SSLeonh, Author at 13wentworthselbornechambers
2
archive,author,author-ssleonh,author-2,ajax_fade,page_not_loaded,,qode-child-theme-ver-1.0.0,qode-theme-ver-16.8,qode-theme-bridge,disabled_footer_top,wpb-js-composer js-comp-ver-5.5.2,vc_responsive
 

Catchwords: MIGRATION – decision of Minister, personally exercising the power under s 501BA of the Migration Act 1958 (Cth), to set aside revocation decision and to cancel the appellant’s spouse visa – whether Minister’s finding that there was an ongoing likelihood the appellant will re-offend was legally unreasonable – whether the Minister formed the view that he was precluded from inviting the appellant to make submissions or provide further material and thereby misunderstood the operation of s 501BA – Ibrahim v Minister for Home Affairs [2019] FCAFC 89 applied PRACTICE AND PROCEDURE – appeal from a single judge of the Court – whether leave should be granted to rely on an amended notice of appeal PRACTICE AND PROCEDURE – appeal from a single judge of the Court – whether Full Court should exercise its discretion to receive further evidence ...

Catchwords: MIGRATION – exercise of power under s 501CA(4) of the Migration Act 1958 (Cth) – appellant made representations that he would suffer hardship if returned to Ireland – whether Minister failed to give genuine consideration to representations – no legal duty for Minister to investigate – whether Minister’s decision legally unreasonable – rational basis for finding of propensity giving rise to risk of recidivism - appeal dismissed ...

Catchwords: LANDLORD AND TENANT— application for leave to appeal against summary dismissal of statement of claim — where merits of various complaints as to habitability of premises and identity of landlord addressed by New South Wales Civil and Administrative Tribunal — where statement of claim reformulates many of these claims — whether landlord’s failure to provide approval or occupation certificate entitles tenant to refund of rent — whether allegations precluded by issue estoppel — no issue of principle or general importance — application for leave to appeal dismissed ...

Catchwords: CRIMINAL PROCEDURE – judicial review – offender convicted and sentenced to imprisonment – challenge to issue of warrants of commitment – custodial sentence stayed pending judicial review – Court of Appeal order that warrants be amended – further judicial review of “decision” to amend warrants CIVIL PROCEDURE – judicial review – orders in nature of certiorari – dismissal of proceedings – frivolous or vexatious – amendment of warrants not reviewable – rights affected by final order of court, not by steps taken to implement order PRACTICE AND PROCEDURE – judicial review – stay of execution of custodial sentence – whether stay provided in Supreme Court Act 1970 (NSW), s 69C engaged ...

Catchwords: INSURANCE – civil liability insurance policy – indemnity in respect of claims made against insured – whether single or multiple retentions applicable – Federal Court representative proceeding against insured – whether single or multiple claims against insured – effect of aggregation/disaggregation of claims clause – whether multiple claims arose out of a series of related wrongful acts ...

Catchwords: CORPORATIONS - interpleader proceeding under Part 18 of the Federal Court Rules 2011 (Cth) - appeal from orders allowing delivery up of hard drives storing electronic copies of books and records to respondent companies - where hard drives contain copies of documents seized under search warrant executed by the Australian Federal Police - where appellant obtained hard drives following request to Australian Federal Police - where appellant a director or shadow director of respondent companies - where copies included copies of books and records of the companies - whether request to Australian Federal Police made by appellant solely in personal capacity - whether appellant established claim of legal professional privilege over all documents requested - whether appellant obliged to deliver documents to liquidators of companies under s 530A of the Corporations Act 2001 (Cth) - whether copies of seized documents comprise books that relate to the companies under s 530A - whether appellant entitled to retain exclusive possession of hard drives and electronic copies as against the companies and liquidators ...

Catchwords: DEFAMATION – pleadings – common law justification – primary judge struck out variant meanings – David Syme & Co Ltd v Hore-Lacy – respondents’ imputations that there were reasonable grounds to believe not permissible variants of the applicant’s imputations – untenable pleading of justification for the purposes of adducing evidence in mitigation of damage disallowed – leave to appeal given – appeal dismissed. PRACTICE AND PROCEDURE – application for leave to appeal primary judge’s decision to strike out common law justification and statutory truth defences – application for leave to appeal dismissal of application for leave to file amended defence – adequacy of particulars of defences – primary judge held particulars imprecise, embarrassing, conclusory, hearsay, could not support defence of truth – whether the meaning of an applicant’s pleaded imputation is a question of fact for trial – meaning of a pleaded imputation not a triable issue – leave to appeal given – appeal dismissed. ...

Catchwords: STATUTORY INTERPRETATION – where liquidators of companies made requests to the Commissioner of the Australian Federal Police for copies of seized books and records pursuant to s 3N of the Crimes Act 1914 (Cth) – whether appellant had standing to seek injunctive relief to prevent copies of the seized books and records being provided to the liquidators – whether a company can be an “occupier” for the purpose of s 3N – whether a request pursuant to s 3N must be made at the time the warrant is executed ...

Catchwords: APPEALS – application for leave to appeal – notice of intention to appeal – delay in filing application for leave to appeal in context of ongoing proceedings – absence of compelling explanation for delay in exercising appeal rights in circumstances where a trial in the District Court had been set down for hearing – expedition in applications for leave to appeal in relation to ongoing proceedings CIVIL PROCEDURE – pleadings – particulars – further and better – “back and forth” of requests for particulars and answers or non-answers persisted over the course of a year – obligation of practitioners to facilitate overriding purpose of Civil Procedure Act 2005 (NSW) in the making and answering of such requests COSTS – exceptions to general rule that costs follow the event – application for permanent stay of proceedings – delay in bringing application for permanent stay of proceedings – delay in seeking leave to appeal the refusal of a stay – failure to seek expedition in application for leave to appeal in respect of ongoing proceedings ...

Catchwords: LEAVE TO APPEAL – whether the issues raised in the applicant’s statement of claim amounted to a re-litigation of issues dealt with in the earlier proceedings – whether the applicant’s allegation that the Official Trustee had acted in fraudulent disregard of its duty as trustee had no prospects of success – applicant’s failure to identify property said to be subject of the constructive trust binding the Official Trustee. ...

