Manny v ACT
[2026] ACTCA 13|Court of Appeal (ACT)|2026-05-08
Before: Mossop J
ACTMr Manny asked the court to hear his application for permission to appeal sooner because he said his health was deteriorating and he might die or become incapacitated. Mossop J accepted that he had several serious health and personal difficulties, but found that the evidence did not show a sufficiently limited life expectancy to justify giving his case greater priority. The court also noted that an early decision granting permission to appeal would not resolve the dispute: a further appeal would still be needed, and the underlying claims could continue only after that. The request for expedition was dismissed. The permission-to-appeal application was scheduled for 12 June 2026, with written-submission limits and permission for Mr Manny to attend remotely.
JURISDICTION, PRACTICE AND PROCEDURE – APPEAL – Application to expedite hearing of application for leave to appeal – whether applicant had such a limited life expectancy as would warrant expedition – where applicant declined to have application for leave to appeal heard on the papers – where expedition of hearing of leave to appeal would not substantially impact timing of underlying proceedings if applicant successful – held evidence did not disclose sufficient basis for expedition – application dismissed
Mayfield Development Corporation Pty Ltd v NSW Port Operations Hold Co Pty Ltd
[2026] HCA 12|High Court of Australia|2026-05-06
Before: Gageler CJ, Gordon, Edelman, Gleeson, Beech-Jones JJ
CTHThe High Court held that the State’s statutory authority to arrange the port privatisations did not give it a legal right to make NSW Ports accept terms or ignore Commonwealth competition law. A government’s general ability to contract is not enough to extend derivative Crown immunity to a private company dealing with it. The Court also held that Mayfield’s limited participation in an earlier ACCC appeal did not prevent its own case, and that a release in favour of the State did not release NSW Ports. The appeal succeeded, but the underlying competition claims were remitted for further determination, not finally decided. This is general legal information, not legal advice. Zoe can make mistakes, and a qualified Australian lawyer should check this before it is acted on, relied on or used.
Statutes − Construction − Derivative Crown immunity − Where State of New South Wales ("State") agreed Port Commitment Deeds ("PCDs") with first to third respondents ("NSW Ports") − Where PCDs required State to compensate NSW Ports if certain ports were not at full capacity and certain volume of containers diverted to other port − Where appellant alleged NSW Ports' entry into PCDs breached ss 45 and 45DA(1) of Competition and Consumer Act 2010 (Cth) ("CCA") − Whether ss 45 and 45DA(1) of CCA bound NSW Ports despite presumption of derivative Crown immunity.
Equity − Estoppel − Abuse of process − Where Australian Competition and Consumer Commission previously brought similar proceedings against NSW Ports ("ACCC Proceedings") − Where ACCC Proceedings dismissed − Where appellant intervened in ACCC Proceedings on limited basis − Whether appellant estopped from bringing these proceedings − Whether these proceedings constituted abuse of process.
Contract − Deed of release − Where appellant executed deed of release in favour of State − Where NSW Ports not mentioned in or party to deed − Whether deed of release barred claim against NSW Ports.
Words and phrases – "abuse of process", "capacity to contract", "Crown immunity", "deed of release", "derivative Crown immunity", "estoppel", "freedom to contract", "impairment of legal relations", "issue estoppel", "legal rights or interests", "presumption of legislative intention".
Competition and Consumer Act 2010 (Cth), ss 2A, 2B, 2C, 45, 45DA, 51
Ports Assets (Authorised Transactions) Act 2012 (NSW), ss 7, 25, Pt 2
TCXM v Minister for Immigration and Citizenship
[2026] HCA 13|High Court of Australia|2026-05-06
Before: Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot, Beech-Jones JJ
CTHThe High Court dismissed TCXM’s appeal. A 2025 statutory validation provision treated the Australia-Nauru arrangement as valid for all purposes despite the alleged lack of procedural fairness. The Court also held that TCXM had not shown his removal to Nauru was outside the statutory duty to remove as soon as reasonably practicable. The judges differed in their reasoning about whether some post-arrival consequences could ever be relevant, but each rejected TCXM’s argument on the facts and statutory framework. Finally, the Court held that the increased risk to his health did not establish that his removal was punishment prohibited by Ch III.
