Australia: NSW Government Bulletin - 6 August 2014

Last Updated: 10 August 2014
Article by Sylvia Fernandez and Christine Jones

Most Read Contributor in Australia, September 2016

On 29 July 2014, the NSW Supreme Court handed down its decision of Duncan v ICAC McGuigan v ICAC Kinghorn v ICAC Cascade Coal v ICAC [2014] NSWSC 1018, which was an appeal from the findings and recommendations of the Independent Commission Against Corruption (ICAC) in its report in relation to Operation Jasper. Operation Jasper was the inquiry relating to corrupt conduct in the Mount Penny mining tenement and the grant of an exploration licence over that tenement.

The proceedings were brought by Mr Travers Duncan, Mr John McGuigan, Mr John Atkinson, Mr Richard Poole and Mr John Kinghorn and their associated companies. The individuals each challenged the findings of corrupt conduct made against them by the ICAC, and sought declarations that the findings be nullified. The corporate plaintiffs sought declarations that the recommendations made by the ICAC in its third report be nullified.

The ICAC made findings that the conduct of each of the individual plaintiffs, except Mr Kinghorn, could involve a contravention of s.192E(1)(b) under the Crimes Act 1900 (NSW), whereas in the case of Mr Kinghorn (and the other individual plaintiffs except for Mr Poole), the ICAC found that his conduct could involve contravention of s.184(1) of the Corporations Act 2001 (Cth): dishonestly or recklessly failing to discharge duties as a director in good faith or for proper purpose.

The Court found that the ICAC's findings in relation to s.184(1) could not be sustained, on the basis that the relevant plaintiffs (as directors of White Energy) had removed themselves from the conflict and had left the decision of whether White Energy's option to acquire their shares in Cascade Coal should be exercised to others. They were not acting as directors of White Energy in relation to the transaction.

The Court upheld the ICAC's findings in relation to s.192E(1)(b). Accordingly, only Mr Kinghorn was successful, as an essential jurisdictional fact necessary to exist before there could be a finding of corrupt conduct was lacking.

In relation to the relief sought by the corporate plaintiffs, the Court found that the recommendations of the report did not amount to a decision susceptible to review, and that the relief sought would lack utility as the grant of the declarations would not undo the legislative response to the ICAC's first report.

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In the media

Judge Neilson thrown off case, still facing disciplinary action by judicial commission
The judicial watchdog's inquiry into judge Garry Neilson has been enhanced by an appeals court decision on Wednesday to strip him of the case, finding he was "clearly in error" when he compared incest and paedophilia to homosexuality (31 July 2014) More...

ICAC corruption finding against RAMS founder overturned
The New South Wales Supreme Court has overturned a corruption finding against RAMS Home Loans founder John Kinghorn over his involvement in a mine licence linked to the Obeid family (29 July 2014) More...

Custody data show prison ups and downs - NSW
Attorney General Brad Hazzard today welcomed the release of new custody data from the NSW Bureau of Crime Statistics and Research (BOCSAR) showing the prison population's latest fluctuations. Mr Hazzard said Corrective Services NSW is managing the prison population effectively (28 July 2014) More...

University of New England – allegations concerning former chancellor (Operation Verdi)
The ICAC is investigating allegations including that John Cassidy, the former chancellor of the University of New England (UNE), provided confidential and/or sensitive information, that he acquired in the course of his official functions as chancellor. The Operation Verdi public inquiry is adjourned (25 July 2014) More...

In practice and in courts

ICAC: Operation Spicer public inquiry resumes

The ICAC's Operation Spicer public inquiry will resume on Wednesday 6 August 2014 (28 July 2014) Operation Spicer public inquiry resumes Wednesday 6 August

New Regulation – NSW Administrative Decisions Review
The Administrative Decisions Review Regulation 2014 No. 460 (NSW) has been made under the authority of the Administrative Decisions Review Act 1997 No. 76 (NSW). According to the explanatory note, the object of the Regulation is to remake, without substantive amendments, the provisions of the Administrative Decisions Review Regulation 2009 No. 435 (NSW) which is repealed on 1 September 2014 by the Subordinate Legislation Act 1989 No. 146 (NSW). Specifically, the Regulation makes provision with respect to: the exclusion of certain classes of administratively reviewable decisions from the requirement to provide reasons for a decision and from internal review; and savings and formal matters. The Regulation will commence on 1 September 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.

Published - Articles, Papers, Reports

Judicial Speeches

Peripheral Vision? Judicial Review in Australia
Speech by Chief Justice Wayne Martinat the Australian Institute of Administrative Law National Conference 2014 (24 July 2014)

When too much law is barely enough: the role of legislative drafters in an age of statutes
Speech by Chief Justice Wayne Martin at the 2014 Australasian Drafting Conference (30 July 2014)

NSW custody statistics: quarterly update June 2014
NSW Bureau of Crime Statistics and Research, 28 July 2014
After reaching a peak of 10,822 in April this year, the number of adults in custody in NSW fell back to 10,515 in June. The fall in adult custody numbers is mainly attributable to a drop in the number of defendants on remand NSW custody statistics: quarterly update June 2014


Day v Harness Racing New South Wales [2014] NSWSC 1024
CIVIL LAW - judicial review - amended points of claim - excessive material placed before duty judge - ridiculous estimates as to length of case - President Lincoln - "surprise rule" - application to points of claim - relevance in matters of construction More...

