Authorities

Cases and passages collected in the course of practice, arranged by topic. Compiled to July 2022. Many of these also appear as individual notes elsewhere on this site.

MISCELLANEOUS

Day v Smidmore and ors [2004] NSWIRComm 287

ADMINISTRATIVE LAW

Motor Accidents

Finality

Jubb v Insurance Australia Ltd [2016] NSWCA 153

Appellant’s reliance on common law analogies is misplaced

… best balanced and resolved by the proper officer exercising a discretion rather than construing the word “additional” as though it incorporates the common law’s understanding of “fresh evidence” in civil appeals which has been developed as a limited exception to the principles of finality in litigation (Council of the City of Wollongong v Cowan (1955) 93 CLR 435). There is no counterpart principle applying to assessments of medical disputes under the MAC Act.

Proper officer/Delegate

Jubb v Insurance Australia Ltd [2016] NSWCA 153

31. As Meagher JA observed in Henderson v QBE Insurance (Australia) Ltd [2013] NSWCA 480; 66 MVR 69 (Henderson v QBE Insurance) at [81], cl 14.7 states a different requirement from s 62(1A). The formation of the opinion or state of satisfaction which s 62(1A) requires is that the deterioration or additional information “be capable of having a material effect on the outcome of the previous assessment”. Clause 14.7 proposes a different and more stringent standard, namely, that it “would have a material effect on the outcome of the application”. That difference is not material in this case because the proper officer correctly identified the pre-condition to be as formulated in s 62(1A). The statutory provision must, of course, prevail: Henderson v QBE Insurance at [25] (Beazley P, Tobias AJA agreeing).

32. A number of aspects of s 62 should be noted. Each was common ground, except for the fourth matter below. First, it has been accepted that s 62 impliedly confers power on the proper officer to refer the matter to a medical assessor on a ground identified in s 62(1)(a), if the conditions set out in subs (1A) are satisfied: Rodger v De Gelder at [70] (Beazley JA, McColl and Macfarlan JJA agreeing); QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442; 67 MVR 322 (QBE Insurance v Miller) at [4] (Basten JA, Ward JA and Young AJA agreeing); Henderson v QBE Insurance at [78] (Meagher JA, Tobias AJA agreeing).

33. Secondly, in exercising the power of referral under s 62(1)(a) the proper officer performs the role of a gatekeeper. The capacity of the “deterioration of the injury” or “additional information” to affect a further medical assessment is a matter for the subjective satisfaction of the proper officer, not the determination of the court: Rodger v De Gelder at [113] (Macfarlan JA, McColl JA agreeing); QBE Insurance v Miller at [31] (Basten JA, Ward JA and Young AJA agreeing); Henderson v QBE Insurance at [49]-[51] (Beazley P, Meagher JA and Tobias AJA agreeing).

34. Thirdly, the formation of the opinion or state of satisfaction required of the proper officer under s 62(1A) is subject to judicial review. The relevant question is whether the proper officer’s opinion has been formed according to law: Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118-119; D’Amore v Independent Commission Against Corruption [2013] NSWCA 187; 303 ALR 242 at [220]. In QBE Insurance v Miller at [36], Basten JA explained the standard of review as follows:

The critical question is thus "whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds": Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; 78 ALJR 992 at [38] (Gummow and Hayne JJ). Further, as explained by Latham CJ in The Queen v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 432:

"If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.

35. In the present case, the appellant sought review on the basis that the proper officer misconstrued the terms of the MAC Act.

36. Fourthly, and contrary to the insurer’s submissions, the power of referral is subject to a residual discretion (“may”) given in s 62(1) of the MAC Act, whether or not to refer a matter for a further assessment. That the power of referral may be exercised or not, at discretion, is not contradicted by any contrary intention appearing in the MAC Act: Interpretation Act 1987 (NSW), ss 5 and 9; Ward v Williams (1955) 92 CLR 496 at 505-506; Samad v District Court of New South Wales [2002] HCA 24; 209 CLR 140 at [33]-[34]. Nevertheless, the discretion is not entirely unconstrained. The power conferred on the proper officer must be exercised in accordance with the subject matter, scope and purpose of the statute: Peko-Wallsend, 40. Further and again, contrary to the insurer’s submissions, the existence of that discretion has been recognised in the authorities on s 62: see, for example, Mullin v CIC Allianz Australia Ltd [2015] NSWSC 831; 71 MVR 322 (Mullin) at [35] (Beech-Jones J).

Dominice v Allianz Insurance [2016] NSWSC 1241

As the precondition of referral pursuant to s 63(3) is, expressly, a state of satisfaction of the proper officer, the decision to refer to the review panel in this case could only be disturbed upon the present application if the proper officer could be shown to have made a legal error in forming her view: Buck v Bavone (1976) 135 CLR 110; [1976] HCA 24 at 118 – 119; Elliott v Insurance Australia t/as NRMA Insurance [2014] NSWSC 1848. No legal error has been identified.

Coventry v Insurance Australia Ltd T/as NRMA Insurance [2019] NSWSC 1096

30. Authority binding on me establishes that a decision of a proper officer under the Act may be amenable to orders in the nature of the prerogative writs under s 69 Supreme Court Act, at least for jurisdictional error: Rodger v De Gelder (2011) 80 NSWLR 594; QBE Insurance (Australia) Limited v Miller [2013] NSWCA 442; (2013) 67 MVR 322; Henderson v QBE Insurance (Australia) Limited [2013] NSWCA 480; 66 MVR 69; De Gelder v Rodger [2014] NSWSC 872. These cases refer to the implied power of the proper officer to refer an application to resolve a medical dispute for a further assessment under s 62 of the Act. As Basten JA made clear in QBE v Miller at [35], in that context, the proper officer’s power depends “on the satisfaction of the proper officer as to the requirements set out in [s 62(1A)]”. Accordingly, it is not permissible for the Court to seek to decide as matter of objective fact whether the statutory conditions about which the proper officer must be satisfied were established by the evidence led in court. A fortiori, the Court’s power must be similarly limited when reviewing a decision under s 63(3) which in express terms turns upon the satisfaction of the proper officer “that there is reasonable cause to suspect that the medical assessment was incorrect in the material respect”.

31. The legal standard to be applied by the court in these situations was expressed by Basten JA in QBE and Miller at [36] – [37] in the following terms:

Once it is accepted that the characterisation of the information is a matter to be considered in the first instance by the proper officer and not one to be determined by this court afresh on a judicial review application, the review proceedings are limited to determining whether the proper officer's opinion has been properly formed according to law: Buck v Bavone [1976] HCA 24; 135 CLR 110 at 118-119 (Gibbs J); D'Amore at [220]. The critical question is thus "whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds": Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; 78 ALJR 992 at [38] (Gummow and Hayne JJ). Further, as explained by Latham CJ in R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42 ; 69 CLR 407 at 432:

If the opinion which was in fact formed was reached by taking into account irrelevant considerations or by otherwise misconstruing the terms of the relevant legislation, then it must be held that the opinion required has not been formed. In that event the basis for the exercise of power is absent, just as if it were shown that the opinion was arbitrary, capricious, irrational, or not bona fide.Such standards set the jurisdictional parameters of the power conferred on the officer. (Emphasis added.)

Mitrovic v Motor Accidents Authority of New South Wales [2012] NSWSC 1231

Applying the wrong legal test and failing to make required determinations under an Act each constitute errors of law sufficiently serious as to also constitute jurisdictional errors: Craig v South Australia (1995) 184 CLR 163 at 179; Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [60] to [70]. Identifying a wrong issue or asking a wrong question in a way that affects the exercise of power is to make an error of law: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].

58The concept of jurisdictional error also includes "constructive failures to exercise jurisdiction" – see, for example, Jordan CJ in the leading case of Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416; (1947) 64 WN (NSW) 107. In that case Jordan CJ said at 420:

"I quite agree that the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction … But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply a "wrong and inadmissible test": … or to "misconceive its duty", or "not to apply itself to the question which the law prescribes": The King v War Pensions Entitlement Appeal Tribunal; or "to misunderstand the nature of the opinion which it is to form": The King v Connell (1944) 69 CLR 407 at 432, in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law …"

59This passage has been adopted in this court (see for example Galluzzo T/As Riverwood Chemworld Chemist v Dianne Little (No 2) [2012] NSWSC 324 at [19]) and by the High Court. In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57, Gaudron J said at [80]:

"The classic statement as to what constitutes constructive failure to exercise jurisdiction is that of Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council. That statement, which has been approved by this Court on numerous occasions identifies a constructive failure to exercise jurisdiction as occurring when a decision-maker 'misunderstand[s] the nature of the jurisdiction which [he or she] is to exercise, and … appl[ies] "a wrong and inadmissible test"… or … "misconceive[s his or her] duty," … or "[fails] to apply [himself or herself] to the question which the law prescribes"… or "… misunderstand[s] the nature of the opinion which [he or she] is to form"'." (citations omitted)

60In Yusuf, Gaudron J said at [41]:

