The Petal: Australian Case Law Daily from JADE OpenLaw

Send us Fan Mail

A quiet day on the Victorian list, one decision, and it earns the whole brief: the Supreme Court on compensation for the compulsory acquisition of the Boroondara Tennis Centre for the North East Link. The council claimed $58 million for market value, the State offered $30 million, and the fight was about which sales may be compared when open space of this kind is almost never sold. Nine holdings: the Spencer test, the pool of comparable sales, the discount for constraints and the liberal-estimate approach, dated sales and CPI, summation and depreciated replacement cost, an expired overholding lease, and solatium for a corporate claimant. Carried at depth as a single story on the Public Law Desk with Host question beats. Friday house spot: a word from JADE after the opening block.

Public Law Desk.

• Boroondara City Council v Secretary to the Department of Transport and Planning [2026] VSC 600 - market value under s 40 of the Land Acquisition and Compensation Act is the Spencer principle applied with the s 5A Valuation of Land Act considerations, and the court determines which valuation evidence is most soundly based rather than averaging or introducing a third opinion; the agreed highest and best use does not confine the pool of comparable sales, so for a rarely traded asset it is permissible to commence from a wider pool including residential development land and adjust for zoning and flooding; underlying residential value was a valid starting point for this scarce asset class, the Carey Grammar and St Kevin's College sales evidencing demand rather than quantum; the council's discounts (15 and 33 per cent) were too low and a 40 per cent discount was applied on the restricted-sales evidence, the more generous figure under the liberal-estimate approach; the 2013 St Kevin's College sale, adjusted only by CPI with a further subjective 25 per cent uplift, was too remote in time to establish value; three-component summation and Depreciated Replacement Cost for the improvements rejected in favour of a blended land-and-improvements rate, the hypothetical purchaser being likely to repurpose the site; the expired, overholding telecommunications lease compensable at $185,000 as income that would probably have continued but for the acquisition; solatium under s 44 is available to a corporate claimant such as a council for intangible and non-pecuniary disadvantage, the claimant bearing the burden, and $150,000 was awarded on unchallenged evidence; market value assessed on the basis of the reasons (no figure stated in the edition), with submissions to come on costs, interest and the form of orders. JADE

Registry. None: the edition reports a single decision.

Full typeset judgments are in the Judicial Ledger. Theme music by Michael Green SC.

Send us Fan Mail

Nine decisions from three tribunals in the Tribunals edition of 17 September 2026: five with headnotes (three of them Signal practice and procedure entries, none reported as doctrine), three of the five on health practitioner discipline. The lead is a Perth building dispute in which the builder sought the strata company's abandoned expert draft: the State Administrative Tribunal's production regime is not discovery, a party produces only what it intends to rely on, speculation about a report the party seeking it has never seen is not a legitimate forensic purpose, and counsel's remarks at a directions hearing are not a waiver of privilege. Also: a privacy review cannot collaterally review a SafeWork investigation; a physiotherapist convicted of sexually assaulting a patient has his registration cancelled with a two-year prohibition order and non-review period, late notification of the charge being unsatisfactory professional conduct on its own; an enrolled nurse is found on the documents, under the Briginshaw approach, to have engaged in professional misconduct; and a general practitioner's reinstatement application fails on insight, treatment and reliability, conditions being no substitute for internal change, with a twelve-month preclusion and costs. Two illustrative synopses are carried as framework and two list-only decisions on the registry. Friday house spot: a word from JADE after the opening block.

Tribunals Desk: production and privacy.

• The Owners of Aurelia 1 Harper Terrace South Perth Strata Plan 70215 and Hanssen Pty Ltd [2026] WASAT 108 - the s 34(5) SAT Act production regime differs fundamentally from superior court discovery: no general discovery obligation, parties produce only documents they intend to rely on, and the test is a legitimate forensic purpose balanced against the s 9 objectives; assertions that an abandoned expert report 'goes to the heart of the complaint' were speculative where the respondent had never seen it and did not know the expert's identity; production would introduce delay, formality and cost; counsel's submissions at a directions hearing, without evidentiary foundation and in answer to judicial questioning, did not waive privilege and are not the affidavit evidence that triggers the Supreme Court's positive disclosure obligation; Zuleika Gold v Vango Mining [No 2] inapplicable; application dismissed. JADE
• Charles v SafeWork NSW Agency [2026] NSWCATAD 275 - the Tribunal has no power to engage in collateral review of the respondent's investigative decisions under the Work Health and Safety Act, its jurisdiction being limited to conduct under the PPIP Act (Crewdson applied); collection, use and disclosure of the applicant's personal information was necessarily implied or reasonably contemplated under the s 160 investigative functions, so the s 25 exemption applied; the application lacked substance; no action taken under s 55(2), Order 1 of 23 February 2026 vacated. JADE

Tribunals Desk: health practitioner discipline.

