JADE Cases of Interest 03


JADE Australia cases of Interest for Legal Professionals

Administrative law

DYK16 v Minister for Immigration and Border Protection [2018] FCAFC 222

Migration law – discretion to seek further evidence – legal unreasonableness 

Federal Court of Australia. Full Court. Collier, Middleton and Rangiah JJ. 7 December 2018. 86 paragraphs.

Circumstances where exercise of discretionary power is legally unreasonable: jurisdictional error in the decision making process (whether it is justified and intelligible), or in the outcome of this process (whether the decision falls within a range of acceptable outcomes). Illogicality and irrationality not established where reasonable minds differ in respect of a decision.

Minister for Immigration and Border Protection v Singh[2014] FCAFC 1; 231 FCR 437 at [44]; Minister for Immigration and Citizenship v SZMDS[2010] HCA 16; 240 CLR 611 at [130]-[131], applied.

Contract law

Carbone v Metricon Homes Pty Ltd [2018] NSWCA 296

Construction of contractual terms – rescission and consideration – parties’ intention

Supreme Court of New South Wales. Court of Appeal. Meagher, Payne and White JJA. 7 December 2018. 56 paragraphs.

Proper construction of contractual terms ‘rescind’ and ‘consideration’. Contractual right of rescission may entail a right to terminate (a discharge of executory obligations), or rescission ab initio. In the conveyancing context, ‘rescind’ usually indicates the latter. Terms are to be construed in light of parties’ actual or implied intentions and objective matters known to the parties. For the purposes of determining a right to recover, relevant consideration is the performance of the promise (and not the promise itself).

Johnson v Agnew[1980] AC 367 at 392–393; Westralian Farmers Ltd v Commonwealth Agricultural Service Engineers Ltd[1936] HCA 6; 54 CLR 361 at 379; Codelfa Construction Pty Ltd v State Rail Authority of NSW[1982] HCA 24; 149 CLR 337 at 352; Baltic Shipping Co v Dillon[1993] HCA 4; 176 CLR 344 at 350-351, 389, applied.

Corporations law

Australian Securities & Investments Commission v Lewski (& others) [2018] HCA 63

Corporations Act– officers’ duties – registered scheme – care and diligence, loyalty, improper use and compliance duties – statutory construction 

High Court of Australia. Kiefel CJ, Bell, Gageler, Keane and Edelman JJ. 13 December 2018. 93 paragraphs.

Content of officers’ duties over registered schemes, including the obligation to act with care and diligence, to refrain from improper use of position, and the duties of loyalty and compliance. While each duty attracts its own test, an element of objectivity informs each duty, holding officers to the standard of a reasonable person in that position. Duties often not satisfied by honest belief alone. Court also considered true meaning of ‘members’ rights’ in the context of constitutional amendments.

Shafron v ASIC[2012] HCA 18; 247 CLR 465 at 482 [34]-[35]; Hutton v West Cork Railway Co(1883) 23 Ch D 654 at 671; R v Byrnes[1995] HCA 1; 183 CLR 501 at 514-515; Angas Law Services Pty Ltd (In liq) v Carabelas[2005] HCA 23; 226 CLR 507 at 531 [65]; Craig v Federal Commissioner of Taxation[1945] HCA 1; 70 CLR 441 at 446, 457, applied.

Criminal law

AB (a pseudonym) v CD (a pseudonym); EF (a pseudonym) v CD (a pseudonym) [2018] HCA 58

Evidence – police informants – duty of disclosure – public interest immunity

Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ. Special leave application. 5 November 2018 (reasons published 3 December 2018). 13 paragraphs.

Whether the public interest in preserving a police informer’s anonymity is outweighed by the importance of maintaining public confidence in the judicial system. Ordinarily, assurances of anonymity given to informers are protected by public interest immunity. However, in circumstances where ‘the agency of police informer has been so abused as to corrupt the criminal justice system’, the public interest in preserving anonymity is subordinated to the integrity of the justice system.

Property law

Laming v Jennings [2018] VSCA 335

Easements – easement by prescription – acquiescence – right of possession

Supreme Court of Victoria. Court of Appeal. Kyrou, McLeish and Niall JJA. 7 December 2018. 199 paragraphs.

Elements of a prescriptive easement, and where an easement amounts to a right of possession. Claimant’s acts establishing the easement must not be transient and sporadic, and the nature of easement must be identified with sufficient certainty. Agents’ constructive knowledge regarding putative easement will not be automatically imputed to the owner; owner’s acquiescence will depend on the circumstances of the case. A right of possession only established where exclusive or joint possession or control of the land conferred on the claimant. 

Mills v The Mayor, Alderman, and Burgesses of Colchester(1867) LR 2 CP 476 at 486; Diment v NH Foot Ltd[1974] 1 WLR 1427 at 1434-5; Copeland v Greenhalf[1952] Ch 488 at 498, Moncrieff v Jamieson[2007] 1 WLR 2620 at 2640-2641 [54]-[55], applied.

Re Ellenborough Park[1956] Ch 131 at 168-169, distinguished.

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