [2018] QCA 112
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.
READ MORE
Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154
Defamation: damages, non-economic loss, statutory cap
The Victorian Court of Appeal has allowed an appeal by Bauer Media against an award of damages for the defamation of an Australian actress, and substituted a lesser award.
READ MORE

Asia Pacific

Manchester Securities Limited v Body Corporate 172108 [2018] NZCA 190
Corporations: statutory demands, set-off
The Court of Appeal of New Zealand has declined to set aside a statutory demand claiming an interim payment for net repair costs incurred by the appellant in a unit trust remediation scheme.
READ MORE
JTrust Asia Pte Ltd v Group Lease Holdings Pte Ltd [2018] SGCA 27
Civil procedure: mareva injunctions
The Court of Appeal of Singapore has allowed an appeal against an order discharging Mareva injunctions sought by the appellant against respondents involved in ‘round tripping’ scheme.
READ MORE

Other international

Haaretz.com v Goldhar, 2018 SCC 28
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.
READ MORE
In the matter of an application by the Northern Ireland Human Rights Commission for Judicial Review (Northern Ireland) [2018] 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.
READ MORE

21 May – 1 June 2018

NSW Court of Appeal

Auburn Shopping Village Pty Ltd v Nelmeer Hoteliers Pty Ltd [2018] 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.
READ MORE
Benson v Rational Entertainment Enterprises Ltd [2018] NSWCA 111
Contracts: construction of terms; unjust enrichment; precedent
The Court of Appeal has considered the status of a principle expressed in a High Court case with no ratio decidendi with respect to unjust enrichment, in the course of resolving a contractual dispute.
READ MORE

Other Australian intermediate appellate decisions

Robinson v 470 St Kilda Road Pty Ltd [2018] 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.
READ MORE
Leda Commercial Properties Pty Ltd v Brenda Hungerford Pty Ltd [2018] 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.
READ MORE

Asia Pacific

Maeke v Pukuvati [2018] SBCA 1
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.
READ MORE
Otei v Smanderang [2018] PWSC 4
Remedies: compensatory damages
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.
READ MORE

Other international

Epic Systems Corp v Lewis, No 16-285 (2018)
Arbitration: employment agreements requiring individualised proceedings
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.
READ MORE
Navigators Insurance Company Limited v Atlasnavios-Navegacao LDA [2018] 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.
READ MORE

7 May – 18 May 2018

NSW Court of Appeal

Elzahed v State of New South Wales [2018] 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.
READ MORE
Weir Services Australia Pty Ltd v AXA Corporate Solutions Assurance [2018] 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.
READ MORE

Other Australian intermediate appellate decisions

Australian Competition and Consumer Commission v Yazaki Corporation [2018] FCAFC 73
Competition: cartel arrangements, penalties; statutory interpretation
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.
READ MORE
Viterra Malt Pty Ltd v Cargill Australia Ltd [2018] VSCA 118
Evidence: client legal privilege, waiver, Evidence Act 2008, ss 122, 131A
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.
READ MORE

Asia Pacific

Designing Hong Kong Ltd v The Town Planning Board, Secretary For Justice [2018] 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.
READ MORE
McAlister v Lai [2018] NZCA 141
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.
READ MORE

Other international

Rock Advertising Limited v MWB Business Exchange Centre Limited [2018] UKSC 24
Contracts: ‘no oral modification’ clauses; consideration
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.
READ MORE
Rankin (Rankin’s Garage & Sales) v JJ, 2018 SCC 19
Negligence: duty of care; reasonable forseeability
The Supreme Court of Canada has held that a commercial garage did not owe a duty of care to a minor who suffered injury following the theft of a vehicle from its premises.
READ MORE

23 April – 4 May 2018

NSW Court of Appeal

Warner Bros Feature Productions Pty Ltd v Kennedy Miller Mitchell Films Pty Ltd [2018] NSWCA 81
Contracts: incorporation of terms; commercial arbitration
The Court of Appeal has held that an Agreement between a Warner Brothers company and a director and producer incorporated a term requiring disputes to be submitted to arbitration in California.
READ MORE
AD v Commissioner of the Australian Federal Police [2018] 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.
READ MORE
Rail Corporation New South Wales v Donald; Staff Innovations Pty Ltd t/as Bamford Family Trust [2018] NSWCA 82
Negligence: breach of duty, causation, contributory negligence
The Court of Appeal has dismissed an appeal against findings that Rail Corporation and a labour hire company had breached their duties in failing to provide an individual with a safe system of work.
READ MORE
Racing NSW v Lewin [2018] NSWCA 93
Administrative law: validity of delegated legislation
The Court of Appeal has held that no right of appeal lies to the Racing Appeals Tribunal with respect to a decision of Racing NSW to refuse to issue a bookmaking licence.
READ MORE