• Health Care Complaints Commission v Teegala [2026] NSWCATOD 124 - a health practitioner convicted of sexual assault against a patient is unfit in the public interest to practise; registration as a physiotherapist cancelled under s 149C(1)(c); a substantial risk to the public warranted a two-year prohibition order from providing any health service (s 149C(5)(a)) and a two-year non-review period for rehabilitation and insight (s 149C(7)); failure to notify the National Board of the charge for over seven months and the conviction for over six months breached the duty of candour and was unsatisfactory professional conduct; joint Stage 1 and Stage 2 hearing; costs follow the Commission's complete success. JADE
• Nursing and Midwifery Board of Australia and Crawley [2026] WASAT 98 - the civil standard with the Briginshaw approach applies in disciplinary proceedings; on a referral decided on the documents without the respondent's participation, the patient's credible and consistent account, buttressed by immediate complaint, was preferred to the respondent's materially inconsistent explanations; sexual conduct towards a vulnerable patient without clinical justification, consent or a chaperone breached the Code of Conduct and was professional misconduct under s 196(1)(b)(iii); findings made, sanction and costs to a further hearing. JADE
• Chahoud v Health Care Complaints Commission [2026] NSWCATOD 123 - a practitioner seeking reinstatement under s 163B(1)(c) bears the onus of showing he can be trusted to practise and presents no risk to public safety or confidence, requiring genuine acceptance, insight into root causes, targeted treatment and authentic remorse; continued minimisation, inconsistent evidence and false exculpatory statements show absent insight; treatment by practitioners not told the full circumstances of deregistration does not reach the root causes; an unreliable historian cannot satisfy the Tribunal of competence and trustworthiness; supervision, chaperone and caseload conditions cannot substitute for demonstrated internal change; application dismissed, 12-month preclusion under s 163B(5), costs to the Commission as contradictor, financial circumstances no answer. JADE

Framework (Illustrative synopses).

• Bahrami Group Pty Ltd v Moriarty [2026] NSWCATAP 294 - synopsis (framework only, no outcome stated): the s 37 Design and Building Practitioners Act duty of care for nominated supervisors (foreseeable risk, precautions, causation; evidence of supervision, coordination and substantive control); commencement, suspension and clause 28 termination under the Master Builders BC4 contract; work order versus money order; leave to appeal under Sch 4 cl 12 of the NCAT Act and the 'weight of evidence' test. JADE
• Lebnan v Secretary, Department of Customer Service [2026] NSWCATOD 125 - synopsis (framework only, no outcome stated): 'Experience' under the Gazette Instrument for general building work licences requires an employment relationship with the licensed builder; remuneration records, referee statements and verified supervision; residential building work versus commercial construction under s 20 of the Home Building Act; employee versus subcontractor (Hollis v Vabu); s 20(5) limits review of the Instrument's criteria. JADE

Registry.

• Kiong Sym Ch'ng v Transport for NSW [2026] NSWCATAD 280 - list only (discrimination); no headnote, no outcome stated. JADE
• Patel v Queensland Building and Construction Commission [2026] QCAT 405 - list only (judicial review); no headnote, no outcome stated. JADE

Full typeset judgments are in the Judicial Ledger. Theme music by Michael Green SC.

Send us Fan Mail

Two South Australian Supreme Court decisions, both headnoted, and both about the clock on a coercive power: a search warrant for possums, issued with no expiry date and executed twenty days later, was stale by the time it was used and no longer authorised the entry; and an application to detain a serious repeat sexual offender indefinitely, decided in the same judgment that sentenced him to more than twelve years, was refused as too early. Friday house spot: a word from JADE after the opening block.

Public Law Desk.

• Brister v The State of South Australia [2026] SASC 133 - leave to appeal a magistrate's interlocutory order under s 42(1a)(c) of the Magistrates Court Act 1991 (SA) requires special reasons making it in the interests of the administration of justice to decide the point before trial, an arguable case alone being generally insufficient; the validity of a warrant on its face is distinct from its staleness at execution, the latter a collateral challenge on admissibility properly taken on a voir dire; a warrant under s 22(6) of the National Parks and Wildlife Act 1972 (SA) with no period on its face is valid only for a reasonable period, determined objectively by the text, context and purpose of s 22 and the coercive, intrusive nature of a power to break, enter and search, and must be executed promptly; the party alleging staleness bears the onus on the balance of probabilities, discharged here by an unexplained eight-day period of inaction; leave granted, appeal allowed, the Magistrates Court order set aside and the matter remitted. JADE

Criminal Law Desk.