"For the purposes of mandamus and prohibition, a tribunal is said to have failed to exercise its jurisdiction if it has wrongly denied the existence of its jurisdiction or mistakenly placed limits on its functions or powers. If the Tribunal wrongly holds it has no jurisdiction or is not authorised to make a particular decision, there is said to be 'an actual failure to exercise jurisdiction'. On the other hand, there is said to be a 'constructive failure to exercise jurisdiction' when a tribunal misunderstands the nature of its jurisdiction and, in consequence, applies a wrong test, misconceives its duty, fails to apply itself to the real question to be decided or misunderstands the nature of the opinion it is to form. A constructive failure to exercise jurisdiction may be disclosed by the Tribunal taking an irrelevant consideration into account. Equally, it may be disclosed by the failure to take a relevant matter into account." (emphasis added)

61In relation to a constructive failure to exercise jurisdiction Beech-Jones J said recently in AAMI Ltd v Ali [2012] NSWSC 969 at [48]:

"There is considerable overlap between this form of error and a breach of natural justice or a constructive failure to exercise jurisdiction. This is so because aspects of those grounds can import a limited 'obligation' to consider at least some of the evidentiary material placed before a decision maker (Cervantes at [19]-[22], per Basten JA). Thus, in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088, Gummow and Callinan JJ stated (at [24]) that '[t]o fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.' In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; 206 CLR 57, Gaudron J at [81] stated that a failure in that case to address the substance of a person's claim for refugee status was 'a clear case of constructive failure to exercise jurisdiction'. Hence, and only by way of example, a failure to consider a critically relevant piece of evidence may have happened 'in a way that affects the exercise of the power' (Yusuf) because it may reveal that an applicant's case was not addressed or was misunderstood."

62Furthermore a constructive failure to exercise jurisdiction might be disclosed by taking an irrelevant consideration into account or by a failure to take a relevant matter into account: Devic v NRMA Insurance Ltd [2011] NSWSC 1099. I have held above that the Proper Officer's consideration of the failure to provide a WPI for the plaintiff was an irrelevant consideration and that the Proper Officer erred in characterising the lack of submissions on causation.

63I accept that reasons of administrative decision-makers are not to be considered with "an eye minutely and keenly attuned to error" but are to be read beneficially and as a whole (Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272). I further accept that the reasons of the Proper Officer need only be brief (Medical Assessment Guidelines clause 14.8). However, In my view the Proper Officer failed to exercise her power in determining whether the additional information or the deterioration of the injury was such as to be capable of having a material effect on the outcome of the previous assessment.

Huni v Allianz Australia Insurance Ltd [2014] NSWSC 1584

83To the extent that the Proper Officer's determination was to the contrary of this analysis, then it was erroneous because the Proper Officer ought to have had a suspicion of the kind necessary to order a review. However, there is, in my opinion, a further error in the Proper Officer's reasons.

84In paragraph 16 of the Proper Officer's reasons which I have set out above in [43], the Proper Officer called in aid of his conclusion, that the provisions of clause 1.40 of the Guidelines precluded the medical assessor from taking into account pain which was expressed to be occurring whilst the plaintiff's left shoulder was being assessed when it was being moved through the range of motion.

85The Proper Officer concluded that the medical assessor was being asked to make "… an allowance of impairment due to pain". The Proper Officer held that this was contrary to clause 1.40 of the Guidelines.

86In my view, that is a misreading of the Guidelines. Clause 1.40 is limited in its application by the words in the first sentence, namely, that some of the tables relative to impairment require pain associated with a particular neurological impairment to be assessed. It is that pain which the Guideline requires medical assessors to exclude from any separate allowance.

87There is no suggestion in the material provided to me that the medical assessor was engaged in a task of assessing pain associated with a particular neurological impairment contained within some of the tables in the Guidelines. To the extent that the Proper Officer's decision depended upon the argument that clause 1.40 supported the absence of any assessment by the medical assessor of the impairment of the plaintiff's left shoulder, then that decision was wrong and contrary to law.

88The existence of pain, particularly in this case, where the evidence before the Proper Officer did not suggest that the medical assessor did not accept the complaints of pain nor, in the reasons accompanying her certificate of assessment, did the medical assessor suggest or even hint that she was unable to accept the complaints of pain, there is no reason to regard the pain as excluded from being one of the facts, matters and circumstances relating to the plaintiff, including her history and physical examination to which the medical assessor was obliged to have regard.

Reasons

Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929

Basten AJ

“54 The objective, within the scheme of the Act, of requiring the Medical Panel to give a written statement of reasons for that opinion can therefore be seen to be that persons affected by the opinion automatically be provided with a written statement of reasons adequate to enable a court to see whether the opinion does or does not involve any error of law.

55 The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.”

“63 The answer to the worker's complaint lies in the implicit finding of the Medical Panel that the worker on 16 October 1996 sustained only a soft tissue injury, and not an injury to his spine. That finding was one of fact. Whether or not that finding of fact was open to the Medical Panel is a question of law. But no further explanation of the reasoning process adopted by the Medical Panel is necessary to enable a court to address that question.”

APPEALS

Interlocutory

Although it may in practical terms dispose of a claim, the summary judgment is, as a matter of law, not a final, but an interlocutory, judgment. Leave is required to appeal pursuant to s 101(2)(e) of the Supreme Court Act 1970 (NSW).

– [8] Chalak v G & G Mikhael Pty Ltd [2022] NSWCA 116

Leave to appeal

Cheng v Motor Yacht Sales Australia Pty Ltd t/as The Boutique Boat Company [2022] NSWCA 118

The requirement for leave to appeal

14. The amount at issue in these proceedings being less than $100,000, leave to appeal is required by s 101(2)(r) of the Supreme Court Act 1970 (NSW).

15. As has regularly been pointed out in decisions of this Court, a grant of leave to appeal generally requires the identification of an issue of principle, a question of public importance or a reasonably clear injustice going beyond something that is merely arguable: see, for example, Jaycar Pty Limited v Lombardo [2011] NSWCA 284 at [46]; Be Financial Pty Ltd as trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32]–[38] (Be Financial); The Age Company Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]; PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 at [6].

16. In Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69 (Carolan), Cole JA noted the desirability that, where small claims are involved, there be “early finality and determination of litigation otherwise the costs which will be involved are likely to swamp the money sum involved in the dispute”. In Gurr v Robinson (Court of Appeal (NSW), 10 February 1986, unrep) (Gurr), Kirby P (as he then was) articulated the following justifications for the requirement of leave to appeal where small sums are involved:

“One justification is that, where the amount in issue in a case is small, the parties have a special interest in finality. Protracted litigation necessarily involves costs and inconvenience. If the stake is small, the costs may soon become disproportionate to the amount in issue. Secondly, the provision reflects a number of public interests which must be protected by the Court. They include the discouragement of litigation, the principal purpose of which is to recover an order for costs, and the efficient and cost-effective use of court time, which necessarily involves large public costs.”

17. The importance of proportionality between the monetary amount at issue in a matter and the costs of proceedings was emphasised in Berry v Nicholls [2016] NSWCA 272 at [7]; see, also, Gaynor v Attorney General for New South Wales (2020) 102 NSWLR 123; [2020] NSWCA 48 at [20].

18. Consistent with the observations of Kirby P in Gurr, there are “good reasons … for the legislature imposing a requirement for leave where less than a certain amount is in issue”: Daily Examiner Pty Ltd v Mundine; Brown v Mundine [2011] NSWCA 126 at [4]. These reasons had the result, in Macfarlan JA’s view (with which Basten JA agreed) that “the Court does not ordinarily grant leave where less than $100,000 is in issue unless it considers that the decision at first instance was plainly wrong, that an obvious injustice has otherwise occurred or that a significant issue of principle is involved in the proposed appeal that it is in the public interest for the Court to determine” (at [5]); see, also, M & L Watson Pty Ltd t/as BBR Designs v Rilsung Pty Ltd [2003] NSWCA 36 at [9] where it was observed that “[t]he purpose of the threshold for leave to appeal being imposed is that the Legislature contemplated that relatively small amounts should not come before this Court, save with this Court’s leave and in cases warranting appellate intervention”.

19. In Ritson v Commissioner of Police, New South Wales Police Force [2019] NSWCA 106 at [39], Gleeson JA, with whom Emmett AJA agreed, observed that:

“It is well recognised that there is a need for restraint in granting leave to appeal in matters such as the present where the amount in issue is below the threshold of $100,000: Daily Examiner Pty Ltd v Mundine Brown v Mundine [2011] NSWCA 126 at [4]-[5]; Carolan … at 2-3; and Be Financial at [37]-[39]. Injustice involves a balancing exercise and the entitlement of parties to justice is not unconditional and must have regard to a number of factors, including the proportionality of the costs involved to the amount in dispute. In this case, the costs of an appeal would be disproportionate to the relatively modest amount in issue of approximately $43,000.”

