The Petal: Australian Case Law Daily from JADE OpenLaw

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One state, every court: the Tasmania edition of 6 October 2026. Two decisions, one at depth. The Full Court on the further appeal from a motion to review a summary conviction: it lies only on a point of law, preferring admissions made to police over a sworn retraction is no reversal of the onus of proof, and fresh evidence needs a ground of appeal that asserts a miscarriage of justice and in fact identifies an error of law. The appeal remains on foot. The Full Court's decision also features in the Court of Appeal brief of the same date and is carried here with the Tasmanian angle. Then a registry line from the Supreme Court. House spot: a word from JADE after the opening block.

Criminal Law Desk (opening story).

• Tregaskis-Jago v Jones [2026] TASFC 13 - appeal to the Full Court under s 123 of the Justices Act 1959 (Tas) from the dismissal of a motion to review a conviction under s 5(1)(a) of the Listening Devices Act 1991 (Tas), the appellant having admitted to police that he listened to general conversations through a tracking device while it sat in a police office, and having denied it at the hearing (Shanahan CJ, Estcourt and Jago JJ): a s 123 appeal lies only on a point of law or upon the admission or rejection of evidence, so the Full Court cannot interfere with findings of fact on a review unless the decision is vitiated by error of law, and the review judge's conclusion that it was reasonably open to the magistrate to be satisfied of each element was a finding of fact; accepting admissions made to police in preference to contradicting sworn evidence at the hearing is not a reversal of the onus of proof or an error of law, since otherwise any accused could secure an acquittal by retracting admissions on oath; a no-evidence ground on the private conversation element required a showing that there was no evidence at all, and the senior constable's evidence with the appellant's admissions was ample; unlike s 110(2), s 123 makes no provision for the reception of fresh evidence, and a hearing de novo under s 123(3)(b)(ii) requires a valid ground of appeal; fresh or new evidence (here a 2025 telecommunications engineer's report) cannot be relied on without a ground that refers to it and asserts that its absence from the hearing resulted in a miscarriage of justice, and that ground must in fact identify an error in point of law, whether express, implicit, inadvertent or unwitting, characterising it as going to legal error not being enough; two judges were prepared to receive the report de bene esse to assess whether it could establish innocence; whether the unwitting error principles reach ss 110 or 123, and whether there is an inherent jurisdiction to set aside a conviction without a valid ground, left open. Grounds 1 and 2 dismissed; leave granted to file further amended grounds, so the appeal remains on foot. JADE

Registry (Supreme Court of Tasmania).

• Martin v Bruce [2026] TASSC 64 - sentence appeal (Estcourt J); listed in the edition without a synopsis, no outcome stated. JADE

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

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One decision on the South Australian list for Tuesday 6 October 2026, and it is the Court of Appeal on a Crown sentence appeal that found a real error and still did not get off the ground. Appropriateness under the prescribed circumstances gateway to home detention for a prescribed serious sexual offence is assessed by reference to the circumstances of the offending only, the full range of sentencing considerations being reserved for the later suitability inquiry; manifest inadequacy is judged on the agreed factual basis of the plea; and permission to appeal is refused on double jeopardy grounds where resentencing would expose the respondent to imprisonment on a basis different from the one the prosecution relied on at sentencing. Carried at depth on the Criminal Law Desk in two blocks with a Host question beat, reported as sentencing doctrine only. The decision also appears in the Court of Appeal brief of the same date. House spot: a word from JADE after the second block.

Criminal Law Desk (also in the Court of Appeal brief).

• R v Beare [2026] SASCA 117 - the Director of Public Prosecutions' application for permission to appeal against a sentence to be served on home detention for two sexual offences, one of them against a child (S Doyle JA, Bleby JA and Vaughan AJA, joint reasons). Appropriateness under s 71(6)(b) of the Sentencing Act 2017 (SA) is a gateway task assessed by reference to the circumstances of the offending only, the full range of sentencing considerations being reserved for the subsequent inquiry into suitability under s 71(1); the sentencing judge erred by weighing them all at the gateway, and given the breadth of what he considered and the narrowness of his conclusion there was good reason to think he would likely have found that prescribed circumstances did not exist [39]-[46]. A complaint of manifest inadequacy is assessed on the agreed factual basis of the plea; the complaint about the starting points rested on mischaracterising a single-act offence under s 63B of the Criminal Law Consolidation Act 1935 (SA) as a course of conduct, comparative schedules were of limited utility, and the contention that each starting point was manifestly inadequate was weak, although it was at least arguable that the starting points and the unexplained partial concurrency together rendered the sentence too low [30]-[38], [47]. Permission on a Crown appeal may be refused even though the sentence was affected by process error and was likely manifestly inadequate, where resentencing would expose the respondent to imprisonment on a basis different from that on which the Director relied at sentencing; here the prosecution omitted to rely on R v Halliwell, which had already settled the question of principle, and invoked the home detention error only as a particular of manifest inadequacy, and the respondent had served a substantial part of the non-parole period on home detention and faced a high prospect of immediate custody on resentence, so considerations of double jeopardy strongly outweighed the desirability of correcting the error [48]-[52]. Permission to appeal refused. Reported with care: the victims are not identified and nothing of the offending is described. JADE

Referenced on air.

• R v Halliwell [2026] SASCA 33 - the earlier Court of Appeal decision that had settled the question of principle, not cited to the sentencing judge; applied in R v Beare. JADE

The same decision is carried in The Petal Court of Appeal brief for 6 October 2026.

