Australia: NSW Government Bulletin - 18 November 2015

Last Updated: 23 November 2015
Article by Kim Nguyen
Most Read Contributor in Australia, September 2016

Hunter Development Corporation v Save Our Rail NSW Incorporated

On 10 November 2015, the NSW Court of Appeal handed down the decision of Hunter Development Corporation v Save Our Rail NSW Incorporated [2015] NSWCA 346.

The case concerned the Hunter Development Corporation (HDC), which had entered into agreements for the acquisition of land and assets from RailCorp, including an Asset Sale Agreement. As a result of the agreements, the train line on the land subject to the agreements was to terminate two stations earlier, so that the land could be used for other purposes. Save Our Rail, an incorporated community organisation initially commenced proceedings in the Supreme Court seeking an order restraining RailCorp, Transport for NSW and HDC from disposing of the land. Save Our Rail relied on section 99A of the Transport Administration Act 1988 (the Act), which stated that a "rail infrastructure owner" must not close a railway line unless authorised by an Act of Parliament.

The Court below held that HDC was a rail infrastructure owner within the meaning of the Act. The effect of that decision was that without an Act of Parliament, HDC could not undertake its proposed removal works.

The Court of Appeal overturned the primary Judge's decision, finding that HDC had not become a "rail infrastructure owner" within the meaning of the Act by acquiring the assets under the Asset Sale Agreement. The Asset Sale Agreement was entered into pursuant to a direction of a Minister and was not entered into pursuant to a Ministerial order. The difference was important as under the Act, when assets are transferred by order, the assets vest in the transferee without the need for a further conveyance. Ownership in this instance was transferred by a process of sale entered into pursuant to other legislation.

The Court of Appeal also found that the proposed termination of the railway line would not constitute the closure of the railway line within the meaning of section 99A of the Act i.e. section 99A of the Act does not include the "closure of a small section of track if the line still operates between the same cities or areas, albeit to or from different places within the relevant city or area". The Court's decision was based on the policy reasons behind section 99A of the Act, which required an Act of Parliament if a railway line is closed, due to the significant effect on the economy and on the social welfare of the State's citizens. However the Court stated shortening a train line by a few kilometres, whilst potentially being inconvenient to a few passengers does not have the same public policy implications which requires Parliament's oversight.

Greater Sydney Commission

The Greater Sydney Commission Bill 2015 (Bill) was passed by NSW Parliament on 12 November 2015 and is currently awaiting assent. The Bill establishes the Greater Sydney Commission which will be a NSW Government agency charged with leading metropolitan planning for the Greater Sydney Region. The GSC will have an important role in both strategic planning and development assessment in NSW. Please click here to read more.

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

ICAC is an extra-judicial Icarus in want of restraint
Proponents of a "muscled-up" ICAC want to reduce the debate to a question of whether you support or oppose corruption. But the real question is whether our politicians support procedural fairness (13 November 2015). More...

NSW Government, Opposition reach agreement on ICAC laws
New South Wales Premier Mike Baird has reached an agreement with Labor over new legislation to cement the powers of the state's corruption watchdog (12 November 2015). More...

ICAC fails in bid to reinstate corruption finding against John Kinghorn over Mt Penny mine licence involvement
The ICAC has failed in its bid to reinstate a corruption finding against former Cascade Coal director John Kinghorn. The court found that it was not in the interests of judgement to allow the case to re-open and dismissed the ICAC's application (06 November 2015). More...

NSW pioneers online courts
??NSW is pioneering online legal services in Australia with the State's first Online Court. The pilot is part of the Department's $9.2 million Justice Online Project which includes enhancements and additional forms for the existing Online Registry (06 November 2015) NSW pioneers online courts

In practice and courts

New Rules - High Court Amendment (Fees)
The High Court Amendment (Fees) Rules 2015 No. 178 (Cth) amend the High Court Rules 2004 No. 304 (Cth) to update the fees under Schedule 2 (Fees for work done and services performed). The amending Rules will commence on 1 January 2016. More...

NSW JUDCOM: Sentencing Bench Book: Special Bulletin 9 2015
The bulletin was published on 09 November 2015
Sentencing Bench Book: Special Bulletin 9 Nov 10, 2015

ICAC: Public inquiry into University of Sydney ICT contractor recruitment
The ICAC's Operation Elgar public inquiry held as part of its investigation into allegations concerning information communication technology contractor recruitment by Jason Meeth, a public official employed as the Head of Projects, ICT, at the University of Sydney, is adjourned (13 November 2015). Public inquiry into University of Sydney ICT contractor recruitment adjourned

ICAC: Prosecution outcomes and briefs with the DPP
Tables listing briefs with the Director of Public Prosecutions, and outcomes of ICAC-related prosecutions. Updated 13 November 2015 (13 November 2015). Prosecution outcomes and briefs with the DPP

NSW – General Consultation: Regulation of Legal Costs for Work Capacity Decision Reviews Innovation and Better Regulation Minister has released Discussion paper - Regulation of legal costs for work capacity decision reviews (October 2015) for public comment. The discussion paper (by SIRA), examines the following three options for regulating the payment of legal costs that are directly connected with a work capacity decision review. Comments close on 23 November 2015. SeeFurther information from SafeWork NSW See Innovation and Better Regulation Minister's media release