20. The need for and desirability of there being proportionality between the value of the matter or amount in issue, and the costs of litigating that matter or issue is also reflected in s 60 of the Civil Procedure Act 2005 (NSW), which provides that “[i]n any proceedings, the practice and procedure of the court should be implemented with the object of resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject-matter in dispute.” It was in the context of s 60 of the Civil Procedure Act that Basten JA, in Be Financial at [37], observed that:

“the entitlement of the parties to justice is not unconditional, but is dependent upon the resources of the court made available by the government and the appropriate allocation of resources by the parties, which may depend upon their individual assessments of the importance of the issues in dispute.”

See, also, Condensing Vaporisers Aust Pty Ltd t/as RJ Tinker & Son v FDC Construction & Fitout Pty Ltd (No 2) (2014) 86 NSWLR 360; [2014] NSWCA 89 at [24]; and Burrows v Macpherson & Kelley Lawyers (Sydney) Pty Ltd [2021] NSWCA 148 at [44], where it was observed that “litigation where the costs exceed the amount in issue is not unfamiliar.” Leeming JA was correct to observe in that case that “[s]uch litigation is a poor candidate for a grant of leave”. As noted above, the proceedings before the primary judge ran for some four days, and it is plain that the costs of both parties would have approached, if not exceeded, the total amount in issue.

Khanna v Woolworths Group Limited [2022] NSWCA 94

[30] Leave to appeal should be refused because the proposed appeal does not raise any issue of principle or question of general public importance. Nor do any of the complaints by Mr Khanna raise an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well-established that it is not sufficient merely to show that the trial judge was arguably wrong: Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28].

NOTICE OF CONTENTION

Fuller v Albert (No 3) [2021] NSWCA 226

[7] At the outset, it needs to be understood that a Notice of Contention – unlike a Notice of Appeal, or a Notice of Motion – is not a process which seeks relief, and does not require disposition in the sense of orders being made pursuant to it, or dismissing it. A Notice of Contention merely serves to give notice, to avoid surprise, that the respondent to an appeal will rely on arguments not accepted or relied upon by the primary judge, to uphold the decision. If, as in this case, notwithstanding a Notice of Contention, an appeal is allowed and the orders of the primary judge are set aside, the Court has necessarily decided that the judgment should not be upheld on the grounds advanced in the Notice of Contention.

Reasons

Lichaa v Boutros [2021] NSWCA 322

45. Whilst her Honour did observe at J [75] “doubtless there was some work which required rectification”, she did not detail which works were defective, in what respects, and what in her view was required for these to be rectified. I do not think her Honour’s reasons have addressed the questions identified in [44] above and I am, with respect, unable to discern how her Honour came to the conclusion that Mr Verinder’s evidence was “of little assistance”: J [75](x).

46. The need for reasons and the content of reasons to satisfy that obligation were conveniently summarised in Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127 per Ipp JA, with whom Bryson JA and Stein AJA concurred, at [56]-[68] but particularly at [56]-[57] and [61]:

”The judicial obligation to give reasons

[56] A miscarriage of justice can arise where what is and is not disclosed in a judge’s reasons is a breach of the principle that justice must not only be done but must be seen to be done: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 431 (per Mason P).

[57] As McHugh JA explained in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279, one of the purposes served by a judicial decision is that: “…[I]t enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge’s decision”. Accordingly, as McHugh JA said (at 278–279): “…[A] judicial decision must be a reasoned decision arrived at by finding the relevant facts and then applying the relevant rules or principles. A decision which is made arbitrarily cannot be a judicial decision; for the hallmark of a judicial decision is the quality of rationality…”

…

[61] But, where the issue in dispute involves differences between expert witnesses that are capable of being resolved rationally by examination and analysis, and where the experts are properly qualified and none has been found to be dishonest, or misleading, or unduly partisan, or otherwise unreliable, a decision based solely on demeanour will not provide the losing party with a satisfactory explanation for his or her lack of success. A justifiable grievance as to the way in which justice was administered will then arise.”

47. It is well-established that the function of an appellate court is not to determine the optimal level of detail required in reasons for a decision but rather to determine the “minimum acceptable standard” which is informed by the issues at trial, the nature of the evidence, the nature of the submissions, the scope of any right of appeal, and other relevant circumstances. The standard required of reasons is not one of perfection: New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [66] (Bell P (Ward JA agreeing)).

Slip rule and overlooked arguments

Jandson Pty Ltd v Edmonds [2022] NSWCA 61

(Bell CJ, Macfarlan and White JJA agreeing), refusing leave to appeal with costs, that in circumstances where a judge has or is said to have overlooked a particular argument of a party, it is open to that party pursuant to r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) to draw that fact to the judge’s attention and invite him or her to address the matter, and ordinarily that will be the preferable and appropriate course to take rather than seeking to raise the matter on appeal: [16]-[20] (Bell CJ); [27] (Macfarlan JA); [28] (White JA).

Consolidated Lawyers Ltd v Abu-Mahmoud; Abu-Mahmoud v Consolidated Lawyers Ltd [2016] NSWCA 4; Miller Heiman Pty Ltd v Sales Principles Pty Ltd (2017) 94 NSWLR 500; [2017] NSWCA 106; Crawley v Short [2009] NSWCA 410; (2009) 262 ALR 654; Nominal Defendant v Livaja [2011] NSWCA 121, considered.

AUSTRALIAN CONSUMER LAW

Damages

Available for disappointment and distress

Interaction with CLA

Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited [2021] HCATrans 74 (16 April 2021)

CIVIL LIABILITY ACT

Ipp Report

Apportionable Claims

Landpower Australia Pty Ltd v Penske Power Systems Pty Ltd [2019] NSWCA 161

Landpower Australia Pty Ltd (Landpower) was the sole defendant in proceedings brought in the District Court by Lindsay Northcott and Faith Northcott (the Northcotts). The Northcotts seek damages in those proceedings for breach of contract, negligence, misleading or deceptive conduct and negligent misrepresentation. The causes of action related to the performance of a harvester used by the Northcotts in their agricultural cropping business. Landpower, by its defence, denied the allegations advanced by the Northcotts and, in the alternative, pleaded that the Northcotts’ claims were apportionable claims within the meaning of s 87CB of the Competition and Consumer Act 2010 (Cth) (CCA) and the Trade Practices Act 1974 (Cth) and s 35(1) of the Civil Liability Act 2002 (NSW) (CLA). Landpower named a number of alleged concurrent wrongdoers in its defence, none of which were joined as defendants in the proceedings. Landpower brought a cross-claim against one of the concurrent wrongdoers named in its defence: Penske Power Systems Pty Ltd (Penske). The cross-claim alleged that if Landpower were liable to the Northcotts then that was because Penske had breached a separate contract with Landpower, was negligent in undertaking its work for Landpower, had engaged in misleading or deceptive conduct and/or had made negligent misrepresentations to Landpower. By a notice of motion, Penske sought summary dismissal of Landpower’s cross-claim. It was accepted before the primary judge that each of the claims by the Northcotts against Landpower were relevantly apportionable claims. The primary judge summarily dismissed Landpower’s cross-claim.

The issue on appeal was whether the primary judge erred in summarily dismissing Landpower’s cross-claim.

The Court (Bell P, Macfarlan and Payne JJA agreeing) held, allowing the appeal:

1. Other than cross-claims for contribution pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 36 of the CLA and s 87CF of the CCA do not necessarily preclude cross-claims against alleged concurrent wrongdoers: [32]-[37], [49].

Dymocks Book Arcade Pty Ltd v Capral Ltd [2010] NSWSC 195, considered.

2. That a claim is said to be apportionable does not of itself preclude the bringing of a cross-claim against alleged concurrent wrongdoers. The claim may be found not to be relevantly apportionable, the named concurrent wrongdoer(s) may not be found to have that status or the cross-claim may advance independent causes of action. The proportionate liability regimes in both State and federal legislation were not designed to emasculate independent substantive rights: [37]-[53].

3. The cross-claim should not have been summarily dismissed: [54]

Damages

Economic Loss

Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119

273. The reference by Brereton JA to s 13 of the Civil Liability Act (see [265] above) picked up the contention that the primary judge’s assessment of buffers for future economic loss fell short of the analysis and reasoning required by that section. [239] Mr Barry’s response was that, although her Honour may not have followed the process set out by s 13 word-for-word, this did not amount to a failure to undertake the relevant exercise, and that strict compliance with the statutory language was not necessary for the award of a buffer.

274. Mr Barry relied upon a number of decisions of this Court as authority for the proposition that a buffer may be awarded otherwise than in accordance with s 13, namely Penrith City Council v Parks [2004] NSWCA 201 (Penrith); Sretenovic v Reed [2009] NSWCA 280 (Sretenovic); and Burton v Brooks [2011] NSWCA 175.

275. Reliance on these authorities was misplaced. Although they stand as authority for the propositions that “[it] is appropriate to award damages by way of a buffer, including … where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon … exercising earning capacity after injury is difficult to determine”; [240] and that the determination of the difference between earning capacity prior to injury and earning capacity thereafter cannot be determined “otherwise than by the broad approach of a buffer”, [241] the award of a “buffer” does not displace the operation and requirements of s 13 of the Civil Liability Act.