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

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Eleven decisions from two courts in the New South Wales edition of Tuesday 6 October 2026, two of them headnoted. The Court of Appeal holds that the exclusion of intentional acts in s 3B(1)(a) of the Civil Liability Act 2002 (NSW) needs an actual, subjective intention to cause injury, not an intention to cause the specific injury claimed, and once engaged takes the whole of the liability for the act outside the Act, so a police officer's intended pain put the unintended aggravation of a pre-existing psychiatric condition at common law; by majority, exemplary damages were refused on a claim framed only on the officer's conduct. The Land and Environment Court holds that an overshadowing clause operating 'despite any other provision of this Plan' prevails over the cl 4.6 variation power where the two clash, though it is not listed in cl 4.6(8). Carried on the Public Law Desk, with nine list-only decisions on the registry. The Court of Appeal decision also appears in the Court of Appeal brief of the same date. House spot: a word from JADE after the registry.

Public Law Desk (lead).

• Music v State of New South Wales; State of New South Wales v Music [2026] NSWCA 206 - (Mitchelmore, Adamson and McHugh JJA) an appeal and cross-appeal in a battery claim against the State for a police officer's use of capsicum spray during a welfare check: s 3B(1)(a) of the Civil Liability Act 2002 (NSW) requires an actual, subjective intention to cause injury accompanying the intentional act, not an intention to cause the specific injury for which damages are claimed, and where that intention is proved the Act does not apply to the whole of the civil liability, and the award of damages, in respect of that act; the State's concession that the officer intended to cause physical pain therefore took the unintended aggravation of the appellant's pre-existing psychiatric condition outside Pt 2, severance of intended and unintended injuries being unworkable and the statement in Dickson at [15] dicta; harm from an intentional tort sounds in damages only if intended, actually or by presumption, intent being presumed where the harm, including mental harm, is the natural and probable consequence of the tortious act, as the aggravation was here (cross-appeal dismissed on the notice of contention); a party is generally bound by the conduct of counsel at trial, and manifest inadequacy of general damages is a House v The King error; by majority (Mitchelmore and McHugh JJA), heavy-handed conduct can be contumelious without conscious wrongdoing and a court may consider the State's own conduct depending on the case advanced, but on a claim put only on the officer's failure to follow procedure, his unreasonable but good faith use of the spray to protect the appellant's welfare did not warrant exemplary damages (Adamson JA dissenting). Appeal allowed in part; judgment for $27,000 in place of $24,000, with the costs of the appeal and cross-appeal. JADE
• Y&M Australia Pty Ltd v Waverley Council [2026] NSWLEC 1657 - (Porter C) a twelve storey shop top housing development with in-fill affordable housing at Bondi Junction that would add shadow to a nominated park at 12 noon on 21 June: cl 6.7 of the Waverley Local Environmental Plan 2012 is a development standard because it regulates sunlight, daylight or shadows, but its words 'despite any other provision of this Plan' make it prevail over cl 4.6 where the two clash, though cl 6.7 is not listed in cl 4.6(8), so there was no power to grant consent; obiter, the maximum building height for s 16(3) of the State Environmental Planning Policy (Housing) 2021 is the cl 4.3 height, cl 6.7 being a shadow control, not a height control. Appeal dismissed; development application refused. JADE

Authorities referenced on air: House v The King (1936) 55 CLR 499 (the manifest inadequacy standard) JADE; Dickson v Northern Lakes Rugby League Sport & Recreation Club Inc (2020) 103 NSWLR 658 (the earlier appellate statement, at [15], held to be dicta) JADE.

Registry (list-only decisions, no headnote, no outcome stated). Land and Environment Court of New South Wales.

• Friends of Bucketty Incorporated v Buckettys Brewery Pty Ltd (No 2) [2026] NSWLEC 126 - list only (costs orders). JADE
• Konstanopoulos v Fairfield City Council [2026] NSWLEC 1662 - list only (development application). JADE
• Ace Lidcombe Pty Ltd v Cumberland Council [2026] NSWLEC 1665 - list only (interlocutory orders). JADE
• Arcadia Construction (NSW) Pty Ltd v Georges River Council [2026] NSWLEC 1661 - list only (interlocutory orders). JADE
• Amcha 2 Bare Pty Ltd v Canterbury-Bankstown Council [2026] NSWLEC 1664 - list only (development appeal). JADE
• Sircel Recycling Pty Limited (Receivers and Managers Appointed) (Administrators Appointed) v Canterbury-Bankstown Council [2026] NSWLEC 1658 - list only (development application). JADE
• Lindfield Project Pty Ltd v Ku-ring-gai Council [2026] NSWLEC 1659 - list only (development application). JADE
• Yarranabbe Ventures Pty Limited v Council of the Municipality of Woollahra [2026] NSWLEC 1663 - list only (modification application). JADE
• Australian Food & Fibre Pty Ltd v The Minister Administering the Water Management Act 2000 [2026] NSWLEC 1656 - list only (environmental assessment). JADE

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

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Twenty three headnoted decisions from seven appellate courts in the Court of Appeal edition of 6 October 2026: a freight forwarding contract inferred from conduct; a wrong-year tax assessment that does not block the right one; five criminal appeals, on family hardship in Commonwealth sentencing, the ceiling principle after a retrial, the home detention gateway, Liberato directions and self-defence, and appeals from Tasmanian magistrates; and the family appeal bench on controlling behaviour, procedural fairness and valuation evidence. Eight more decisions are in the registry. House spot: a word from JADE after the opening block.

Commercial Law Desk (lead).

• Intelligent Scm LLC v Seaway Logistics Pty Ltd (Acn 094 204 609) [2026] VSCA 240 - a contract may be inferred where conduct, objectively assessed as a whole, positively indicates that both parties considered themselves bound, items each merely consistent with agreement counting in combination, and invoices paid without objection may fix the price; remoteness requires only that loss of the general kind was contemplated; concurrent wrongdoer status under s 24AH of the Wrongs Act 1958 (Vic) is reviewed for correctness, apportionment only for House v The King error. Ground 1 dismissed, ground 3 allowed, the judgment sum to be reduced (Walker, Lyons and Kenny JJA). JADE

Tax and Revenue Desk.

