| | | | | NCAT Legal Bulletin Issue 8 of 2021
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| The NCAT Legal Bulletin provides a summary of relevant and interesting case law of significance to the work of the NSW Civil and Administrative Tribunal.
This issue features case summaries of recent decisions from the New South Wales Court of Appeal and the Federal Court of Australia, including: - Council of the Law Society of New South Wales v Karimjee [2021] NSWCA 179 – in which the Court of Appeal, on application by the applicant, removed the respondent legal practitioner’s name from the roll, but declined to make an order suppressing his name. The Court found that such an order was not necessary for the protection of the identities of the victims of female genital mutilation in the practitioner’s community, the fathers of whom the practitioner had counselled to provide statements to the police which the practitioner knew to be false.
- Qasim v Medical Council of New South Wales [2021] NSWCA 173 – in which the Court of Appeal dismissed an appeal against a decision of the NCAT Occupational Division which dismissed an application for reinstatement of the appellant’s registration as a medical practitioner, which had been cancelled by NCAT in 2014 following findings of impairment. The Tribunal correctly found that the appellant failed to demonstrate that she was no longer unfit to practise and that she was no longer impaired.
- EFQ (a pseudonym) v Medical Council of New South Wales [2021] NSWCA 167 – in which the Court of Appeal granted leave to appeal but dismissed an appeal from an interlocutory decision of the Occupational Division of NCAT, in which the Tribunal refused to grant the appellant an extension of time in which to appeal from a decision of the Medical Council of NSW to impose a condition on her registration as a health practitioner.
- Quach v Marks (No 2) [2021] FCA 922 – in which the Federal Court granted an application by the intervener, the NSW Attorney-General, to dismiss the proceedings for want of jurisdiction. The applicant sought to initiate proceedings with regard to decisions at the NSW Civil and Administrative Tribunal in which the respondent was the presiding Member. The Federal Court did not have jurisdiction because the proceedings did not relate to a federal matter, and concerned State laws.
- Australian Competition and Consumer Commission v Employsure Pty Ltd [2021] FCAFC 142 – in which the Federal Court found that the respondent had breached s 18 of the Australian Consumer Law through Google advertisements which represented that the respondent was, or was affiliated with, a government agency, when it had no such affiliation. This amounted to misleading or deceptive conduct.
This issue also provides links to a number of summaries published separately by the NSW Court of Appeal Decisions of Interest Bulletin.
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New South Wales Court of Appeal
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| Council of the Law Society of New South Wales v Karimjee [2021] NSWCA 179
17 August 2021 - Meagher, Payne and McCallum JJA
In sum: The Court of Appeal, on application by the applicant, removed the respondent legal practitioner’s name from the roll, but declined to make an order suppressing his name. The Court found that such an order was not necessary for the protection of the identities of the victims of female genital mutilation in the practitioner’s community, the fathers of whom the practitioner had counselled to provide statements to the police which the practitioner knew to be false.
Facts: The respondent practitioner (Mr Karimjee) pleaded guilty to “do act with intent to pervert the course of justice” contrary to s 319 of the Crimes Act 1900 (NSW). Mr Karimjee counselled clients in his community to give false statements, and encouraged them to counsel community members to give false statements, to investigating police which Mr Karimjee did not believe to be true, regarding female genital mutilation of their daughters ([17]-[19]).
The applicant (the Council) sought to have Mr Karimjee’s name removed from the roll of practitioners, and sought suppression of Mr Karimjee’s name on the basis that it may lead to the identification of the female victims. Mr Karimjee did not contest to the orders sought, except to the extent that he submitted he is “indefinitely” unfit to practise, rather than “permanently” unfit ([29]-[31]).
