Publications

NSW Government to introduce amendments to the Crimes (High Risk Offenders) Act 2006

On 22 November 2023, the NSW Government has introduced amendments to the CHRO Act to allow applications to be made to the Supreme Court of NSW against release or an order for strict supervision if it is believed the offender poses an unacceptable risk of committing another serious offence (22 November 2023). Read the media release here.

In the courts and practice

AAT Bulletin Issue No. 23/2023
The AAT Bulletin is a fortnightly publication containing information about recently published decisions and appeals against decisions in the AAT's General, Freedom of Information, National Disability Insurance Scheme, Security, Small Business Taxation, Taxation & Commercial and Veterans' Appeals Divisions (20 November 2023). Read more here.

Federal Court Consultation – Full Court and Appellate sitting periods
Following on from the Notice to the Profession Notice in October (October Notice), the Federal Court has shortened the Full Court's sitting period for February 2024 and proposes to move the three Full Court sitting periods in 2025. The profession is invited to provide feedback on the proposed move by Friday, 15 December 2023 (16 November 2023). Read the October Notice here. Read the November notice here.

High Court – Revised Special Leave Process
The High Court of Australia has published a Revised Special Leave Process for the consideration of applications for special leave to appeal, applications for leave to appeal and applications for removal (17 November 2023). Read more here.

Cases

SafeWork NSW v Woods [2023] NSWDC 510
CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – injury to worker.
SENTENCING – objective seriousness – deterrence – aggravating factors – mitigating factors – capacity to pay a fine – appropriate penalty.
SENTENCING PRINCIPLES – no record of previous convictions – good prospects of rehabilitation – remorse – plea of guilty – assistance to law enforcement authorities.
Crimes (Sentencing Procedure) Act 1999; Work Health and Safety Act 2011.

Amirbeaggi v NSW Self Insurance Corporation [2023] NSWCATAP 311
APPEAL – leave to appeal – interlocutory decision – application to transfer proceedings – utility of proceedings.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and Administrative Tribunal Rules 2014 (NSW); Home Building Act 1989 (NSW); Insurance Contracts Act 1984 (Cth).

Brown v Commissioner for Fair Trading [2023] NSWCATOD 171
ADMINISTRATIVE REVIEW – Home Building Act 1989 – disciplinary proceedings – statutory warranties – improper conduct – evidence relied upon to establish defects by building inspector – defences – actual knowledge – influence.
Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013; Evidence Act 1995; Home Building Act 1989; Home Building Regulation 2014; Occupational Health and Safety Act 2000.

BG Sales Huskisson Pty Limited v Shoalhaven City Council [2023] NSWLEC 1684
DEVELOPMENT APPEAL – modification of development consent for residential flat building – whether substantially the same development – urban design – flooding – public interest – orders.
Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9; Shoalhaven Local Environmental Plan 2014 cll 4.3. 4.4, 5.21; Environmental Planning and Assessment Regulation 2000, cl 121B; State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6; State Environmental Planning Policy No 65 – Design Quality of Residential Apartment Development.

Collier v Attorney General (NSW) [2023] NSWCA 273
APPEALS – procedure – vexatious litigants – where allegations of bias and misconduct without merit – whether ss 6(a), (c) and (d) of the Vexatious Proceedings Act 2008 (NSW) depend on subjective intent – whether ss 14 or 17 of the Limitation Act 1969 apply to vexatious proceeding orders – whether proceedings conducted in a rude and offensive manner can be vexatious – whether order should be made requiring that leave to institute proceedings be given by Supreme Court – whether time limit should be imposed on order – No House v The King error established for the discretionary making of vexatious proceeding orders.
Civil Procedure Act 2005 (NSW), ss 56, 59, 66(1); Limitation Act 1969 (NSW), ss 14, 17; Uniform Civil Procedure Rules 2005, r 33.13; Vexatious Proceedings Act 2008 (NSW), ss 4, 6, 8, 8(1), 8(2) 8(7), 8(8), 9, 10, 13(1), 12(1), 14(2), 16.

SafeWork NSW v Western Sydney Local Health District [2023] NSWDC 491
CRIME – pleading – particulars – sufficiency – the use of the "and/or" conjunction.
Criminal Procedure Act 1986; District Court Rules 1973; Work Health and Safety Act 2011.