Administrative law (Cth) – Procedural fairness – Where appellant granted Bridging R (Class WR) Subclass 070 (Bridging (Removal Pending)) visa ("BVR") and released from immigration detention following decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 280 CLR 137 – Where Commonwealth of Australia and Republic of Nauru entered into Interim Third Country Reception Arrangement ("Interim Arrangement") contemplated by s 198AHB of Migration Act 1958 (Cth) for settlement of initial cohort of three non-citizens in Nauru – Where appellant proposed as one of initial cohort without notice to him – Where officer of Department of Home Affairs applied to Government of Nauru for grant to appellant of long-term stay visa without notice to him – Where appellant's BVR ceased under s 76AAA of Migration Act following grant of long-term stay visa by Government of Nauru – Where appellant returned to immigration detention pending removal from Australia to Nauru – Where Parliament enacted Home Affairs Legislation Amendment (2025 Measures No 1) Act 2025 (Cth) ("2025 Amendment Act") prior to removal of appeal into High Court – Where item 10 of Sch 1 to 2025 Amendment Act deemed arrangements including Interim Arrangement valid for all purposes if otherwise invalid only because of failure to observe rules of natural justice – Whether entry into Interim Arrangement unlawful because of failure to afford appellant procedural fairness.
Immigration – Unlawful non-citizens – Where s 198(2B) of Migration Act authorised and required removal of appellant "as soon as reasonably practicable" – Where medical services in Nauru inadequate to treat appellant's severe asthma on ongoing basis – Where appellant faced increased imminent risk of premature death from fatal asthma attack in Nauru – Whether removal of appellant to Nauru "reasonably practicable".
Constitutional law (Cth) – Judicial power of Commonwealth – Whether application of ss 198AHB, 76AAA and 198(2B) of Migration Act to authorise and require removal of appellant to Nauru contravened Ch III of Constitution.
Words and phrases – "consequences of removal", "executive power", "executive punishment", "feasibility of removal", "imminent risk of premature death", "inadequacy of medical services", "invalidity and unlawfulness", "judicial power", "natural justice", "non-refoulement obligations", "NZYQ affected person", "penal or punitive", "prima facie punitive", "principle of legality", "procedural fairness", "protection obligations", "punishment", "purposes of punishment", "reasonably practicable", "removal from Australia", "right to life", "risk of harm", "third country reception arrangement", "unlawful non-citizen", "validation provision".
Constitution, Ch III, ss 51(xix), 51(xxvii).
Home Affairs Legislation Amendment (2025 Measures No 1) Act 2025 (Cth), Sch 1, items 8, 9, 10.
Migration Act 1958 (Cth), ss 3A, 36, 76AAA, 197C, 198, 198AHB.
International Covenant on Civil and Political Rights (1966), Arts 2, 6.
State of New South Wales (Sydney Local Health District) v BNV
[2026] NSWCA 77|Court of Appeal (NSW)|2026-05-05
Before: Kirk JA at [1] Adamson JA at [2] Free JA at [3]
NSWThe employer accepted that BNV’s psychological condition worsened during her employment and that work stressors played some part. The dispute was whether work was the main contributing factor to that worsening. The Court of Appeal concluded that the presidential member understood that question correctly, considered the possible role of BNV’s prior condition and stressors, and found no other contributing factor established by the evidence. The employer’s disagreement with that factual assessment did not establish legal error. The appeal was dismissed with costs.