Held (granting the declaration and order for removal, and granting in part the suppression orders):
(i) The Court must satisfy itself that it is appropriate to make orders removing a legal practitioner’s name from the roll, even if the defendant concedes that the orders should be made. Mr Karimjee’s status as a legal practitioner laid upon him the strict obligation not to interfere, or attempt to interfere, with the course of justice. Violating that duty made him guilty of very serious criminal conduct warranting removal from the roll. The Court was unable to accept the characterisation of the conduct as demonstrating that he was “indefinitely”, rather than “permanently”, unfit to practise. Mr Karimjee was aware of the improper and illegal nature of his conduct and placed his personal desire to assist members of his community in misleading the police above his professional obligations to the Court and to the administration of justice as a legal practitioner. It was appropriate to remove Mr Karimjee’s name from the roll of practitioners ([33], [40]-[42]).
(ii) The Court of Appeal refused to make the suppression order sought on two bases. First, because disciplinary proceedings should be subject to the open justice principle; and second, because the practitioner’s name was already readily available via a number of published judgments ([10]-[12]).
(iii) The Court rejected the Council’s submissions in support of an order suppressing Mr Karimjee’s name. The public interest in open justice is not lightly to be discarded, especially in professional disciplinary proceedings. Admission to the roll of legal practitioners is a privilege. Removal from the roll is a very serious matter. In exercising the inherent jurisdiction to discipline legal practitioners, the public interest in open justice must be borne steadily in mind. When a member of the legal profession conducts himself or herself so as to bring disrepute to the profession, to the administration of justice and to the legal system, the reasons of the Court should be expressed as openly as reasonably possible. To do less may lead to a view, even if misguided, that the system operates in favour of members of the legal profession in a way it does not with other litigants. Open justice is an important aspect of protecting the public and fostering the public interest by maintaining the accountability of those in the legal profession involved in the administration of justice ([11]).
Read the decision on the NSW Caselaw website.
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| Qasim v Medical Council of New South Wales [2021] NSWCA 173
13 August 2021 - Bell P, Brereton JA and Emmett AJA
In sum: The Court of Appeal dismissed an appeal against a decision of the NCAT Occupational Division which dismissed an application for reinstatement of the appellant’s registration as a medical practitioner, which had been cancelled by NCAT in 2014 following findings of impairment. The Tribunal correctly found that the appellant failed to demonstrate that she was no longer unfit to practise and that she was no longer impaired.
Facts: In 2014 the appellant’s registration as a health practitioner was cancelled by NCAT in disciplinary proceedings, following findings of professional misconduct, unsatisfactory professional conduct, impairment and incompetence to practise. The registration was cancelled solely on the basis of impairment, and in 2019, after the non-review period had elapsed, the applicant sought reinstatement at the Tribunal. In 2020 the Tribunal dismissed the application for reinstatement and imposed a further 4 year period before the appellant could apply for reinstatement, on the bases of the absence of any evidence demonstrating that the appellant was no longer impaired, evidence from a psychiatrist that she remained impaired, and the Tribunal’s own observations of the appellant during the course of the hearing. The appellant appealed to the Court of Appeal ([4]-[15]).
Held (dismissing the appeal):
(i) A reinstatement application requires the applicant to demonstrate present fitness; it is not the Tribunal’s task to revisit or review the original deregistration decision. ([16]-[21]).
(ii) The Tribunal’s task in a reinstatement application is to determine the appropriateness, at the date of the hearing, of the applicant to be reinstated. In carrying out that task the Tribunal must be guided by the objectives and guiding principles of the National Law, which relevantly include the protection of the public by ensuring that only those practitioners who are suitably trained and qualified to practise in a competent and ethical manner are registered ([17]).
(iii) It is for the applicant to demonstrate that she is no longer unfit to practise, and the 2020 Tribunal decision correctly identified that the appellant’s task was to satisfy the Tribunal that she was suffering no ongoing impairment and was a proper person to be reregistered ([19]).
(iv) It was unnecessary in this case to determine whether s 163C(2) precludes consideration by a review tribunal in a reinstatement application of matters that were before the earlier tribunal, in a manner which does not involve impeaching the decision of the earlier tribunal. Theoretically, such material may be admissible and relevant to support an inference of present fitness by showing that the appellant’s historical treatment of patients complied with current “Best Practice” guidelines; if, for example, as a result of advances in medical knowledge, historical cases could now be seen to have been managed appropriately ([42]).
