BTA18 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1272

MIGRATION – two appeals from the Federal Circuit Court of Australia dismissing applications for judicial review – principles relevant to leave to raise a ground for the first time on appeal – whether the Immigration Assessment Authority engaged in irrational reasoning that amounted to legal unreasonableness – whether the primary judge erred in failing to find that the Authority misconceived its task under s 473DD of the Migration Act 1958 (Cth) – whether the primary judge erred in finding that there was only one fast track decision referred to the Authority for review and that the second appellant did not make his own protection claim – whether the Authority erred by not separately considering the two appellants’ protection claims – appeals allowed. I acted unled for the successful appellant in BTB18

State of New South Wales v Carver [2023] NSWSC 828 (14 July 2023)

REAL PROPERTY – Crown Land – Permissive Occupancy – Crown Land Management Act 2016 (NSW), s 13.1 – Crown Lands Act 1989 (NSW), ss 170(1)(d), 170(5)(b)(1) – Crown Lands (Continued Tenures) Act 1989 (NSW), s 11 – Limitation Act 1969 (NSW), ss 27, 38, 65 – claim by Crown for possession of Crown land upon which is constructed a residence which is, and has been, occupied by the defendant for 25 years – defence by defendant to claim by the Crown for possession of Crown land that the claim is statute barred on the basis that the land has been in adverse possession for over 30 years – claim by the defendant that the cottage on the land, which has been occupied by him, is a chattel owned by him which cannot be removed because it is Heritage Listed – where land was subject to a Permissive Occupancy – where defendant claims that prior occupiers were in adverse possession in respect of which he has the benefit – HELD – defendant’s claim to adverse possession is unmaintainable against the Crown by reason of s 13.1 of the 2016 Act – neither the defendant’s predecessors, nor the defendant, were in adverse possession – building not a chattel but a fixture – order for possession made

I acted for the Crown (unled) in a successful action for possession.

In the matter of ACN 004 410 833 Ltd (formerly Arrium Limited) (in liq) & Ors [2023] NSWSC 461 (3 May 2023)

PRACTICE AND PROCEDURE – application for extension of time for service of Originating Process despite non-compliance with Uniform Civil Procedure Rules 2005 (NSW) r 6.2(4) and r 2.7 of the Supreme Court (Corporations) Rules 1999 (NSW) – where delay in serving Originating Process – where prejudice to several Defendants has occurred as result of delay – whether the proposed Statement of Claim referred to in the Originating Process adequately identifies the case the Defendants must meet – whether issue estoppel prevents that case being brought against financier Defendants.

Acting for the liquidators of ACN 004 410 833 Ltd (formerly Arrium Limited) (led by V Whittaker SC) in successfully resisting an application for an extension of time to serve a Statement of Claim

Legal Minds Pty Ltd t/as Legal Minds v Ebsworth [2022] NSWSC 1420

OCCUPATIONS — Legal practitioners — Solicitors — Costs agreement — enforcement of costs agreement through forced sale of property

CONTRACTS — Construction — Interpretation — whether documents created caveatable interest

EQUITY — Fiduciary duties — Fiduciary relationships — Solicitor and client — whether solicitor acted in breach of fiduciary duty — conflict of interest

CONTRACTS — Unjust contracts — Contracts Review Act 1980 (NSW) — consideration of factors relevant to determination that contract is unjust

Unled.

ACT Integrity Commission v Levy (a pseudonym) [2022] ACTSC 240 (5 September 2022)

INTEGRITY COMMISSION — EXAMINATION POWER — Summons to produce mobile phone — Claim of client legal privilege — Whether mobile phone is indivisible item — Whether statute poses binary choice requiring phone either to be returned to its owner or to be handed over to Integrity Commission notwithstanding claim of privilege

Unled, instructed by Mills Oakley Canberra on behalf of the Interested Party

Vardy (liquidator), in the matter of Bondi Pizza Pty Ltd (in liq) v Ruck [2022] FCA 287 (23 March 2022)