WORKERS COMPENSATION — disease injury — aggravation, acceleration, exacerbation, or deterioration in the course of employment — employment main contributing factor — Workers Compensation Act 1987 (NSW), s 4(b)(ii) — employee suffered from post-traumatic stress disorder and major depression — employer conceded aggravation of injury for which employment was a contributing factor — employer argued employment not main contributing factor in light of pre-existing psychological condition — member finds employment main contributing factor — certificate of determination upheld on appeal to presidential member APPEALS — appeal from Personal Injury Commission — Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 353(1) — whether error in point of law — no error in presidential member’s construction and application of Workers Compensation Act 1987 (NSW), s 4(b)(ii) — no error in evaluation of psychological condition before and after commencement of employment — no failure to take into account evidence of prior symptoms and treatment regime — no reversal of onus of proof — no error in point of law
Williment v Waters (No 2)
[2026] NSWCA 76|Court of Appeal (NSW)|2026-05-01
Before: Leeming JA; Kirk JA; Stern JA
NSWThe Court cancelled the earlier order requiring Ms Williment to provide $100,000 security for Ms Waters’ costs of the appeal. The key change was that Ms Waters had since brought her own cross-appeal, which would require overlapping preparation and reduce the work attributable only to Ms Williment’s appeal. The Court also considered the reasons given for security and found that they did not amount to special circumstances. It did not conduct a full assessment of the appeal’s merits and said the grounds were reasonably arguable on the incomplete record before it. The evidence indicated that security in a significant amount was likely to prevent the appeal from continuing.
APPEALS — practice and procedure — review of single Judge of Appeal — whether a material change of circumstances — where additional evidence before the Court — where cross-appeal has been filed — where discretion re-exercised PRACTICE AND PROCEDURE — costs — security for costs — appeal — whether special circumstances exist — where it was contended that the appeal was unreasonable in nature and with poor prospects — where appellant impecunious — where Court found that no special circumstances exist — where order for security is likely to stultify the appeal
Birkic v R
[2026] NSWCCA 53|Court of Criminal Appeal (NSW)|2026-05-01
Before: Mitchelmore JA at [1] Campbell J at [2] Rigg J at [3]
NSWCRIME – Appeals – appeal against sentence – whether sentencing judge erred by failing to take into account applicant’s onerous conditions of custody during COVID-19 – where sentencing judge expressly referred to impact of COVID-19 in relation to co-offender, being sentenced with the applicant, but not the applicant – error being found in such circumstances, applicant resentenced – on resentence, applicant not permitted to depart from approach below in relation to relevance of De La Rosa, but more favourable findings on prospects of rehabilitation and onerousness of custody made, taking into account additional evidence as to subsequent events in custody
Marium v Darley
[2026] NSWCA 75|Court of Appeal (NSW)|2026-04-30
Before: Adamson JA at [1] Ball JA at [33] Free JA at [34]
NSWThe Court refused to extend the time for Ms Marium to seek review of an earlier decision. The earlier decision had upheld a Registrar's order requiring her to file a summons for leave to appeal by a specified deadline, failing which her proceedings would be dismissed. The summons arrived after that deadline. The Court said the order took effect automatically when the deadline was missed, and found no demonstrated error in the primary judge's refusal to vary it. Ms Marium was ordered to pay costs. This is a summary of the judgment, not a determination of any other proceeding or claim.
PRACTICE — application for extension of time for filing of application for review of the orders of a Judge of Appeal — where Judge of Appeal dismissed the applicant’s challenge to dismissal of proceedings as a consequence of guillotine order made by Registrar that if a summons for leave to appeal was not filed by a particular date the proceedings would be dismissed — no error of principle demonstrated — circumstances in which guillotine order will be an appropriate tool of case management — extension of time refused
Smits v B & B Legal Pty Ltd t/as Borthwick & Butler
[2026] NSWCA 57|Court of Appeal (NSW)|2026-04-30
Before: Adamson JA; Griffiths AJA
NSWThe Court of Appeal allowed B & B Legal to update its response and rely on a deed, but it did not allow Mr Smits to proceed with his proposed appeal. The summons was late, the delay was not adequately explained, and the proposed grounds did not show the kind of significant error needed for leave. The Court also stressed that the primary judge had only needed to decide whether a genuine dispute existed, not finally decide who owed the deposit. Mr Smits was ordered to pay B & B Legal’s costs.