Other Australian intermediate appellate decisions

Australian Securities and Investments Commission v Geary [2018] VSCA 103
Corporations: directors’ duties; appeals: inferential reasoning
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.
READ MORE
Comcare v Drinkwater [2018] FCAFC 62
Workers’ compensation; statutory construction
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.
READ MORE

Asia Pacific

Macquarie Bank Ltd v Graceland Industry Pte Ltd [2018] SGHC(I) 05
Contract: incorporation of terms, mistake, misrepresentation; equity
The Singapore International Commercial Court has dismissed a counterclaim by Graceland alleging that a commodity swap transaction was void ab initio or had been rescinded on various bases.
READ MORE
Tebara Transport v Dominion Insurance Ltd [2018] 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.
READ MORE

Other international

Jenser v Arab Bank, PLC, No 16-499
Torts: Alien Tort Statute (US)
The United States Supreme Court has held, by majority, that liability under the Alien Torts Statute does not extend to foreign corporate defendants.
READ MORE
Investec Trust (Guernsey) Ltd & Anor v Glenalla Properties Ltd & Ors [2018] UKPC 7
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.
READ MORE

9 April – 20 April 2018

NSW Court of Appeal

Obeid v Lockley [2018] NSWCA 71
Torts: misfeasance in public office
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.
READ MORE
South Western Sydney Local Health District v Gould [2018] 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).
READ MORE

Other Australian intermediate appellate decisions

The State of South Australia v Roberts [2018] 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.
READ MORE
White, in the matter of Mossgreen Pty Ltd (Administrators Appointed) v Robertson [2018] 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.
READ MORE

Asia Pacific

Jonathan Lu and Others v Paul Chan Mo-Po and Another [2018] HKCFA 11
Defamation: qualified privilege, malice
The Hong Kong Court of Final Appeal has held that the primary judge misdirected a jury in a defamation trial with respect to the issue of malice as a defence to qualified privilege.
READ MORE
Astro Nusanara International BV and Others v PT First Media TBK [2018] HKCFA 12
Arbitration: enforcement of arbitral awards
The Hong Kong Court of Final Appeal has granted leave to a company to bring an out-of-time application to set aside the enforcement of arbitral awards.
READ MORE

Other international

Morris-Garner and Anor v One Step (Support) Ltd [2018] UKSC 20
Contracts: availability of ‘negotiating damages’
The United Kingdom Supreme Court has held that a company was not entitled to claim negotiating damages in relation to a breach of covenant, with damages to be quantified in the conventional manner.
READ MORE
Gavin Edmondson Solicitors Limited v Haven Insurance Company Limited [2018] UKSC 21
Equity: nature of the solicitor’s equitable lien
The United Kingdom Supreme Court has considered the circumstances in which an equitable lien would arise to enable solicitors to recover their costs and disbursements in a successful action.
READ MORE

26 March – 6 April 2018

NSW Court of Appeal

Bhusal v Catholic Health Care Ltd [2018] NSWCA 56
Administrative law: procedural fairness
The Court of Appeal has found that the State Insurance Regulatory Authority denied procedural fairness to an applicant in relation to her application for review of a workers’ compensation decision.
READ MORE
Chahal Group Pty Ltd v 7-Eleven Stores Pty Ltd [2018] 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.
READ MORE

Other Australian intermediate appellate decisions

Reardon v Magistrates’ Court of Victoria [2018] VSCA 76
Statutory interpretation: Competition and Consumer Act 2010 (Cth) s 78
The Victorian Court of Appeal has found that Competition and Consumer Act 2010 (Cth), s 78 did not operate to immunise two CFMEU officials against blackmail charges under the Crimes Act 1958 (Vic).
READ MORE
Comcare v Wuth [2018] FCAFC 13
Workers’ compensation; administrative law: procedural fairness
The Full Court of the Federal Court has determined an appeal and cross-appeal in relation to rulings of the Administrative Appeals Tribunal on a workers’ compensation claim.
READ MORE

Asia Pacific

Panuve v Panuve [2018] TOCA 4; AC 10 of 2017
Succession; land ownership
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.
READ MORE
Kalaisi v Tu’I’onetoa [2018] TOCA 5; AC 12 of 2017
Real property; charitable associations
The Court of Appeal of Tonga has ruled in favour of an incorporated Church in a dispute with a breakaway fellowship over the ownership of parish land and buildings.
READ MORE

Other international

Encino Motorcars, LLC v Navarro, 16-1362
Labour law; statutory interpretation
The United States Supreme Court has determined that service advisors for a motorcar dealer fell within an exception to the overtime pay requirements of the Fair Labor Standards Act.
READ MORE
Kisela v Hughes, 17-467
Constitutional law: fourth amendment, qualified immunity
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.
READ MORE

