Australia: NSW Government Bulletin - 13 April 2016

Last Updated: 8 May 2016
Article by Lyn Nicholson
Most Read Contributor in Australia, September 2018

Seeking costs via UCPR 36.16(3A) where no costs claimed in the action - Mehajer v Director-General of the Department of Local Government (No.2) [2016] NSWSC 320

In November 2015, proceedings were commenced in the New South Wales Civil and Administrative Tribunal (NCAT) alleging that Councillor Salim Mehajer failed to disclose a pecuniary interest contrary to his obligations under s 451 of the Local Government Act 1993 (NSW) (Act).  In those proceedings, it was held that the Councillor had "a serious lack of respect for or appreciation of the high degree of probity which the law required of him".  NCAT found breaches of s 451 of the Act and suspended the Councillor from civic office for a period of four months.  Although both parties were given the opportunity to seek an order for costs by NCAT, neither party proceeded to make a costs application.

The Councillor appealed the decision to the NSW Supreme Court (NSWSC) on the basis that the Auburn Local Environment Plan 2010 only required him to disclose a pecuniary interest when council decisions changed the permissible use of his property.  The Court allowed the appeal, considering that

the phrase 'change of the permissible uses of land' in s 448 of the Act was not appropriately considered by the Tribunal as giving rise to a possible exemption under Auburn's specific Local Environment Plan. 

In the meantime, NSW Local Government Minister, Paul Toole, had suspended Auburn City Council, pending the outcome of a public inquiry into the Council's conduct.

Despite not seeking any orders (or making any submissions) in relation to costs in NCAT or the NSWSC, the Councillor filed a Notice of Motion to vary the earlier order.   The Councillor sought that  the Court exercise its discretionary power pursuant to r 36.16(3A) of the Uniform Civil Procedure Rules (UCPR) to set aside or vary a judgment or order.  The Councillor submitted that the ordinary rule that costs follow the event should be applied in accordance with the provisions of UCPR r 42.1.  The Director-General of the Department of Local Government relied on the principle of finality of litigation to argue that the costs should remain as ordered.

The Court noted that although there is no obligation on a plaintiff to seek an order for costs in an originating process, it is expected that such an order is specifically alluded to so that the Court is able to be put on clear notice that such a claim is being made.  The Court condemned the course of conduct engaged in by the Councillor and noted that his previous failures to articulate a claim for costs breached his obligation to facilitate the just, quick and cheap resolution of the real issues in proceedings.  Despite its criticism of the Councillor, the Court considered that it was ordinarily fair and just and in the interests of justice that costs follow the event.  The Court exercised its discretion under r 36.16 as the interests of justice required it to order that the Director-General pay the costs of the proceedings.

Australian Bureau of Statistics - Census data a potential privacy risk?

Last week saw privacy experts and consumer groups express concern at the proposal by the Australian Bureau of Statistics (ABS) to retain certain information from the Census to be held on 9 August this year.  In previous censuses information was used but not retained. 

The proposal now is that both address data and name data be retained and used.  The ABS said that it wants to be able to combine the Census data with other data sets, such as health and education statistics, to get a richer and more dynamic statistical picture of Australia.

The concern of privacy experts and consumer groups is not aimed primarily at the ABS and its proposed uses but at the possibility of "function creep" and that other government departments, such as the Tax Office and ASIO, may be able to access the data and use it for other purposes.  The risk, expressed by a number of parties is that "the ABS becomes the unwitting tool of a government intent on mass population surveillance".

The information about its intentions was released by the ABS on 7 April 2016 following a lengthy process of research into the benefits and potential risks of retaining name and address information. 

In November 2015 the ABS announced its intention to undertake a public review into potential privacy risks and also to undertake a Privacy Impact Assessment (PIA) in relation to those risks and steps to mitigate them.  The ABS PIA was completed in December 2015 and has been published on the ABS website. 

The ABS PIA considers the risks of the retention of data and references, very importantly, a number of safeguards that are built into the framework of the ABS.  Those include the protections under the Census and Statistics Act 1905 (Cth), the Privacy Act 1988 (Cth) and the fact that the ABS has been accredited as an integrated authority under the Commonwealth statistical data integration interim arrangements. 

The ABS PIA outlines in detail the risks perceived to the retention of data and the various functional separation, organisational separation and data security measures in place by the ABS.  It is difficult to disagree that the ABS has in place a range of safeguards that appear to mitigate the identified risks. 