Catchwords: CIVIL PROCEDURE – Uniform Civil Procedure Rules r 36.16 – where orders dispositive of appeal have been made – where applicants seek orders setting aside judgment and allowing the appeals – whether asserted error in judgment readily identifiable, readily rectifiable or inadvertent ...

Catchwords: CONTRACTS – ship construction – interpretation –contract to come into effect on the earlier of the date set out in a clause and the date on which the parties reached agreement on a particular matter – whether reaching agreement a condition precedent to contract coming into effect – where clause referred to two dates – later date was date on which one party acquired a right to terminate if agreement not reached – whether earlier or later date relevant date for commencement CONTRACTS – termination – purported termination pursuant to contractual right – whether party had elected to affirm the contract – whether right to terminate exercised within a reasonable time – meaning of reasonable time – point at which reasonable time to be assessed – whether any difference between a reasonable time to exercise a right and a reasonable time to perform an obligation – Ballas v Theophilos (No 2) (1957) 98 CLR 193 considered CONTRACTS – ship construction – interpretation –parties entered into an original contract and later into a second contract – where original contract entitled one party to liquidated damages – where second contract contained a release clause – whether, if second contract had been validly terminated, the release in the second contract would still be effective – where clause in second contract set “all” fees until a particular date at a certain rate – whether “all” captured fees from commencement of original contract or second contract ...

Catchwords: STATUTES – Customs Act 1901 (Cth) – Part XVB– ferrous grinding balls exported from the People’s Republic of China to Australia – judicial review of anti-dumping measures STATUTES – Customs (International Obligations) Regulation 2015 (Cth) – normal price of goods – ordinary course of trade – determination of profit – determination of cost of production or manufacture – determination of administrative, selling and general costs ADMINISTRATIVE LAW – whether reviewable error in substituting a higher benchmark price from Latin America to determine cost of production in the People’s Republic of China but not substituting the higher benchmark price to determine the relevant profit – whether legally erroneous to calculate amount of profit by employing a profit margin expressed as a percentage – whether all of the comparative advantages and disadvantages between the respective markets were mandatory relevant considerations, irrespective of submissions made by interested parties ...

Catchwords: MIGRATION – mandatory cancellation of visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) – decision not to revoke cancellation under s 501CA(4) of the Act – whether primary judge erred in failing to find the Assistant Minister did not give adequate consideration to effect of deportation on appellant’s children – whether primary judge erred in failing to find that Minister’s finding of risk of appellant re-offending was unsupported by evidence or unreasonable – whether appellant denied procedural fairness before primary judge – appeal dismissed PRACTICE AND PROCEDURE – application for adjournment of appeal – where appellant had substantial medical issues – where insufficient evidence that conditions could preclude preparation for and participation in hearing – application refused ...

Catchwords: TAXATION – research and development tax offset – underground coal gasification (UCG) facility – pilot project – where appellant undertook a pilot project to test the viability of using UCG technology at a particular site to produce UCG synthesis gas that would then be cleaned and stabilised for production of electricity using gas turbines – where pilot project failed – where registered activities for subsequent years included remediation of the site – whether the registered activities for the subsequent years were “supporting R&D activities” within the meaning of Div 355 of the Income Tax Assessment Act 1997 (Cth) – whether the registered activities constituting the pilot project fell within the definition of “core R&D activities” – whether the Administrative Appeals Tribunal erred in its construction of “core R&D activities” ...

Catchwords: ADMINISTRATIVE LAW – judicial review – victim’s compensation claim – primary victim of domestic violence – claim for “severely disabling” psychological disorder – challenge to rejection by delegate – whether the delegate attributed incorrect meaning to “severely disabling” ADMINISTRATIVE LAW – judicial review – expert psychologists designated by Director – assessment of disability by designated expert – whether delegate obliged to follow expert’s assessment absent countervailing evidence – whether delegate’s rejection of assessment manifestly unreasonable APPEAL – leave to appeal – precondition of grant – small amount at stake in individual case – relevance to large number of claims – whether matter of principle or public interest – error identified without setting aside judgment below ...

Catchwords: PLANNING AND ENVIRONMENTAL LAW – Land and Environment Court – jurisdiction – condition of consent provided that music festival must not proceed if Commissioner of Police advised it was unsafe – whether Class 1 appeal lay from Commissioner’s decision – whether decision concerned an aspect of development required to be carried out to the satisfaction of consent authority or any other person – comparison of (former) s 97 and current s 8.7 of Environmental Planning and Assessment Act 1979 (NSW) – decision did not fall within s 8.7 ...

Catchwords: TORTS – deceit – where appellants’ advice on a tender price contained an amortisation error – tender won – appellants dishonestly concealed error and provided false assurance that contract price included full subvention allowed for by Transport for NSW – onus on respondent to prove damages qualified when deliberate wrong of applicants caused difficulties of proof – no Jones v Dunkel inference drawn – no error in finding on the balance of probabilities that respondent would have successfully renegotiated the contract had the error been known – direct loss calculated as prejudice or disadvantage suffered as a consequence of altering position under fraudulent inducement - appropriate to rely on presumption against wrongdoer – liar held to restore the innocent party to position consistent with lie being true - appeal dismissed with costs CONSUMER LAW – dishonest conduct found to be seriously misleading or deceptive conduct ...

Catchwords: DAMAGES – breach of contract – calculation of economic loss – respondent operated kiosk on premises licensed from appellant – appellant breached licence agreement – no evidence of damages – primary judge used ATO “benchmarks” for restaurant businesses to derive likely lost profits – whether primary judge could take judicial notice of benchmarks – whether benchmarks capable of sustaining damages calculated by primary judge – whether nominal damages should be awarded or the matter remitted TRIAL – procedural fairness – court invited appellant’s counsel to attend to make further submissions on damages after judgment reserved – no response from counsel – invitation repeated by court – appellant’s counsel supplied written submission opposing further hearing – court proceeded to assess damages against appellant without further hearing – whether course adopted by court procedurally unfair ...