(v) The Tribunal, being a specialist tribunal, was entitled to rely on its own observations of the appellant at the hearing. Its opinions were consistent with those of the HCCC expert ([62]).
(vi) The 2020 Tribunal correctly declined to review the original deregistration decision, and correctly held that the appellant did not discharge her onus of demonstrating that she was no longer impaired, based on the lack of relevant evidence adduced by her, the irrelevance of her “Best Practice” material, the evidence of the expert witness, and the Tribunal’s own observations. Furthermore, even if, as the appellant argued, the Tribunal had erred in relying upon the expert evidence, the appellant still would not have discharged her onus of demonstrating, through evidence, that she was no longer so impaired as to be unfit to practise. The appeal was dismissed ([75]-[77]).
Read the decision on the NSW Caselaw website.
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| EFQ (a pseudonym) v Medical Council of New South Wales [2021] NSWCA 167
6 August 2021 - Bell P, Macfarlan and Brereton JJA
In sum: The Court of Appeal granted leave to appeal but dismissed an appeal from an interlocutory decision of the Occupational Division of NCAT, in which the Tribunal refused to grant the appellant an extension of time in which to appeal from a decision of the Medical Council of NSW to impose a condition on her registration as a health practitioner.
Facts: The appellant is a medical practitioner upon whose registration the respondent (the Medical Council) imposed a temporary condition pursuant to s 150 of the Health Practitioner Registration National Law (NSW) (the National Law) that the appellant “not practise medicine”. The appeal was brought under s 159B over a year after the s 150 proceedings, and the Tribunal determined the appellant required an extension of time in which to appeal to the Tribunal, and refused to grant such an extension ([1]-[3], [7]).
Held (granting leave to appeal and dismissing the appeal):
(i) The Court found that the Tribunal was correct in determining that the practitioner required an extension of time to bring her appeal under s 159B, and referred to r 25(4) of the Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules) and s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) ([13], [15]).
(ii) The Court rejected an argument put on behalf of the practitioner that the Council had failed to take into account mandatory considerations under s 150(1), including the need for immediate imposition of the condition not to practise medicine, even though those grounds were not argued before the Tribunal. It is generally not open to a party to seek to impugn the exercise of a discretion for failure to consider a matter that was not put to the court or tribunal exercising the relevant discretion ([26]).
(iii) The Medical Council had power, pursuant to s 150(1)(b) of the National Law, to impose a condition on an interim basis that a practitioner not practise medicine, and the Tribunal’s discretionary decision not to grant an extension of time was not vitiated by any error of law in this respect ([28]-[39]).
(iv) The Council’s refusal to grant the appellant’s adjournment request in relation to the hearing before it, in circumstances where she had been given sufficient notice of the hearing, where an interim protective jurisdiction was being exercised and where the application for an adjournment was raised only the day before the hearing was scheduled, was not legally unreasonable, and there was no error of law in the Tribunal’s discretionary decision not to grant an extension of time ([69]-[75]).
(v) A party which is given ample notice of a hearing cannot complain that there has been a denial of procedural fairness where the party declines to participate in the hearing, and the hearing proceeds in accordance with the adequate notification. Procedural fairness requires an adequate opportunity to participate to have been given, and a denial of procedural fairness cannot be generated by a deliberate or conscious decision not to participate in a hearing of which sufficient notice has been given ([67]).
Read the decision on the NSW Caselaw website.
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| Quach v Marks (No 2) [2021] FCA 922
10 August 2021 - Abraham J
In sum: The Federal Court granted an application by the intervener, the NSW Attorney-General, to dismiss the proceedings for want of jurisdiction. The applicant sought to initiate proceedings with regard to decisions at the NSW Civil and Administrative Tribunal in which the respondent was the presiding Member. The Federal Court did not have jurisdiction because the proceedings did not relate to a federal matter, and concerned State laws.