• R v Lloyd [2026] SASC 134 - application for an Extended Detention Order under s 57 of the Sentencing Act 2017 (SA) refused: satisfaction that the offender is unwilling or incapable of controlling his sexual instincts is a threshold question (met on the concurrent evidence of two medical practitioners) preceding the appropriateness assessment, in which protection of the community is paramount; the power of indefinite detention is exceptional and exercised with caution (McGarry v The Queen applied); where a lengthy head sentence (here 12 years and 3 months, non-parole period 9 years 9 months and 19 days, imposed before the application was determined) defers release and affords a realistic opportunity for treatment and risk reduction, an order may be unnecessary and any residual risk near release can be met by a further application by the Attorney-General; too early to make the order. Reported as sentencing doctrine only; no child is identified. JADE

Full typeset judgments are in the Judicial Ledger. Theme music by Michael Green SC.

Send us Fan Mail

Two Queensland Supreme Court decisions, and the one with a headnote earns its place: a handwritten will leaves a house to a historical society, never to be sold or demolished, with $50,000 to keep it standing, and the society wants to sell. The Court finds an absolute gift with precatory wishes, not a condition or a charitable trust (and any such conditions would have been void), holds that the maintenance trust fails with its purpose so the money passes to the Archdiocese, and construes the gift for the poor and the homeless as a charitable gift to the body that carries on that work. Then a framework line on indemnity costs in family provision proceedings. Friday house spot: a word from JADE after the opening block.

Commercial Law Desk.

• The Public Trustee of Qld v The Royal Historic Society of Queensland Inc [2026] QSC 220 - construction of an informal homemade will: intention from the words used in context, favouring the testator's scheme and avoiding intestacy, with allowance for the testator's own language (armchair principle; s 33C Succession Act 1981 (Qld)); the house 'bequeathed' with directions that it never be sold or demolished is an absolute gift subject to precatory words, not a charitable trust, and had the directions been conditions they would have been void as a restraint on alienation and as repugnant to an absolute gift; the $50,000 'trust a/c' to maintain the house fails as a purpose trust incapable of fulfilment and passes under the remaining dispositions; the gift to the Catholic Archdiocese of Brisbane 'for the poor and the homeless' is a gift to The Corporation of the Trustees of the Roman Catholic Archdiocese for its charitable purposes, not a private trust, properly remitted to the Homelessness Support Fund Endowment; no occasion for cy près; declarations made, applicant's costs from the estate on the indemnity basis. JADE

Practice and Procedure Desk (framework only, no outcome stated).

• Wagner v Wagner (No 2) [2026] QSC 185 - a seven-factor analysis of when indemnity costs are awarded to a substantially successful family provision applicant under rr 700A and 703 UCPR (Qld): r 700A's own factors (estate value, costs increased by non-compliance or unmeritorious litigation); the Colgate-Palmolive 'special or unusual feature' test is not required because r 703 expressly contemplates indemnity costs from a fund; applicants are disadvantaged against executors indemnified from the estate. JADE

Full typeset judgments are in the Judicial Ledger. Theme music by Michael Green SC.

Send us Fan Mail

Twelve decisions from three courts in the New South Wales edition of 17 September 2026. The Court of Appeal on whether a conflicted board member may stay in the room (yes, if she declares, abstains and her presence could not stifle debate) and on why the validity of a meeting turns on what happened at it, not on the minutes; and on where a workers compensation appeal from a Personal Injury Commission presidential member must aim. Four Supreme Court frameworks: withdrawing an admission, the statutory demand arithmetic and adjudication certificates, quantifying a family provision claim with candour, and public interest immunity over subpoenaed documents. Six decisions listed without a headnote. The two Court of Appeal decisions also appear in the Court of Appeal brief of the same date. Friday house spot: a word from JADE after the opening block.

Public Law Desk (lead).

• Montenegro v Legal Profession Admission Board (No 4) [2026] NSWCA 199 - judicial review under s 69 of the Supreme Court Act of two decisions refusing a compliance certificate for readmission: the Sch 3 cl 8 duty to keep 'full and accurate minutes' requires every decision recorded accurately, not a record of everything that occurred, and one omission explained as an oversight did not cast doubt on the rest; the validity of a meeting turns on what occurred at it, not on the accuracy of the minutes, and no purpose to invalidate is discernible from Sch 3; a member who declared her conflict (the Law Society had made submissions) and abstained from discussion and vote did not have to leave, no apprehended bias or denial of procedural fairness arose, and no submissions on procedure were owed; r 14(1)(d) requires details of law-related experience and leaves the weight to the Board; Board appearing as a submitting contradictor under Hardiman; further amended summons dismissed with costs. JADE

Practice and Procedure Desk.