276. In Penrith, Giles JA accepted that even in the context of awarding a buffer, s 13 required the statement of “the assumptions as to exercising earning capacity before injury”. [242] So too, in Sretenovic, McColl JA (with whom Beazley JA agreed) made reference to the requirements set out in s 13 of the Civil Liability Act in holding that the primary judge in that matter had erred in formulating a buffer for future economic loss.

277. In our view, the primary judge’s assessment of C’s damages for future economic loss in the sum of $111,000, by way of a buffer, cannot be sustained. Not only was it non-compliant with the requirements of s 13 of the Civil Liability Act, which are directed to supplying some meaningful and transparent basis for the award of damages for future economic loss but, perhaps even more significantly, the fact that the damages awarded for this head of loss were identical to those awarded to A reinforces the perception that the figure of $111,000 was not calculated by reference to the particular circumstances of C.

278. In any re-assessment of damages on remittal, the buffer awarded by the primary judge could not be relied upon and would need to be re-calculated. On the evidence before the primary judge, if any buffer were to be awarded at all, it would a very modest figure.

Dyldam Developments Pty Limited v Jones [2008] NSWCA 56

https://www.caselaw.nsw.gov.au/decision/549fe4d83004262463c29252

65 Mr King SC for Bricklaying submitted that the primary judge made errors in the calculation of economic loss. He submitted that, having regard to the income tax returns that were produced and the wages actually received prior to 20 February 2003, there was no justification for adding an amount for overtime and indeed no justification for going above the $646 per week average over the 33 weeks prior to the accident. He pointed out that the net figure was about $30 too high in any event. He submitted, even accepting that the rates for future economic loss should be as determined by the judgment, the future economic loss should have been calculated at $850 per week rather than the $930 adopted by the judge. In any event, he submitted, the rate adopted in the judgment was too high, for reasons similar to those put in relation to past economic loss.

66 In my opinion, it was erroneous for the primary judge to have paid no regard to the plaintiff’s record of earnings, as disclosed by his tax returns and as disclosed by the records concerning the 33 weeks prior to the accident. Those were important matters, and if they were to be totally disregarded, they needed to be explicitly addressed and reasons given for disregarding them. The failure of the plaintiff to lead satisfactory evidence concerning his pre-accident employment earnings, and to give any explanation for the earnings shown in the income tax returns, means in my opinion that uncertainties created by this absence of evidence should not be resolved in the plaintiff’s favour.

Undeclared income

Matar v Jones [2011] NSWCA 304

… The overwhelming probabilities are in my view that, as he indicated when he gave evidence for the second time, the appellant did not disclose the lease payments for income tax purposes.

This is to the appellant's discredit but does not preclude him from recovering damages upon what he truly earned, as distinct from what he disclosed. The following observations made by von Doussa J in Giorginis v Kastrati [1988] 48 SASR 371; [1989] Aust Torts Reports 68,460 and approved by this Court in AMP General Insurance Ltd v Kull [2005] NSWCA 442; (2006) 14 ANZ Insurances Cases 61-687 at [70] are in point:

" … Where the plaintiff gives evidence that his income tax returns do not disclose the full extent of his earnings, a court will scrutinise the plaintiff's evidence with special care. The want of honest compliance with the taxation laws is a matter that will reflect adversely on the plaintiffs (sic) credit and may lead to the rejection of his evidence as untrustworthy, at least about his earnings. In such a case the plaintiff has only himself to blame if damages are assessed in line with the pre-accident income actually disclosed to the revenue authority. However, where the fact of the receipt of other income is proved, then, in my view, the plaintiff is entitled to have that exercise of his earning capacity brought to account, although subject to reduction for the income tax which should have been paid, and subject to the question whether the plaintiff would have continued to exercise that capacity had he been required to pay tax on the additional income: see McIntosh v Williams [1976] 2 NSWLR 237 at 244, 252. Melino v Ken Eustice Motors (North Road) Pty Ltd (1984) 111 LSJS 296 at 308-310 is an example of a case where undisclosed income was proved and brought to account."

For these reasons I consider that the appellant is correct in contending that the primary judge erred in deducting the lease payments of $330 per week from the net weekly income figure of $430 per week for which the appellant contended.

AMP General Insurance Ltd. v. Kull & Anor. [2005] NSWCA 442

69 Mr. Russell submitted there was a number of errors in the judgment of the primary judge concerning economic loss. The income declared in the tax returns was $4,000.00, not $8,000.00. The other income totalled $30,000.00 or $32,000.00, not $35,000.00. The primary judge did not justify adding this amount to the declared amount. Furthermore, Mr. Russell submitted, Mr. Kull had said in evidence that the $4,000.00 shown in his tax return was correct; and there was no evidence as to how much of $30,000.00 or $32,000.00 was covered by parts or other matters in respect of Mr. Kull incurred expense. Furthemore, there was evidence that Mr. Kull had a residual capacity, and was earning money from helping in his son’s business, this not being allowed for at all in respect of past economic loss.

70 Mr. Watson supported these submissions. He referred to what was said in Giorginis v. Kastrati (1988) 48 SASR 371 at 375-6, per von Doussa J:

Where the plaintiff gives evidence that his income tax returns do not disclose the full extent of his earnings, a court will scrutinise the plaintiff’s evidence with special care. The want of honest compliance with the taxation laws is a matter that will reflect adversely on the plaintiffs credit and may lead to the rejection of his evidence as untrustworthy, at least about his earnings. In such a case the plaintiff has only himself to blame if damages are assessed in line with the pre-accident income actually disclosed to the revenue authority. However, where the fact of the receipt of other income is proved, then, in my view, the plaintiff is entitled to have that exercise of his earning capacity brought to account, although subject to reduction for the income tax which should have been paid, and subject to the question whether the plaintiff would have continued to exercise that capacity had he been required to pay tax on the additional income: see McIntosh v Williams [1976] 2 NSWLR 237 at 244, 252. Melino v Ken Eustice Motors (North Road) Pty Ltd (1984) 111 LSJS 296 at 308-310 is an example of a case where undisclosed income was proved and brought to account.

A failure to disclose income as required by s 161 of the Income Tax Assessment Act 1936, constitutes an offence which may attract heavy penalties: see s 223 of the Income Tax Assessment Act and ss 8C, 8K and 8P of the Taxation Administration Act 1953. Where a tax fraud or evasion of this kind is disclosed in evidence, it is the court's duty to draw the evidence to the attention of the executive branch of government for such action as may be appropriate: Petera Pty Ltd v EAJ Pty Ltd (1984) 7 FCR 375. A court should not, generally speaking, make a finding favourable to the plaintiff in a personal injury case that his income is otherwise than he has disclosed to the revenue authority unless the plaintiff admits the non- disclosure. A fortiori, such a finding should not be made where the plaintiff denies that he has failed to properly disclose his income. Unless the plaintiff admits the falsity of his income tax returns the court should not speculate in his favour, for example that his pre-accident earnings were probably higher than he has disclosed. Rather, the court should adopt the income figures actually disclosed and base the assessment of damages on them. Again, if this results in a low assessment, that is the consequence of the plaintiff adhering to the accuracy of his income tax returns.

That passage was emphatically endorsed by King CJ and Legoe J at 379.

71 Mr. Watson also pointed out that the Counsel for Mr. Kull below had asked for past economic loss calculated at $100.00 per week, and later agreed with submissions for the other parties that it was appropriate to provide a buffer for past and future economic loss, submitting however that their suggested figure of $10,000.00 to $15,000.00 was at the bottom of the range.

72 Ms. Norton SC for Mr. Kull submitted that the admission made by Mr. Kull was in respect of a figure in his income tax return which was probably taxable income, and his acceptance of that figure in effect was a concession that his accountant had worked correctly from the papers given to him. It had to be understood along with his evidence that he was paid for much of his work in cash. Furthermore, there was no attempt in the cross-examination to link the figure of $4,000.00 to net income before deductions such as work-related deductions that were of value for living, superannuation, losses on investments, charitable donations, etc. Ms. Norton also referred to Trajkovski v. Ken’s Painting & Decorating Services Pty. Ltd. [2002] NSWSC 568 (Dunford J) at [51]-[52], as follows:

52 In these circumstances, where I consider it likely that the plaintiff had some income beyond that disclosed in his taxation returns, although he has not directly admitted submitting false returns, I assess the plaintiff’s loss of income by reference to what has been disclosed together with something for the additional income discounted for the tax that should have been paid on it; but because of the paucity of the evidence, the assessment must be conservative and not over generous. As there has been no direct admission of the lodging of the false taxation returns no question arises about referring the matter to the relevant authorities. I reject the submission that in a case such as this it is appropriate to take Average Weekly Earnings or any similar table as a guide.

73 Ms. Norton also submitted that the primary judge was not incorrect in allowing for economic loss on the basis of evidence from customers as to what they had paid him.

Decision

74 In my opinion, the primary judge did make the errors identified by Mr. Russell. I agree with what was said in Giorginis v. Kastrati.