Catchwords: TORTS — negligence — apportionment of responsibility and damages — primary judge held that appellant vicariously liable for injury and breached duty of care owed to respondent — primary judge found no negligence on part of worker’s employer — whether primary judge erred in finding worker’s employer not in breach of duty and liable in damages to respondent such as to entitle appellant to contribution from employer — whether primary judge erred in assessment of non-economic loss by applying a 10% reduction to percentage of most extreme case to reflect for contingency — whether primary judge’s assessment as to past economic loss supported by evidence — whether primary judge’s estimation of working life of 60 years and application of 20 per cent buffer for vicissitudes sufficient to account for fact that surgery brought about by negligence would have been necessary at some point in future in any event ...

Catchwords: FAMILY LAW – children – parental responsibility – parens patriae jurisdiction – child with condition requiring medical intervention – interim care order conferring parental responsibility on Minister – whether summons seeking to set aside interim care order should have been summarily dismissed PROCEDURE – appeal against summary dismissal of summons – plaintiff required to show cause why proceedings should not be dismissed – obligations of the Court to self-represented plaintiff – whether plaintiff had arguable case – appropriate orders on appeal ...

Catchwords: DEFAMATION – application to discharge jury – whether plaintiff’s closing address went beyond pleaded case – whether submissions went beyond what had been put to witness in cross-examination – whether rule in Browne v Dunn breached – whether factual error about source of instructions to defendant – whether individual or cumulative effect of matters in closing address warranted discharge of jury DEFAMATION – damages – aggravated damages – whether appellable error in failing to order aggravated damages – relevance of plaintiff’s failure to adduce evidence of hurt from newspapers’ publication of jury’s verdict – relevance of identification of award of damages awarded in respect of each of three defendants’ publications DEFAMATION – statutory qualified privilege – reasonableness – whether publisher’s conduct was reasonable – whether determined by judge or jury – meaning of “general law” – whether Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; [2003] VSCA 161 clearly wrong – whether reasonableness as element of Lange qualified privilege determined by judge or jury – Defamation Act 2005 (NSW), ss 22, 30 considered ...

Catchwords: BUILDING AND CONSTRUCTION – payment claim under Building and Construction Industry Security of Payment Act 1999 (NSW) – payment schedule – claim related to seven invoices and five sites – email in response proposed a meeting and referred to many emails, photos, back charges and complaints – email said claimant would understand why he couldn’t be paid and that the damages done were more than had been claimed – whether email in response was a payment schedule – whether email indicated reasons for withholding payment within meaning of s 14(3) – no particular site indicated – scope of dispute unable to be determined – court at first instance correct to conclude email not a payment schedule – appeal dismissed ...

Catchwords: INCOME TAX - appeal by taxpayer from decision of primary judge dismissing appeal from objection decision disallowing objections to notices of amended assessment - where taxpayer lodged no returns for a number of years - where returns when lodged showed nil or negligible income - consideration of the nature of an appeal under s 14ZZ Tax Administration Act 1953 (Cth) - where onus on taxpayer to prove that the assessment the subject of the objection decision was excessive - whether concession by Commissioner was sufficient basis upon which the Court could reach conclusion about taxpayer's income - where taxpayer did not demonstrate the nature and extent of his income - where taxpayer failed to discharge the onus - whether primary judge erred in characterising taxpayer's wealth as considerable - leave to raise a ground alleging statutory double jeopardy not before the primary judge refused - whether primary judge erred in assessment of penalty as to taxpayer's level of culpability - consideration of s 284-220 of Sch 1 of the Tax Administration Act - whether a penalty and a 20% uplift could be imposed on taxpayer at the same time - appeal dismissed ...

Catchwords: NATIVE TITLE – statutory construction – subject matter of judicial review of administrative decision-making – where representative body certified area ILUA under s 203BE(1)(b) of the Native Title Act 1993 (Cth) – whether challenge to s 203BE(1)(b) certificate possible after Registrar determines under s 24CK to register area indigenous land use agreement (ILUA) – where objectors exercised right to object to registration of agreement on Register of Indigenous Land Use Agreements under s 24CI – where application to register area ILUA included certification by representative body of its opinion under s 203BE(1)(b) that requirements of pars (a) and (b) of s 203BE(5) had been satisfied – where Registrar required under s 24CK(1) to register agreement if satisfied that two conditions met – where objectors alleged that first condition not met because requirements in pars (a) and (b) of s 203BE(5) not satisfied – where Registrar satisfied under s 24CK that both conditions met – where objectors did not challenge Registrar’s decision before primary judge but only representative body’s certificate NATIVE TITLE – statutory construction – where application made under s 24CG of Native Title Act to register area ILUA on Register of Indigenous Land Use Agreements – where application accompanied by agreement providing written description and map of “Surrender Zone” within which parties proposed to later identify particular areas where some or all native title rights would be surrendered – whether requirement in regs 5 and 7(2)(e) of the Native Title (Indigenous Land Use Agreements) Regulations 1999 (Cth) that application for registration be accompanied by document including “complete description” of the area in which rights are to be surrendered requires description of exact areas to be surrendered NATIVE TITLE – statutory construction – where representative body must not certify agreement under s 203BE(5) unless of opinion that all reasonable efforts have been made to ensure that all persons who hold or may hold native title in area covered by the agreement have been identified and all persons so identified have authorised the making of the agreement – whether “may hold” should be given inclusive and expansive meaning or exclusive and rigorous meaning – whether representative body required to assess every person attending authorisation meeting to assess whether he or she was a member of native title group ...

Catchwords: APPEAL – civil – challenge to findings of fact – whether trial judge erred in accepting evidence of defendant – resolution of inconsistencies – absence of independent witnesses – plaintiff bore onus of proof – judge entitled to have regard to inherent implausibility of plaintiff’s case TORTS – negligence – liability for motor accident – vehicles travelling in adjoining lanes – liability dependent on whether defendant travelling straight ahead from right turn only lane ...