• EB Murray Family Investments Pty Ltd t/as Bede Murray Racing Stables v Howard [2026] NSWCA 198 - an appeal under s 353(1) of the Workplace Injury Management and Workers Compensation Act lies only for an error in point of law by the presidential member; the Court cannot review the Member's findings of fact or the presidential member's factual errors absent legal error; grounds that reagitate fact-and-weight grounds from below identify no relevant error; a presidential member cannot err by failing to address an issue not raised before her (the belated Wednesbury contention); indemnity costs to the date grounds were abandoned after reply submissions; appeal dismissed. JADE
• P&H Aldridge Investments Pty Ltd v Pure Hydrogen Corporation Limited [2026] NSWSC 1128 - framework (synopsis): withdrawal of admissions under r 12.6 UCPR on the Yufeng v Guo factors (reason, stage, prejudice); the 'full and proper explanation' requirement (Chiu v Sheh); an unsupported 'miscommunication' assertion contradicted by contemporaneous correspondence, with no first-hand affidavit, failed; lack of prejudice not decisive where the proposed defence lacks apparent merit (ss 56-60, 64 Civil Procedure Act). JADE

Commercial Law Desk.

• In the matter of Phoenix Fitouts and Construction Pty Ltd [2026] NSWSC 1111 - framework (synopsis): specification of the debt under s 459E(2) on the YCH Logistics three-limb test; the s 459H(2)-(4) calculation of admitted total, offsetting total and substantiated amount against the $4,000 minimum; the 'patently feeble' test for construction disputes on a s 459G application (Creata v Faull); a party subject to an adjudication certificate filed as a judgment cannot dispute the debt but may raise an offsetting claim for defective or incomplete work, claims rejected by the adjudicator being available and claims accepted not (CBS Commercial Canberra v Axis); the low genuine-dispute threshold and parallel Queensland proceedings as the proper forum. JADE
• Freeman v Freeman [2026] NSWSC 1127 - framework (synopsis): the Singer v Berghouse two-stage inquiry under ss 59-60 of the Succession Act with the Court's nine-matter checklist; the duty of candour in quantifying provision, figures 'plucked out of the air' and 'reverse engineered' from expert reports criticised; reverse mortgages as a source of provision (borrowing capacity by age, interest premiums, equity erosion, pension impact); weight of a deceased's s 100 statement of testamentary intentions; costs disproportionality, no-win-no-fee retainers and a provisional costs order template. JADE

Criminal Law Desk.

• R v Zakaria [2026] NSWSC 1102 - framework (synopsis): public interest immunity and client legal privilege over subpoenaed documents; the three-stage PII process (Sankey v Whitlam; Northern Land Council) with the 'real possibility' harm standard; ss 130 and 131A of the Evidence Act versus the common law depending on who bears the disclosure requirement (Derbas); five recognised categories under s 130(4); ciphers for individual identities and mosaic risk; court inspection, closed-court submissions, a further opportunity for the Crown before adverse rulings, and prejudgment and recusal concerns on s 125 determinations. JADE

Registry (list-only decisions, no headnote, no outcome stated).

• Troost v Coleman Greig Lawyers Pty Ltd [2026] NSWSC 1109 - list only (leave to appeal). JADE
• Delaney v State of New South Wales [2026] NSWSC 1130 - list only (strike out). JADE
• Gupta v Woollahra Municipal Council [2026] NSWLEC 1613 - list only (development appeal). JADE
• Arbus Pottsville Pty Limited v Tweed Shire Council [2026] NSWLEC 1616 - list only (interlocutory orders). JADE
• Halasagi v City of Canada Bay Council [2026] NSWLEC 1609 - list only (modification application). JADE
• Luddenham Property Group Pty Ltd v Penrith City Council [2026] NSWLEC 1612 - list only (development control order). JADE

Full typeset judgments are in the Judicial Ledger. Theme music by Michael Green SC.

Send us Fan Mail

A quiet day on the appellate list in the Court of Appeal edition of 17 September 2026: two decisions, both from the NSW Court of Appeal, both reported as doctrine, and both carried at depth. The lead fixes the target of a workers compensation appeal to the Court of Appeal: an error in point of law by the presidential member, not the Member's weighing of the evidence; a point never raised before the presidential member cannot found error; and abandoning grounds late costs indemnity costs up to the day of abandonment. Then a judicial review of the Legal Profession Admission Board's refusal of a compliance certificate: a conflicted member who declares, abstains and stays in the room does not taint the decision, the validity of a meeting turns on what happened at it rather than on the minutes, and the duty to keep full and accurate minutes is a duty to record decisions accurately, not everything that occurred. Friday house spot: a word from JADE after the opening block. Both decisions are on air; no registry lines. The Ledger published this edition on the morning of 18 September and it is produced here the same morning.