1 GILES JA: For the reasons given by Hodgson JA, whose judgment I have had the advantage of reading in draft, the verdict for Mr Kull against Mr Maloney should stand but with the damages reduced to $118,788. I qualify my agreement in this respect to the extent that I do not think it necessary, if Giorginis v Kastrati (1988) 48 SASR 371 so suggests, that a plaintiff admit tax evasion before earnings greater than those disclosed to tax authorities can be taken into account in assessing his damages. The Court must decide on the evidence before it. The evidence may warrant, indeed require, the conclusion that the plaintiffs earnings exceeded his declared income even if the plaintiff has not admitted non-disclosure of income. That is so in the present case, on the evidence of Dr Mayman and Mr McMurray called in Mr Kull's case.

Dwight v Bouchier & Ors [2003] NSWCA 3

51 His Honour’s approach in accepting the reality of the business is consistent with that of the High Court in Husher v Husher (1999) 197 CLR 138 at 147 – 149 regarding the assessment of lost earning capacity. In the joint judgment the following was said:

52 The court stressed the importance of the facts in each case. Their Honours said:

53 In my opinion, there is no reason why the approach of the High Court in Husher, based on the particular facts of this case, should not be extended to corporations.

54 In my opinion his Honour was entitled to look to the realities of the situation. In this case the reality was that the business was a family partnership to which the deceased contributed the lion share. His Honour was not obliged to confine himself to the tax returns in assessing the deceased’s pre-accident income. He was obliged to consider the evidence as a whole, including the first respondent’s oral testimony.

55 It was also submitted on behalf of the appellant that his Honour made no allowance for the possibility that back taxes, penalties and interest might be charged by the Taxation Office.

56 In McIntosh v Williams [1976] 2 NSWLR 237 at 245 Moffitt P considered that the chance of discovery of undisclosed earnings and the imposition of back taxes and penalties was a contingency which should have been allowed for in the assessment of damages.

57 In this case the trial judge reduced the figure of $1,000 per week gross by the applicable tax to a net figure of $635 p.w., back dated to the accident. The judge allowed a 10% reduction for contingencies. He did not specifically include the adverse contingency relating to possible back taxes and penalties. I do not see that this matters. If the Commonwealth believes that it has cause, it can proceed against the estate of the deceased and the first respondent and seek the payment of any back tax and imposition of penalties. If this occurs, those amounts will be liable to be paid. It seems to me that the contingency allowed was sufficient to include the possibility of successful action by the Taxation Office.

58 In giving reasons his Honour made it plain that he was seeking to compensate the first respondent and the children for the loss of her husband’s income which she suffered ‘as a wife’ and not as a business partner.

Interaction with Consumer Law

Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited [2021] HCATrans 74 (16 April 2021)

Damages For Disappointment

1. On 24 April 2020, the High Court allowed the appeal by Mr Moore: Moore v Scenic Tours Pty Ltd (2020) 268 CLR 326; [2020] HCA 17 (“the High Court’s judgment”).

2. The High Court held that Mr Moore and the group members were entitled to damages for distress and disappointment pursuant to s 267(4) of the ACL and that s 16 of the CLA does not affect Scenic’s liability to Mr Moore in respect of his claim for damages for disappointment and distress.

Mental Harm

Consequential Mental Harm

Dungan v Padash [2021] NSWCA 66

“The Panel’s considered opinion is that

(a) damages for economic loss resulting from the negligent infliction of mental harm should be awarded only in respect of recognised psychiatric illness, even if the mental harm is consequential on physical injury; and

(b) such damages should be recoverable only if the defendant ought to have foreseen that a person of normal fortitude might, in the circumstances, suffer a recognised psychiatric illness if reasonable care was not taken.”

Subsequent Events

Weekly Cap

Taylor v The Owners – Strata Plan No 11564 [2014] HCA 9

http://eresources.hcourt.gov.au/downloadPdf/2014/HCA/9

DAMAGES

CONTRACTUAL

Disappointment

Worth v HDI Global Specialty SE [2021] NSWCA 185

The appellant was not entitled to damages for inconvenience and distress caused by the respondent’s failure to indemnify for the same reasons as her consequential business loss claim. Nor was this a case in which the exception to the non-recovery of contractual damages for anxiety, distress and disappointment was engaged, as her losses did not involve mental suffering “directly related to” physical inconvenience: at [6] (Macfarlan JA), [200]-[203] (Meagher JA), [207] (McCallum JA).

Baltic Shipping Company v Dillon (1993) 176 CLR 344, applied; Moore v Scenic Tours Pty Ltd (2020) 377 CLR 209; [2020] HCA 17; Archibald v Powlett (2017) 53 VR 645; [2017] VSCA 259, considered.

Damages for inconvenience and distress

As a claim to damages for a failure to pay damages, this claim is not sustainable for the same reasons as the consequential business loss claim. Furthermore, for the reasons which follow, it would not have been sustainable as a claim to damages for a failure to indemnify by making payment in accordance with the policy.

It is not controversial that damages for anxiety, distress and disappointment are ordinarily not recoverable in an action for breach of contract. The rule is subject to exceptions, including where the object of the contract is to provide pleasure, relaxation or freedom from molestation or “where the plaintiff has suffered physical inconvenience as a result of the defendant’s breach of contract and the mental suffering is directly related to that physical inconvenience”: Baltic Shipping Company v Dillon (1993) 176 CLR 344 at 363-364 (Mason CJ, Toohey and Gaudron JJ agreeing), 381 (Deane and Dawson JJ), 405 (McHugh J); [1993] HCA 4.

The first of these exceptions is most commonly engaged in “holiday cases”: see eg Moore v Scenic Tours Pty Ltd (2020) 377 CLR 209; [2020] HCA 17. The appellant relies on the second. She contends that as a result of the insurer’s refusal to indemnify, her house was not rebuilt and “she and her son [therefore] had to live with [her] parents for a number of years … and she lost the capacity to live independently”. (Reference is also made to the rebuilding of her home as the “object” of the deed of release, but even if that were correct, which I doubt, it would not bring her claim within the first exception.)

The typical case for the application of this exception is breach of a building contract: Archibald v Powlett(2017) 53 VR 645; [2017] VSCA 259 at [62]-[67]. Physical inconvenience may often be the direct and natural consequence of defective home construction, “whether by virtue of having to live with offensive odours or a leaking roof, or in unsanitary or dirty conditions, or being obliged to vacate the defective premises”: Archibald at [63]. The appellant’s claim is quite different. It is that because of the insurer’s non-payment of indemnity for property damage she has been unable to rebuild (and live in) her home and operate her childcare business, and that she has consequently suffered mental distress due to her dissatisfaction with her alternative employment, the loss of “independence” attributable to living with her parents and the “cloud hanging over [her]” by reason of the insurer’s allegations. None of those losses involves mental distress “directly related to” physical inconvenience caused by the insurer’s refusal to pay money in accordance with the policy.

Dangerous Recreational Activity

Tapp v Australian Bushmen's Campdraft & Rodeo Association Limited [2022] HCA 11 (6 April 2022)

Tort – Negligence – Breach of duty of care – Causation – Obvious risk of dangerous recreational activity – Where appellant competing in campdraft competition – Where campdrafting a dangerous recreational activity – Where appellant's horse slipped and fell causing serious injury to appellant – Where four other contestants had falls prior to appellant's fall – Where experienced contestant warned organisers about condition of arena surface – Where organisers twice refused to stop competition – Whether respondent breached duty of care – Whether breach of duty of care caused appellant's injuries – Whether harm suffered by appellant result of materialisation of obvious risk of dangerous recreational activity.

Tapp v Australian Bushmen’s Campdraft & Rodeo

Association Ltd [2020] NSWCA 263

The Court held, dismissing the appeal:

Duty of care

per Payne JA (Basten JA agreeing):

1. The appellant did not establish that a cause of her fall was a deterioration

of the surface of the arena and that the exercise of reasonable care in all the

circumstances would have caused the Association to stop the campdrafting

event, plough the arena ground, and/or warn the appellant that the ground at

the site of the campdrafting event had become unsafe: [51], [54], [56]-[58].

per McCallum JA (dissenting):

2. The critical issue is whether the primary judge erred in failing to find that a

reasonable person in the position of the respondent would have suspended the

event and repaired the surface prior to the appellant competing: [170]. The

appellant’s evidence that the surface of the arena had become unsafe for

campdrafting was strong: [171]-[177].

3. As to causation, the horse fell because the surface of the arena had

deteriorated by the time the appellant rode to the point where a horse

proceeding at a canter struggled to find her stride so that her legs slipped from

under her: [182].

Obvious risk s 5L Civil Liability Act

per Basten JA:

4. Without clear evidence as to the nature of the risk posed by the surface of

the arena where the appellant’s horse fell, it was not possible to identify the

cause of the fall, or the risk of harm against which the defendant should

reasonably have taken precautions: [2].

per Payne JA (Basten JA agreeing):

5. The appellant did not identify the way in which it was alleged the surface of

the arena had deteriorated. The nature of the deterioration is critical to the

appellant’s formulation of the obvious risk: [69].