12  March – 23 March 2018

NSW Court of Appeal

Public Service Association and Professional Officers’ Association Amalgamated Union of New South Wales v Industrial Relations Secretary [2018] 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.
READ MORE
Newell; Muriniti v De Costi [2018] NSWCA 49
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.
READ MORE

Other Australian intermediate appellate decisions

Central Highlands Regional Council v Geju Pty Ltd [2018] QCA 38
Local government; torts: negligent misstatement
The Queensland Court of Appeal has found that a local council was not liable for a misstatement in a planning and development certificate which was relied upon by a third party in purchasing land.
READ MORE
Jones (Liquidator) v Matrix Partners Pty Ltd, in the matter of Killarnee Civil & Concrete Contractors Pty Ltd (in liq) [2018] 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.
READ MORE

Asia Pacific

BNP Paribus v Jacob Agam and Anor [2018] SGHC(I) 03
Civil procedure: whether “offshore case”
The Singapore International Commercial Court has held that a case was not an “offshore case” where the relevant transactions were to be performed in Singapore.
READ MORE
B2C2 Ltd v Quoine Pte Ltd [2018] SCHC(I) 04
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.
READ MORE

Other international

Dryden and others v Johnson Matthey Plc [2018] UKSC 18
Negligence: whether actionable damage suffered
The United Kingdom Supreme Court has held that platinum salt sensitisation constituted an actionable personal injury for the purposes of a negligence claim.
READ MORE
JSC BTA Bank v Khrapunov [2018] UKSC 19
Torts: conspiracy by unlawful means
The United Kingdom Supreme Court has held contempt of court could constitute unlawful means for the tort of conspiracy.
READ MORE

26 February – 9 March 2018

NSW Court of Appeal

Sparks v Hobson; Gray v Hobson [2018] NSWCA 29
Negligence: medical practitioners; Civil Liability Act 2002 (NSW) s 5O
The Court of Appeal has determined the liability of two medical practitioners in relation to their failure to terminate an operation early enough to prevent a person from becoming a paraplegic.
READ MORE
Council of the City of Ryde v Sally Haddad executor of the estate of the late Dr Jim Haddad [2018] NSWCA 35
Environment and planning; statutory interpretation
The Court of Appeal has found that a medical centre did not constitute “business premises” under an environmental instrument, as was required for a development application.
READ MORE

Other Australian intermediate appellate decisions

Commonwealth of Australia v Byrnes & Hewitt [2018] VSCA 41
Corporations; trusts: insolvency; securities: ‘circulating asset’
The Victorian Court of Appeal has found that a trustee’s right to indemnity is company property subject to the priorities regime in insolvency under the Corporations Act 2001 (Cth).
READ MORE
Longley & Ors v Chief Executive, Department of Environment and Heritage Protection [2018] QCA 32
Corporations: winding up; constitutional law: conflict of laws
The Queensland Court of Appeal has found that the disclaimer provisions of the Corporations Act 2001 (Cth) would not be displaced by the operation of state environmental laws.
READ MORE

Asia Pacific

Perennial (Capitol) Pte Ltd v Capitol Investment Holdings Pte Ltd [2018] SCGA 11
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.
READ MORE
Williams v Craig [2018] NZCA 31
Defamation: damages; scope of retrial
The New Zealand Court of Appeal has ordered a retrial on the question of damages only in respect of the largest defamation award in New Zealand’s history.
READ MORE

Other international

Steel v NRAM Limited (Scotland) [2018] UKSC 13
Torts: negligent misstatement
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.
READ MORE
Almazeedi v Penner and Ors (Cayman Islands) [2018] 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. 
READ MORE

12 February – 23 February 2018

NSW Court of Appeal

Ipstar Australia Pty Ltd v APS Satellite Pty Ltd [2018] NSWCA 15
Consumer law: unconscionable conduct
The Court of Appeal has found that a wholesaler of satellite broadband services engaged in unconscionable conduct in the process of imposing a price increase on a customer.
READ MORE
Boyce v Allianz Insurance Ltd [2018] NSWCA 22
Administrative law: judicial review
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).
READ MORE

Other Australian intermediate appellate decisions

Kobelt v Australian Securities and Investment Commission [2018] FCAFC 18
Consumer law: unconscionable conduct
The Full Court of the Federal Court has held that the provision of motor vehicles to Indigenous customers in a remote community under a ‘book up’ system did not amount to unconscionable conduct.
READ MORE
Andriotis v Victorian Building Authority [2018] FCAFC 24
Administrative law: Mutual Recognition Act 1992 (Cth)
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”.
READ MORE

Asia Pacific

Bachmeer Capital Limited v Ong Chih Ching and 7 Ors [2018] SCHC(I) 01
Evidence: giving witness evidence via video link
The Singapore International Commercial Court has considered the circumstances in which witnesses should be permitted to give evidence via video link.
READ MORE
Coumat Limited v Whitford Properties Limited [2018] 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.
READ MORE