Catchwords: CONTEMPT OF COURT – appeal from orders made by primary judge on conviction and sentences of imprisonment – where appellant had been found guilty of contempt of freezing orders – where appellant third party to freezing orders – where appeal allowed in part – declarations set aside – matter remitted to the Federal Circuit Court of Australia for retrial ...

Catchwords: EVIDENCE – expert evidence – use of psychometric testing – methodology experimental – lack of explanation justifying acceptance of methodology – plaintiff’s medical evidence discounted on basis of tests indicating plaintiff was disingenuous in answering test questions TORTS – battery – plaintiff punched in the face – whether intentional act intended to cause injury – Civil Liability Act 2002 (NSW), s 3B(1)(a) – whether plaintiff grabbing the back of her assailant’s shirt unlawful – whether assailant acted in self-defence under Civil Liability Act, ss 52-53 TORTS – battery – damages – non-economic loss – causation – whether plaintiff suffered psychological injury – pre-attack psychological history – aggravated damages TORTS – battery – damages – exemplary damages – effect of criminal conviction and sentence TORTS – negligence – liability of licensee for battery by third party – whether duty of care owed to patrons outside licensed premises – obligations of licensee under Liquor Act 2007 (NSW) – breach ...

Catchwords: CIVIL PROCEDURE – motion to remove a caveat – urgent fixture of motion – caveat based on claim to life interest – separate question ordered as to existence of life interest – answer to question finally determined substantive issue – whether order for separate question appropriate given urgency of motion CIVIL PROCEDURE – appeal – procedural unfairness – determination of motion to remove caveat did not require final determination of existence of life interest – whether appellant denied opportunity to prove existence of agreement to confer life interest EVIDENCE – further evidence on appeal – need to show possibility of different outcome – application of Supreme Court Act 1970 (NSW), s 75A to evidence of procedural unfairness ...

Catchwords: HIGH RISK OFFENDER – application pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) – interim detention order – whether offender must be in lawful custody when interim detention order made – whether offender must be in lawful custody when an interim detention order is renewed STATUTORY INTERPRETATION – implied limitation on powers of superior court – purposive interpretation not supportive of limitation – effect of earlier precedent inconsistent with implied limitation – subsequent amendments leaving unchanged provisions the subject of earlier judicial determination ...

Catchwords: DEFAMATION — defences — substantial truth —Defamation Act 2005 (NSW), s 25 — whether trial judge erred in withdrawing defence of substantial truth — whether sufficient evidence to support a finding of substantial truth — relevance of implausible denials of plaintiff DEFAMATION — defences — substantial truth — contextual truth — justification of some imputations only — relevance of imputations found to be substantially true — discussion of Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174 ...

Catchwords: APPEAL – practice and procedure – appeal from judgement on a review reversing interlocutory decision of Registrar – application of principle of restraint in review of discretionary decision as to practice and procedure PROCEDURE – interrogatories – personal injury claim – defendant’s application to administer interrogatories to plaintiff – rule requiring “special reasons” to make order – defendant seeking information as to possible limitation defence – information wholly within the plaintiff’s knowledge ...

Catchwords: PATENTS – appellants/cross-respondents (“Calidad”) importers and sellers of printer cartridges modified or “repurposed” by a third party – first respondent – first cross-appellant (“Seiko Epson”) the patentee of two patents in suit said to have been infringed by Calidad’s conduct – consideration of the doctrine of implied licence – consideration of the scope and content of any licence implied by law – consideration of the doctrine of repair – consideration of the nature, type and degree of modifications made to the original Seiko Epson cartridges by the third party modifier – consideration of whether the modifications fall within the scope and content of any implied licence – consideration of whether the modifications fall within the notion of repairs to “the product” sold by the patentee or its agents – consideration of whether the modifications amount to a “making” of a new product ...

Catchwords: ADMINISTRATIVE LAW – judicial review – appeal from Children’s Court to District Court – whether error of law on the face of the record or jurisdictional error established – where common ground that applicant not accorded procedural fairness ADMINISTRATIVE LAW – procedural fairness – common ground applicant denied procedural fairness – whether discretionary grounds to refuse relief – whether proceedings should be remitted to the District Court APPEAL – leave to appeal – where statement of claim in District Court struck out for disclosing no reasonable cause of action – discretion to extend time to apply for leave – where no explanation for 29 months delay – whether case is fairly arguable ...

Catchwords: CIVIL PROCEDURE – summary disposal – where claim said to be apportionable – dismissal of third-party cross-claim against named concurrent wrongdoer – whether primary judge erred in dismissing cross-claim based on independent causes of action against cross-defendant – consideration of Dymocks Book Arcade Pty Ltd v Capral Ltd [2010] NSWSC 195 ...

Catchwords: MIGRATION – appeal from a decision of a single judge of this Court - decision of the Minister, made personally, to cancel a visa on character grounds– whether the Minister gave proper, genuine and realistic consideration to the materials provided by the Department - whether the appellant established on the balance of probabilities that the Minister’s consideration of the materials took only eleven minutes – whether the primary judge should have drawn a Jones v Dunkel from the failure of the Minister or a member of his staff to give evidence as to when the Minister’s consideration of the materials commenced - whether the primary judge failed to accord procedural fairness to the appellant, a self-represented litigant, by not informing him that he could seek further discovery from the Minister concerning how or when the decision was made; ask the Court to draw inferences from the Minister’s failure to put on evidence about what the Minister did to consider the decision; and ask the Court to issue subpoenas to the Minister and/or others to give evidence ...

Catchwords: LAND LAW – conveyancing – options – call options – construction – notice of exercise of option able to be given to grantor’s conveyancer – whether option validly exercised - whether notice to grantee required that conveyancer no longer retained by grantor – whether requirement that conveyancer be retained at the time of the exercise of the option ...

Catchwords: TORTS – negligence – personal injury – respondent tripped on kerb in pedestrian precinct – duty of care to warn pedestrians of height differential – whether risk obvious – whether failure to use yellow highlighting constituted breach of a duty to warn – whether absence of warning causative of harm to person aware of hazard and not looking down ...