• Sunna v Commissioner of Taxation [2026] FCAFC 133 - a taxpayer incorrectly assessed beyond recall for one year may still be correctly assessed for another, tax being imposed annually; a notice of assessment is at most conclusive of the amount assessed, not of taxable facts; s 170(10AA) of the ITAA 1936 only gives effect to the backdating in s 104-10(3) of the ITAA 1997 and is no power to correct errors; obiter, an out-of-time objection to the wrong year is available. Appeal and cross-appeal dismissed (Hespe, Stellios and Wheatley JJ). JADE

Criminal Law Desk.

• Douglas v The King [2026] VSCA 243 - family hardship in Commonwealth sentencing has two aspects, the effect on family members under s 16A(2)(p) of the Crimes Act 1914 (Cth) with no exceptionality threshold, and the effect of that hardship on the offender; silence on the second aspect could not be cured by inference where it was pressed, State cases being distinguished. Appeal allowed; resentenced to 3 years 2 months, non-parole period 1 year 7 months (Walker and Kidd JJA). JADE
• Michael Kawana v The King [2026] VSCA 237 - a judge resentencing after a retrial need not first find the original sentence manifestly inadequate; the original sentence is ordinarily a ceiling, exceeded only for an identified good reason, and continues to moderate the sentence once exceeded. Appeal allowed; total effective sentence 9 years 4 months, non-parole period 5 years 6 months. Reported as legal doctrine only. JADE
• R v Beare [2026] SASCA 117 - the prescribed circumstances gateway to home detention under s 71(6)(b) of the Sentencing Act 2017 (SA) is judged on the circumstances of the offending alone, broader considerations going to suitability; a Crown appeal may be refused on double jeopardy grounds although the sentence was affected by error and likely manifestly inadequate, where the prosecution had not cited the settling authority at sentence. Permission to appeal refused. Reported as legal doctrine only. JADE
• Sayed v The State of Western Australia [2026] WASCA 141 - a full Liberato direction will rarely be appropriate for self-defence under s 248 of the Criminal Code (WA), whose objective elements can be negated even if the accused is believed; directions are assessed as a whole, and (for the majority) experienced counsel's agreement counts against a miscarriage. Appeal against a murder conviction dismissed. JADE
• Tregaskis-Jago v Jones [2026] TASFC 13 - an appeal under s 123 of the Justices Act 1959 (Tas) lies only on a point of law or the admission or rejection of evidence, and further evidence cannot be relied on without a ground that refers to it, asserts a miscarriage and identifies an error of law. Grounds 1 and 2 dismissed; leave to file further amended grounds, so the appeal continues. JADE

Family Law Desk.

• Nirmal & Daphne [2026] FedCFamC1A 175 - whether behaviour controls a family member under s 4AB of the Family Law Act 1975 (Cth) is assessed objectively and needs more than a mere possibility of control, only the fear limb being subjective; sending an associate with no official role to the other parent's home was family violence; the Ebner test does not apply to an Independent Children's Lawyer; an acquittal creates no issue estoppel; time limits on cross-examination are hearing management. Appeal dismissed, costs fixed at $8,000 (Riethmuller J). Reported as legal doctrine only. JADE
• Shumakov & Ankudinova [2026] FedCFamC1A 174 - where an affidavit is served within two business days of an interlocutory hearing, a self-represented party must be heard on its reception and asked whether they can meet it; a reasonably discernible material error is not ignored though unraised. Appeal allowed and remitted (Christie J). JADE
• Munnok & Uyusah [2026] FedCFamC1A 177 - procedural fairness does not require a judge to foreshadow the weight evidence will receive; child protection material tendered without objection, its authors uncalled, grounds no unfairness. Appeal dismissed (Campton J). JADE
• Statham & Statham (No 2) [2026] FedCFamC1A 176 - a value cannot be found on a bare allegation even where the other party would not join a joint valuation, and the effect on a bankrupt party's creditors under s 79(5)(m) must be weighed. Appeal allowed and remitted (Riethmuller J). JADE
• Lorner & Lorner [2026] FedCFamC1A 179 - costs thrown away by a discontinued appeal, fixed at $9,000 (Strum J). JADE
• Hoedemakers & Vacca [2026] FedCFamC1A 180 - a litigation guardian appointed under r 3.15 and a review hearing adjourned (Schonell J). JADE
• Hirata & Saidova [2026] FedCFamC1A 178 - a summary dismissal upheld, the alleged error being immaterial (Schonell J). JADE
• Ferreday [2026] FedCFamC1A 181 - leave to appeal refused to a party subject to a harmful proceedings order (Schonell J). JADE

Registry.

• Tayeh v Vorchheimer [2026] VSCA 244 - security for costs of $45,000 ordered against a bankrupt applicant for leave to appeal from VCAT, stultification not established (Niall CJ and Kenny JA). JADE
• John B Yaacov Myers v Medical Board of Australia [2026] VSCA 241 - extension of time to seek leave to appeal from security for costs orders refused, the delay egregious and unexplained (Beach JA). JADE
• West v The King [2026] VSCA 242 - leave to appeal against sentence for child abuse material offences refused (Walker and Kidd JJA). JADE
• Windsor v The State of Western Australia [2026] WASCA 132 - a conviction on a plea of guilty set aside: with no quantity prescribed for 1,4-butanediol, possession is only the simple offence under s 14(2) of the Misuse of Drugs Act 1981 (WA). JADE
• ROSE v The State of Western Australia [No 2] [2026] WASCA 140 - a renewed bail appeal dismissed. JADE
• Chowdhury v Iss Security Pty Ltd [2026] WASCA 142 - workers compensation leave to appeal refused, the weight of expert evidence being a question of fact. JADE
• C v K [2026] WASCA 135 - guardianship and administration review pathways; leave to appeal refused. JADE
• Music v State of New South Wales; State of New South Wales v Music [2026] NSWCA 206 - the intentional act exception in the Civil Liability Act 2002 (NSW) and exemplary damages in a police battery claim; at depth in today's New South Wales brief. JADE

The six Victorian Court of Appeal decisions also appear in today's Victoria brief, the five Western Australian appeals in the Western Australia brief, R v Beare in the South Australia brief and Tregaskis-Jago v Jones in the Tasmania brief, of 6 October 2026.