Other international

The Advocate General for Scotland v Romein (Scotland) [2018] 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.
READ MORE
Julien and Ors v Evolving Tecknologies and Enterprise Development Company Limited (Trinidad and Tobago) [2018] 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.
READ MORE

29 January – 9 February 2018

NSW Court of Appeal

Liverpool City Council v Moorebank Recyclers Pty Ltd [2018] NSWCA 7
Environment and planning
The Court of Appeal has dismissed an appeal against a decision of the Land and Environment Court to approve the construction of a materials recycling facility in the Liverpool Council area.
READ MORE
Stolyar v Towers [2018] NSWCA 6
Real property: validity of easement
The Court of Appeal has dismissed an application to declare an easement invalid, in relation to a right of vehicle parking and garaging on an Eastern Suburbs property.
READ MORE

Other Australian intermediate appellate decisions

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] 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.
READ MORE
Bodycorp Repairers Pty Ltd v Holding Redlich [2018] VSCA 17
Summary judgment: limitation periods; courts and judges
The Victorian Court of Appeal has upheld the summary dismissal of a claim brought against solicitors for the negligent preparation of agreements on the basis that it was statute barred.
READ MORE

Asia Pacific

Chamberlain v Minister of Health [2018] NZCA 8
Judicial review; statutory interpretation
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.
READ MORE
Loosley v Powell [2018] NZCA 3
Wills and probate: testamentary capacity
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.
READ MORE

Other international

Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4
Torts: duty of care owed by police
The United Kingdom Supreme Court has held that police officers owed a duty of care to an elderly women who was injured in the course of those officers attempting to arrest a nearby suspect.
READ MORE
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. 
READ MORE

15 December – 25 January 2017

NSW Court of Appeal

The Owners Strata Plan No 57164 v Yau [2017] NSWCA 341
Real property; procedure; agency
The Court of Appeal has dismissed an application to set aside consent orders entered into by the owners of a strata scheme and one of the registered proprietors.
READ MORE
Ryde Developments Pty Ltd v The Property Investors Alliance Pty [2017] NSWCA 339
Statutory interpretation; contract
The Court of Appeal has held that a corporate agent is entitled to a commission despite failure to comply with the Property, Stock and Agents Act 2002 (NSW).
READ MORE

Other Australian intermediate appellate decisions

Commissioner of State Revenue v Danvest Pty Ltd [2017] VSCA 382
Property: nature of partner’s interest in partnership property
The Victorian Supreme Court of Appeal has held that the sale and purchase of partnership units did not constitute a transfer of dutiable property under the Duties Act 2000 (Vic).
READ MORE
Valve Corporation v Australian Competition and Consumer Law Commission [2017] 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.
READ MORE

Asia Pacific

Boochani v Independent State of Papua New Guinea [2017] PGSC 44
Constitutional law: whether notice of claim filed in time
The Supreme Court of Papua New Guinea has denied an application to dismiss a claim brought by former detainees of Manus Island Processing Centre to enforce their constitutional rights.
READ MORE
George v Cook Islands Law Society [2017] CKCA 6
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.
READ MORE

Other international

Brownlie v Four Seasons Holdings Inc [2017] UKSC 80
Private international law: jurisdiction
The United Kingdom Supreme Court has denied service of an originating order out of jurisdiction, in relation to a claim involving the death of a leading international law scholar.
READ MORE
Delta Air Lines Inc v Lukács2018 SCC 2
Administrative law: boards and tribunals, public interest standing
The Supreme Court of Canada has held that the Canadian Transport Agency did not reasonably exercise its discretion to dismiss a complaint made about Delta Air Lines’ policies towards obese passengers.  
READ MORE

27 November – 15 December 2017

NSW Court of Appeal

Goode v Angland [2017] NSWCA 311
Negligence: whether horseracing a “recreational activity”
The Court of Appeal has held that professional horseracing is a “recreational activity” for the purposes of s 5L of the Civil Liability Act 2002 (NSW).
READ MORE
South West Helicopters Pty Ltd v Stephenson [2017] NSWCA 312
Aviation; Bailment; Torts; Worker’s Compensation
The Court of Appeal has determined three appeals against a decision with respect to a helicopter accident killing three people in 2006.
READ MORE

Other Australian intermediate appellate decisions

Wreck Bay Aboriginal Community Council v Williams (No 2) [2017] ACTA 56
Damages: recovery of costs against Attorney-General
The ACT Court of Appeal has declined to order costs against the Attorney-General, and held that it was reasonable for the Attorney-General to intervene in those proceedings.
READ MORE
Perazzoli v BankSA, a division of Westpac Banking Corporation Limited [2017] 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.
READ MORE