Catchwords: CIVIL PROCEDURE – refusal to allow amendment to challenge testamentary capacity on basis that amendment, if allowed, was doomed to fail – whether primary judge erred in concluding that claim was doomed to fail notwithstanding a finding that there was an arguable case of lack of testamentary capacity established – whether finding that proposed claim was doomed to fail was a discretionary decision or a finding of abuse of process – significance of unique public interest character of probate proceedings – meaning of “acquiescence” – absence of any real prejudice – appropriate conditions to be imposed on amendment SUCCESSION – grant of probate in common form in respect of a will – application to amend cross-claim to challenge grant on basis of lack of testamentary capacity – no caveat lodged – application to amend made at a time when case ready to be allocated a hearing date – relevant considerations – importance to be placed on ascertainment of true intention of the testator – significance of unique public interest character of probate proceedings – reasonably arguable case that testator lacked testamentary capacity at relevant time – whether application, if granted, doomed to fail – whether challenge to testamentary capacity was an abuse of process in the circumstances – consideration of In re Goode (1890) 11 LR(NSW) (Eq) 281 ...

Catchwords: MIGRATION – appeal from the Federal Court of Australia dismissing an amended application for judicial review of a decision made by the Assistant Minister – jurisdictional error – whether there is a bar to the appellant making a protection visa application – whether the representations are analogous to those considered in Omar v Minister for Home Affairs [2019] FCA 279 – appeal dismissed. ...

Catchwords: TORTS – negligence – content of duty of care of landlord to tenant – where tenant fell in hole in rear yard and suffered injury TORTS – negligence – Civil Liability Act 2002 (NSW), s 5B – whether primary judge erred in identification of risk of harm – reasonable precautions to prevent risk of harm – whether landlord should have ensured hole was backfilled or fenced APPEAL AND NEW TRIAL – where absence of finding of primary fact – whether substantial miscarriage justifying retrial – no entitlement to retrial where absent finding not determinative of breach TORTS – negligence – factual causation – Civil Liability Act 2002 (NSW), s 5D – whether primary judge erred in finding causation made out CIVIL PROCEDURE – Court of Appeal – notice of contention – new ground raised on appeal – where other party objects – whether new ground could possibly have been met at trial TORTS – Negligence – contributory negligence and apportionment – Civil Liability Act 2002 (NSW), ss 5B, 5R and 5S – whether primary judge erred in finding tenant contributorily negligent – whether primary judge erred in assessing extent of tenant’s contribution – causal significance of tenant’s own negligence DAMAGES – measure and remoteness of damages in actions for tort – economic loss – whether primary judge erred in assessment of past economic loss and residual earning capacity – significance to findings of future economic loss – Civil Liability Act 2002 (NSW), s 13 – whether primary judge adequately engaged with employment history evidence – where plaintiff suffered from pre-existing injuries – whether primary judge adequately engaged with medical evidence to determine extent of exacerbation – whether allowance for future medical expenses was supported by evidence DAMAGES – measure and remoteness of damages in actions for tort – non-economic loss – Civil Liability Act 2002 (NSW), s 16 – whether primary judge erred in assessment of the degree of severity of non-economic loss – significance of pre-existing injuries – whether primary judge’s assessment susceptible to appellate review APPEAL AND NEW TRIAL – new trial on particular grounds – whether retrial should be ordered on the assessment of damages – where reliability of evidence in issue ...

Catchwords: APPEAL – leave to appeal from costs orders made by the Land and Environment Court – whether leave should be granted under s 58 of the Land and Environment Court Act 1979 (NSW). APPEAL - whether the primary judge applied the correct test for the making of an order under s 99 of the Civil Procedure Act 2005 (NSW) – whether the primary judge based his conclusions on findings that were not open on the evidence – whether there was bias on the part of the primary judge – whether there was a denial of procedural fairness – whether the primary judge erred in considering that he had previously made a relevant finding that there was no evidence of conspiracy. ...

Catchwords: APPEAL – leave to appeal – building and construction dispute – appeal from Local Court to Supreme Court on a question of law – primary judge found that respondent not bound by releases and bars to action in the settlement deed – where deed delivered to applicant’s solicitors – where applicant disclaimed deed without executing it – whether injustice to applicant in refusing leave to appeal ...

Catchwords: INDUSTRIAL LAW – application for review of decision of Full Bench of Fair Work Commission – review made as part of 4 yearly review under s 156 of the Fair Work Act 2009 (Cth) – where review concerned reducing period of accident pay in Black Coal Mining Industry Award 2010 – whether review under s 156 requires single, holistic review ADMINISTRATIVE LAW – whether inadequacy of reasons amounted to jurisdictional error – reasons of the Full Bench of Fair Work Commission adequate – whether Full Bench was functus officio in making its decision – whether Full Bench gave proper, genuine and realistic consideration to issues – whether jurisdictional error for making of finding with no evidence – application dismissed ...

Catchwords: MIGRATION - appeal from decision of the Federal Circuit Court dismissing application for review of decision of the Administrative Appeals Tribunal affirming delegate's decision to refuse the appellant's application for a Regional Employer Nomination (Permanent) (Class RN) visa - consideration of the proper interpretation of reg 1.05A of the Migration Regulations 1994 (Cth) - whether the primary judge was in error in not finding jurisdictional error by the Tribunal - whether the Tribunal misconstrued the statutory provisions - whether the Tribunal failed to have regard to evidence of the appellant's dependence on her son - whether the Tribunal's adverse findings lacked an evident and intelligible justification - whether the Tribunal's decision was legally unreasonable - where the Tribunal failed to discharge the statutory task - appeal allowed ...

Catchwords: ADMINISTRATIVE LAW – claim for compensation for psychological condition – performance appraisal – whether condition was suffered a result of reasonable administrative action taken in a reasonable manner – whether condition would have arisen absent performance appraisal – Administrative Appeals Tribunal – scope of matter remitted for redetermination – whether tribunal provided adequate reasons for decision – whether reasons disclosed errors of law – appeal dismissed ...