6. If it were a sufficient description of the general causal mechanism of the

injury to describe the risk as “the appellant’s horse falling in the course of the

campdrafting competition”, the risk was obvious. Even if the risk were correctly

framed as being “the risk of injury as a result of falling from a horse that slipped

by reason of the deterioration of the surface of the arena”, the injury suffered

by the appellant was the manifestation of an obvious risk.

The former is far too broad; it would include the risk arising from a

misjudgment by the appellant. The latter is also inadequate because, although

it refers to the state of the arena, it fails to identify the nature of the

deterioration which led to the risk of a fall. In either case, the risk was obvious

to a reasonable rider competing in these kinds of events, in which the appellant

had many years of experience: [77]-[78].

per McCallum JA (dissenting):

7. The risk that materialised must be characterised with enough particularity

to enable the court to determine whether it was foreseeable by the organisers,

whether it was one capable of attracting liability, and whether it would,

prospectively, have been obvious to a reasonable person in the position of the

plaintiff: [162].

Singh bhnf Ambu Kanwar v Lynch [2020] NSWCA 152, considered.

8. The characterisation of the risk adopted by the primary judge does not

meet the requirements explained. It failed to identify a risk arising from any

potentially negligent conduct of the Association. It does not enable the Court or

the parties to assess whether the risk was one capable of attracting liability. It

does not identify the causal mechanism of the fall and so does not enable the

Court or the parties to assess whether the risk would, prospectively, have been

obvious to a reasonable person on the position of the appellant: [164].

9. The risk of harm identified by the appellant in oral submissions, being “the

risk of injury as a result of falling from a horse that slipped by reason of the

deterioration of the surface of the arena”, is an apt description of the risk

alleged to have materialised here. It identifies a source of potential injury which

enables the Court to determine whether the risk was foreseeable. It also

identifies the reasons the injury in fact occurred, which enables the Court to

determine whether the risk would have been obvious to a reasonable person in

the position of the appellant: [166].

10. The risk as framed would not have been obvious to a reasonable person

in the appellant’s position: [185]-[186].

Volunteer defence

per Payne JA (Basten JA and McCallum JA agreeing):

11. On reading Part 9 of the Civil Liability Act as a whole, a “volunteer” can

only be a natural person: [96]. Even assuming that a body corporate is capable

of being a “volunteer” within the meaning of Part 9, the other requirements of

s 61 of the Civil Liability Act are not satisfied here: [96].

Australian Consumer Law

per Payne JA (Basten JA and McCallum JA agreeing):

12. The appellant’s formulation on the appeal of a breach of the statutory

guarantee in s 60 of the Australian Consumer Law was not pleaded or

addressed in the court below. A new argument may not be run for the first time

on appeal: [115].

Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; [1950] HCA 35, applied.

COAL MINING

Workers Compensation Act as 14/7/2001

CONTRIBUTION

Joint Tortfeasors

Seltsam

Damm v v Coast Wide Site Services Pty Ltd [2017] NSWSC 1361

COMPETITION & CONSUMER ACT

Landpower Australia Pty Ltd v Penske Power Systems Pty Ltd [2019] NSWCA 161

The issue on appeal was whether the primary judge erred in summarily dismissing Landpower’s cross-claim.

The Court (Bell P, Macfarlan and Payne JJA agreeing) held, allowing the appeal:

2. Other than cross-claims for contribution pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 36 of the CLA and s 87CF of the CCA do not necessarily preclude cross-claims against alleged concurrent wrongdoers: [32]-[37], [49].

Dymocks Book Arcade Pty Ltd v Capral Ltd [2010] NSWSC 195, considered.

4. That a claim is said to be apportionable does not of itself preclude the bringing of a cross-claim against alleged concurrent wrongdoers. The claim may be found not to be relevantly apportionable, the named concurrent wrongdoer(s) may not be found to have that status or the cross-claim may advance independent causes of action. The proportionate liability regimes in both State and federal legislation were not designed to emasculate independent substantive rights: [37]-[53].

5. The cross-claim should not have been summarily dismissed: [54]

COMPANY’S INSURANCE & INSOLVENCY

In the matter of Lysaght Civil Products Pty Ltd [2021] NSWSC 1459

Allianz Australia Insurance Ltd v Viksne [2021] NSWCA 268

….

[32]

In the matter of Lysaght Civil Products Pty Ltd [2021] NSWSC 1459

DAMAGES

Civil Liability Act

Disappointment & Distress

1. On 24 April 2020, the High Court allowed the appeal by Mr Moore: Moore v Scenic Tours Pty Ltd (2020) 268 CLR 326; [2020] HCA 17 (“the High Court’s judgment”).

MENTAL HARM

Consequential

Dungan v Padash [2021] NSWCA 66

“The Panel’s considered opinion is that

DIRECT ACTION AGAINST INSURERS

Nigel Rein, Choose your life raft – 5/7/2006

EVIDENCE

Admissions

Vicarious

Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119

In the absence of any express authorisation for Mr Bird to make admissions on Ms Clancy’s behalf, and in circumstances where Ms Clancy learned of the charges against her father after his police interview, Mr Bird’s alleged “admissions” were not admissible against Ms Clancy. Section 87(1)(c) of the Evidence Act required the identification of the existence of a “common purpose” at the time that the impugned admissions were made. Those admissions could not have been made “in furtherance of” a common purpose which had not yet come into existence: [114]–[116].

Ingot Capital Investments Pty Ltd v Macquarie Equity Capital Markets Ltd (No 4) [2006] NSWSC 90; R v Dolding (2018) 100 NSWLR 314; [2018] NSWCCA 127; Higgins v R [2020] NSWCCA 149, applied.

EXPERTS

FEDERAL JURISDICTION

Global Constructions Australia Pty Ltd (in liq) v AIG Australia Limited [2018] FCA 98

[18] The matter is within federal jurisdiction under s 39B(1A)(c) of the Judiciary Act 1903 (Cth), there having been a claim under s 13 of the Insurance Contracts Act, even though it has been abandoned (see Moorgate Tobacco Co Ltd v Philip Morris Ltd [1980] HCA 32; 145 CLR 457 and Unilan Holdings Pty Ltd v Kerin [1993] FCA 605; 44 FCR 481) and also because of the claim for interest under s 57 of the Insurance Contracts Act. See, generally, Rana v Google Inc [2017] FCAFC 156; 350 ALR 280 at 283-287 [15]-[24].

Guardianship

Secretary, NSW Department of Communities and Justice and Anor v ZYM and Anor [2022] NSWSC 935

Ability One Financial Management and Anor v JB by his tutor AB [2014] NSWSC 245

Holt v Protective Commission (1993) 31 NSWLR 227

M v M [2013] NSWSC 1495

Re Managed Estates Remuneration Orders [2014] NSWSC 363

INFERENCES

LIMITATION OF ACTIONS

Personal Injuries

Chen, N ss. 50C & D

MEDICAL NEGLIGENCE

CAUSATION

Loss of a chance

Nguyen advice

MOTOR ACCIDENTS LEGISLATION

BLAMELESS MOTOR ACCIDENT

Whitfield v Melenewycz (2016) 92 NSWLR 624 – kangaroo

MEDICAL ASSESSMENT

FINALITY OF MEDICAL ASSESSMENTS

Jubb v Insurance Australia Ltd [2016] NSWCA 153

Appellant’s reliance on common law analogies is misplaced

NEGLIGENCE

Vicarious Liability

Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D [2022] NSWCA 119

The principle of dual vicarious liability has not been adopted in the common law of Australia: [197]–[198].

Oceanic Crest Shipping Company v Pilbara Harbour Services Pty Ltd (1986) 160 CLR 626; [1986] HCA 34; Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd [2006] QB 510; Day v The Ocean Beach Hotel Shellharbour Pty Ltd (2013) 85 NSWLR 335; [2013] NSWCA 250, discussed.

OCCUPIER’S LIABILITY

PRACTICE & PROCEDURE

s. 56

Studholme v Rawson [2020] NSWCA 76

78 In giving effect to the dictates of Pt 6 of the Civil Procedure Act and the overriding purpose, two important constraints are to be borne in mind. First, Pt 6 does not provide a basis for departing from principles of procedural fairness as generally reflected in rules of civil procedure. Those principles are reflected in the requirement that the proceedings must be “just”. Secondly, while the judge is entitled to form a view as to what are the “real issues” in dispute between the parties, within limits the parties are entitled to define those issues. The limits are not easily defined, because they will depend upon the relevant legal principles, the available evidence and the professional practice obligations engaged in the particular case.

CROSS CLAIMS

Landpower Australia Pty Ltd v Penske Power Systems Pty Ltd [2019] NSWCA 161

The issue on appeal was whether the primary judge erred in summarily dismissing Landpower’s cross-claim.

The Court (Bell P, Macfarlan and Payne JJA agreeing) held, allowing the appeal:

3. Other than cross-claims for contribution pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 36 of the CLA and s 87CF of the CCA do not necessarily preclude cross-claims against alleged concurrent wrongdoers: [32]-[37], [49].