CORPORATIONS – application by liquidator of company for approval of entry into settlement agreement pursuant to ss 477(2A) and 477(2B) of the Corporations Act 2001 (Cth) – where approval sought nunc pro tunc – application granted

PRACTICE AND PROCEDURE – application for suppression orders pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) in relation to the content of a settlement agreement – where suppression orders appropriate to prevent prejudice to the proper administration of justice in circumstances where disclosure of specific terms of the settlement may lead to further claims for contribution – application granted

Unled

Pharmaceutical Processing Technology Inc v Sci-Chem International Pty Ltd [2021] NSWSC 1078 (27 August 2021)

INTERNATIONAL COMMERCIAL ARBITRATION – Application for interim measure under Article 17J of the UNCITRAL Model Law on International Commercial Arbitration – sparing approach to exercise of the power under Article 17J – where serious question to be tried concerning validity of notices issued by defendant terminating or purporting to terminate contract – where plaintiff likely to suffer harm for which damages would not be an adequate remedy in the short-term if interim injunction not granted – where evidence does not establish that defendant likely to suffer harm in short-term – where plaintiff commenced arbitration proceedings only four days after commencing proceeding in this Court – where plaintiff accepts that continuation of injunction may be revisited by arbitral tribunal and submits that conditions for any longer-term interim injunction, including any security for the plaintiff’s undertaking as to damages, are “quintessentially matters for the arbitrator”

Led by Michael Izzo SC for the applicant for interim measures

DQU16 v Minister for Home Affairs [2021] HCA 10 (7 April 2021)

Immigration – Visas – Application for protection visa – Where s 36(2) of Migration Act 1958 (Cth) provides two criteria for grant of protection visa – Where s 36(2)(a) provides refugee criterion – Where s 36(2)(aa) provides complementary protection criterion – Where Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 ("Appellant S395") held asylum seeker cannot be expected to hide or change behaviour manifesting protected characteristic under Refugees Convention for purposes of assessing claim under s 36(2)(a) – Where s 36(2)(aa) requires assessment of whether "significant harm" a "necessary and foreseeable consequence" of applicant's return to receiving country − Where first appellant applied for protection visa under both ss 36(2)(a) and 36(2)(aa) – Where Immigration Assessment Authority found first appellant would modify behaviour on return to Iraq − Whether failure to consider principle in Appellant S395 under s 36(2)(aa) constituted jurisdictional error.

Words and phrases – "absolute and non-derogable", "complementary protection", "Convention Against Torture", "cruel, inhuman or degrading treatment or punishment", "innate or immutable characteristics", "International Covenant on Civil and Political Rights", "manifestation of a Convention characteristic", "membership of a particular social group", "modification of behaviour", "necessary and foreseeable consequence", "non-refoulement obligations", "real chance", "real risk", "refugee", "Refugees Convention", "sale of alcohol", "significant harm", "well-founded fear of persecution".

High Court appeal led by CJ Webster SC and with Emily Graham, instructed by Clifford Chance

Oikos Constructions Pty Ltd t/as Lars Fischer Construction v Ostin & Anor [2020] NSWCA 358

BUILDING AND CONSTRUCTION – Contract – Home Building Act 1989 (NSW) – Statutory warranties – whether contract confined to negotiated scope of works or expanded to include other works by virtue of the implied statutory warranties – whether building in breach of statutory warranties

 Led by Justin Doyle for the appellant

DQU16 & Ors v Minister for Home Affairs & Anor [2020] HCATrans 136 (9 September 2020)

Drafting the successful Special Leave application (led by CA Webster SC and with EC Graham). The sole ground of appeal concerns the application of the principles in S395/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 71; (2003) 216 CLR 473 when considering the complementary protection criterion under s 36(2)(aa) of the Migration Act 1958 (Cth).

NSW Environmental Trust v Nguyen [2020] NSWSC 1069 (14 August 2020)

CIVIL PROCEDURE – Subpoenas – Notices to Produce – Application to set aside – adjectival relevance – fishing – objection dismissed – production required.