Practice and Procedure Desk (lead).

• EB Murray Family Investments Pty Ltd t/as Bede Murray Racing Stables v Howard [2026] NSWCA 198 - an appeal under s 353(1) of the Workplace Injury Management and Workers Compensation Act 1998 lies only for an error in point of law by the presidential member; the Court cannot review the non-presidential Member's findings of fact or the presidential member's factual errors absent legal error, though a complaint may in some cases reach an error of law by the Member where the presidential member dealt with it wrongly; grounds that merely reagitate fact-and-weight grounds from below identify no relevant error; a presidential member cannot err by failing to address an issue not raised before her, so a belated Wednesbury unreasonableness contention disclosed no error; grounds abandoned only after reply submissions attract indemnity costs up to abandonment; appeal dismissed, costs on the indemnity basis to 10 August 2026 and otherwise on the ordinary basis. JADE

Public Law Desk.

• Montenegro v Legal Profession Admission Board (No 4) [2026] NSWCA 199 - the Sch 3 cl 8 duty to keep 'full and accurate minutes' requires every decision to be recorded accurately, not a detailed record of everything occurring, and a single explained omission did not cast doubt on the other minutes; the validity of a meeting and its decisions turns on what occurred at the meeting, not on the accuracy or completeness of the minutes, and no legislative purpose to invalidate could be discerned; where a conflicted member declares the conflict, takes no part in discussion or decision and there is no realistic possibility that mere presence would stifle debate, a fair-minded lay observer would not apprehend a lack of impartiality and no denial of procedural fairness arises, the member need not leave the meeting and the Board need not invite submissions on procedure; r 14(1)(d) requires details of law-related experience since removal and leaves the weight to the Board, which considered the applicant's self-represented litigation and advocacy and gave it little weight without error of law; the Board appeared as a submitting contradictor under Hardiman; further amended summons dismissed with costs. JADE

Full typeset judgments are in the Judicial Ledger. Theme music by Michael Green SC.

Send us Fan Mail

Eleven decisions in the Australian Federal Courts edition of 16 September 2026: one from the Full Court, Plus500 and the click-through arbitration clause, carried at depth in the Court of Appeal brief of the same date and linked below, and ten from single judges, five with headnotes and three reported as doctrine. The lead is a $586,000 automatic cone truck whose touchscreen kept freezing: a warranty that borrowed the Australian Consumer Law's words took the statutory meaning, the unfixable defect made the failure major and the buyer gets a refund, while the misleading conduct claim failed for want of proof of falsity and reliance. Also: receivers appointed to an unregistered fund without any exceptional-circumstances requirement; an injunction pending appeal over frog ponds refused on the nugatory limb; a bankrupt applicant's judicial review decided on the papers and dismissed as futile; and an interim injunction restraining removal to Nauru. Friday house spot: a word from JADE after the opening block. This edition was published by the Ledger after the morning cycle of 17 September and is produced here a day on.

Commercial Law Desk.

• TLAS Pty Ltd as trustee for the TLAS Trust v Arrowes Roading Safety Pty Ltd [2026] FCA 1356 - parties contracting in statutory language ('acceptable quality', 'major failure') are ordinarily taken to adopt the statutory meaning although the ACL did not apply directly; unacceptable quality may be proved by aberrant behaviour or root cause, and a manual work-around does not negate a defect; the reasonable consumer is attributed at supply with full knowledge of the defect including whether, when and at what cost it can be repaired, so readily repairable defects did not fail the guarantee but the unremedied freezing HMI screen did and was a major failure; safety is an acceptability-of-risk assessment; the misleading conduct claim failed on falsity and reliance; refund and storage-cost damages, the cap and consequential-loss exclusion not applying to a major failure. JADE
• ST Private Investment Fund No 1 Pty Ltd v Agio Global Funds Management Pty Ltd [2026] FCA 1367 - receivers and managers appointed by consent under ss 23 and 57 of the Federal Court Act on the first return date: the power is not confined to preserving property and requires no exceptional circumstances; prima facie evidence of unlicensed financial services conduct after the authorised-representative appointment ceased; disputed related-party loans, a loss exceeding $10.46 million and cash at bank of $115.93 supported protection and investigation; majority unitholder support (about 58 per cent) and the sole director's consent; liberty to apply on five days' notice. JADE

Practice and Procedure Desk.