Curtis v Charles Darwin University [2014] NSWSC 1032
An extension of time to appeal is granted.
APPEAL - civil - appeal from decision of Local Court pursuant to s 39 or s 40 of the Local Court Act 2007 (NSW) - whether extension of time to appeal should be granted - whether Magistrate should have recused himself - whether appellant afforded procedural fairness at hearing - whether appellant should be permitted to re-agitate findings of fact
APPEAL - EVIDENCE - civil - whether evidence improperly admitted
APPEAL - CONTRACT - whether contractual relationship exists between University and student - what constitutes consideration More...

Duncan v ICAC McGuigan v ICAC Kinghorn v ICAC Cascade Coal v ICAC [2014] NSWSC 1018
ADMINISTRATIVE LAW - judicial review - Independent Commission Against Corruption - appeal against finding of corrupt conduct under s 8 of the Independent Commission Against Corruption Act 1988 (NSW) - whether conduct could "adversely affect" the exercise of "official functions" by "public officials" - meaning of the expression "official functions" - meaning of the term "could" - degree of probability or certainty required for conduct to fall into category of conduct which "could" adversely affect the exercise of official functions ADMINISTRATIVE LAW - judicial review - Independent Commission Against Corruption - Appeal against finding of corrupt conduct on ground of denial of natural justice - whether denial of natural justice where parties not given notice of the way in which they are said to have acted corruptly - whether denial of natural justice where parties not cross-examined on elements of alleged offences underpinning finding of corrupt conduct - where written submissions given before the end of the Independent Commission Against Corruption hearing identifying the alleged criminality involved in the findings and no application to reopen public hearing to adduce further evidence
ADMINISTRATIVE LAW - judicial review - Independent Commission Against Corruption - Appeal against finding of corrupt conduct - whether findings of corrupt conduct not supported by evidence ADMINISTRATIVE LAW - judicial review - Independent Commission Against Corruption - application by corporations for declarations that recommendations made by the Independent Commission Against Corruption are nullities - whether to grant declaratory relief where finding not amenable to review, where other claims have failed and where no utility in granting relief sought PROCEDURE - costs - general rule as to costs - where costs follow the event More...

DeAngelis v Pepping [2014] NSWLEC 108
ADMINISTRATIVE LAW - validity of Local Environmental Plan (LEP) - whether statutory community consultation requirements had been complied with - certain sections of the Council guidelines, which were referred to by the gateway determination, could not be treated as mandatory notice requirements due to the absence of the language of compulsion - Planning Proposal materials not misleading - unnecessary for Planning Proposal to address consequential changes to be made to Development Control Plan (DCP)- Environmental Planning and Assessment Act 1979 (NSW) provides for community consultation and implicitly excludes the common law rules of procedural fairness in terms of the right to be notified and heard - there was valid authority to make amendments to the Local Environmental Plan 2010 - first respondent was agent rather than delegate authorised by the council to sign instruments - breach of requirement for public exhibition of DCP under the Environmental Planning and Assessment Regulations 2000 (NSW) did not lead to invalidity of DCP as amendment of DCP amounted to no more than a regularisation of a change effected by an LEP - in any event discretion to award relief would have been declined given the status of DCPs relative to LEPs More...

B v Director of Public Prosecutions [2014] NSWCA 232
ADMINISTRATIVE LAW - judicial review - appeal from the Local Court to the District Court in respect of a conviction for an offence under the Public Health Act 1991, s 13 dismissed - whether jurisdictional error established
ADMINISTRATIVE LAW - procedural fairness - bias - apprehended bias - whether a bias or apprehended bias - observation not supported by evidence - whether observation matter of judge's personal opinion - whether observation available as a matter of common experience - whether relief should be granted - matter remitted to the District Court More...


New South Wales

Regulations and other miscellaneous instruments

Independent Commission Against Corruption Amendment (Public Authority) Regulation 2014 (2014-482) — published LW 25 July 2014. The object of this Regulation is to declare Crown cemetery trusts as bodies that are public authorities for the purposes of the Independent Commission Against Corruption Act 1988

Administrative Decisions Review Regulation 2014 (2014-460) — published LW 25 July 2014
The object of this Regulation is to remake, without substantive amendments, the provisions of the Administrative Decisions Review Regulation 2009 which is repealed on 1 September 2014 by section 10 (2) of the Subordinate Legislation Act 1989. This Regulation makes provision with respect to the following: (a) the exclusion of certain classes of administratively reviewable decisions from the requirement to provide reasons for a decision and from internal review, (b) savings and formal matters.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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