However, the biggest concern and the biggest risk, at item 4.5 of the ABS PIA, is the risk of function creep and unintentional expanded future use of retained name and address information.  While the ABS PIA indicates that there are various procedures for the management of risk, including their own internal approval processes and governance structures, the concept of the data falling outside the control of the ABS is not contemplated.

A reasonable risk raised by privacy experts and consumer groups is that other government departments will force access in a way that may be intrusive, condoned by government and not able to be prevented by the ABS, giving rise to privacy risks to individuals.  This is something we will wait to see play out, but is significant in the context of government department information sharing and information obtained for one purpose being used for another purpose.

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

Greater police powers and penalties threaten civil liberties in NSW for 'public safety'

The government has yet again vested enormous discretion in police officers to make that assessment – in some instances with no opportunity for judicial review (08 April 2016)  More...

NSW forced merger reports suppressed

NSW councils and ratepayers will not see reports by experts recommending whether NSW Local Government Minister Paul Toole should push ahead with scores of forced council mergers until after they learn of their fates. The Minister and the independent Boundaries Commission are currently reviewing up to 35 reports (06 April 2016) More...

CFMEU in court for allegedly shutting Barangaroo site

The NSW Branch of the CFMEU and ten of its officials, including State Secretary Brian Parker, are facing court over allegations of unlawful industrial action orchestrated in support of a CFMEU delegate who pushed and verbally abused a Lend Lease worker (06 April 2016)  More...

Liquor and gaming in 'chaos' before lockout laws review

A shake-up of NSW liquor and gambling regulation driven by Deputy Premier Troy Grant has led to an exodus of experienced senior executives amid claims the reform has sparked "chaos". Under the changes, the Office of Liquor, Gaming and Racing was replaced by a new regulator, Liquor and Gaming NSW (06 April 2016)  More...

(06 April 2016) NSW Government Statement in response to Sydney Morning Herald article

(05 April 2016) More than 1,800 submissions to independent review of Liquor Laws

Centrelink, the Tax Office and ASIO could use Census 2016 data: privacy groups

Plans to retain people's names and addresses for this year's Census have sparked fear that the information could be used by Centrelink, the Tax Office and ASIO and may lead to mass civil disobedience or people lying on their forms, privacy groups believe (04 April 2016)  More...

COAG to strengthen national security legislation

COAG agreed today that the Commonwealth will draft legislation to introduce, as soon as practicable, a nationally consistent post-sentence preventative detention scheme, with appropriate protections, for high risk terrorist offenders (01 April 2016)

Greyhound Special Commission of Inquiry extended

The NSW Government has agreed to give Former High Court Justice Michael McHugh AC a further two-month extension to complete the Special Commission of Inquiry into the Greyhound Industry in NSW (31 March 2016)  More...

Strong industry interest in prison reform

Minister for Corrections David Elliott today addressed a major industry briefing on the market testing of John Morony Correctional Centre (JMCC) in Sydney's north-west, as part of a plan to improve the performance of the NSW prison system (31 March 2016)  More...

Ku-ring-gai Council fight against amalgamation will take the State Government to the Supreme Court

Ku-RING-GAI Council has stepped up its fight against amalgamations by announcing it will take the State Government to the Supreme Court. The council is the first to go to the state's highest court over a dispute about a report that claims mergers "could free up" close to $2 billion over 20 years (29 March 2016) More...

Experts reap $1500 a day for NSW council merger public inquiries

A small army of experts conducting public inquiries into NSW council mergers, known as "delegates", are costing taxpayers $1500 in fees each per day, resulting in a final bill that could easily top $1 million in fees alone (29 March 2016)  More...

In practice and courts

NSW Parliament:  Inquiries receiving submissions

Inquiry into Driverless Vehicles and Road Safety, closes 11 April.

Inquiry into First Review of the Compulsory Third Party insurance scheme, closes 13 May.


Security classification and management of inmates sentenced to life imprisonment (report published) (Mon 04)

Government responses due

Local government in New South Wales (response due) (Fri 29)

NSW JUDCOM: Local Court Bench Book: Update 118

Practice notes: Non-publication and suppression orders -  [87-300] A new Commonwealth provisions table has been added to the chapter.

