Australian Courts of Appeal (29 October 2026)

Send us Fan Mail Five headnoted appellate decisions from three courts in the edition of Thursday 29 October 2026, with the Western Australia, South Australia and Tasmania editions of the same day folded in. A self-represented litigant treated as having closed a case he said was still open; a partner named senior next of kin, and why that status confers no right to bury; habeas corpus and a conviction already decided on appeal; reasons never asked for and a subpoena that went fishing; a mixed out-of-court statement and the closing address; and what a file's modified date proves. Two matters involving sexual offending against children and child exploitation material are reported as legal doctrine only. Practice and Procedure Desk (opening story). Tabbaa v State of New South Wales [2026] NSWCA 230 - whether a party has closed its case is a question of fact, and caution is needed where it says it has not; a party that has not closed must be permitted to tender its evidence before the defendant goes into evidence, so refusing the tender before a r 29.10 UCPR (NSW) summary judgment motion denied procedural fairness; an offer to hear a reopening application conditioned on admitting the case was closed did not cure it, and s 56 Civil Procedure Act 2005 (NSW) favours entertaining the application without admissions; materiality inferred without seeing the documents; summary judgment is interlocutory, and unsupported assertions of economic loss do not meet the s 127 District Court Act 1973 (NSW) threshold. Leave granted in part; appeal allowed as to the malicious prosecution claim, which is remitted to the District Court and remains to be decided (Mitchelmore and Stern JJA, Griffiths AJA; Signal Practice and Procedure; also today's New South Wales brief). JADE MMP Industrial Pty Ltd and MMP NZ Ltd v Yaem Pty Ltd as trustee for the R & R Discretionary Trust [2026] NSWCA 229 - for interlocutory procedural orders appellate restraint is engaged at the leave stage, and the standard of review does not arise until leave is granted (left open for setting aside a subpoena); a party that did not seek reasons for a procedural decision in a list that gives none unless asked cannot rely on their absence on appeal; apparent relevance under r 33.4 UCPR (NSW) is not met where it rests on an unsupported assumption, and there is no duty to narrow a subpoena when no narrowing is sought. Leave to appeal refused with costs (Stern and McHugh JJA, Black J; also today's New South Wales brief). JADE Public Law Desk . Wells v Mackey [2026] TASSC 69 - the Coroner's determination that the deceased's partner was her spouse and so senior next of kin under s 3A Coroners Act 1995 (Tas) affirmed under s 3B(2)(a); practical inability to cohabit and a recent disagreement need not defeat spousal status; the status operates only for that Act and confers no right to bury, which rests under the general law with the personal representative or the person with the best right to administration; injunction in the inherent jurisdiction restraining the senior next of kin from exercising any right of burial; the Attorney-General intervened as of right; a served party who ignores the process will not be heard by telephone once the hearing begins (Shanahan CJ; Signal Doctrine and Practice and Procedure; Tasmania edition). JADE Fantakis v Commissioner of Corrective Services (NSW) [2026] NSWCA 228 - an order of a superior court of record is valid until set aside, even if made in excess of jurisdiction, so unchallenged sentencing orders and the warrant answer habeas corpus under s 71 Supreme Court Act 1970 (NSW); habeas corpus is no avenue to reagitate a conviction appeal