Australian Courts of Appeal (3 November 2026)

Send us Fan Mail Seven headnoted appellate decisions from the Courts of Appeal of Queensland, New South Wales, Western Australia, South Australia and the ACT and the NSW Court of Criminal Appeal in the edition of Tuesday 3 November 2026, with the Federal Courts, New South Wales, Queensland, Western Australia and ACT editions of the same day folded in. A disablement policy's work test that was really a time limit; good reason for a medical referral, notice and a textbook nobody saw; a power of attorney, attribution and remedies against family transfers; a golf course scheme of development and a car park order; a patent read integer by integer; grounds of appeal, stays and missed deadlines. A civil claim alleging abuse is reported as legal doctrine only. Commercial Law Desk (opening story). AIA Australia Limited v Kelly-Stevens [2026] QCA 220 - s 54(1) Insurance Contracts Act 1984 (Cth) applies by substance, not form, and is not confined to increase-of-risk terms; a group life policy's requirement to have worked 15 hours a week for three months before disablement is a temporal qualification collateral to the policy's essential character, not a restriction inherent in the claim; the omission did not contribute to the loss and enlarged liability is not prejudice. Appeal dismissed (Brown and Bradley JJA, Freeburn J; also Queensland edition). JADE Leung v On Sky Enterprise (HK) Limited; Leung v On Sky Enterprise (HK) Limited [2026] NSWCA 233 - an attorney under a s 163B Conveyancing Act 1919 (NSW) power expressly authorising self-benefit has fiduciary duties that accommodate it (no breach, by majority); fraud on a power is not necessarily a fiduciary breach and yields no account of profits; ordinary agency attribution governs the s 37A intent to defraud; relief is avoidance with interest, tracing and a charge, not a constructive trust over the whole or an account of profits; intent need not be the sole purpose. 2020 appeal dismissed; 2019 appeal allowed in part (Ward P, Payne and Ball JJA; also NSW edition). JADE Public Law Desk . LUKE v Department of Primary Industries and Regions [2026] SASCA 133 - referral of a whole person impairment reassessment to an independent medical adviser under s 121 Return to Work Act 2014 (SA) needs good reason, not a finding of error; no adverse finding without notice unless the risk inheres in the issues; a specialist tribunal may use only its own disclosed corpus of knowledge, so an anatomy text not in evidence fell outside judicial notice; relief requires practical injustice and may be tailored. Appeal and cross-appeal dismissed; remitted to the trial judge (Livesey P, S Doyle and Stanley JJA). JADE ACT v Higgins [2026] ACTCA 38 - a scheme of development needs a shared intention to create mutually enforceable obligations as a local law; a community of interest does not of itself create them; the ACT leasehold and planning context made a private covenant scheme over golf course land very unlikely. Appeals allowed, cross-appeal dismissed (McCallum CJ, Mossop and Baker JJ; also ACT edition). JADE NG Landholdings No 15 Pty Ltd v The Owners – Units Plan No 14971 [2026] ACTSC 421 - the presumption of regularity is not an aid to construing an admitted development approval; unapproved signage is development amenable to a controlled activity order. Appeal allowed in part (Muller J; ACT edition). JADE Practice and Procedure Desk . Tama Australia Pty Ltd v Parterra Australia Pty Ltd [2026] FCA 1643 - claim construction gave each surface of the cover a f