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

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Seven decisions from the ACT Supreme Court in the ACT edition of Tuesday 6 October 2026, one territory, every court, and the one headnoted is the fifth judgment in a long-running case about Aboriginal cultural rights. A settlement deed that set no time for two promised reviews still had to be performed within a reasonable time, and the Territory breached both obligations; but every claim under the Human Rights Act 2004 (ACT) failed, the Court holding that the s 27(2) cultural right is an individual right breached only by a denial, setting out a four-step test for incompatibility, and holding that proper consideration under s 40B(1)(b) does not demand Victorian Charter balancing. Carried at depth on the Public Law Desk, with six list-only decisions on the registry. House spot: a word from JADE after the registry.

Public Law Desk.

• House v ACT (No 5) [2026] ACTSC 381 - (Mossop J) plaintiffs identifying as Ngambri, whose earlier proceedings alleging that the Territory's Indigenous Protocols, recognising the Ngunnawal people as traditional custodians, breached s 27(2) of the Human Rights Act 2004 (ACT) were settled by deed in April 2023, sued for breach of the deed's promises of a comprehensive review of the Protocol and a review of ACT legislation, for which no time was stipulated, and under the Act: where a deed stipulates no time for performance the obligation must be performed within a reasonable time, assessed when performance is said to be due and by reference to what is fair to both parties, leaving out circumstances within the promisor's control or caused or contributed to by it; a discrete obligation not contingent on any other process is not postponed by the failure of a contemplated means of performance, so the withdrawal from a planned consultation, the prospect of native title claims and the wish for a consensual outcome did not qualify the Protocol review, which could have been commenced within months and completed before trial; an obligation to 'perform a review' of legislation requires a specific, discrete review, not an ongoing ordinary-course review of new or amending legislation, 'legislation' included subordinate legislation, and a desktop exercise to facilitate change meant no lengthy period was reasonable; s 27(2) confers an individual right on Aboriginal and Torres Strait Islander persons rather than a collective right of a 'people' (a finely balanced question; s 6), and because the right is framed negatively, incompatibility under s 40B requires a denial, not merely a limitation; incompatibility is determined in four steps (the affected subject in s 27(2)(a)(i)-(iii), its content for the particular person, which of maintain, control, protect and develop is engaged, and whether the act amounts to a denial), 'knowledge' meaning traditional knowledge; s 27(2)(b) is confined to material and economic relationships with land, waters or resources, and none were pleaded or proved; conduct conforming with an interim compromise position agreed by the plaintiffs in settling earlier proceedings does not deny the right, and fixed signage and limited single-group recognition had at most a marginal indirect effect; a s 8(2) discrimination claim requires proof of relevantly comparable circumstances and a disproportionate distinction, and failed for want of evidence of the groups' comparative connections to the land; 'proper consideration' under s 40B(1)(b) does not require serious consideration or balancing in the manner adopted under the Victorian Charter, and a public authority acting consistently with a settlement entered into with direct regard to the asserted s 27 rights has given them proper consideration. Claim for breach of the Settlement Deed upheld; claims under the Human Rights Act dismissed; proceedings listed on 6 November 2026 for submissions on relief. Reported with restraint: no view is expressed on any group's connection to the land. JADE

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

• DPP v Hancock (a pseudonym) [2026] ACTSC 389 - list only (sentencing). JADE
• Ovari v Ovari [2026] ACTSC 382 - list only (family property settlement). JADE
• DPP v Crompton (No 2) [2026] ACTSC 387 - list only (sentencing). JADE
• DPP v Figura (No 4) [2026] ACTSC 373 - list only (sentencing). JADE
• Rosemary Manning (a pseudonym) v Edson Group Pty Ltd (in liq) [2026] ACTSC 385 - list only (topic not stated in the edition). JADE
• In the application of Grewal [2026] ACTSC 367 - list only (interlocutory applications). JADE

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

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Two decisions from the Queensland Civil and Administrative Tribunal and its appeal division in the Tribunals edition of Monday 5 October 2026, one with a headnote, and it is a lesson in how not to end a building contract: a notice to remedy breach that said 'including', a list of concerns that said it was not the whole list, grounds of termination that never reached the Queensland Building and Construction Commission inside the three months, and a final claim the owners never paid. Carried at depth on the Tribunals Desk, with a list-only revenue appeal on the registry. House spot: a word from JADE after the second block.

Tribunals Desk (the single story).

• Hall v QBCC & Anor [2026] QCAT 444 - Queensland Building and Construction Commission Regulation 2018 (Qld) sch 6 ss 4(1)(a), 7(6), 65(2)(b); Queensland Building and Construction Commission Act 1991 (Qld) s 86(1)(h): assistance for incomplete residential work under the statutory insurance scheme is available only if the contract ends, which here required a valid termination on the builder's default; a notice to remedy breach must unequivocally specify the substantial breach, with enough particularity that the builder can know what must be done to rectify it, and a notice framed with 'including', or a separate 44-item list stated not to be conclusive, will not do; the precise grounds of termination must be notified to the Commission with the claim within the 3-month period, so defects first relied on in review were not available; where the contract disentitles a party in substantial breach from giving a notice to remedy, the terminating party bears the onus of proving it was not itself in substantial breach, and the owners, who had neither paid the builder's final claim nor given the contractual notice, did not discharge it; a separate termination for failure to obtain approvals was not demonstrated (a reasonable time; affirmation by continued performance). The Commission's decision disallowing the claim confirmed. JADE

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

• Alexander v Commissioner of State Revenue [2026] QCATA 143 - list only (administrative appeal). JADE

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

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Three appeals from Queensland's Court of Appeal in the Court of Appeal edition of 5 October 2026, with the Queensland edition of the same date folded in: the same three appeals plus four decisions of the Supreme Court of Queensland, so there is no separate Queensland episode today. The Supreme Court holds that the existence of a construction contract under the security of payment Act is an objective jurisdictional fact for the court, and that a related-party plant hire term agreement was a single rolling hire still on foot, affirmed by a solicitors' letter. On the Criminal Law Desk, the Court of Appeal holds that the evidence law bar on directions about a complainant's truthfulness or reliability is not confined to sexual offence cases and that no binding rule requires a Markuleski direction on a multi-count indictment; applies the sexual history leave rules where an appeal argued a basis disclaimed at trial; and adds an omitted nil pre-sentence custody declaration without resentencing. Three further Supreme Court decisions are in the registry. House spot: a word from JADE after the opening block.