Catchwords: MIGRATION – appeal from the Federal Court of Australia – where the primary judge dismissed an application for judicial review of a “no jurisdiction” decision of the Administrative Appeals Tribunal – whether the primary judge erred in finding the appellant failed to lodge her application for a merits review to the Tribunal in accordance with s 500(6B) Migration Act 1958 (Cth) – whether, pursuant to s 14A Electronic Transactions Act 1999 (Cth), an electronic communication is “capable of being retrieved” by the Tribunal “at an electronic address designated” by the Tribunal once it enters the Tribunal’s information system – appeal dismissed ...

Catchwords: INSURANCE - Total and permanent disablement - Whether the insurer acted fairly and reasonably in assessing and determining the Member’s claim - Whether the insurer gave reasons for the determination - Whether there was an obligation for the insurer to give reasons for declining the Member’s claim - Whether the insurer was in breach of its duty and obligations - Whether separate letters sent by the insurer should be treated as separate declinatures. ...

Catchwords: CONTRACTS — Construction — Interpretation — Contract for sale of land — Special condition in contract required vendor to ensure all development conditions complied with prior to completion — Whether warranty had effect of requiring all works subject of development approval to be completed —Special condition contained disclosure that some works were carried out in conformity with development consent but lower staircase requires replacement — Whether disclosure amounts to warranty that all works subject of development approval have been completed — Where some but not all works the subject of development approval in fact completed —— Whether provision of interim occupation certificate capable of satisfying vendors’ obligation to provide an occupation certificate BUILDING AND CONSTRUCTION — Occupation certificates — Whether interim occupation certificate that certifies some but not all of works the subject of development approval means that whole premises cannot be lawfully occupied — Whether occupation certificate relates to entire property or merely part of property on which certified works situated — Meaning of “altered portion” of existing building ...

Catchwords: WORKERS COMPENSATION – appeal against decision of Workers Compensation Commission –validity of Deputy President of WCC’s re-determination of the Arbitrator’s decision – s 352(5) of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) and Chubb Security Australia Pty Ltd v Trevarrow [2004] NSWCA 344; 5 DDCR 1 considered WORKERS COMPENSATION – appeal against decision of Workers Compensation Commission – only question raised before the Deputy President of WCC was whether the respondent was entitled to compensation arising from a journey claim within the meaning of s 10 of the Workers Compensation Act – ground conceded by the appellant WORKERS COMPENSATION – cross-appeal – whether Deputy President of WCC erred in point of law – whether evidence the respondent was speeding – whether there was evidence the respondent was holding his mobile telephone - “no evidence” ground does not apply - Onesteel Reinforcing Pty Ltd v Sutton [2012] NSWCA 282 discussed ...

Catchwords: CORPORATIONS – whether respondent trustee in breach of duties owed to noteholders due to failure to appoint investigative accountant EVIDENCE – correctness of ruling excluding line of questioning in cross-examination on ‘alternative causal thesis’ for lack of relevance – whether alternative causal thesis pleaded – whether case confined by particulars to expert evidence – whether even if exclusion incorrect, ‘alternative causal thesis’ would have been independently causal vis-à-vis the primary causal thesis – appeal dismissed PRACTICE AND PROCEDURE – parties’ obligation to plead all causes of action or defences explicitly ...

Catchwords: REPRESENTATIVE PROCEEDINGS – leave to appeal – permanent stay of proceedings – three overlapping open securities class actions against the same respondent – substantially the same claim and substantially the same causes of action – applicable principles – primary judge stayed two of the three proceedings – comparability of common fund orders proposed – whether common fund order could indirectly incorporate a contingency fee – scope and relevance of prohibition in s 183 of Legal Profession Uniform Law – no win/no fee model – comparison between no win/no fee model and external funder model – leave to appeal granted – appeal partly allowed – consequential orders ...

Catchwords: INDUSTRIAL LAW – appeal from the Federal Court – where appellant is a litigant in person – where appellant was made involuntarily redundant – where appellant claims employer took adverse action against him because he exercised a workplace right – where appellant also sought a remedy in the Court for unfair dismissal – where appellant commenced proceedings in the Federal Court rather than in the Fair Work Commission – whether Federal Court can grant relief for unfair dismissal in the Federal Court – primary judge was correct in finding it did not have jurisdiction to entertain unfair dismissal claims – where, if the employer’s witnesses were believed, the appellant’s termination had nothing to do with his exercising workplace rights – where primary judge made findings about the credibility of witnesses – whether credibility findings should be displaced by an appellate court – where appellant claimed his employer’s witnesses gave untruthful evidence – where there was no evidence supporting this claim – appeal dismissed ...

Catchwords: TRADE MARKS – application for leave to appeal – leave to appeal granted – exercise of discretion under s 101(3) – statutory purpose of Pt 9 of the Trade Marks Act 1955 (Cth) – evidentiary basis for there being relevant prospect of confusion in the minds of consumers – whether the use of the mark after the non-use period “did not lack good faith” and was not “colourable” – weight put to the use of the mark on products after the non-use application was made – categorisation of “fish” and “fish products” as including mussels and oysters (molluscs) – whether use of trade mark by parent company was also use by the subsidiary – appeal dismissed TRADE MARKS – application for extension of time – extension of time granted – application for leave to appeal – leave to appeal granted – exercise of discretion under s 44(3)(b) of the Trade Marks Act 1955 (Cth) – appeal allowed ...

Catchwords: INDUSTRIAL LAW – protected action ballot – application for the extension of time under s 443(5) of the Fair Work Act for the giving of notice of the taking of industrial action – was the decision of the Full Bench of the Fair Work Commission subject to jurisdictional error –whether the Deputy President had exercised discretion upon finding exceptional circumstances – whether the Deputy President considered if the extended notice period would diminish the employees’ bargaining power – whether sufficient evidence was put before the Deputy President –application be dismissed. ...

Catchwords: JUDICIAL REVIEW – Heritage Council – heritage listing of building occupying part of appellant’s land – prohibition upon carrying out any development in relation to the land on which the listing building was situated without Heritage Council approval – Heritage Act 1977 (NSW), s 57(1)(e) – appellant applied to redevelop the balance of its land – Heritage Council proceeded on basis that its approval was only required for proposed activities within the listed building – adjoining landowner sought judicial review, claiming Heritage Council had misdirected itself – whether prohibition required a nexus between development and heritage values of listed building – whether prohibition applied to development on any part of the lot on which the listed building was situated – significance of statutory text, context and purpose ...