Facts: The applicant sought relief in relation to two decisions (Health Care Complaints Commission v Quach [2015] NSWCATOD 2 and [2015] NSWCATOD 32) at NCAT in which the respondent was the presiding Member. The applicant made unsuccessful applications for judicial review at the NSW Court of Appeal, and made other attempts to initiate proceedings in the Court of Appeal and Supreme Court. The applicant submitted to the Federal Court that the respondent made findings under the Health Insurance Act 1973 (Cth) without valid statutory authority, and alleged dishonesty by the respondent. The applicant also made an application for Abraham J to recuse herself in these proceedings on the ground of apprehended bias ([3], [12]).
The Attorney-General of NSW, who was granted leave to intervene in the proceedings, filed an interlocutory application seeking dismissal of the proceedings on alternative grounds: first, for want of jurisdiction pursuant to r 13.01 of the Federal Court Rules 2011 (Cth); and second, summary dismissal pursuant to s 31A(2) of the Federal Court of Australia Act 1976 (Cth) (FCA Act) and r 26.01 of the Federal Court Rules ([7]).
Held (dismissing the application):
(i) A judge has an obligation to sit unless a reasonable apprehension of bias can be established. The test for determining whether judges should disqualify themselves by reason of apprehended bias is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide”. The rule involves two steps: first, identification of the factor which it is said might lead the judge to decide the case otherwise than on its legal and factual merits; and, second, an articulation of the logical connection between that factor and the feared deviation from the course of deciding the case impartially on the merits. Applying the relevant principles, the Court found it inappropriate for Abraham J to recuse herself ([10]-[12]).
(ii) Federal jurisdiction arises pursuant to s 19(1) of the FCA Act, which gives the Court such original jurisdiction as is vested in it by laws made by Parliament. A matter will arise under a law of Parliament in a number of ways, including: where a cause of action is created by a Commonwealth statute; where a Commonwealth statute is relied upon as establishing a right to be vindicated; where a Commonwealth statute is the source of a defence that is asserted; where the subject matter of the controversy owes its existence to Commonwealth legislation; where it is necessary to decide whether a right or duty based on a Commonwealth statute exists even where that has not been pleaded by the parties, or where a federal issue is raised on the pleadings but it is unnecessary to decide ([29]).
(iii) It is a fundamental tenet of federal jurisdiction that once a federal claim is made, even a bad one, and even one that is abandoned, or struck out, the whole matter in which that claim is made is, and remains, federal jurisdiction. The exception to this principle is where the federal claim that is made is “colourable” in the sense that it was “made for the improper purpose of fabricating jurisdiction” such that it was not made bona fide. In such a case, federal jurisdiction is not attracted ([29]).
(iv) Neither of the challenged NCAT decisions refers to the Health Insurance Act 1973 (Cth). There are no findings under that Act, but rather the findings of unsatisfactory professional conduct and professional misconduct (and the underlying findings) were made under the Health Practitioner Regulation National Law 2009 (NSW). In fact, NCAT declined to make any findings under federal Medicare legislation ([24], [36]).
(v) The Court accepted the Attorney-General’s submissions that the applicant’s claim was “colourable” because it was made for the improper purpose of “fabricating” federal jurisdiction because the applicant has exhausted his means of challenging the NCAT decisions in the NSW court system. The Federal Court has no jurisdiction conferred on it to review a decision of NCAT, or decide any matter concerning the constitution or conduct of its Members. The proceedings were dismissed for want of jurisdiction. Had there been jurisdiction, the application for summary dismissal would have been granted ([27]-[28], [35], [40]-[42]).
Read the decision on the Federal Court of Australia website.
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| Australian Competition and Consumer Commission v Employsure Pty Ltd [2021] FCAFC 142
13 August 2021 - Rares, Murphy and Abraham JJ
In sum: The Federal Court found that the respondent had breached s 18 of the Australian Consumer Law through Google advertisements which represented that the respondent was, or was affiliated with, a government agency, when it had no such affiliation. This amounted to misleading or deceptive conduct.