Commercial Law Desk (lead).

• Gulf Civil Pty Ltd v K & F Group Pty Ltd [2026] QSC 221 - the existence of a construction contract under s 64 of the Building Industry Fairness (Security of Payment) Act 2017 (Qld) is an objective jurisdictional fact that the Court determines for itself, receiving evidence not before the adjudicator if need be, and the applicant for review bears the onus of proving that none existed; an other arrangement requires at least a concluded, bilateral state of affairs under which one party undertakes to supply the other, with sufficient mutuality, including enough settled detail for the supply to be claimed and valued (whether legal enforceability is required left open); a plant hire term agreement between related companies under common control was a single, continuing rolling hire, not a framework agreement requiring fresh particulars on each mobilisation, and ran until every listed item had been returned, so it remained on foot when the hirer changed hands; a solicitors' letter stating that the agreement set out the basis of hire affirmed the whole agreement, hire charges included, even though charges were not mentioned, and alternatively was itself an other arrangement; disputes about particular charges or charging periods are at most errors within the adjudicator's jurisdiction. Application for a declaration that the adjudication decision was void dismissed (Crowley J). JADE

Criminal Law Desk.

• R v Saghir [2026] QCA 194 - s 132B of the Evidence Act 1977 (Qld) prohibits only a direction concerning the truthfulness or reliability of a complainant's evidence and is not confined to sexual offence cases; no binding rule of law requires a Markuleski direction on a multi-count indictment, any requirement arising from the trial judge's general duty to ensure a fair trial and being engaged by identifying the unfairness that would follow without it; a miscarriage of justice from the omission does not depend on the verdicts being irreconcilable, though rational reasons for an acquittal may weigh against a finding of unfairness; where the application was not pressed and no ruling was made there is no error of law, and the appeal is confined to a miscarriage, requiring an omission that could realistically have affected the jury's reasoning, which was not shown on a trial for eight counts of advocating terrorism. Appeal dismissed (Mullins P, Bond JA and Davis J). JADE
• R v Mallie [2026] QCA 196 - under s 4 of the Criminal Law (Sexual Offences) Act 1978 (Qld), evidence of a complainant's sexual activities is not substantially relevant to the facts in issue merely because of an inference about general disposition, and a contention on appeal that the evidence went to consent contradicted the basis on which leave was sought at trial; leave to cross-examine as to credit requires special circumstances making the evidence likely to materially impair confidence in the reliability of the complainant's evidence; on an unreasonable verdict ground the appellant bears the burden of clearly identifying the points that demonstrate unreasonableness; mixed verdicts stand where they can be reconciled as logically open to a jury acting reasonably, a reasonable doubt on a single element implying no illogicality in accepting the complainant's evidence on the other counts. Appeal dismissed. Reported as legal doctrine only; the complainant is not identified. JADE
• R v Johnson [2026] QCA 195 - a pre-sentence custody declaration under s 159A(3B) of the Penalties and Sentences Act 1992 (Qld) must be made even where none of the custody counts, and where s 156A mandates a cumulative sentence for offending on parole, custody spent serving the earlier sentence cannot count; omitting a statutorily required order that has no bearing on the sentence does not vitiate the sentencing discretion, and the Court may vary the sentence under s 668E(3) of the Criminal Code (Qld) without re-exercising it, though ordinarily, where that is the only error, leave should be refused and the order made by re-opening under s 188; a recidivist with belated pleas cannot expect generous mitigation through an early parole eligibility date, the prospect of release on parole is irrelevant to sentencing, the range for a just eligibility date is broad on a cumulative sentence, and for totality only the unbroken run of custody from re-entry counts. Leave granted, appeal allowed only to add a declaration that none of 777 days of pre-sentence custody is time served (Bowskill CJ, Boddice JA and Henry J). JADE

Registry (Supreme Court of Queensland).

• Roper v Berry & Another [2026] QSC 234 - will construction (Johnstone J); listed in the Queensland edition without a synopsis, no outcome stated. JADE
• Deputy Commissioner of Taxation v Clayton [2026] QSC 236 - default judgment (Treston J); listed in the Queensland edition without a synopsis, no outcome stated. JADE
• DGR Global Ltd v P.T. Limited as trustee of the Armour Energy Security Trust [2026] QSC 226 - leave to amend pleadings under r 375 of the Uniform Civil Procedure Rules 1999 (Qld): the Aon Risk Services factors restated as a checklist; the summary dismissal caution in General Steel and Dey is not the framework for leave to amend; an application is not early merely because no trial date is listed where pleadings have closed, disclosure has been made and trial dates have been vacated; vague explanations for delay are unsatisfactory, and amendments foreshadowing further amendments weigh against leave (Freeburn J). Synopsis only; no outcome stated in the edition. JADE

Gulf Civil Pty Ltd v K & F Group Pty Ltd, Roper v Berry & Another, Deputy Commissioner of Taxation v Clayton and DGR Global Ltd v P.T. Limited as trustee of the Armour Energy Security Trust are from the Queensland edition of 5 October 2026, folded into this brief; R v Saghir, R v Mallie and R v Johnson appear in both editions.