Catchwords: SUCCESSION – family provision orders under Succession Act 2006 (NSW) – whether exercises of discretion miscarried and the amounts of additional provisions ordered should be reduced – whether exercise of discretion miscarried with respect to who should bear the burden of additional provisions APPEALS – nature of appeal – standard of review applicable to family provision orders under s 59(1)(c) of the Succession Act 2006 (NSW) ...

Catchwords: ADMINISTRATIVE LAW – Judicial review of decision to dismiss application for inquiry into conviction or sentence under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) – Whether jurisdictional error or error of law established – Whether applicant raised any matter that had not previously been fully considered – Summons dismissed ...

Catchwords: LEGAL PRACTITIONERS — Disciplinary proceedings — Appeal against decision of NSW Civil and Administrative Tribunal (“NCAT”) — Appellant failed to disclose to Law Society her suspension by the Migration Agents Registration Authority (“MARA”) from practising as a migration agent — Whether NCAT erred in finding nondisclosure of suspension amounted to professional misconduct within the meaning of s 297 of the Legal Profession Uniform Law (NSW) — Whether certain statements by member of NCAT during course of hearing sufficient to ground a reasonable apprehension of bias — Whether appellant denied procedural fairness in relation to NCAT’s use of the fact of the MARA finding ADMINISTRATIVE LAW – tribunals – proper role of NCAT in hearing professional conduct matters – not appropriate for Tribunal member to express “hope” as to what further investigations Law Society might undertake ...

Catchwords: COSTS – where respondent in late stages of terminal cancer – where appeal allowed but certain grounds unsuccessful – where no apparent need for second interlocutory application – exercise of discretion to reach just and appropriate outcome – granting of opportunity for appellant to vary or discharge the order – granting of costs certificate to respondent ...

Catchwords: MIGRATION – cancellation of visa on character grounds under s 501 of the Migration Act 1958 (Cth) – procedural fairness – obligation to have regard to information provided to Minister – obligation to apply active intellectual process to information – where no express reference to information in Minister’s reasons – whether Minister overlooked information – whether risk to the Australian community is a mandatory relevant consideration – whether error was material – whether unreasonable for the Minister to refuse to defer decision pending petition for pardon – appeal dismissed ...

Catchwords: INSURANCE - professional indemnity insurance - directors and officers liability policy - appeal from decision of primary judge on preliminary question - whether an insolvency exclusion precluded cover under the policy for the claims made by the first respondent - proper construction of the insolvency exclusion - whether the subject matter of the Claim must have the alleged insolvency link - appeal dismissed ...

Catchwords: WORKERS’ COMPENSATION – whether the Worker was entitled to be paid the cost of hearing aids pursuant to s 60 of the Workers Compensation Act 1987 (NSW) – whether the Deputy President failed to apply s 60(1)(a) of the 1987 Act correctly WORKERS’ COMPENSATION – assessment and amount of compensation – whether the Deputy President failed to apply ss 122 and 326 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) – whether the Deputy President failed to apply s 122(6) as to the effect of the “conclusive evidence” of a medical panel certificate ...

Catchwords: COPYRIGHT — application for judicial review of a decision of the Copyright Tribunal of Australia made on a reference under s 154(4) of the Copyright Act 1958 (Cth) — where the first applicant sought approval of a licence scheme for the subscription television industry for the use of copyright and sound recordings owned or controlled by persons and entities it represents — where the first applicant is a copyright collecting society ADMINISTRATIVE LAW — whether the Tribunal asked itself the wrong question and failed to accord procedural fairness to the first applicant — where the Tribunal engaged in a process of judicial estimation to determine whether the proposed licence fee was reasonable or equitable in the circumstances ADMINISTRATIVE LAW — whether the Tribunal failed to consider charges payable by the second respondent pursuant to an agreement under which it was granted a non-exclusive licence to broadcast or communicate certain musical works and lyrics — whether the Tribunal failed to take into account a mandatory relevant consideration — whether the Tribunal failed to accord procedural fairness to the first applicant by not dealing with a clearly articulated case — whether the Tribunal misconstrued “in the circumstances” in s 154(4) of the Act ADMINISTRATIVE LAW — whether the Tribunal failed to consider charges payable by commercial television providers — whether the Tribunal failed to take into account a mandatory relevant consideration and thereby failed to accord procedural fairness to the first applicant — whether the Tribunal made findings for which there was no evidence, or which were irrational — whether the Tribunal erred in its approach to calculating a “substantial” increase in fees ADMINISTRATIVE LAW — whether the Tribunal erred in determining that it had power to vary the proposed licence scheme to incorporate rights which had not been licensed to the first applicant — consideration of the power conferred on the Tribunal by s 154(4) of the Act COPYRIGHT — consideration of the history, context and purpose of Part VI of the Act — consideration of the definitions of “licence”, “licensor” and “licence scheme” in s 136(1) of the Act — consideration of the nature of a “licence scheme” under s 136(1) of the Act ADMINISTRATIVE LAW — whether it is appropriate to set aside the Tribunal’s decision and refer the entire matter back to the Tribunal for reconsideration — where the Court has the power to set aside part of a decision pursuant to s 16 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) — where the Tribunal treated the decision as to price separately from that as to power ...

Catchwords: NEGLIGENCE – contribution between tortfeasors – plaintiff suffered injury in workplace – plaintiff brought proceedings against occupier and a contractor on site – proceedings between plaintiff and occupier compromised – occupier sought statutory contribution against contractor – whether primary judge failed to deal with way in which occupier had advanced its case – whether primary judge erred in (notional) assessment of contribution – appeal dismissed ...