Dymocks Book Arcade Pty Ltd v Capral Ltd [2010] NSWSC 195, considered.

6. That a claim is said to be apportionable does not of itself preclude the bringing of a cross-claim against alleged concurrent wrongdoers. The claim may be found not to be relevantly apportionable, the named concurrent wrongdoer(s) may not be found to have that status or the cross-claim may advance independent causes of action. The proportionate liability regimes in both State and federal legislation were not designed to emasculate independent substantive rights: [37]-[53].

7. The cross-claim should not have been summarily dismissed: [54]

Federal Courts (State JuriSdiction) Act

Sydney Seaplanes Pty Ltd v Page [2021] NSWCA 204

Per Bell P; Leeming JA agreeing at [147]; Emmett AJA agreeing at [169]:

The order dismissing the Federal Court proceedings for want of jurisdiction was not a “relevant order” for the purposes of s 11(1). When one has regard to the context and purpose of the State Jurisdiction Act, both as explicitly stated and as is evident from a consideration of its terms as a whole including its long title, the specific context in which it was passed, namely the immediate aftermath of the decision in Wakim, and the mischief it was intended to address, it is an unavoidable conclusion that s 11(1) refers to the “want of jurisdiction” by reason of a constitutionally invalid conferral of jurisdiction as addressed in Wakim. This construction is reinforced by the explanatory memorandum and the second reading speech accompanying the Bill which led to the passage of the Act: [53].

Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27; Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; [2000] HCA 33, discussed.

The construction of the State Jurisdiction Act on the literal reading applied by the primary judge “does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions”, particularly when taken in conjunction with a broader consideration of context and extrinsic materials which shed a particularly clear light on the relevant purpose of s 11 of the State Jurisdiction Act: [58].

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26, applied.

Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9; SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55; Park Trent Properties Group Pty Ltd v Australian Securities and Investments Commission (2016) 116 ACSR 473; [2016] NSWCA 298; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2, considered.

Discussion of the modern approach to statutory construction, whereby the literal meaning of words in a statute will not always correspond to their legal meaning, and whilst the process of statutory construction must start and end with a consideration of the statutory text, elements of context, including legislative purpose and history, must be considered in the first instance and in a broad sense: [25]–[41].

Per Leeming JA; Bell P agreeing at [6]; Emmett AJA agreeing at [169]:

While remedial legislation such as the State Jurisdiction Act is to be given a broad, beneficial construction, that principle is not a trump which overrides all other principles of statutory construction, and does not produce the result that purpose and context are to be disregarded when determining legal meaning. To this effect, the principle that remedial legislation is to be construed beneficially is a manifestation of the more general principle that all legislation is to be construed purposively: [85], [97].

Commissioner of Taxation v Comber(1986) 10 FCR 88; Commonwealth v Genex Corporation Pty Ltd (1992) 276 CLR 277; [1992] HCA 65; Muller v Dalgety & Co Ltd (1909) 9 CLR 693; [1909] HCA 67; Blacker v National Australia Bank Ltd [2000] NSWSC 805; (2000) 158 FLR 142; New South Wales Aboriginal Legal Council v Minister Administering the Crown Lands Act (2016) 260 CLR 232; [2016] HCA 50, considered.

The words “purports or purported” in the definition of “State matter” in s 3 of the State Jurisdiction Act are significant. For the purposes of s 11, there will be a proceeding relating to a “State matter” if, at the time the proceeding commenced, the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW) purported to confer jurisdiction on a federal court: [112]–[114].

Notwithstanding the prima facie breadth of the term “want of jurisdiction” in s 11 of the State Jurisdiction Act, it is to be understood as referring to an absence of subject matter, rather than personal, jurisdiction: [117]–[120].

Lipohar v The Queen (1999) 200 CLR 485; [1999] HCA 65; PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2012) 240 CLR 247; [2012] HCA 33, cited.

The purpose of the State Jurisdiction Act was to address, urgently, cases where judgments and orders had been made in proceedings commenced in reliance upon the validity of s 4(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW), and pending proceedings which had been commenced on that basis, in circumstances where the High Court ruled that section to be invalid in Wakim: [130]–[132].

Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27; BP Australia Ltd v Amann Aviation Pty Ltd (1996) 62 FCR 451; Gould v Brown (1998) 193 CLR 346; [1998] HCA 6, considered.

Textual and contextual considerations point to “relevant order” in s 11(1) of the State Jurisdiction Act bearing a narrower meaning than that which was given to it by the primary judge. Textually, the substantial similarity between the definitions of “State matter” in s 3 of the State Jurisdiction Act and in the cross-vesting legislation confirms that the State Jurisdiction Act was a response to the decision in Wakim, as does the confinement of “want of jurisdiction” in s 11(1) to subject matter jurisdiction: [138].

Contextually, the State Jurisdiction Act was (in the words of the then Attorney-General) a “stopgap measure”. Its purpose was to respond to the change in the law effected by the decision in Wakim. There is nothing to suggest that its purpose extended to proceedings commenced two decades after Wakim was delivered, in order to benefit all plaintiffs who commenced proceedings in federal courts without jurisdiction for any reason whatsoever: [139].

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28; Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; [2000] HCA 33, cited.

If the definition of “relevant order” in s 11(1) of the State Jurisdiction Act is given its literal meaning, its application will give rise to capricious outcomes which are, on conventional principles of statutory construction, to be avoided: [140]–[141].

It is no small thing for the Parliament to create a retrospective fictional proceeding in the Supreme Court by way of statute, which must be construed in light of the purpose for which it was introduced. On such a construction of s 11(1), it is difficult to justify the operation of such an extreme measure as a safety net for litigants who misguidedly take the serious step of commencing proceedings in the Federal Court without first considering the issue of jurisdiction: [142]–[143], [145]–[146].

Muller v Dalgety & Co Ltd (1909) 9 CLR 693; [1909] HCA 67, applied.

Airlines of NSW Pty Ltd v New South Wales (No 2) (1965) 113 CLR 54; [1965] HCA 3, cited.

It may not be often that a court will depart from the literal meaning of a statutory provision in order to give effect to an imputed intention and to promote the legislative purpose. The present is such a case, by reason of the countervailing considerations summarised above: [144].

Per Emmett AJA; Leeming JA agreeing at [147]:

Section 11 of the State Jurisdiction Act was not intended to operate otherwise than to preserve the effect of orders made by federal courts in the purported exercise of jurisdiction invalidly conferred on them by a “relevant State Act”. The Federal Court proceedings commenced by Mr Page were instead dismissed for want of jurisdiction because that Court never had jurisdiction to award damages under the NSW Act: [168].

As to issue 2 (ground 4)

Per Bell P; Emmett AJA agreeing at [169]; Leeming JA dismissing this ground for separate reasons at [148]:

Section 34 of the Commonwealth Act, as given effect by s 5 of the NSW Act, was not a “limitation law” within the meaning of s 11(1) of the State Jurisdiction Act, in view of the clearly recognised and longstanding distinction between statutory provisions barring a right of action to obtain a remedy, and those operating to extinguish a right of action if certain requirements are not met: [70].

Timeny v British Airways plc (1991) 56 SASR 287; Agtrack (NT) Pty Ltd v Hatfield (2005) 223 CLR 251; [2005] HCA 38; McKain v RW Miller & Co (South Australia) Pty Ltd (1991) 174 CLR 1; [1991] HCA 56; Australian Iron & Steel Ltd v Hoogland (1962) 108 CLR 471; [1962] HCA 13; Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39; Gregory v Torquay Corporation [1911] 2 KB 556; Maxwell v Murphy (1957) 96 CLR 261; [1957] HCA 7, considered.

As to issue 3 (grounds 1 and 2)

Per Bell P; Emmett AJA agreeing at [169]; Leeming JA not deciding:

There was no inconsistency, whether direct or indirect, between s 34 of the Commonwealth Act and s 11(3)(b) of the State Jurisdiction Act as the primary judge’s order did not undermine the purpose of the former. Although the Supreme Court proceedings under s 11(2) were “new” or “fresh” proceedings, they were for the same action as was wrongly commenced in the Federal Court and therefore did not cease to have all or any relevance. This was not a case involving a discretionary extension of time within which to bring a proceeding that was otherwise out of time: [79]–[82].

Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629; [2000] HCA 33; South West Helicopters Pty Ltd v Stephenson (2017) 98 NSWLR 1; [2017] NSWCA 312; Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) 244 CLR 508; [2011] HCA 33; Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34; Victoria v The Commonwealth (1937) 58 CLR 618; [1937] HCA 82; Telstra Corporation Ltd v Worthing (1999) 196 CLR 392; [1999] HCA 12; Commonwealth v Western Australia (1999) 196 CLR 392; [1999] HCA 5, considered.

