Australia: NSW Government Bulletin - 9 July 2014

In 5 February 2014's edition of Government Bulletin, we discussed the introduction of the Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014 (NSW) (MA Act), which cancelled the mining licences for the Mount Penny, Doyles Creek and Glendon Brook mines, following the Independent Commission Against Corruption (ICAC) Operations Jasper and Acacia.

By way of update, on 26 June 2014, NuCoal Resources Ltd (NuCoal) made an announcement to the Australian Securities Exchange, informing the market that it has filed a Writ of Summons and Statement of Claim in the High Court challenging the constitutional validity of the MA Act.

NuCoal's arguments are that:

  1. the MA Act is a purported exercise of judicial power, which is not allowed by the State and Federal Constitutions;
  2. the MA Act was intended to be a punishment resulting from the ICAC findings, however, NuCoal and its directors were not subject to the ICAC findings;
  3. the MA Act expropriates NuCoal's valuable property; and
  4. even if the NSW Parliament had the power to pass legislation in the form of the MA Act, it did not do so in accordance with the rule of law as it did not provide NuCoal with procedural fairness.

NuCoal has not yet filed a summons for directions and there is not yet an indication of a listing date. It will be interesting to see over the next few months whether the NuCoal High Court case will be heard with Travers Duncan of Cascade Coal's High Court challenge over the same legislation.

Upcoming events

Research Training for Government Lawyers: Government Lawyers are invited to join us for a research training session designed specifically for Government Lawyers, to be held in Sydney on 22 July and presented by Keren Smith, Holding Redlich's National Knowledge Manager. Use this link for more information and to register.

To start a conversation about Government Bulletin or issues of interest to NSW government lawyers, join the LinkedIn group NSW Government Lawyers by clicking on this link. Membership is open to lawyers employed in the public sector.

In the media

Review of Bail Act
NSW Premier Mike Baird and Attorney General Brad Hazzard have today announced the NSW Government will conduct a review of the new bail laws to ensure the safety of the community, victims and witnesses is at the forefront of all decisions made on bail (27 June 2014) More...

Government Bail Act Review is premature for NSW
The President of the NSW has urged the NSW Government to exercise caution in relation to the premature review of the new Bail Act provisions which only commenced operation on 20 May 2014. Last week the Government announced that a review would be conducted of the new Bail Act by the Hon John Hatzistergos, a former member of the NSW Parliament (01 July 2014) More...

ICAC finds former Ryde City Council Mayor and others corrupt
The ICAC has found that the former mayor of the City of Ryde, Ivan Petch, engaged in corrupt conduct in relation to the release of confidential information for various purposes including attempts to cast doubt on the suitability of John Neish to serve as the Council's general manager (30 June 2014) More...

Labor Calls For Government To Support Extension Of Royal Commission
The Royal Commission into Institutional Responses to Child Sexual Abuse handed down its Interim Report. In addition to describing the harrowing work of the Royal Commission to date, in its Interim Report the Royal Commission calls on the Government to extend its final reporting date by two years to 15 December 2017 (30 June 2014) More...

Coal miner takes NSW govt to High Court
A NSW coal company is mounting a constitutional challenge in the High Court to a state law cancelling corruption-tainted exploration licences. NUCOAL Resources claims the law amounts to an act of judicial power by the NSW parliament, which is prohibited by the state and federal constitutions. This is the second constitutional challenge to the law, passed in response to findings by the ICAC (30 June 2014) More...

NSW review upholds Metgasco CSG suspension
A drilling licence for a controversial coal seam gas mine in the NSW Northern Rivers region will remain suspended. Metgasco has filed for a judicial review in the Supreme Court, and plans to argue the Minister's decision was "unlawful" because it wasn't authorised in legislation and denied the company procedural fairness (26 June 2014) More...

New self-representation service to provide legal support for those going it alone
A new federally funded program which will support people representing themselves in Federal and Federal Circuit Courts in NSW, Victoria, ACT and Tasmania is currently under construction at Justice Connect, with the service due to open its doors in August (24 June 2014 ) More...