Snowy Mountains Brumby Sustainability & Management Group Incorporated v State of New South Wales and Anor [2020] NSWLEC 92 (17 July 2020)

ENVIRONMENT AND PLANNING – judicial review – Part 5 Environmental Assessment – whether breach of duty to consider environmental impact – s 5.5(1) Environmental Planning and Assessment Act 1979 – s 5.1 Activity relating to the “use of land” – proposed action not exempt development – further consideration required as activity authorised by the plan – compliant with s 81 National Parks and Wildlife Act 1974

Led by P McDonald SC for the successful respondents.

In the matter of Bytecan Pty Limited (in liquidation) [2019] NSWSC 1910

CORPORATIONS – approval of deed of settlement under section 477(2A) – power of court to give creditors advantage over others – meaning of “over others” in s 564 of the Corporations Act – whether extends to general purpose liquidator –– consideration of risk assumed by indemnifying creditor – whether indemnifying creditor received a ‘windfall’ – importance of liquidator having funds to complete tasks – deduction for general purpose liquidator’s remaining costs of the proceedings and estimated costs to complete the winding up

BMY18 v Minister for Home Affairs [2019] FCAFC 189 (31 October 2019)

MIGRATION – whether Court erred in dismissing applications for judicial review of decisions of Administrative Appeals Tribunal – where Tribunal found it had no jurisdiction to review applications made out of time – where letters notifying of refusal of visa by Minister sent either by prepaid post or email – whether refusal notifications ‘stated’ time in which applications for review may be made – consideration of principle in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64.

I acted unled for the successful appellant pro bono, after a referral from the Federal Court.

Operation Ember - ICAC

I appeared (unled) for an employee of Roads and Maritimes Services who had received a summons to appear at Operation Ember.

DQU16 v Minister for Home Affairs [2018] FCA 1695

MIGRATION – application for extension of time to appeal – refusal of temporary protection visa – no reasonable explanation for delay – whether arguable case that Immigration Assessment Authority erred by finding that complementary protection criterion not satisfied because applicant could modify behaviour to avoid harm – extension of time granted

Help Save Mt Gilead Inc v Mount Gilead Pty Ltd (No 4) [2018] NSWLEC 149

JUDICIAL REVIEW - requests for statements of reasons - document provided by Council not a statement of reasons - document provided by Department not a statement of reasons of the Minister’s Delegate - documents rejected 
JUDICIAL REVIEW - making of amendment of local environmental plan - provision of zoning map with application for gateway determination - complaint no zoning map provided - indicative layout plan provided - held plan provided sufficient detail to satisfy statutory provision - if plan did not do so, failure did not vitiate process for seeking of gateway determination - Ground 1 rejected 
JUDICIAL REVIEW - allegation of defective air quality report as part of public consultation process - ground seeks impermissible factual review of report’s conclusion - report’s conclusion not manifestly unreasonable - Ground 2 rejected 
JUDICIAL REVIEW - failure of Council to consider report lodged concerning desirable curtilage of items listed as local heritage items in LEP - holding out that report would be considered - circumstances of holding out limited - circumstances not satisfied - unnecessary to consider if power to waive requirement for timings of lodgement of submissions - community consultation process did not fail as a consequence of non-consideration of report - Ground 3 rejected 
JUDICIAL REVIEW - alleged failure to consider likelihood of state heritage listing of expanded curtilage - no basis to believe OEH would have advised expanded curtilage being considered - statutory heritage listing process not commenced prior to making of LEP amendment - expanded curtilage not necessarily in conflict with rezoning - three separate reasons to reject Ground 4 - Ground 4 rejected 

Instructed by the Department of Planning for the Greater Sydney Commission and the Minister for Planning (unled).

Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry

I appeared (instructed by Hall & Wilcox and led by Anthony Cheshire SC) for Club Plus Super in response to requests for witness statements. Club Plus Super was not called to give evidence after provision of the draft statements.