PLEADING

BREVITY

Orford v Dr Lyons [2020] NSWSC 1022

Finally, and in passing, I wish to make some observations about what regrettably has become the preferred form of statements of claim in medical negligence matters. I apologise to those practitioners who appear regularly in my list who may have heard these comments before. More often than not these days, those who charge fees for preparing statements of claim seem to be inspired by the erroneous perception that they should start with the day that the plaintiff first attended his or her doctor and that they should thereafter refer in ridiculous detail to every single event that can be extracted from doctors’ notes or clinical records or radiological findings or even passing comments by the doctor’s receptionist. A pleading commencing a cause of action alleging a failure to provide reasonable medical care can in my experience rarely, if ever, be enhanced, for example, by telling the reader that the plaintiff’s blood pressure was 125/68 at 10.27pm, 127/71 at 10.31pm, 122/57 at 10.43pm or that he or she slept uneventfully until woken by the night nurse for a temperature check at 4.00am! It is not uncommon for these cascading adventures in medical history to proceed in this fashion for days or even weeks, staggering endlessly through mind-numbing detail. Undoubtedly a long letter is quicker to write than a short one. I appreciate and accept that the latest edition of Bullen & Leake may be expensive but even a well-worn copy from 30 years ago will more than adequately explain, for anyone in doubt, why I hold these views.

PRELIMINARY DISCOVERY

BGC Securities (Australia) Pty Limited v Shillington [2022] NSWSC 611

Legal principles

5.3 Discovery of documents from prospective defendant

(1) If it appears to the court that:

(a) the applicant may be entitled to make a claim for relief from the court against a person (the prospective defendant) but, having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant, and

(b) the prospective defendant may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and

the court may order that the prospective defendant must give discovery to the applicant of all documents that are or have been in the person's possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief.

…..

(3) Unless the court orders otherwise, an application for an order under this rule—

(a) must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of documents in respect of which the order is sought, and

(b) must, together with a copy of the supporting affidavit, be served personally on the person to whom it is addressed.

“(i) … the applicant may be entitled to make a claim for relief against the prospective defendant;

(ii) … the applicant has made reasonable enquiries to obtain sufficient information to decide whether or not to commence proceedings;

(iii) … having made those enquiries, the applicant is unable to obtain sufficient information to make that decision;

(iv) … the prospective defendant may have or have had possession of a document or thing that could assist in determining whether the applicant is entitled to make a claim for relief;

(vi) … inspection of such a document would assist the applicant to make the decision (that is, the decision whether or not to commence proceedings)”

SETTLEMENT

SELTSAM

Damm v Coast Wide Site Services Pty Ltd [2017] NSWSC 1361

Slip rule

Slip rule & overlooked arguments

Date: 15 April 2022

Jandson Pty Ltd v Edmonds [2022] NSWCA 61

The Court held (Bell CJ, Macfarlan and White JJA agreeing), refusing leave to appeal with costs, that in circumstances where a judge has or is said to have overlooked a particular argument of a party, it is open to that party pursuant to r 36.16 of the Uniform Civil Procedure Rules 2005 (NSW) to draw that fact to the judge’s attention and invite him or her to address the matter, and ordinarily that will be the preferable and appropriate course to take rather than seeking to raise the matter on appeal: [16]-[20] (Bell CJ); [27] (Macfarlan JA); [28] (White JA).

Subpoena

Setting aside

The relevant tests in respect of a decision to set aside a notice to produce were considered by Brereton J in Portal Software v Bodsworth [2005] NSWSC 1115 at in particular at [24] to [26]. On the basis of the authorities there cited, the following propositions emerge:—

· (1) The relevant test in terms of documents is whether they have “a sufficient apparent connection to justify their production or inspection”: White v Tulloch (1995) 127 FLR 105.

· (2) The test of adjectival relevance is satisfied if the material had apparent relevance and was established if the documents called for “could possibly throw light on the issues in the main case”: Trade Practices Commissioner v Arnotts Limited (1989) 21 FCR 306 per Beaumont J.

· (3) A subpoena has a legitimate forensic purpose if it appears to be “on the cards” that the documents sought will materially assist the defence in criminal proceedings: Alister v The Queen (1984) 154 CLR 404, 414 per Gibbs CJ; Regina v Saleam (1989) 16 NSWLR 14, 18.

to what is a legitimate forensic purpose for the issue of compulsory process of this kind (subpoenas or, as considered in some of the cases, notices to produce), the Court of Appeal in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307, held that the primary judge had not erred by stating that, for a notice to produce to have a legitimate forensic purpose:

“ … it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely the documentation will.”

Determining whether there is a legitimate forensic purpose requires reference to the particular case, or identified issue, that the documentation sought is reasonably expected to be likely to assist, as observed by Nicholas J in ICAP Pty Ltd v Moebes [2009] NSWSC 306 (at [33]):

“ … the legitimate forensic purpose of a subpoena necessarily depends upon identification of the case which is likely the documentation will assist. The task in meeting the test will become difficult where the issue relied upon cannot be identified because either it has not been included in the pleadings or particulars, or the terms in which it has been expressed are obscure and imprecise.”

In Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115, Brereton J described the relevant test (in considering whether to set aside the notice to produce that had there been issued) as being (see at [24]) whether the documents sought have “a sufficient apparent connection to justify their production or inspection” (citing White v Tulloch (1995) 127 FLR 105; 19 Fam LR 696). His Honour said that the test of adjectival relevance (i.e., as distinct from substantive relevance) will be satisfied if the material has apparent relevance and is established if the documents called for “could possibly throw light on the issues in the main case” (at [24]), citing Trade Practices Commission v Arnotts Ltd (No 2) [1989] FCA 340; 21 FCR 306).

More recently, Gleeson JA, in In the matter of Force Corp Pty Ltd (Recs and Mgrs Apptd) (in liq) [2018] NSWSC 896 described the permissible scope of a subpoena for production of documents as directing attention to the apparent relevance of the documents sought (see at [22]).

Whether the formulation of the test in civil proceedings is best expressed as an “on the cards” test (i.e., that it is on the cards that the documents sought will materially assist on an identified issue) (see the use of that expression in criminal proceedings in Alister v R (1984) 154 CLR 404; [1984] HCA 85; R v Saleam (1989) 16 NSWLR 14, at 18; Attorney-General (NSW) v Chidgey [2008] NSWCCA 65), or that the material could “possibly throw light on” an identified issue (see Trade Practices Commission v Arnotts Ltd (No 2) ; or as formulated by Nicholas J in ICAP Pty Ltd v Moebes at [30] (namely, that “it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely that the documentation will [materially assist]”), what is ultimately required is an assessment as to the relevance of the documents sought by reference to the issues in the proceedings (see Cosco Holdings Pty Ltd v Federal Commissioner of Taxation (Cth) [1997] FCA 1504; 37 ATR 432 at 439-440 per Spender J; Nicholls v Michael Wilson and Partners Limited [2010] NSWCA 100 per Young JA).

Where there is no legitimate forensic purpose, in that sense, for the issue of a subpoena then it may readily be seen to be a fishing expedition. As to what is meant by a “fishing expedition”, in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250, at 254, it was said:

“A ‘fishing expedition’, in the sense in which the phrase has been used in the law, means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not. If, however, there is material before the Court pointing to the probability that a party to litigation has in his possession documents tending to destroy his case or to support the case of his opponent and that privilege from inspection of such documents has been wrongly claimed, an application by that opponent to be allowed to inspect them cannot properly be described as a mere ‘fishing expedition’.”

Summary Dismissal

Chalak v G & G Mikhael Pty Ltd [2022] NSWCA 116

15. The constraints on granting summary disposal stated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) [2] have been applied in both contexts. Barwick CJ stated:

“It is sufficient for me to say that these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action – if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal – is clearly demonstrated. The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’….”

After referring to the judgment of Dixon J in Dey v Victorian Railways Commissioners, [3] Barwick CJ continued: [4]

“Although I can agree with Latham CJ in [Dey] when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff’s claim. Argument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.”

PSYCHOLOGICAL INJURY

STATUTORY CONSTRUCTION

AMBIGUITY

Nevins & Urwin 06 May 2022

[2022] FedCFamC1A 57 Alstergren CJ, McClelland DCJ, Austin, Bennett and Cleary JJ

In instances of ambiguity, the construction avoiding irrational and unjust consequences should be adopted (Public Transport Commission (NSW) (formerly Commissioner for Railways) v J Murray-More (NSW) Pty Ltd (1975) 132 CLR 336 at 350).

WORKPLACE LIABILITY

Foreseeability

Psychological injury

Kozarov v Victoria [2022] HCA 12

Kiefel CJ and Keane J

[6] The formulation and presentation of Ms Kozarov's case was focussed upon the reference in this passage to "evident signs warning of the possibility of psychiatric injury" that oblige the employer to take steps to obviate the risk of such injury. It should be understood, however, that the circumstances of a particular type of employment may be such that the work to be performed by the employee is inherently and obviously dangerous to the psychiatric health of the employee (just as other kinds of work are inherently and obviously dangerous to the physical health of the employee). In any such case, the employer is duty‑bound to be proactive in the provision of measures to enable the work to be performed safely by the employee. The present was such a case.