• Save Wallum Incorporated v Clarence Property Corporation Limited (No 6) [2026] FCA 1365 - injunctions pending appeal refused: an applicant must show a sufficient likelihood of error below, a favourable balance of convenience and that refusal would render the appeal nugatory by substantially depriving it of practical benefit; the proposed grounds disclosed no particular likelihood of success and the evaluative 'significant impact' conclusion would require re-evaluation in any event; the frog ponds would not themselves affect the species and undertakings to monitor, maintain and reinstate preserved the appeal's utility; slashing effects are temporary and the undertaking to slash only the housing areas mitigated prejudice; 75 per cent of the respondents' costs. JADE
• Crane v Gidley (Liquidator), in the matter of Steel City Formwork Pty Ltd (in liq) (No 2) [2026] FCA 1368 - synopsis (framework only): notices of discontinuance in appeals under r 36.73; document compliance under rr 2.27 and 2.28; set aside for abuse of process only (Chen v Monash University); the party asserting the filing was not deliberate and informed bears the evidentiary burden. JADE

Public Law Desk.

• Kuksal v Administrative Review Tribunal [2026] FCA 1353 - judicial review of the Tribunal's refusal to let bankrupt applicants continue a fee-deferral review dismissed on the papers: a predisposition to decide without an oral hearing in a matter without a contradictor is no ground for apprehended bias; s 20A(2)(c) permits determination without an oral hearing where there is no real issue of fact, disputes about the Registrar's conduct being irrelevant on de novo review; relief would be futile because the sequestration orders had been made and upheld; a declaration must produce foreseeable consequences and is not a bare condemnation; observed without deciding that a merits review is a civil proceeding stayed by s 60(2) of the Bankruptcy Act and that a fee deferral would create a debt affecting the divisible estate. JADE
• FLLB v Minister for Immigration and Citizenship [2026] FCA 1298 - interim injunction restraining removal to the Republic of Naoero granted: the Court's power to protect its own processes extends to restraining removal under s 198(6), whose 'as soon as reasonably practicable' qualification yields to the injunction; the contention that s 48A(1) bars only a further application with a sufficient nexus to the earlier one, ss 76AAA and 198AHB distinguishing CTW17 and AZABF, was arguable though not strong; refusal would effectively determine the proceeding (cl 866.411 requires presence in Australia) and, with an apparently genuine claim to fear serious harm, the balance favoured relief; costs reserved. JADE

Full Court (carried at depth in the Court of Appeal brief of 16 September 2026).

• Plus500AU Pty Ltd v AghaeiRad [2026] FCAFC 125 - unfairness under s 12BG judged by the particular contract; transparency assessed objectively without assuming a box-ticking consumer read fifty pages; significant imbalance is a practical comparison; the supplier bears the onus on reasonable necessity; legislative support for arbitration does not immunise a clause; a class action is not stayed for an obligation binding only the representative applicant without notice to group members; appeals dismissed with costs. JADE

Registry (list-only decisions; no headnotes, no outcomes stated in the edition).

• Khattabi v Jetstar Airways Pty Limited [2026] FCA 1372 - list only (interlocutory application). JADE
• Commissioner of Taxation v Handojo (No 2) [2026] FCA 1363 - list only (security interests). JADE
• Yacouba v Key Assets The Children's Services Provider (Australia) Limited (leave to appeal) [2026] FCA 1371 - list only (leave to appeal). JADE
• Tan v Commonwealth of Australia (Department of Defence) (No 2) [2026] FCA 1350 - list only (interlocutory orders). JADE

Full typeset judgments are in the Judicial Ledger. Theme music by Michael Green SC.

Send us Fan Mail

Fourteen decisions from the Federal Court in the Australian Federal Courts edition of 15 September 2026, seven of them with headnotes and three reported as doctrine. The lead is the Defence Force sexual harassment class action: every ADF member is an 'officer of the Commonwealth' but the consent exception turns on the capacity in which they join the group, the s 33C gateway is undemanding for a systems case, and a representative AHRC complaint carries into Part IVA in its representative character. Also: when a limitation extension can be a common question in the Western Australian fines warrant class action; two transfer applications that went opposite ways; a suppression application that ended in indemnity costs; template reasons in a Tribunal non-appearance decision; and a 987-day delay refused an extension. Friday house spot: a word from JADE after the opening block. This edition was published by the Ledger after the morning cycle of 16 September and is produced here two days on.

Practice and Procedure Desk.