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

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The Petal's New Zealand edition for 2 to 4 October 2026 is a catch-up of decisions newly reported in that window, decided, almost all of them, across August and September 2026. The edition's court table carries 343 decisions newly reported across the Supreme Court, the Court of Appeal and the High Court; this episode takes the top of the table, seven decisions at depth and eight in the registry: strike-outs for plain abuse at both appellate levels, deportation and discharge without conviction, two High Court criminal rulings reported as legal doctrine only, when an insurer's claims are due debts, and indemnity cover for earthquake-damaged land in a class action.

Public Law Desk (lead).

• Donellan v Attorney-General [2026] NZSC 110 - a registrar's reference under s 164A(2)(a) of the Senior Courts Act 2016 is decided by a single judge, who first considers whether further submissions are needed and then the s 164B matters; because access to the courts is of constitutional importance, pre-emptive intervention is justified only for clear abuse, and a fourth habeas corpus application aimed at Family Court parenting orders, with nothing changed since a final judgment, was struck out as a collateral challenge; striking out an attempted appeal against a first strike-out in the same proceeding is not a subsequent strike out order under s 164C(1)(b). Struck out (Kós J). Reported as legal doctrine only. JADE
• Duncan v Royal New Zealand Society for the Prevention of Cruelty to Animals [2026] NZCA 456 - r 5.35B of the High Court Rules 2016 still governs proceedings filed before its revocation on 1 February 2026; the power depends on a r 5.35A referral before release for service; it is used sparingly, only where abuse is clear beyond doubt from the claim; using judicial review to sidestep an appeal is not itself an abuse, and a two-year delay by a self-represented litigant was not, without more, plainly abusive; omitting the statement of appeal rights breaches r 5.35B(3) but is not of itself fatal. Appeal allowed, proceeding reinstated, no costs (Thomas, Downs and Anderson JJ). JADE

Criminal Law Desk.

• Singh v The King [2026] NZCA 412 - applying Bolea v R, deportation is a consequence of conviction under s 107 of the Sentencing Act 2002 where there is credible evidence a deportation liability notice will issue and a real and appreciable risk of deportation, which a notice issued because of the convictions establishes; the notice was admitted as fresh evidence; caution before reading deflection into a restorative justice conference where language barriers exist; full plea credit after substituted charges; a victim's sincere, independently confirmed views can carry weight in family violence cases absent safety concerns. Appeal allowed, discharged without conviction (Whata, Robinson and Eaton JJ). Reported as legal doctrine only. JADE
• R v M [2026] NZHC 2345 - on attempting to pervert the course of justice under s 117(d) of the Crimes Act 1961 (as then in force), the Crown must prove knowledge of proceedings, a positive act, a tendency to prevent justice and an intention to do so; the improper-means extension requires an intention to use improper means, which an honest belief negates; the 1980s Wickliffe duty to disclose a materially conflicting prior statement did not depend on a request and sat with the Crown; prior appellate factual conclusions do not bind non-parties. Two former police officers found not guilty (Gault J). Reported as legal doctrine only. JADE
• R v D [2026] NZHC 2334 - on sentencing for attempted murder, an adjournment of a permanent name suppression application was refused where it could not be made stronger, and suppression declined as the hardship fell well short of the thresholds in ss 200 and 202 of the Criminal Procedure Act 2011; a plea after about a year with abandoned factual challenges earned 15 per cent; late, unsworn claims were not established for sentencing. Imprisonment imposed (Downs J). Reported as legal doctrine only. JADE

Commercial Law Desk.

• Alpha Insurance A/S (in bankruptcy) v Johnstone [2026] NZCA 438 - prospective debts are due debts under s 292 of the Companies Act 1993 only to the extent they fall due within a reasonably proximate time; s 292 is a cash flow test even for a licensed insurer; an insurer's whole outstanding claims liability is not a due debt, claims incurred but not reported not being due until at least reported; inevitable liquidation does not accelerate due dates; the recipient discharged the s 292(4A) onus. Appeal allowed, the payments not insolvent transactions (Cooke, Campbell and Whata JJ). JADE

Practice and Procedure Desk.

• Toka Tū Ake - Natural Hazards Commission v Freer [2026] NZCA 396 - s 19 of the Earthquake Commission Act 1993 covers residential land on an indemnity basis, the stated amount a maximum; an owner who sells without repairing, and that owner's assignee, recover only diminution of value; certification under r 4.24 of the High Court Rules 2016 requires a provisional merits screening of the representative's own claim, not deferred to trial, and a hopeless claim disqualifies; an amended pleading is a fresh cause of action only if essentially different in substance; no non-party sub-class representative without joinder. Representative order set aside (Courtney, Ellis and Campbell JJ). JADE

Registry.

• Lee v The King [2026] NZCA 399 - murder sentence appeal: s 104 aggravating factors are viewed through any causative mental illness (Van Hemert). Appeal allowed (Whata, Isac and Johnstone JJ). Reported as legal doctrine only. JADE
• Li v Smith [2026] NZCA 436 - once prior incapacity is shown, the proponent must prove testamentary capacity at execution; indemnity costs for a hopeless appeal. Dismissed (Johnstone, Downs and Anderson JJ). JADE
• Gilchrist v The King [2026] NZCA 391 - drug sentence appeal: convictions on charges never pleaded to set aside under s 300(1)(e) of the Criminal Procedure Act 2011; sentence manifestly excessive. Allowed (Whata, Isac and Johnstone JJ). JADE
• Bleakley v Bleakley [2026] NZHC 2636 - an executor generally has no justifiable interest under s 66 of the Evidence Act 2006 in maintaining privilege over testamentary instructions against an undue influence claim; disclosure ordered (La Hood J). JADE
• Official Assignee v Milosevic [2026] NZHC 2322 - a late undertaking does not purge sustained breach of time-limited orders; contempt, imprisonment and community work (Andrew J). JADE
• Brelil SRL v Wyllie [2026] NZHC 2422 - a self-described victim of fraud by persons unknown need not particularise fraud as an accuser must; no presumption that civil law enforcement costs more (Associate Judge Gambrill). JADE
• Mainzeal Property and Construction Limited (in liquidation) v Commissioner of Inland Revenue [2026] NZHC 2715 - an insurer's payment to a company holding a statutory charge over directors' insurance money attracts GST under s 5(13) of the Goods and Services Tax Act 1985. Dismissed (Tracey Walker J). JADE
• Future Sustainable Construction Limited v 1st Piler Limited [2026] NZHC 2871 - a set-aside application not made and served within 10 working days under s 290(2) of the Companies Act 1993 is a nullity; service at the registered office stands (Jagose J). JADE

The other 328 decisions in the edition's court table are not covered in this episode.

