At the end of September 2015, the Supreme Court and Court of
Appeal handed down two decisions involving the Independent
Commission Against Corruption (ICAC).
NuCoal decision
In NuCoal Resources Limited v ICAC [2015] NSWSC 1400,
NuCoal Resources Limited (NuCoal) sought judicial
review of ICAC's recommendation that the government revoke all
licences and leases associated with the Doyles Creek mining area.
ICAC also recommended that an exploration licence owned by Doyles
Creek Mining Pty Ltd (DCM) be revoked. NuCoal owns
all of the shares in DCM.
NuCoal's principal argument was that ICAC, in making the
recommendation that the exploration licence be revoked, failed to
exercise its duty to investigate fully under section 73(2) of the
Independent Commission
Against Corruption Act 1988 (NSW) (ICAC Act). NuCoal
submitted that section 73(2) of the ICAC Act imposed an obligation
to address, consider or otherwise meaningfully engage with
NuCoal's arguments.
However, the Court dismissed NuCoal's arguments, stating that a
Court or Tribunal need not address every argument that is the
subject of submissions. By extension, the duty to investigate fully
under section 73(2) of the ICAC Act does not require express
comment on every argument made. Furthermore, the Court held that
ICAC had in fact, engaged in NuCoal's submissions, even if it
did not expressly reference each subtle submission.
Waterhouse decision
The decision of Waterhouse v ICAC
[2015] NSWCA 300 dealt with an application by Mr Waterhouse,
seeking leave to appeal on two decisions. The first decision
related to an application to disqualify the trial judge (and all
other judges) from hearing Mr Waterhouse's application for
judicial review of an ICAC decision. The second decision related to
a dismissal of the judicial review application relating to a
decision by ICAC not to investigate Mr Waterhouse's
complaints.
The Court of Appeal refused leave on the disqualification
application on the basis that a fair minded observer would
understand that most (if not all) members of the Court had no
personal involvement with the subject matter of Mr Waterhouse's
complaint to ICAC.
As to the second decision, Justices Basten and Emmett directed Mr
Waterhouse to file a revised draft notice of appeal on limited
grounds. The Court referred the leave to appeal application to a
hearing, to be heard concurrently with the appeal.
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In the
media
Crackdown on inmates with mobile phones
Corrective Services NSW has introduced strengthened
penalties against inmates as part of a crackdown on those found
with mobile phones. From today, any inmate found with a mobile
phone will be immediately regressed to a maximum security prison
and their security classification will be reviewed (01 October
2015).
More...
NSW Information Commissioner asks agencies to switch on
Open Government during Right to Know Week (28 Sept to 4 Oct
2015)
To celebrate Right to Know Week 2015 the NSW Information
Commissioner is leading a proactive campaign to encourage public
sector agencies, universities and regional councils to champion
open government and spread the message of proactive release of
information to their stakeholders and communities (23 September
2015).
More...
In practice and courts
JUDCOM
Local Court Bench Book:
Update 116 Sep 30, 2015
New Bill - Limitation Amendment (Child
Abuse)
The Limitation Amendment (Child Abuse) Bill 2015
(NSW) which proposes to amend the Limitation Act
1969 No. 31 (NSW) received its second reading speech on 17
September 2015. The purpose of the Bill is to remove any limitation
period applying under the principal Act to an action on a cause of
action for damages that relate to death or personal injury
resulting from child abuse.
Judicial Commission Recommends Judge Not Sit on Sexual
Offence Cases
The NSW Judicial Commission has recommended that the Chief
Judge ban District Court Judge Garry Neilson from hearing cases
that involve sexual offences. The request reportedly follows a
complaint filed with the commission by the NSW government (further information), which stated that Judge
Neilson had brought the court system into disrepute when, during a
2014 case, he made certain comments about jury perception in sexual
misconduct cases.
NSW Parliament
Inquiries receiving submissions
Inquiry into The Final
Report of the Expert Panel – Political Donations and the
Government's Response, closes 16 October.
Inquiry into elder abuse
in New South Wales, closes 15 November.
Inquiry into Security
classification and management of inmates sentenced to life
imprisonment, closes 25 October.
Reports
Inquiry into Progress of the Ombudsman's investigation 'Operation Prospect' (report due) (Tue 08)
BOSCAR forthcoming releases
Violent and property crime trends: Local and international
comparisons - 19 Oct 2015
Reoffending in NSW - 19 Oct 2015
http://www.bocsar.nsw.gov.au/
NCAT: Changes to consumer claim jurisdiction and
forms
From 1 October 2015 legislative changes transfer NCAT's
consumer claims jurisdiction to the Fair Trading Act 1987.
Consumers can continue to apply to NCAT for the determination of a
consumer claim, now under Part 6A of the Fair Trading Act
1987.
Changes to consumer claim
jurisdiction and forms
Published – articles, papers, reports
High Court of Australia Bulletin
Issue [2015] HCAB 07 published on
22 September 2015 PDF 322k
Natural Justice or Procedural Fairness
Justice Alan Robertson, 04 September 2015
Natural justice has a long and disparate history. Examples of the
usage abound. The expression has theological and philosophical
overtones and implications
Justice Alan Robertson,
'Natural Justice or Procedural Fairness'. (2015)
Reviewing the reviewer: the Administrative Appeals
Tribunal, Administrative Review Council and the Road Ahead
Justice Duncan Kerr, 'Reviewing the reviewer: the
Administrative Appeals Tribunal, Administrative Review Council and
the Road Ahead'. Annual Jack Richardson Oration, 15 September
2015, National Portrait Gallery, Canberra
Justice Duncan Kerr,
'Reviewing the reviewer: the Administrative Appeals Tribunal,
Administrative Review Council and the Road Ahead'.