Asia Pacific

Kerkur Clain v Koror State Public Lands Authority [2017] 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.
READ MORE
Board of Trustees of Nelson College v Fitchett [2017] NZCA 572
Torts: trespass to land; power to exclude from public meetings
The Court of Appeal of New Zealand has held that s 4 of the Trespass Act 1980 cannot be invoked to prohibit a person’s attendance at future meetings of a local authority.
READ MORE

Other international

Ramuhovhi and Others v President of the Republic of South Africa and Others [2017] ZACC 41
Constitutional law: constitutional validity of customary marriage
The South African Constitutional Court has held that s 7(1) of the Recognition of Customary Marriages Act 1998 discriminates against women on the grounds of gender and marital status.
READ MORE
O’Connor v Bar Standards Board [2017] UKSC 78
Human rights: operation of limitation period
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.
READ MORE

13 November – 24 November 2017

NSW Court of Appeal

State of NSW v Le [2017] NSWCA 290
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.
READ MORE
Kawasaki Heavy Industries, Ltd v Laing O’Rourke Australia Construction Pty Ltd [2017] 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.
READ MORE

Other Australian intermediate appellate decisions

Perez v Minister for Immigration and Border Protection [2017] 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.
READ MORE
LFDB v SM [2017] FCAFC 178
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.
READ MORE

Asia Pacific

Todiai v Schnaubelt & Ors [2017] PGSC 37
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.
READ MORE
Ahelmhalahlah v Republic of Vanuatu & Ors [2017] 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.
READ MORE

Other international

State Information Technology Agency SOC Limited v Gijma Holdings (Pty) Limited [2017] 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.
READ MORE
Fisherman and Friends of the Sea v The Minister of Planning, Housing and the Environment (Trinidad and Tobago) [2017] 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.
READ MORE

30 October – 10 November 2017

NSW Court of Appeal

Medical Council of NSW v Lee [2017] NSWCA 282
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.
READ MORE
King v Adams & Ors [2017] NSWCA 277
Equity: trusts; tracing
The Court of Appeal has held that the primary judge did not err in finding that Mr King was not objectively intended to be a member of a lottery syndicate which won $40,445,165.25.
READ MORE

Other Australian intermediate appellate decisions

Racing Victoria Limited v Kavanagh and O’Brien [2017] VSCA 334
Occupational regulation: horse racing; modes of proof
The Victorian Court of Appeal has held the evidentiary scheme contained within Rule 78D of the Australian Racing Rules was not intended to render other types of evidence inadmissible.
READ MORE
Hancock Prospecting Pty Ltd v Rinehart [2017] 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).
READ MORE

Asia Pacific

Boochani v Independent State of Papau New Guinea [2017] PGSC 28
Constitutional law: migration law
The Supreme Court of Papua New Guinea has declined to award declaratory and injunctive relief to a refugee on Manus Island in respect of rights claimed under the Papua New Guinean Constitution.
READ MORE
Hagaman v Little [2017] NZCA 447
Defamation: survival of claim after death
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.
READ MORE

Other international

Kernan v Cuero, 16–1468
Contract law: specific performance of plea agreement
The United States Supreme Court has held that federal law does not clearly establish that a guilty plea amounts to an enforceable plea agreement, which is capable of being specifically performed.
READ MORE
Scotch Whiskey Association v The Lord Advocate [2017] UKSC 76
Competition law: minimum pricing; consistency with EU law
The UK Supreme Court has held that the minimum pricing legislation affecting alcohol sales in Scotland is not contrary to European law.
READ MORE

16 October – 27 October 2017

NSW Court of Appeal

REW08 Projects Pty Ltd v PNC Lifestyle Investments Pty Ltd [2017] NSWCA 269
Contract law: illegality
The Court of Appeal has held that an agreement made for the purpose of avoiding stamp duty is not unenforceable.
READ MORE
Tudor Capital Australia Pty Limited v Christensen [2017] NSWCA 60
Workers compensation
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.
READ MORE

Other Australian intermediate appellate decisions

Outback Ballooning Pty Ltd v Work Health Authority and Bamber [2017] 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
READ MORE
Australian Olympic Committee v Telstra Corporation [2017] 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.
READ MORE

Asia Pacific

Matamu v Si’itia [2017] NZCA 482
Contracts: voluntary religious associations; repudiation by conduct
The Court of Appeal of New Zealand has held that the constitution of a voluntary religious association is a civil contract which sets out the rights and duties of the members and its governing bodies.
READ MORE
Fiji Industries Ltd v National Union of Factory and Commercial Workers [2017] FJSC 30
Appeals: significant delay; application for extensions of time
The Supreme Court of Fiji has declined leave to appeal in circumstances where a lawyer’s error led to the late filing of a notice of appeal.
READ MORE