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

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Edition nine — the yardstick fortnight, 17 to 30 September, deduped against edition eight and the daily brief. The Western Australian Court of Appeal holds that consent orders binding a person with a disability need the court's own satisfaction of best interests, which cannot be inferred. The Queensland Court of Appeal holds that a prior all-assets PPSA security defeats a later assignment of an expectancy when it crystallises, and survives a DOCA release to reach after-acquired property, doubting Re Bluenergy. A Full Court of the Federal Circuit and Family Court holds that leaving a material contributions contest unresolved is an error of law, and a Division 1 appeal judge that de facto findings are reviewed for correctness. Six criminal appeals from five States, on comparators, missing jury directions, the Commonwealth plea discount and a mandatory minimum, are reported with restraint. House spot: a word from JADE after the opening desk segment.

Features

Family Law Desk — NEW: W v S [No 3] [2026] WASCA 136 (r 109(1)(d) is substantive: the court must itself be satisfied, not by inference, that consent orders binding a person with a disability are in that person's best interests; distinct from just and equitable under s 205ZG(3); not supplied by a case guardian and counsel; r 12 cannot dispense; remitted for rehearing; unanimous) · Verissimus & Polycarpe [2026] FedCFamC1A 166 (failing to resolve a material contributions contest, or explain why not, is an error of law vitiating s 79; a joined spousal maintenance claim must be determined; parties are held to the case they ran; parenting options not advanced need not be considered; AI-drafted appeal documents should be avoided (obiter); allowed in part, unanimous) · Mishra & Piatos [2026] FedCFamC1A 171 (whether a de facto relationship existed, and for what periods, is reviewed for correctness under Warren v Coombes, not House v The King; weight challenges have no place; no threshold inquiry into permanence before periods are aggregated; dismissed).

Criminal Law Desk — NEW: Cole, White & Holden v The King [2026] VSCA 238 (manifest excess without specific error; comparators distinguished by trial or plea; violence enforcing compliance in a false imprisonment is context, not a De Simoni aggravation; complicity does not of itself require greater disparity; appeals allowed, resentenced) · Adcock v The King [2026] SASCA 113 (s 44(2) is confined to physiological harm; equivalence under the Young guidelines needs proof of use, prevalence and societal effects; adding back plea discounts to build an effective starting point is artificial; a conceded factual error, but no different sentence; dismissed) · R v NAJ [2026] QCA 182 (a s 132BA forensic disadvantage must be real, identifiable and significant; Foley direction or recall is counsel's forensic choice; exceeding the Crown's range is not of itself error; dismissed, unanimous) · R v LBQ [2026] QCA 181 (where the evidence raises an honest and reasonable mistaken belief, the Code s 24 defence must be directed on and the Crown must disprove it; the omission is material without a request for redirection; new trial ordered, unanimous) · Mehieddine v R [2026] NSWCCA 151 (s 25D does not bind the s 16A(2)(g) plea discount for Commonwealth offences; 20% open for the delay of belatedly revising agreed facts; a signal from the bench affords procedural fairness; dismissed) · DPP v Cleaver [2026] TASCCA 7 (the s 11A(4A) two-year disqualification is mandatory; a statutorily separate sentence must be adequate and transparent; no suspension where deterrence, denunciation and punishment predominate; prosecution appeal allowed).

Desk segments

Commercial Law Desk — NEW: Gussen v Swinburne University of Technology [2026] FCA 1389 (a negotiated deed of release is enforced on its objective terms absent a recognised vitiating factor; pre-contract descriptions are assessed against the express terms; a valid deed conferring a benefit is not adverse action; separate question confined to validity) · Kirk v Moreton Resources Pty Ltd [2026] QCA 186 (a crystallised expectancy is after-acquired property within an all-assets PPSA security, which ranks ahead of a later equitable assignment; Re Anroma confined to company v secured creditor; s 444D(2) preserves the security over after-acquired property after a DOCA release; Re Bluenergy doubted; allowed, unanimous).

Public Law Desk — NEW: Manebona v Assistant Minister for Citizenship and Multicultural Affairs [2026] FCAFC 130 (s 501BA(2) prescribes no mandatory considerations, but mandatory detention pending removal must be weighed in its practical reality, the label immaterial; dated material is unreasonable only where the Minister assumes a past state of affairs persists; an inference of non-consideration needs clear evidence; NZYQ not engaged; s 501E reserved; unanimous) · Bonney v Watarra Aboriginal Corporation RNTBC (No 4) [2026] FCA 1414 (an eligible native title holder omitted on registration is a person aggrieved; the Registrar need not verify the proposed member list under s 26-1 of the CATSI Act; mere reliance on a misleading document is not an error of law; relief refused for want of utility).

The Registry

Torts & Negligence — McVicker v Australian Broadcasting Corporation [2026] QCA 179 (defamatory meaning and the reasonableness of an offer to make amends are reviewed for correctness under Warren v Coombes; a retained, modified article with an editor's note, a qualified apology and no compensation can be a reasonable s 18 offer; dismissed).