Facts: The respondent (Employsure) is a private company providing workplace relations advice to employers and is not affiliated with any government agency. The appellant (the ACCC) alleged that by its use of the Google Ads service to promote its services, Employsure represented that it was, or was affiliated with, a government agency, and that this amounted to misleading or deceptive conduct in contravention of s 18 of the Australian Consumer Law. Employsure selected as keywords in its search engine marketing strategy phrases such as “fair work Australia” or “fair work ombudsman” that it was aware were used by consumers to visit the websites of government agencies. When the relevant search terms were entered, the first result would be a paid advert for Employsure offering, for example, “Fair Work Ombudsman Help – Free 24/7 Employer Advice”, with the phone number of its advice line and links to landing pages on its website. URLs used in the advertisements included, for example, “www.fairworkhelp.com.au/Fair-Work/Australia”. Employsure was not mentioned in any of the ads. The primary judge found for Employsure; the ACCC appealed ([1]-[5]).
Held (allowing the appeal):
(i) The target audience of the impugned advertisements is business owners who are employers and who search for employment-related advice on the internet. Although the ordinary and reasonable business owner should be attributed a higher level of shrewdness, acumen, digital literacy and/or commercial sophistication at large, the class of persons who own businesses and have at least some employees encompasses a wide cross-section of the public. The class is inherently heterogeneous, and the characteristics of an ordinary reasonable class member must take into account its diversity ([129], [132]-[133]).
(ii) Small business operators need not be particularly shrewd, digitally literate or commercially sophisticated, and the advertisements were intended to be read by a class including the less shrewd, the digitally incompetent and the unsophisticated ([133]-[136], [155]).
(iii) An advertisement may still be misleading or deceptive even if it fails to mislead or deceive the intelligent or wary. The assessment of reasonable responses requires the identification of outer limits of reasonableness, not of a finite number of acceptable reasonable responses ([136]-[137]).
(iv) A first impression of an advertisement is likely to be determinative of the representation conveyed in circumstances where the level of scrutiny is likely to be low. The alleged representations were conveyed not as a result of selective attention or want of reasonable care but as a natural consequence of Employsure’s advertising strategy. Failure to notice the ‘Ad’ symbol or appreciate differences between the paid ads and organic search results was not unreasonable ([98], [142]-[149], [151]-[159] [163]-[169]).
Read the decision on the Federal Court of Australia website.
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| | Decisions of Interest Bulletin
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| | Bartier Perry Pty Ltd v Paltos [2021] NSWCA 158
NEGLIGENCE – professional negligence – solicitors – where appellant law firm was retained to advise the respondent as to his rights in a family law partnership – whether appellant failed to give competent advice to the respondent about the manner and circumstances of the exercise of a put option granted by a put and call option agreement forming part of the partnership documents – breach of retainer and concurrent duty of care
NEGLIGENCE – professional negligence – causation – factual causation – where respondent would have exercised put option had he been properly advised of his rights – where failure to give competent advice caused loss
CONSUMER LAW – misleading or deceptive conduct – professional advice – where a dangerously incomplete statement of the respondent’s rights was misleading and deceptive in that it was apt to mislead the respondent into believing that his legal rights were ineffective
CONTRACTS – implied terms – terms implied in law – necessity
CONTRACTS – implied terms – terms implied in fact – necessary to give business efficacy
CONTRACTS – construction – interpretation – calculation of purchase price under formula prescribed in a put and call option agreement
APPEALS – damages – where primary judge awarded damages and required an undertaking as to repayment pending the outcome of related proceedings – whether primary judge erred in not assessing damages on a lump sum basis once and for all – whether this Court should itself determine the damages payable on a lump sum basis – approach for correct assessment of damages |
| Australia City Properties Management Pty Ltd v The Owners – Strata Plan No 65111 [2021] NSWCA 162
CONTRACTS – termination – breach of term – what constitutes gross negligence and gross misconduct