References: Local Court Practice Note Crim 1 - The list of courts with AVL facilities and paragraph 13.2(a) Referrals to forum sentencing in PN Crim 1 have been updated (07 April 2016)

Local Court Bench Book: Update 118 Apr 07, 2016

NSW Courts

New District Court appointments (01 April 2016)

Published – articles, papers, reports

Final Report, Security classification and management of inmates sentenced to life imprisonment

The committee makes nine recommendations (04 April 2016)

Security classification and management of inmates sentenced to life imprisonment (report published) (Mon 04).


Kirk v Independent Liquor and Gaming Authority; Ashton v Independent Liquor and Gaming Authority [2016] NSWCATAD 64

JURISDICTION – decision that ex-officer bearers of registered club not fit and proper persons to hold office –decision as to disciplinary action pending – whether applicants have standing to apply for administrative review of the decision as to fitness and propriety – whether Tribunal has jurisdiction to entertain the application  More...

CFJ v Children's Guardian [2016] NSWCATAD 62

ADMINISTRATIVE LAW-review under section 27 Child Protection (Working with Children) Act 2012-refusal of working with children check clearance-what the correct and preferable decision is having regard to the material before the Tribunal – cancellation of clearance under section 23 Child Protection (Working with Children) Act 2012-assessment trigger by notification of concern by Ombudsman under clause 2A of Schedule 1 to the Child Protection (Working with Children) Act 2012- whether the applicant poses a risk to the safety of children - dismissal from employment as a High School teacher- subsequent wrongful dismissal proceedings settled - onus of proof in a review under section 27 - a real and appreciable risk is posed by the applicant to the safety welfare and well-being of children of children- paramount concern is protecting children from child abuse- the correct and preferable decision is to uphold the decision of the Children's Guardian and refuse to allow the applicant to hold a working with children clearance.  More...

Stanizzo v The Secretary of the Department of Justice of New South Wales [2016] NSWSC 348

ADMINISTRATIVE LAW – JUDICIAL REVIEW – decision of Secretary under Costs in Criminal Proceedings Act 1967 – deferral under s 4(5) thereof to see what claimant "may receive" – no relevant criteria for deferral – decision quashed.  More...

Health Care Complaints Commission v Khan [2016] NSWCATOD 32

ADMINISTRATIVE LAW – Civil and Administrative Tribunal Act 2013 NSW – Professional disciplinary proceedings brought by HCCC against practitioner. Where two complaints heard together. Where it is asserted that the practitioner engaged in conduct that demonstrates his practice of medicine was significantly below the standard reasonably expected of a practitioner of an equivalent level of training or expertise. Where it is asserted practitioner's medical records in respect of an 8 year old child were inadequate. Where separate complaint asserts practitioner inappropriately prescribed medications for himself, and failed to maintain adequate records in respect of his self-prescribing. Where it is also asserted practitioner suffers impairment and further asserted he is not competent to practise. Where practitioner withdraws material filed and does not seek to defend complaints. Where all complaints are found proven More...

Mehajer v Director-General of the Department of Local Government (No.2) [2016] NSWSC 320

PROCEDURE – civil – notice of motion seeking an order for costs – where plaintiff failed to claim an order for costs in the originating process or seek an order for costs when judgment was delivered – whether it is in the interests of justice to make the order.  More...

State of New South Wales (NSW Department of Education) v Kaur [2016] NSWSC 346

ADMINISTRATIVE LAW – administrative tribunals – Medical Appeal Panel convened under workers compensation legislation – whether error of law to fail to classify psychological injury as secondary or primary – whether classification is a question for the Commission not approved medical specialist   ADMINISTRATIVE LAW – administrative tribunals – Workers Compensation Medical Appeal Panel – sufficiency of statement reasons of medical assessor – whether medical assessor required to consider submissions and evidence contra to its decision   WORKERS' COMPENSATION – Workers Compensation Act – definition of "secondary psychological injury" – whether the phrase "physical injury" refers to personal injury arising out of or in the course of employment.  More...



Regulations and other miscellaneous instruments

Electronic Transactions (ECM Courts) Amendment (Land and Environment Court and Industrial Relations Commission) Order 2016 (2016-169) — published LW 8 April 2016

Health Records and Information Privacy Amendment (Exemption) Regulation 2015 (2016-170) — published LW 8 April 2016

Bills assented to

Crimes (Domestic and Personal Violence) Amendment (National Domestic Violence Orders Recognition) Act 2016 No 9 — Assented to 06 April 2016

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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Lyn Nicholson
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