Other international

Harrielall v University of KwaZulu-Natal [2017] ZACC 38
Constitutional law: costs in proceedings against the state
The Constitutional Court of South Africa has affirmed that an unsuccessful party in proceedings against the state should be spared from paying the state’s costs in constitutional matters.
READ MORE
Mitsui & Co Ltd v Beteiligungsgesellschaft LPG Tankerflotte MBH & Co KG [2017] UKSC 68
Shipping and navigation: average
The UK Supreme Court has held that expenses incurred during negotiations to reduce a ransom demanded by pirates were claimable as general average.
READ MORE

1 October – 13 October 2017

NSW Court of Appeal

Northern Sydney Local Health District v Amaca Pty Ltd [2017] 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.
READ MORE
Qube Holdings Ltd v Residents Against Intermodal Development Moorebank Inc [2017] NSWCA 250
Voluntary associations: meaning of “unincorporated body”
The Court of Appeal has held that the essential characteristics of an unincorporated body do not include a constitution making provision for membership and voting or a list of members.
READ MORE

Other Australian intermediate appellate decisions

Google Inc v Duffy [2017] SASFC 130
Defamation: publication on search engines
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.
READ MORE
Pere v Central Queensland Hospital and Health Service [2017] QCA 225
Torts: consent to battery in context of employment
The Queensland Court of Appeal has held that a Queensland hospital employee gave true consent to medical procedures, despite the risk that consent may not be “real” in an employment context.
READ MORE

Asia Pacific

Development Bank of Solomon Islands v Zalao [2017] 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.
READ MORE
Goh Seng Heng v Liberty Sky Investments Ltd [2017] SGCA 59
Civil procedure: disclosure of documents
The Court of Appeal of Singapore has allowed an appeal against a Mareva injunction in circumstances where a prima facie case of fraud or compelling evidence of fraud could not be established.
READ MORE

Other international

Montreal (City) v Dorval, 2017 SCC 48
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”.
READ MORE
Canada (Attorney General) v Fontaine, 2017 SCC 47
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.
READ MORE

18 September – 29 September 2017

NSW Court of Appeal

Singh v De Castro; Dhaliwal v De Castro; Brar v De Castro [2017] NSWCA 241
Contract law: incorporation of guarantee document into loan agreement
The NSW Court of Appeal has held that the directors of New Ridge Property Group Pty Ltd failed to establish that they did not sign a loan agreement in a form that incorporated a guarantee.
READ MORE
Lets Go Adventures Pty Ltd v Barrett [2017] NSWCA 243
Torts: interaction with Australian Consumer Law; obvious risk
The NSW Court of Appeal has held that a boat operator did not breach the implied statutory guarantee to a scuba-diving operator that services be rendered with due care and skill.
READ MORE

Other Australian intermediate appellate decisions

Archibald v Powlett [2017] VSCA 259
Contracts: damages for depression and anxiety
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.
READ MORE
Rana v Google Inc [2017] FCAFC 156
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.
READ MORE

Asia Pacific

Tozzi Srl v Bumi Armada Offshore Holdings Ltd and Anor [2017] 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.
READ MORE
Ngati Hurungaterangi v Ngati Wahiao [2017] NZCA 429
Commercial arbitration: adequacy of reasons in arbitral award
The Court of Appeal of New Zealand has held that an arbitral panel established to assess a dispute over Māori lands failed to provide adequate reasons for its deliberation.
READ MORE

Other international

Canada (Attorney General) v Thouin, 2017 SCC 46
Civil procedure: crown immunity from rules of discovery
The Supreme Court of Canada has found that section 27 of the Crown Liability and Proceedings Act does not lift crown immunity in proceedings
READ MORE
Mtokonya v Minister of Police [2017] ZACC 33
Civil procedure: operation of prescription period
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.
READ MORE

4 September – 15 September 2017

NSW Court of Appeal

Ku-ring-gai Council v Chan [2017] NSWCA 226
Negligence: pure economic loss; duty to future purchasers of property
The Court of Appeal has held that Ku-ring-gai Council did not owe a duty to future occupiers of a property to take care in issuing an occupation certificate.
READ MORE
NU v NSW Secretary of Family and Community Services [2017] NSWCA 221
Child Welfare: application of the Evidence Act to child welfare proceedings
The Court of Appeal has held that a Court’s inability to make a positive finding of abuse does not conclude determination of whether custody or access to a child should be granted.
READ MORE

Other Australian intermediate appellate decisions

Motor Accidents Insurance Board v Bricknell [2017] 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.
READ MORE
Paciocco v Australia and New Zealand Banking Group Limited (No 2) [2017] FCAFC 146
Costs: lump sum costs order
The Full Court of the Federal Court has ordered that costs in the Paciocco and Andrews proceedings be paid to ANZ on a lump sum basis pursuant to r 40.02(b) of the Federal Court Rules 2011.
READ MORE