CONTRACTS – termination – breach of term – implied term – term implied in fact – implied term not to use position to obtain unauthorised benefit – where breach compounded by deliberate deception – gross misconduct
CONTRACTS – termination – breach by terminating party – whether repudiation of contract – whether acceptance of repudiation possible – whether party willing to perform obligations under the contract
CONTRACTS – construction – interpretation – natural and ordinary meaning – no ambiguity – unusual term – Court must give effect to the language used
STATUTORY INTERPRETATION – text, context and purpose of provisions and the mischief they are intended to remedy – Strata Schemes Management Act 1996 (NSW) – Strata Schemes Management Amendment Act 2002 (NSW) – Strata Schemes Management Act 2015 (NSW) – extrinsic material – where purpose of relevant provisions emerges from the Second Reading Speech – savings provisions – Interpretation Act 1987 (NSW) s 30 |
| Lewis v Lewis [2021] NSWCA 168
SUCCESSION – contested probate – knowledge and approval – suspicious circumstances - significance of reading out will to capable testator – whether reading out will to capable testator who executes it will discharge onus on propounder – whether sufficient to establish knowledge of contents of will or whether it may be necessary to establish knowledge of its effect – consideration of Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 – consideration of “mistake doctrine” – significance of statutory power to rectify wills
SUCCESSION – contested probate – severance of testamentary instruments – power to admit only those clauses to probate of which testator has been shown to have known and approved – distinction between omitted clauses which confer bequests and omitted clauses which confer power – Osborne v Smith (1960) 105 CLR 153; [1960] HCA 89 considered and explained
SUBPOENAS – production of documents – redaction of parts of documents on ground of relevance – distinction between redaction for privilege and redaction for relevance |
| Almona Pty Ltd v Parklea Corporation Pty Ltd [2021] NSWCA 171
MORTGAGES AND SECURITIES – mortgages – duties, rights and remedies of mortgagee – power of sale – mortgagee’s duty to exercise power of sale in good faith – effect of contract of sale upon mortgagor’s rights – whether attempt to refinance and discharge mortgage prior to transfer of title can prevent sale – where mortgagor’s attempts to refinance accelerated the sale process
MORTGAGES AND SECURITIES – mortgagee exercising right of sale – price higher if vacant possession given – requirement of vacant possession not communicated to occupant –damages awarded for failure to communicate occupation condition
LAND LAW – Torrens title – exceptions to indefeasibility – fraud by mortgagee exercising power of sale – bid-rigging where alleged collaborator later acquired share in successful purchaser – whether collusion established
LAND LAW – mortgages – mortgagee sale – where owner of the mortgagee financed the purchase and acquired option to control purchaser – honesty and independence of sale process – good faith exercise of power of sale – pre-existing relationship between parties acting on other projects – whether lack of independence in sale process indicative of fraud – burden of disproving fraud |
| Muriniti v Mercia Financial Solutions Pty Ltd [2021] NSWCA 180
APPEALS – appeal from primary judgment making personal costs orders against the applicant pursuant to Sch 2 of the Legal Profession Uniform Law Application Act 2014 (NSW) and s 99 of the Civil Procedure Act 2005 (NSW) – where applicant was the legal practitioner for the defendant in the proceedings below and made allegations of fraudulent misrepresentation and conspiracy without any proper basis – where solicitor breached his professional ethical duties in pursuing the claims
APPEALS – application for leave to appeal – whether leave to appeal is required by a legal practitioner who is subject to a third party costs order, assuming that the monetary threshold under s 101(2)(r) of the Supreme Court Act 1970 (NSW) is satisfied – leave to appeal not required pursuant to s 101(2)(c) of the Supreme Court Act on the basis that the decision was not one “as to costs only”
APPEALS – challenge to earlier decision of this Court on the basis that it was “plainly wrong” – where no real attempt was made to satisfy the requirements for a challenge to a decision of this Court as outlined in Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76
APPEALS – procedural fairness – whether applicant was denied procedural fairness on the basis that the primary judge did not consider all of the grounds and arguments advanced by the applicant – whether applicant was denied procedural fairness in that the Court treated various findings made in the substantive judgment as beyond challenge for the purposes of the costs application – where applicant’s arguments in the costs application were essentially a replication of the arguments that had been advanced and rejected by the primary judge in the substantive judgment – where no denial of procedural fairness