In practice and courts

ICAC: Prosecutions information now on dedicated ICAC webpage
The ICAC has launched a new page on its website, providing easily accessible information about prosecution activity related to ICAC investigations (03 July 2014) Prosecutions information now on dedicated ICAC webpage

NCAT: Fact Sheet Released
The NSW Civil and Administrative Tribunal (NCAT) has released About NCAT (May 2014), a fact sheet "introducing the [NCAT] as the one-stop-shop for tribunal services in NSW". NCAT's media release (25 June 2014)

NSW Supreme Court - Operational Statistics
The Supreme Court has published its finalised Operational Statistics (19 June 2014) for 2013, which relate to filings, disposals and pending cases and timeliness Further information from the Supreme Court

Operation Cavill Report Concerning Ryde City Council to be Furnished 30 June 2014
The NSW Independent Commission against Corruption (ICAC) will furnish its report on the Operation Cavill investigation to the Deputy President of the Legislative Council on 30 June 2014. If the Deputy President makes the report public, it will be made available for download from the ICAC website at (26 June 2014)

National Investigations Symposium 2014
The 10th National Investigations Symposium will be held from 5 - 7 November 2014 at the Four Seasons Hotel, Sydney. This biennial event, for public sector investigators and complaint-handlers, is run by the NSW ICAC, NSW Ombudsman and the Institute of Public Administration Australia (NSW Division).To express interest in attending the 2014 symposium, visit the IPAA NSW website.


Sahade v The Owners - Strata Plan 62022 [2014] NSWCA 208
ADMINISTRATIVE LAW - judicial review - error of law - tribunal declined to reallocate unit entitlements in strata scheme - appeal to District Court - remittal to tribunal ordered on the basis that there was a failure to give reasons - whether an error of law disclosed in requiring the issue of control of strata scheme management to be considered on remittal More...

Nefiko Pty Ltd v Statewide Form Pty Ltd (No 2) [2014] NSWSC 840
ADMINISTRATIVE LAW - judicial review - grounds of review - Building and Construction Industry Security of Payment Act 1999 (NSW) - adjudication determination - whether identity of parties to construction contract a jurisdictional fact - whether decision by adjudicator as to identity of contracting parties reviewable for jurisdictional error - distinction between determination of a jurisdictional fact with binding legal effect and the formation of an opinion by an administrative body in relation to a jurisdictional fact - whether denial of natural justice - whether adjudicator took into account all relevant factual matters More...

Workers Compensation Nominal Insurer v Bui [2014] NSWSC 832
ADMINISTRATIVE LAW - civil - decision of Workers Compensation Commission - appeal decision of Medical Appeal Panel -procedure of Medical Appeal Panel - whether the Panel erred in failing to carry out a hearing de novo - Panel's consideration of 'fresh evidence' - whether the Panel erred in giving insufficient reasons - whether the Panel's statement of reasons complies with its statutory obligation – proceedings set aside More...

Regional Express Holdings Limited v Dubbo City Council (No 3) [2014] NSWLEC 87
JUDICIAL REVIEW - challenge to local council decision to charge fee for service of passenger security screening at regional airport - whether power to charge entity not receiving the service - statutory requirements for notification of public of intended fee complied with - no failure to accord procedural fairness to applicant - council decisions not irrational or unreasonable - no failure to consider mandatory relevant matters - irrelevant matters not considered - dismissed More...