Held

Wills & Probate reports nothing new: its sole entry is edition eight's Walley (linked below). No Constitutional Law and no Intellectual Property edition this fortnight. A quiet fortnight is itself the report.

Treated in edition eight

Cripps v R (s 52A guideline judgment) [2026] NSWCCA 144 · Forbes v R [2026] NSWCCA 147 · R v Molnar [2026] NSWCCA 148 · Nikola Latuhoi v The King [2026] VSCA 231 · Yarra Valley Park Lane Holiday Park Pty Ltd v The King [2026] VSCA 233 · Barber v Blackmagic Design Pty Ltd (Security for Costs) [2026] FCA 1378 · ASIC v Star Investment Group Australia Pty Ltd [2026] FCA 1380 · Sydney Children's Hospitals Network v FZP [2026] NSWCA 203 · MJZP v Director-General of Security [2026] FCAFC 127 · Sciascia v Minister for Immigration and Citizenship [2026] FCA 1385 · Montenegro v Legal Profession Admission Board (No 4) [2026] NSWCA 199 · Walley, in the matter of Royal National Capital Alliance Ltd (Administrators Appointed) (No 2) [2026] FCA 1383.

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

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September in torts and negligence was a month about the burden. The NSW Court of Appeal gives the first sustained appellate working of private nuisance as the High Court restated it in Hunt Leather: the plaintiff proves a substantial interference, and the defendant must justify itself. The Supreme Court of NSW holds that a river authority balancing the public interest owes irrigators no duty to avoid pure economic loss, and the Supreme Court of New Zealand unanimously declines to widen the secondary-victim tort, to create a new one, or to let exemplary damages survive the claimant. House spot: a word from JADE after the opening lead.

Leads.

• Hunter Water Corporation v The Owners of Strata Plan 16460 [2026] NSWCA 184 (Ward P, Leeming and McHugh JJA, 4 September 2026) - after Hunt Leather, the plaintiff proves substantial interference and the defendant must establish a common and ordinary purpose and that its use was 'conveniently done'; purpose is pitched at a general level (maintaining water mains), the method of repair is means; a real risk of catastrophic interference demands a sufficient reason for the means chosen; a latent-defect excuse needs a sole cause; s 43A of the Civil Liability Act 2002 (NSW) is engaged only where liability is based on a special statutory power, which a nuisance claim complete without one is not; obiter, Hunt Leather has no ratio on construction works, and the restated test changed the law. Appeal and cross-appeal dismissed. Ledger · JADE
• Doyle's Farm Produce Pty Ltd atf Claredale Family Trust v Murray-Darling Basin Authority [2026] NSWSC 1036 (Faulkner J, 31 August 2026) - no novel duty to avoid pure economic loss where it would be incongruous with the Water Act 2007 (Cth) framework, centred on the public interest and the States; no assumption of responsibility; salient features are not a checklist; the tort is located where the decisions were made, so ACT law governs; s 5D(3)(b) of the Civil Liability Act 2002 (NSW) is procedural, picked up by s 79(1) of the Judiciary Act 1903 (Cth), and applies to corporate plaintiffs; the Cessnock inference quantifies a proved loss but cannot prove causation. Representative proceedings dismissed. Ledger · JADE
• Tracey Ida Peka as Personal Representative of the Estate of Ida Hawkins v Sam Te Hei [2026] NZSC 121 (Winkelmann CJ, Ellen France, Miller, Cooke and Katz JJ, 4 September 2026) - unanimous: the tort of mental harm is not extended to secondary victims lacking a recognised psychiatric disorder and temporal and physical proximity; no novel tort founded on a sense of justice; Re Chase reaffirmed, so exemplary damages do not survive the claimant's death under s 3(1) of the Law Reform Act 1936 (NZ); Deaths by Accidents Compensation Act 1952 (NZ) recovery stays pecuniary; a Prisoners' and Victims' Claims Act 2005 claim must disclose an established cause of action. Appeal dismissed, cross-appeal allowed, remittal set aside. Reported as legal doctrine only. Ledger · JADE

The September docket.

• Gobbo v State of Victoria [2026] VSCA 221 (Emerton P, Beach and Kenny JJA, 11 September 2026) - general words in a deed of release are restrained by its text, context and purpose, the recitals and the disputes in the parties' contemplation, subjective intention inadmissible, and a release of all accrued causes of action barred the negligence claims; breach under s 48 of the Wrongs Act 1958 (Vic) is assessed prospectively; voluntary assumption of risk needs full knowledge and free acceptance of an obvious risk. Leave refused to the first applicant; the other appeals dismissed. Ledger · JADE
• HGY v Secretary, Ministry of Health in respect of Northern NSW Local Health District [2026] NSWCATAD 278 (P Roney KC, Senior Member, and M Maher, General Member, 16 September 2026) - a requirement that internal job applicants disclose former names to the hiring panel was indirect transgender discrimination under s 38B(1)(b) of the Anti-Discrimination Act 1977 (NSW); inability to comply is assessed objectively and extends to serious disadvantage; centralised checks made the condition unreasonable; $25,000 for non-economic loss on credible testimony without medical evidence, and $10,000 aggravated damages for the conduct of the proceedings. Complaint upheld. Ledger · JADE

Cases referenced at the table.

• Hunt Leather Pty Ltd v Transport for NSW [2025] HCA 53 - the restatement Hunter Water applies. JADE
• Cessnock City Council v 123 259 932 Pty Ltd (2024) 281 CLR 39 - the inference Doyle's Farm confines. JADE
• Re Chase [1989] 1 NZLR 325 - reaffirmed in Peka.

What to watch.

Hunt Leather left no majority on whether the purpose of construction or demolition works belongs in the second or third limb, so the next building-site nuisance case will be argued from first principle. Public authorities defending nuisance claims will need to rethink how they plead s 43A. And in New Zealand, widening secondary-victim recovery, or letting exemplary damages survive the claimant, is now squarely a question for Parliament.

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