Catchwords: CONTRACT – deed – guarantor’s right of indemnity against primary obligor – whether enforceable – provision in multipartite deed by which guarantor “irrevocably waives and must not exercise any right of indemnity” – whether that provision enforceable by primary debtor – whether fact that guarantor and primary debtor were parties to deed sufficient to permit guarantor to enforce provision – whether “privity” entitled guarantor to rely on provision – whether sufficient that provision was clear and unambiguous – whether provision on true construction amounted to unilateral renunciation of right of indemnity EQUITY – set-off in equity – requirement of impeachment – whether debt owed by parent company impeached appellant's debt to respondent – no error in conclusion by primary judge that impeachment not made out ...

Catchwords: APPEAL – appeal against Land and Environment Court judge’s decision to refuse development application – proposed development contravened height development standard – judge not satisfied cl 4.6 request justified contravention – judge not satisfied development consistent with objectives of standard – whether misdirection as to cl 4.6 and objectives of standard – whether denial of procedural fairness by not giving amber light approach ...

Catchwords: ADMINISTRATIVE LAW – fettering of executive discretion – whether a contract which had the potential to fetter future exercise of executive discretion was ultra vires – ambit of doctrine against fettering of executive discretion – consideration of Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54; [1977] HCA 71 APPEALS – further evidence sought to be led on appeal – whether special grounds established – consideration of Akins v National Australia Bank (1994) 34 NSWLR 155 CONTRACT – government contracts – power to enter into contracts – contracts which fetter future exercise of executive discretion – whether ultra vires – whether void as contrary to public policy – whether enforceable by decree of specific performance – whether possibility of award of contractual damages itself a fetter on discretion – importance of upholding contractual bargains CONTRACT – consideration – whether enlisted serviceman subject to naval command supplies consideration when entering into a training contract CONTRACT – remedies – whether contract should be specifically enforced if it would fetter future exercise of executive discretion – whether award of damages would itself fetter executive discretion CONTRACT – damages – loss of a chance of securing better paid employment with particular qualification – approach to assessment of loss –sufficiency of reasoning process – sufficiency of evidence DEFENCE – power of naval command – power to enter into contracts – whether training contract entered into with enlisted serviceman was ultra vires because it fettered future exercise of discretion of naval command PRACTICE AND PROCEDURE – representative proceedings – effect of discontinuance of claims by representative party – whether judge has discretion not to answer common questions ...

Catchwords: BUILDING AND CONSTRUCTION – adjudication of payment claim – review of adjudicator’s decision – whether adjudicator simply allowed claim in full in default of any valid submission against it – whether adjudicator engaged in process of evaluation – no requirement for legally correct language – fine-tooth comb approach not appropriate – Building and Construction Industry Security of Payment Act 1999 (NSW), ss 9, 10, 22(1), 22(2), 22(3) ADMINISTRATIVE LAW – judicial review – whether adjudicator exercised statutory function to determine value of construction work – where adjudication may not be set aside for error of fact or law – jurisdictional error – no requirement for legally correct language – determination not to be examined with fine-tooth comb ...

Catchwords: APPEALS – application for leave to appeal – well-established grounds for leave to appeal not satisfied –no inadequacy of reasons for primary judgment CIVIL PROCEDURE – proceedings dismissed by primary judge – applicants failed to exercise liberty they had been afforded to file further amended statement of claim – applicants admitted to being unable to formulate their claim ...

Catchwords: PRACTICE AND PROCEDURE – service out of the jurisdiction – where orders had been made granting leave to two plaintiffs to serve the originating process and associated documents on two overseas defendants – where the defendants applied to have the orders discharged or to set aside service – where the primary judge dismissed the defendants’ application – principles applicable to establishing a prima facie case for the purposes of r 10.43(4) of the Federal Court Rules 2011 – whether the primary judge erred in finding that the plaintiffs had established a prima facie case for relief against the defendants – application for leave to appeal dismissed ...

Catchwords: MIGRATION – appeal from a judgment dismissing the Appellant’s application for judicial review of a decision made under s 501BA(2) of the Migration Act 1958 (Cth) (the Act) to cancel the Appellant’s Class BC Subclass 100 Partner (Migrant) visa – whether the Assistant Minister understood s 501BA(2) as precluding him from providing the Appellant with natural justice – whether the Assistant Minister had conflated Australia’s possible international non-refoulement obligations in respect of the Appellant with the claimed protection obligations under s 36(2)(a) of the Act – whether the errors were material so as to be jurisdictional – appeal allowed. ...

Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court of Australia which dismissed an appeal from a decision of the Migration Review Tribunal – where Tribunal did not disclose existence of a certificate under s 375A of the Migration Act 1958 (Cth) – where Tribunal had not disclosed certain items of information mentioned in the Tribunal’s reasons – where appellant already knew that the Tribunal had confidential information to the effect that the appellant was not, and at all material times, had never been, in a genuine spousal relationship – where items of information not disclosed were subsumed in the proposition that the appellant was not, and at all material times, had never been, in a genuine spousal relationship ...

Catchwords: ADMINISTRATIVE LAW – appeal from judicial review of decisions of Registrars to refuse to accept documents for filing PRACTICE AND PROCEDURE – orders of Full Court entered in an appeal proceeding – unsuccessful appellant lodged multiple interlocutory applications to vary or set aside judgment before entered – where orders had been entered – filings refused on basis that an abuse of process or frivolous or vexatious ...

Catchwords: TORTS – negligence – medical negligence – breach of duty of care – whether test results warranted referral to a specialist – finding of breach of duty unsupported by the evidence – causation – no evidence that referral to a specialist would have changed the course of treatment – no occasion to order new trial – Court in position to resolve the evidentiary conflict CIVIL PROCEDURE – summary disposal – dismissal of proceedings – consideration of inappropriateness of bringing a summary judgment application based on agreement between experts in conclave ...

Catchwords: MIGRATION – appeals from orders of the Federal Circuit Court of Australia – whether the statutory expression in s 415(1) of the Migration Act 1958 (Cth) conferring on the Administrative Appeals Tribunal “all the powers and discretions that are conferred by this Act on the person who made the decision” applied to confer those powers and discretions on the Tribunal where the person who made the decision was not validly made a delegate of the Minister ...