Nemeth v Australian Litigation Funders Pty Ltd [2014] NSWCA 198
APPEAL AND NEW TRIAL - Appeal - Interference with primary judge's findings of fact - Finding by primary judge that contract not unjust - Functions of appellate court - Appellate review to accord with principles for an appeal by way of rehearing - Appellate court able to determine whether contract was unjust based on proper inferences to be drawn from established facts - Principles in Fox v Percy and House v The King apply - Whether primary judge's findings were inconsistent with incontrovertible facts or uncontested testimony, or were glaringly improbable or contrary to compelling inferences
CONTRACTS - General contractual principles - Harsh and unconscionable contracts and statutory remedies - Contracts Review Act 1980 s 7 - Unjust contracts - Whether the funding agreement was substantially unjust - Whether the contract was merely a "risk free loan", offensive to community standards, or improvident JUDICIAL REVIEW - Grounds of review - Procedural fairness - Hearing rule - Nature of Hearing - Whether appellant was denied the opportunity to make submissions - Whether primary judge made findings that were not open on the evidence nor pleaded by either party – dismissed More...

Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP 29
ADMINISTRATIVE LAW - Civil and Administrative Tribunal (NSW) - appeal - application for leave to appeal - no significant miscarriage of justice - no significant new evidence identified - application denied - claims for relief for breaches of warranties under the Home Building Act 1989 (NSW) (the HB Act). The claims were dismissed on the basis that they had been made outside the relevant period under ss 18E and 48K of the HB Act. More...



Proclamations commencing Acts

Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014 No 18 (2014-396) — published LW 27 June 2014
This Proclamation appoints 1 July 2014 as the day on which the Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014 No 18 commences.

Regulations and other miscellaneous instruments

Administrative Arrangements (Administration of Acts—Amendment No 2) Order 2014 (2014-412) — published LW 30 June 2014
This Order makes amendments to the allocation of administration of acts as outlined in the Schedule 1.

Administrative Arrangements (Administrative Changes—Miscellaneous Agencies) Order 2014 (2014-413) — published LW 30 June 2014
The object of this Order is to make amendments to the name of the Department of Police and Justice and transfers responsibility of different governmental offices to different New South Wales state departments.

Criminal Procedure Amendment (Fees) Regulation 2014 (2014-414) — published LW 4 July 2014 This Order increases the fees payable in relation to criminal proceedings.

Evidence (Audio and Audio Visual Links) Amendment (Bail Exemption) Regulation 2014 (2014-416) — published LW 4 July 2014
This Regulation provides an exemption from the requirement for an accused detainee to physically appear before a court in bail proceedings and prescribes Wollongong Police Station as an exemption, so that an accused detainee who is being held there will be exempt from the requirement to appear physically before the court in bail proceedings.

Prisoners (Interstate Transfer) Regulation 2014 (2014-417) — published LW 4 July 2014
The object of this Regulation is to remake, without substantive changes, the Prisoners (Interstate Transfer) Regulation 2009, which would otherwise be repealed on 1 September 2014 by section 10(2) of the Subordinate Legislation Act 1989.

Bail Amendment (Juvenile Justice) Regulation 2014 (2014-411) — published LW 27 June 2014
The object of this Regulation is to permit a centre manager or assistant manager of a children's detention centre and certain other Juvenile Justice officers to exercise functions such as giving an accused person a bail acknowledgement, accepting a signed bail acknowledgement from an accused and accepting money or security deposited under a bail condition.

Civil and Administrative Tribunal Amendment (Fees) Regulation 2014 (2014-404) — published LW 27 June 2014
The object of this Regulation is to increase certain fees payable in connection with proceedings before the Civil and Administrative Tribunal.

Civil Procedure Amendment (Fees) Regulation 2014 (2014-405) — published LW 27 June 2014
The object of this Regulation is to increase certain fees payable in relation to civil proceedings generally and other fees that are payable to the Sheriff.

Bills assented to

Crimes (Domestic and Personal Violence) Amendment (Information Sharing) Act 2014 No 27 — Assented to 24 June 2014

Election Funding, Expenditure and Disclosures Consequential Amendment Act 2014 No 28 — Assented to 24 June 2014

Electoral and Lobbying Legislation Amendment (Electoral Commission) Act 2014 No 30 — Assented to 24 June 2014

Law Enforcement (Powers and Responsibilities) Amendment Act 2014 No 31 — Assented to 24 June 2014

Statute Law (Miscellaneous Provisions) Act 2014 No 33 — Assented to 24 June 2014

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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