(2015)
Older prisoners: trends and challenges
NSW Parliamentary Research Service, 01October 2015e-brief
14/2015
This e-brief looks at a range of issues relating to older prisoners
in NSW, as well as in other Australian and international
jurisdictions
Older prisoners: trends
and challenges
Cases
Nash Bros Builders Pty Ltd v Riverina Water County
Council (No 2) [2015] NSWLEC 156
JUDICIAL REVIEW: Whether water authority has power to levy
development servicing charge for the provision of water supply to a
retirement village – whether the certificate of compliance
required by applicants – whether if charges unlawfully levied
the applicants can recover the amounts paid to the water authority
– application dismissed with costs.
More...
Navazi v New South Wales Land and Housing Corporation
[2015] NSWCA 308
ADMINISTRATIVE LAW – tenant's appeal to the
District Court from a decision of the Consumer, Trader and Tenancy
Tribunal (Tribunal) on a question of law dismissed – tenant
seeks judicial review of both the decision of the Tribunal and the
District Court on a ground not put to either – whether
Tribunal committed jurisdictional error – whether District
Court decision has to be set aside before challenge to the
Tribunal's decision is determined – whether principle in
Port of Melbourne Authority v Anshun applies to the challenge to
the Tribunal's decision – whether District Court
committed error of law on the face of the record when the argument
of law was not put to it.
More...
Yarraford Pastoral Company Pty Ltd v Wise [2015]
NSWCATAP 201
PROCEDURAL FAIRNESS – fair hearing rule - whether
party given a reasonable opportunity to be heard when submissions
emailed to Tribunal before the due date were not received by
Tribunal Member and not taken into account.
More...
ARU v Victims Compensation Fund Corporation [2015]
NSWCATAP 211
ADMINISTRATIVE LAW — appeals from decisions of NCAT
— adequacy of reasons — denial of procedural fairness
— delay in making decision; PRACTICE AND PROCEDURE
— requirement to hold a hearing — under Victims Support
and Rehabilitation Act 1966 (NSW) and Civil and Administrative
Tribunal Act 2013 (NSW); STATUTORY INTERPREATION —
meaning of "receives as ... a direct result"
DEVELOPMENT MODIFICATION – Residential development –
Wick drainage system – Application to modify development
consent to reflect actual installation – Impacts on
development from flooding.
More...
Poytress v Director General, NSW Fair Trading [2015]
NSWCATOD 100
ADMINISTRATIVE LAW - administrative review of decision to
refuse the applicant's application for renewal of his licence
– applicant a director of an externally-administered company
- whether applicant took all reasonable steps to avoid external
administration – whether the applicant is a fit and proper
person to be issued with a licence.
More...
Lovich v Commissioner for Fair Trading [2015] NSWCATAP
208
ADMINISTRATIVE LAW – review of decision to grant
contractor licence – meaning of phrase "a wide range of
building construction work".
More...
NuCoal Resources Limited v Independent Commission
Against Corruption [2015] NSWSC 1400
ADMINISTRATIVE LAW – judicial review –
Independent Commission against Corruption Act 1998 s 73(2) –
whether Commission failed to investigate fully in making
recommendation.
More...
Waterhouse v Independent Commission Against Corruption
[2015] NSWCA 300
APPEAL – application for leave to appeal –
refusal of relief by way of judicial review – whether
arguable case that refusal of respondent to investigate complaint
unreasonable – whether arguable case of constructive failure
to exercise jurisdiction – whether trial judge arguably erred
in dismissing judicial review application on grounds not relied on
by respondent – failure of applicant to place relevant
material before appeal court – whether leave application
should be referred for concurrent hearing on limited grounds
BIAS – apprehended bias – judicial review of refusal by
the Independent Commission Against Corruption to investigate
complaint – allegations of conspiracy involving politicians
and retired judicial officers to cover up corruption –
application that all judges of the Supreme Court of New South Wales
recuse themselves – whether fair-minded observer might
entertain doubts about the ability of the Court as a whole to deal
impartially with application for judicial review
CONSTITUTIONAL LAW – notice of constitutional matter –
no issue of operation or interpretation of Constitution arising
– whether notices required in case of bias allegations
– Judiciary Act 1903 (Cth), s 78B PRACTICE AND
PROCEDURE – joinder of State Attorney General – orders
sought relating to constitution of the Court – relief not
granted
More...
Legislation
NSW
Regulations and other miscellaneous instruments
Civil Liability
(Non-economic Loss) Amendment Order 2015 (2015-589) —
published LW 1 October 2015
Bills assented to
Independent Commission Against Corruption Amendment Act
2015 No 28 — Assented to 28 September 2015
Child Protection Legislation Amendment Act 2015 No 29 —
Assented to 28 September 2015
For the full text of Bills, and details on the passage of Bills,
see Bills.
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.