• Roe (Administrator) v State of Western Australia [2026] FCA 1364 - in the fines-warrant class action, the s 38(2) Limitation Act 2005 (WA) extension question is not apt for resolution as a common question absent a demonstrated basis that group members' circumstances are substantially the same (proposed Questions Q, R and S refused); whether commencing a representative proceeding commences an action for each group member is an appropriate anterior common question; s 33Q sample group member claims will be tried where they expose differences bearing on extension of time and damages, four of the eight proposed members sufficing; the respondents to particularise circumstances peculiar to individual group members; application granted in part. JADE
• Roths v Sergienko [2026] FCA 1360 - cross-vesting transfer under s 5(4) is mandatory once another court is identified as the more appropriate forum in the interests of justice, with no presumption for the plaintiff's choice; substantial factual overlap with a pending Supreme Court of NSW proceeding (the same deed, mortgage and alleged duress) created a real risk of inconsistent findings that coordinated case management could not cure; the s 1337H(2) discretion would have been exercised the same way; proceeding transferred, costs in the cause. JADE
• Banks v Melbourne Archdiocese Catholic Schools Ltd (Transfer Application) [2026] FCA 1347 - transfer to the Federal Circuit and Family Court under s 32AB refused: the novelty of the ss 333E and 333F consecutive fixed-term contract provisions (never judicially considered) and the wider application of the enterprise agreement obligations weighed against transfer; unsubstantiated assertions of speed and cost carried limited weight given the docket judge's familiarity and the s 570 costs restrictions; costs reserved. JADE
• Watson v Commissioner of Taxation [2026] FCA 1150 - urgent s 37AF suppression application dismissed for want of any evidentiary foundation, the impugned affidavit making no reference to the proceeding and containing only public information; jurisdiction not decided; targeted applications to the docket judge remain open, r 2.32 conferring no general non-party access; indemnity costs of $1,500 for an application pressed on a false factual premise without first reviewing the affidavit. JADE

Public Law Desk.

• MAN25 v Commonwealth of Australia [2026] FCA 1349 - the Commonwealth's application to exclude current ADF members from the group, strike out the amended statement of claim and confine it to the AHRC complaint dismissed with costs: all ADF members are 'officers of the Commonwealth' under s 33E(2)(d) but participate as women alleging workplace discrimination, not in their capacity as officers, so the opt-out procedure governs; the s 33C(1)(b) gateway asks about circumstances, not claims, and a systems case against a single deemed employer satisfies it; the application of SD Act ss 105 and 106 and the Commonwealth's knowledge of risk are substantial common issues; s 46PO(3) is applied to a representative complaint in its representative character; s 35L creates no exclusive AHRC function; class members need not share a perpetrator, time or place, be known at lodgement or consent; the impugned paragraphs arose from substantially the same acts or practices. JADE
• EEV18 v Minister for Immigration and Multicultural Affairs [2026] FCA 1348 - the s 426A(1A)(a) discretion to decide a review on non-appearance is conditioned by legal reasonableness; the failure to appear is the statutory precondition and cannot itself justify the choice of power; a stated reason with no basis in the material deprives the decision of intelligible justification; for an actively engaged applicant a single unexplained late attendance does not support an inference of unwillingness to engage; speed and errors supported an inference of template reasons used without careful review; appeal allowed with costs, certiorari and mandamus. JADE
• CCU21 v Minister for Immigration and Citizenship [2026] FCA 1351 - extension of time under s 477A(2)(b) after a 987-day delay refused: the criterion looks to the administration of justice, not the applicant's interests; about twelve months of the delay was unexplained, requiring an exceptional case beyond merit; removal to Nauru reflects the proper operation of the Act; the s 501(6)(c) good-character limb does not on its terms require a forward-looking risk assessment (moderate prospects); the remaining grounds poor; preservation of appeal rights no basis to extend; costs. JADE

Registry (synopses and list-only decisions; no outcomes stated in the edition).

• Vos, on behalf of the Tjalkadjara Native Title Claim Group v State of Western Australia (No 2) [2026] FCA 1343 - synopsis: consent determination under s 87 of the Native Title Act without a hearing; affidavit requirements; determination schedules; ss 47A and 47B. JADE
• Connelly, in the matter of Global Food & Wine Holdings Pty Ltd (administrators appointed) [2026] FCA 1366 - synopsis: s 439A(6) convening period extension on the Re Riviera criteria; Daisytek orders under s 447A; FEG eligibility objections; notice obligations. JADE
• Raghib v Stantec Australia Pty Ltd (Final hearing) [2026] FCA 1354 - synopsis: judicial review of the Fair Work Commission; evidence admissibility and the 'record'; jurisdictional error (Helensburgh Coal v Bartley); s 387 procedural fairness; Briginshaw; s 400 permission to appeal. JADE
• Hargreaves v BT Funds Management Limited [2026] FCA 1362 - synopsis: solicitor conduct referral under r 39.32 where client authority and capacity were questioned; affidavit checklist; stay pending investigation. JADE
• Phillips (Estate of Dann) v Chief Executive Officer (Housing) (Northern Territory) (No 2) [2026] FCA 1346 - list only (amendment). JADE
• DFM17 v Minister for Immigration and Citizenship [2026] FCA 1369 - list only (default judgment). JADE
• Takeovers Panel v DGR Global Limited, in the matter of DGR Global Limited [2026] FCA 1358 - list only. JADE

Full typeset judgments are in the Judicial Ledger. Theme music by Michael Green SC.

