Australia: NSW Government Bulletin - 7 October 2015

Last Updated: 8 October 2015
Article by Kim Nguyen

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.

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Authors
Kim Nguyen
 
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