Asia Pacific

Nuku v Luani [2017] TOCA 5
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.
READ MORE
Sutcliffe v Tarr [2017] NZCA 360
Statutory interpretation: appeals from associate judges
The Court of Appeal of New Zealand has found that the Judicature Act 1908 continues to apply to proceedings commenced in first instance courts before 1 March 2017, not the Senior Courts Act 2016.
READ MORE

Other international

India v Badesha (2017) SCC 44
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.
READ MORE
Trinity Asset Management Pty Ltd v Grindstone Investments 132 Pty Ltd (2017) CCT 248/16
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.
READ MORE

21 August – 1 September 2017

NSW Court of Appeal

Secretary, Department of Family and Community Services v Smith [2017] 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.
READ MORE
Boyd v Thorn [2017] NSWCA 210
Appeals: matters to be proved upon rehearing
The Court of Appeal has held that where a party challenges only some orders of the court below, the party cannot contend in the rehearing for findings which would give rise to inconsistent orders.
READ MORE

Other Australian intermediate appellate decisions

Circular Heads Fencing Pty Ltd v Motor Accidents Insurance Board [2017] 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.
READ MORE
Burragubba v Minister for Natural Resources and Mines [2017] QCA 179
Administrative law: excluding procedural fairness via statutory scheme
The Queensland Court of Appeal has found that the detailed statutory scheme contained within the Mineral Resources Act 1989 does not displace the obligation to afford procedural fairness.
READ MORE

Asia Pacific

Trends Publishing International Limited v Advicewise People Limited [2017] NZCA 365
Corporations: creditors compromise; classification of creditors
The New Zealand Court of Appeal has held that both legal and economic interests must be considered when determining the existence of a separate class of creditors.
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Yau Wai Ching v Chief Executive of the Hong Kong Special Administrative Region, Secretary for Justice [2017] 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.
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Other international

Fair Trading Commission v Digicel Jamaica Limited [2017] 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.
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Jordaan and Ors v City of Tshwane Metropolitan Municipality and Others [2017] 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.
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7 August – 18 August 2017

NSW Court of Appeal

LCM Litigation Fund Pty Ltd v Coope [2017] NSWCA 200
Contracts: contractual interpretation; meaning of “direct dealings”
The Court of Appeal has found that the passive receipt or execution of a concluded agreement is an insufficient interaction to constitute “direct dealings”.
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South Western Sydney Local Health District v Sorbello [2017] 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.
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Other Australian intermediate appellate decisions

Kok v Resorts World at Sentosa Pte Ltd [2017] 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).
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Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [2017] 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.
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Asia Pacific

CPIT Investments Limited v Qilin World Capital Limited [2017] 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.
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Ngaronoa v Attorney-General [2017] NZCA 351
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.
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Other international

Limpopo Legal Solutions v Vhembe District Municipality and Others [2017] 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.
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Chen v Ng [2017] UKPC 27
Personal property: resulting trust over shares
The UK Privy Council has remitted a matter for full-rehearing on the basis the trial judge failed to put certain determinative issues regarding credibility to the respondent.
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24 July – 4 August 2017

NSW Court of Appeal

State of New South Wales v Bouffler [2017] 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.
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Chen v Health Care Complaints Commission [2017] 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.
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Kamm v State of New South Wales (No 4) [2017] 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.
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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 [2017] 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.
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Other Australian intermediate appellate decisions

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] 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.
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Yarra City Council v Metropolitan Fire and Emergency Services Board [2017] 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.
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Asia Pacific

Quake Outcasts v The Minister of Canterbury Earthquake Recovery [2017] NZCA 332
Administrative law: relevance of insurance status
The New Zealand Court of Appeal has held that a decision to discriminate on the basis of insurance status when offering compensation for houses affected by the Christchurch earthquakes is unlawful.
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Rengulbai v Baules [2017] PWSC 20
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.
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Other international

MT Højgaard A/S v E.ON Climate & Renewables UK Robin Rigg East Limited and Anor [2017] 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.
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Uniprix inc v Gestion Gosselin and Bérubé inc [2017] SCC 43
Contract: indeterminate or perpetual operation
The Supreme Court of Canada has held that a term allowing perpetual renewal of a contract at the discretion of one party is not contrary to the Civil Code of Quebec or public order generally.
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10 July – 21 July 2017

NSW Court of Appeal

Rolleston v Insurance Australia Ltd [2017] 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.
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Tilley v Children’s Guardian [2017] NSWCA 174
Child welfare: working with children check
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.
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Other Australian intermediate appellate decisions

