Australian Courts of Appeal (4 November 2026)

Send us Fan Mail Seven headnoted appellate decisions, three from the High Court, in the Court of Appeal edition of Wednesday 4 November 2026, with the New South Wales, Western Australia and Tasmania editions of the same day folded in. Payroll tax on rideshare fares; a wash sale and the limits of dividend stripping; jury advantage in a murder appeal now sent back; estoppel on a promise nobody signed; the hearing rule; councillors removed for absence; and family provision in a small estate. The murder appeal concerns a death after an argument between partners and is reported as legal doctrine only. Tax and Revenue Desk (opening story). Uber Australia Pty Ltd v Chief Commissioner of State Revenue [2026] HCA 40 - under the contractor provisions of the Payroll Tax Act 2007 (NSW), a service is supplied to a designated person who is owed a contractual obligation to provide it, even if supplied simultaneously to another (s 32(1)(b)); supply is under a contract at least where the contract is the source of the obligation, the wider construction left open; the s 32(2)(a) ancillary-to-goods exclusion needs use of goods of greater contractual significance than the work; s 35(1) deemed wages need a connection to work, not a quid pro quo; the provisions are not read down for gig economy models. Appeal dismissed with costs, Steward J dissenting (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ; also today's Federal Courts edition). JADE Commissioner of Taxation v Merchant [2026] HCA 39 - dominant purpose under s 177A(5) and s 177D Income Tax Assessment Act 1936 (Cth) is the ruling, prevailing or most influential purpose, found by a global non-arithmetical evaluation; an alternative postulate excluded by the findings is not reasonable under s 177CB(3) (three Justices); an internal wash sale had the dominant purpose of crystallising a capital loss (unanimous); by four to three, the Consolidated Press Holdings characteristics of dividend stripping are essential, and in a Pt IVC appeal a s 177E assessment cannot rest on a capital loss cancelled under s 177F(1)(c); all seven: a dominant tax avoidance purpose is an unexpressed element of s 177E. Taxpayers' appeal dismissed; Commissioner's appeal dismissed and cross-appeal allowed; s 177E objection allowed and remitted for reassessment (Gageler CJ, Jagot and Beech-Jones JJ dissenting in part; also today's Federal Courts edition). JADE Criminal Law Desk (legal doctrine only; the appeal is pending; no one identified). O'Connell v Director of Public Prosecutions [2026] HCA 41 - an intermediate appellate court may raise an issue apparent on the material if a party takes it up and the other is heard; on an unreasonable verdict ground under s 37O(2)(a)(i) Supreme Court Act 1933 (ACT) it must make full allowance for the jury's advantages and assess a circumstantial case on the combined effect of all circumstances, not piecemeal; remittal turns on the interests of justice; s 37O(1)(d) permits entry of a guilty verdict for an alternative offence. DPP's appeal allowed, the ACT Court of Appeal's orders set aside and the matter remitted for determination according to law; the accused's appeal dismissed (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ; also today's Federal Courts edition). Anyone facing a charge is presumed innocent; nothing is predicted. JADE Commercial Law Desk and Practice and Procedure Desk . Makis v Kyriacou [2026] NSWCA 234 - proprietary estoppel by encouragement founded on a promise requires a clear and unequivocal promise (following the Kramer v Stone plurality; Kronenberg v Macaulay not adopted);