COSTS – where primary judge imposed personal costs orders against the legal practitioner of the unsuccessful party in proceedings below – where applicant was the legal practitioner for the defendant in the proceedings below and improperly made allegations of fraudulent misrepresentation and conspiracy without any evidence to support it – where solicitors breached their professional ethical duties in pursuing the claims
COSTS – whether in an application for costs orders against a legal practitioner under s 99 of the Civil Procedure Act 2005 (NSW), the Court is entitled to take account of its findings in the substantive judgment – whether a legal practitioner against whom such costs orders are sought is bound by findings in the substantive judgment, even though the legal practitioner was not formally a party to the proceedings – where in the present case, the applicant was given a full and fair opportunity to explain the basis upon which he made the relevant allegations and to rebut the statutory presumption arising under cl 6 of Sch 2 to the Legal Profession Uniform Law Application Act 2014 (NSW)
LEGAL PRACTITIONERS – obligations of solicitors arising pursuant to the Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) r 21
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| Belflora Pty Ltd v Vinflora Pty Ltd [2021] NSWCA 178
COMMERCE – restraint of trade – validity and reasonableness – legitimate interests – where restraint imposed a blanket protection from importation of goods from a subcontinent – whether blanket protection directed to preserve or maintain a personal or corporate relationship with a supplier – where restraint did not relate to any particular supplier – Restraints of Trade Act 1976 (NSW), s 4
COMMERCE – restraint of trade – validity and reasonableness – public policy – where restraint imposed a blanket protection from importation of goods from a subcontinent – whether restraint was against the public interest – where restraint prohibited respondents from competing in the market for the supply and sale of goods from a subcontinent – Restraints of Trade Act 1976 (NSW), s 4 |
| Lunney v Director of Public Prosecutions [2021] NSWCA 186
APPEALS – nature of appeal – appeal by way of rehearing – appeal against conviction under s 11(1) of the Crimes (Appeal and Review) Act – where applicant appealed from the Local Court to the District Court alleging specific errors on the part of the Local Court – whether the District Court was required to undertake a complete review of the whole of the evidence and form its own view as to the applicant’s guilt regardless of the issues raised in the appeal – absence of any clearly articulated argument the resolution of which required a review of the whole of the evidence |
| Worth v HDI Global Specialty SE [2021] NSWCA 185
INSURANCE – where appellant’s house destroyed in a fire – where house used to operate a business – where house and business insured by respondent – where respondent granted conditional indemnity under deed of release – where respondent then denied liability on basis fire deliberately lit by insured – whether primary judge erred in finding appellant deliberately started fire
INSURANCE – measure of indemnity – where lack of reasonable despatch in rectifying property – whether indemnity for property damage payable on reinstatement basis
INSURANCE – damages – whether damages available for consequential loss arising from insurer’s breach of promise to indemnify – whether damages available for inconvenience and distress caused by breach |
| Cox v Mid-Coast Council [2021] NSWCA 190
NEGLIGENCE – dangerous recreational activities – appellant suffered injury in mid-air collision between light aircraft and Ferris wheel – appellant engaged in dangerous recreational activity of landing at an unregulated aircraft landing area – whether appellant suffered harm as the result of the materialisation of an obvious risk of a dangerous recreational activity – appropriate level of generality when characterising risk – obviousness of risk – appellant’s harm resulted from manifestation of the obvious risk of colliding with obstructions in the splay of the landing area – appeal dismissed |
| | DISCLAIMER: This publication has been prepared for information purposes only. The NCAT Legal Bulletin should not be relied on as legal advice nor is it a substitute for reading the decisions in full. NCAT does not accept any liability to any person for the information (or the use of the information) which is provided in this publication.
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