Melbourne City Investments Pty Ltd v Myer Holdings Limited [2017] VSCA 187
Civil procedure: litigation funding; abuse of process
The Victorian Court of Appeal has held that litigation commenced with the predominant purpose of obtaining compensation via ancillary orders amounts to an abuse of process.
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Beagle v Australian Capital Territory and Southern New South Wales Rugby Union Limited [2017] ACTCA 29
Damages: entitlement to restitution for unjust enrichment
The ACT Court of Appeal has held that Mr Beagle is not entitled to compensation on a quantum meruit basis in relation to a sponsorship deal relating to the Brumbies Super Rugby team.
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Asia Pacific

Family Kalmet v Kalmet [2017] VUCA 20
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.
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Kwok Cheuk Kin v Secretary for Constitutional and Mainland Affairs [2017] 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.
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Other international

Walker v Innospec Limited and Ors [2017] UKSC 47
Employment law: discrimination on the basis of sexual orientation; retrospective operation of legislation
The UK Supreme Court has held that legislation denying an employee’s same-sex partner a benefit that would have been provided an opposite-sex partner is incompatible with the EU Framework Directive.
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Isak Baron and Others v Claytile (Pty) Limited and Anor [2017] 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.
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26 June – 7 July 2017

NSW Court of Appeal

Reavill Farm Pty Ltd v Burrell Solicitors Pty Ltd [2017] NSWCA 156
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.
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Priestley v Priestley [2017] NSWCA 155
Estoppel: proprietary estoppel
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.
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Other Australian intermediate appellate decisions

Crowe Horwath (Aust) Pty Ltd v Loone [2017] 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.
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Romero v Farstad Shipping (Indian Pacific) Pty Ltd (No 3) [2017] 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.
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Asia Pacific

Goh Chan Peng and others v Beyonics Technology Ltd and another and another appeal [2017] 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.
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Lakes International Golf Management Limited and Anor v Hartley Clendon Vincent [2017] 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.
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Other international

Google Inc v Equustek Solutions Inc [2017] SCC 34 
Practice and procedure: interlocutory injunctions
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.
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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.
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12 June – 23 June 2017

NSW Court of Appeal

Probuild Constructions (Aust) Pty Ltd v DDI Group Pty Ltd [2017] 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.
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New Galaxy Investments Pty Ltd v Thomson & Ors [2017] 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.
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Commissioner of Australian Federal Police v Elzein [2017] 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.
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Tran v Vo [2017] NSWCA 134
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.
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Other Australian intermediate appellate decisions

Australian Gourmet Pastes Pty Ltd v IAG New Zealand Ltd [2017] VSCA 155
Private international law: application for stay under the Trans-Tasman Proceedings Act 2010 (Cth)
The Victoria Court of Appeal has held that a County Court judge erred in ordering a stay of proceedings in favour or a New Zealand court pursuant to the Trans-Tasman Proceedings Act 2010 (Cth).
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Australian Securities and Investments Commission, in the matter of Whitebox Trading Pty Ltd v Whitebox Trading Pty Ltd [2017] 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 [2017] 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.
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Asia Pacific

QMY v GSS [2017] HKCFA 41
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.
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B v Waitemata District Health Board [2017] 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 Act 1990 (NZ) or the New Zealand Bill of Rights.
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Other international

Weaver v Massachusetts, 582 (US) 2017
Constitutional law: criminal law; open justice
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.
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Halborg v EMW Law LLP [2017] EWCA Civ 793
Costs: whether law firm is litigant in person
The England and Wales Court of Appeal has held that a law firm, including a limited liability partnership, is not a litigant in person for the purposes of the English Civil Procedure Rules.
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29 May – 9 June 2017

NSW Court of Appeal

SAMM Property Holdings Pty Ltd v Shaye Properties Pty Ltd [2017] NSWCA 132 
Equity: rectification
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.
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Coshott v Spencer [2017] NSWCA 118
Costs: jurisdiction of costs assessor; Chorley exception
The Court of Appeal has held that the Chorley exception to the rule that a self-represented litigant is not entitled to professional costs applies in New South Wales.
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Daniel Smith by his tutor Debra Smith v South Western Sydney Local Health Network [2017] 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.
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Nadinic v Drinkwater [2017] NSWCA 114
Equity: fraud; whether allegation adequately pleaded; partial rescission
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.
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Other Australian intermediate appellate decisions

Watney v Kencian & Anor [2017] QCA 116
Defamation: whether jury finding perverse; Jameel principle
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.
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Australian Building and Construction Commissioner v Powell [2017] 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.
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Asia Pacific

Commissioner of Inland Revenue v Fugle [2017] 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.
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Unas v Rabaul Shipping Ltd [2017] PGSC 16
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.
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Other international

Saadati v Moorhead [2017] SCC 28
Torts: psychological injury 
The Supreme Court of Canada has held that it is not necessary for a claimant to prove a recognised psychiatric injury in order to recover for mental injury.
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BNSF Railway Co v Tyrrell, 581 US (2017)
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.
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