Send us Fan Mail

Four decisions in the Western Australian edition of 16 September 2026, headed by the Court of Appeal on sentencing remarks, materiality and the two-step suspension inquiry, re-aired at depth from the Court of Appeal brief of the same date with the Western Australian angle. Three Supreme Court synopses follow, principles only: parity on a sentence appeal, the first court hearing of a scheme of arrangement, and pleading malicious prosecution. Thursday is a control day: no house spot.

Criminal Law Desk.

• KUA v The State of Western Australia [2026] WASCA 131 - a sentencing judge should state the salient features of the offending founding the penalty; incorporating the prosecutor's facts by reference is deprecated (Billett, Humes) and here produced at least three factual errors; an error is material where it could realistically have affected the sentencing reasoning (Farrugia v The King); s 76(2) of the Sentencing Act requires the court, after deciding imprisonment is appropriate, to consider afresh and positively determine whether suspension is inappropriate; on resentencing parity with a materially more lenient co-offender and time served are reflected and a suspended sentence cannot be backdated (SBJ); leave granted on ground 2, appeal allowed, resentenced to 2 years' imprisonment suspended for 12 months. JADE
• Moody v Director of Public Prosecutions [2026] WASC 386 - synopsis, principles only: the parity framework from Ngo and EDR, the Higgins checklist for partly common offending, leave under s 9 of the Criminal Appeals Act on the 'reasonable prospect of success' standard, the objective 'justifiable sense of grievance' test applied count by count and to total effective sentences, burglary and commit versus burglary with intent, s 11(1) of the Sentencing Act, and a worked resentencing exercise. JADE

Commercial Law Desk.

• Re European Lithium Limited; Ex Parte European Lithium Limited [2026] WASC 391 - synopsis, principles only: the five-step framework for a first court hearing under s 411 of the Corporations Act (statutory requirements, ASIC's opportunity under s 411(2)(b), adequate disclosure under s 412(1)(a) and sch 8, the Corporations Rules, bona fides); the evidence bundle and compliance checklist; managing common director conflicts through an Independent Board Committee (Takeovers Panel Guidance Note 19); floating scheme consideration with VWAP mechanics, floors and caps; treatment of a 'not fair but reasonable' independent expert opinion and ASIC waivers of sch 8 disclosure. JADE

Practice and Procedure Desk.

• LE v Plummer [No 3] [2026] WASC 387 - synopsis, principles only: the three elements of malicious prosecution from A v State of New South Wales and the two pathways to absence of reasonable and probable cause; the Court of Appeal's pleading checklist for each defendant (conduct constituting an active role, the material considered, and why it was objectively insufficient); the distinction between pleading position or role and pleading conduct; conclusory assertions, over-broad defined terms and failure to separate initiating from maintaining; strike-out principles under the Rules of the Supreme Court 1971 (Vantage Holdings). JADE

Full typeset judgments are in the Judicial Ledger. Theme music by Michael Green SC.

Send us Fan Mail

A quiet day on the Victorian list, two decisions, and the one that heads it is the Supreme Court on Victoria's confidential communications regime: in an institutional abuse claim, the defendant sought leave to inspect the plaintiff's treating psychologist's notes and was refused on the second and third limbs of s 32D. Carried at depth as a single story on the Practice and Procedure Desk with a Host question beat. Thursday is a control day: no house spot.

Practice and Procedure Desk.

• Hubicki v Australia Air League Inc [2026] VSC 596 - the s 32B definition of 'confidential communication' is not confined by subject matter (literal construction preferred to Lyons and Staker); the s 32D(1)(a) requirement that protected evidence 'will' have substantial probative value is a high hurdle, met here on inspection because causation was in issue; leave must not be granted unless the court is positively satisfied that other evidence of similar or greater probative value is not available (s 32D(1)(b)), and the plaintiff, the treating psychologist and the medico-legal experts were all available; the public interest in confidentiality and protection from harm was not substantially outweighed, the harm being the chilling effect of compelled production of therapeutic notes, not re-disclosure of the abuse; application dismissed. JADE

Registry.

• Re Aa [2026] VSC 590 - list only (bail application, Niall CJ). JADE

Full typeset judgments are in the Judicial Ledger. Theme music by Michael Green SC.