NSW: State Government Support for National Redress Scheme
The state government has confirmed its support for the establishment of a national redress scheme for victims of abuse as recommended in the Royal Commission into Institutional Responses to Child Abuse's (the Royal Commission) Redress and Civil Litigation Report Further information from the Royal Commission(5 November 2015) NSW supports national redress scheme

Cases

AIN v Medical Council of New South Wales [2015] NSWCATAP 241
GOVERNMENT INFORMATION – Client legal privilege – Whether Tribunal addressed the question of whether disclosure of document would disclose the content of a confidential communication – Whether Tribunal considered whether there was a real prospect of litigation – Whether Tribunal considered whether in-house lawyer had requisite independence when advising in relation to a complaint concerning conduct of the respondent for which she was responsible; GOVERNMENT INFORMATION – Personal information – Whether information of agency officer is personal information – Balancing of public interest considerations; FACT FINDING - Whether the Tribunal made findings of fact required for conclusions as to application of privilege with no evidence to support findings – Whether Tribunal entitled to draw inferences - Whether circumstances gave rise to a reasonable and definite inference – Whether Tribunal entitled to consider evidence in previous proceedings involving same parties; APPEAL – Whether grounds of appeal limited to those identified in notice of appeal – Tribunal's duty to resolve the real issues in the proceedings with as little formality as possible; PROCEDURAL FAIRNESS – Whether Tribunal erred in making a finding that litigation privilege applied when this was not part of respondent's case; COSTS –Appeal on decision not to award costs- special circumstances- whether objective test. More....

Hunter Development Corporation v Save Our Rail NSW Incorporated [2015] NSWCA 346
ADMINISTRATIVE LAW – acquisition of land and assets by public development corporation for the purpose of redevelopment – whether acquisition required Act of Parliament pursuant to Transport Administration Act 1988, s 99A ADMINISTRATIVE LAW – whether transfer of land or proposed removal of assets amounted to closure of a railway line ADMINISTRATIVE LAW – powers under which parties to entered into agreements to transfer land and assets – whether under Transport Administration Act 1988 – whether under Growth Centres (Development Corporations) Act 1974 STATUTORY INTERPRETATION – whether assets "vested by or under" the Transport Administration Act 1988 STATUTORY INTERPRETATION – whether transfer of land by compulsory acquisition amounted to land being "otherwise disposed of" within the meaning of the Transport Administration Act 1988 WORDS AND PHRASES – "vest" – "by or under" – "close a railway line" – "sold or otherwise disposed of". More...

Donald v Rail Corporation of New South Wales (No 4) [2015] NSWSC 1681
EVIDENCE – admissibility of expert report – application of "basis rule" – where assumptions made by expert may not come up to proof in evidence. More...

Legislation

NSW

New Assents

Bail Amendment Act
The Bail Amendment Act 2015 No. 44 (NSW) was assented to on 5 November 2015 and amends the Bail Act 2013 No 26 (NSW) (the principal Act). The objective of the Act is to amend the principal Act in response to the following reports and reviews

the Review of the Bail Act 2013 - Final Report by Judge John Hatzistergos (June 2015); the Bail-Additional show cause offences report by the New South Wales Sentencing Council, (May 2015); and the Martin Place Siege Joint Commonwealth - New South Wales Review (January 2015).

Criminal Procedure Amendment (Child Sexual Offence Evidence Pilot) Act
The Criminal Procedure Amendment (Child Sexual Offence Evidence Pilot) Act 2015 No. 46 (NSW) was assented to on 5 November 2015 and amends theCriminal Procedure Act 1986 No. 209 (NSW) (the principal Act). The objective of the Bill is to give effect to a pilot scheme that augments provisions in the principal Act relating to the giving of evidence in criminal proceedings by certain vulnerable persons in the form of recordings of previous representations and by closed-circuit television or similar technology in court proceedings

Regulatory Reform and Other Legislative Repeals Act
The Regulatory Reform and Other Legislative Repeals Act 2015 No. 48 (NSW) was assented to on 5 November 2015 and amends the Supreme Court Act 1970 No. 52 (NSW). The objectives of the Act, which is cognate with the Occupational Licensing National Law Repeal Act 2015 No. 49 (NSW), include to make amendments to various Acts and instruments, consequent on or related to certain proposed repeals, including of certain Acts that are no longer required for policy reasons, as well as for the purpose of statute law revision.

Proclamations commencing Acts
Local Government Amendment (Councillor Misconduct and Poor Performance) Act 2015 No 37 (2015-686) — published LW 13 November 2015

Regulations and other miscellaneous instruments
Local Government (General) Amendment (Model Code of Conduct) Regulation 2015 (2015-687) — published LW 13 November 2015

Bills introduced Government – 13 November 2015
Gaming Machines Amendment (Centralised Monitoring System) Bill 2015

Non-Government
Children and Young Persons (Care and Protection) Amendment (Protection from Serious Offenders) Bill 2015

Bills revised following amendment in Committee – 13 November 2015
Data Sharing (Government Sector) Bill 2015

Bills passed by both Houses of Parliament – 13 November 2015
Gaming and Liquor Administration Amendment Bill 2015

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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