CIVIL PROCEDURE — Court of Appeal — application for leave to appeal — whether to grant leave to file amended response and rely on deed of re-assignment — whether more than merely arguable error in primary judge’s decision to set aside statutory demand
Financialstrategy.com.au Pty Ltd (in liq) v Bailey Roberts Group Pty Limited (in liq)
[2026] NSWCA 74|Court of Appeal (NSW)|2026-04-30
Before: Payne JA at [1] Stern JA at [2] Free JA at [3]
NSWThe Court accepted that BRG had acted oppressively and breached its agreement with FPL when it hindered the transfer of clients. But proving wrongdoing did not itself establish how much compensable loss it caused. FPL's expert calculation relied on a version of events the trial judge rejected, and the evidence did not show which clients stayed with BRG because of the wrongful conduct rather than their own choices or other circumstances. The Court would not guess at a number. Without a rational basis to quantify the loss, neither compensation nor a share buy-out was justified, so the appeal was dismissed.
CORPORATIONS — members’ rights and remedies — oppression — shareholder and adviser’s exit from financial services business — shareholder corporate vehicles corporate authorised representatives of service entity AFS licensee — exiting shareholder copies client information in preparation to leave business — remaining shareholders cut exiting shareholder’s access to business’ systems — remaining shareholders encourage clients of exiting shareholder to remain with business — whether trial judge erred in finding oppression where alleged baiting — whether compensation warranted or buy-out order should be made — no basis to do so where quantifiable loss not demonstrated CONTRACT — remedies — damages — proof of loss or damage — breaches of corporate authorised representative agreement leading to alleged loss of clients — whether loss adequately demonstrated or quantified — facilitation principle — “fair wind” — whether appellant entitled to the benefit of the doubt and favourable inferences where some loss demonstrated — assistance in proof not warranted — case theory below profoundly misleading — expert report relied upon based on false assumptions — uncertainty in proof of loss resulting also from false basis initially advanced by claimant for damages — unreasonable and unfair for respondents to assume evidential burden APPEALS — procedure — notice of contention — unsatisfactory to do no more than rely on submissions below — calibration to findings of trial judge required
Tin-Tagel Majikk Pty Ltd v Hockey
[2026] NSWCA 72|Court of Appeal (NSW)|2026-04-29
Before: Kirk JA at [1]; Adamson JA at [2]; Price AJA at [3]
NSWThe Folleys bought a business and later argued that the Hockeys' failure to remove a bank charge meant they should not have to pay the vendor finance. The Court of Appeal held that, under the agreement, proceeding to completion meant the Folleys could not later insist on the unsatisfied conditions precedent. It also rejected their attempts to introduce most additional evidence and several new arguments. The Court found no procedural unfairness in the credibility findings and no basis for partial rescission. The appeal was dismissed, although one exhibit was admitted and the notice of appeal was amended.
APPEALS – further and fresh evidence – whether appellants should be granted leave to rely upon further and fresh evidence – distinction between further evidence and fresh evidence under s 75A of the Supreme Court Act 1970 (NSW) – whether special grounds shown to admit further evidence – whether fresh evidence should be admitted APPEALS – application to amend grounds of appeal – whether leave should be granted to appellants for proposed additional grounds of appeal – where no prejudice to respondents APPEALS – whether appellants permitted to raise new issues on appeal – where conduct of the hearing in the Court below proceeded by way of detailed agreed statement of issues – whether possibility that new issues could have been met by evidence at the hearing below APPEALS – from findings of fact – credibility of witnesses – whether primary judge erred in making adverse credibility findings against appellants – where extensive submissions as to credit findings made by counsel – whether primary judge denied appellants procedural fairness contrary to the rule in Browne v Dunn CONTRACTS – construction – share sale agreement – whether primary judge erred in construction of cl 3.3 of the agreement – whether primary judge erred in concluding appellants waived rights – whether ordinary and natural meaning of the words – agreement read as a whole according to terms CONTRACTS – knowledge – whether primary judge erred in finding solicitor’s knowledge imputed to appellants – where solicitor’s knowledge obtained in the course of carrying out the share sale RESCISSION – whether primary judge erred in failing to order partial rescission of appellants’ obligation to pay vendor finance – restitutio in integrum – whether partial rescission available in equity or under s 243 of the Australian Consumer Law – whether primary judge erred taking into account considerations of delay and receivership to conclude partial rescission not available – no causal connection