Mangoola Coal Operations Pty Ltd v Muswellbrook Shire Council [2023] NSWCA 275
LIMITATION OF ACTIONS – overpaid rates – no claim made within 12 month limitation period imposed by Recovery of Imposts Act 1963 (NSW), s 2(1) – whether ratepayer's claim was claim to recover tax "recoverable on restitutionary grounds" – whether claims "recoverable on restitutionary grounds" confined to claims at common law as opposed to statutory claims – significance of extrinsic materials to construction of statute – whether claim for credit as opposed to refund of overpaid rates was a claim to "recover" overpaid rates.
Civil Procedure Act 2005 (NSW), ss 149B, 149E; Constitution, s 55; Crown Proceedings Act 1988 (NSW), s 5; Customs Act 1901 (Cth); Family Law Act 1975 (Cth), s 119; Interpretation Act 1987 (NSW), ss 33, 36(1); Land and Environment Court Act 1979 (NSW), ss 16, 20, 57, 71; Land Tax Act 1958 (Vic), s 90AA; Law Reform (Miscellaneous Provisions) Act 1965 (NSW); Limitation Act 1969 (NSW), s 14; Limitation of Actions Act 1936 (SA), s 38; Limitation of Actions Act 1958 (Vic), s 20A; Limitation of Actions (Recovery of Imposts) Act 1963 (NSW); Limitation of Actions (Recovery of Imposts) Amendment Act 1993 (NSW); Local Government Act 1919 (NSW), ss 132, 139, 142, 600, 621; Local Government Act 1993 (NSW), ss 220, 377, 494, 497, 498, 500, 506, 514, 520, 521, 522, 525, 526, 527, 534, 535, 546, 550, 560, 568, 571, 577, 578, 593, 594, 602, 672, 674, 711; Recovery of Imposts Act 1963 (NSW), ss 1A, 2, 3, 4, 5, 7; Stamps Act 1958 (Vic); State Revenue Legislation Further Amendment Act 1995 (NSW); Swimming Pools Tax Refund Act 1992 (Cth); Taxation Administration Act 1996 (NSW), Pt 10; Valuation of Land Act 1916 (NSW).

North East Forest Alliance Incorporated (INC1601738) v Forestry Corporation of NSW [2023] NSWLEC 124
JUDICIAL REVIEW – decision to approve operational plans – forestry operations – jurisdiction and justiciability of grounds of review in relation to integrated forestry operations approval – standing to sue under s 69ZA of the Forestry Act 2012 (NSW) – common law test of standing to sue – special interest – admissibility of expert evidence in judicial review proceedings – whether compliance with the conditions of the Coastal Integrated Forestry Operations Approval 2018 a mandatory consideration – whether principles of ecologically sustainable forestry management a mandatory precondition or consideration – whether site specific operating conditions a mandatory precondition or consideration.
Biodiversity Conservation Act 2016 (NSW); Environmental Planning and Assessment Act 1979 (NSW) s 9.45; Environmental Protection Biodiversity Conservation Act 1999 (Cth); Fisheries Management Act 1994 (NSW) Part 7A; Forestry Act 2012 (NSW) ss 3, 5, 10, 11, 19, 45, 69G, 69L, 69M, 69N, 69NA, 69P, 69Q, 69R, 69RA, 69SA, 69SB, 69ZA; Forestry Legislation Amendment Act 2018 (NSW); Interpretation Act 1987 (NSW) s 3; Land and Environment Court Act 1979 (NSW) s 20; National Parks & Wildlife Act 1974 (NSW) s 193; Protection of the Environment Administration Act 1991 (NSW) s 6; Protection of the Environment Operations Act 1997 (NSW) ss 120, 219, 252, 253; Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.28, 31.19, 31.20.

Southern Cross Group Services Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCATAP 307
PRACTICE AND PROCEDURE – whether the Tribunal erred in failing to set aside Summonses for production – whether the Tribunal failed to apply the test of legitimate forensic purpose – whether the Tribunal ought to have set aside the Summons as amounting to a fishing expedition.

Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW)
Payroll Tax Act 2007 (NSW); Taxation Administration Act 1996 (NSW).

Jones v Commissioner for Fair Trading [2023] NSWCATOD 169
ADMINISTRATIVE LAW – stock & station agent's licence – dishonesty offence – disqualified person – time since offence committed – whether trivial – fit and proper person to hold a licence.
Civil and Administrative Tribunal Act 2013; Administrative Decisions Review Act 1997; Property And Stock Agents Act 2002; Property and Stock Agents Regulation 2014.

Prasad v Commissioner of Police [2023] NSWIRComm 1113
EMPLOYMENT AND INDUSTRIAL LAW – removal of Police Officer – application for Review pursuant to s 181E of Police Act 1990 (NSW) – allegations of misconduct – application dismissed
Police Act 1990 (NSW).

Aesthete No. 9 Pty Limited v Blue Mountains City Council [2023] NSWLEC 1711
APPEAL – modification application – deemed refusal – 21-lot residential Torrens title subdivision and associated infrastructure work – whether proposed development substantially the same as that originally approved – site is bush fire prone – bush fire safety authority (BFSA) issued – whole site to be managed as an Asset Protection Zone (APZ) and categorised as an Inner Protection Area (IPA) – whether implementation of requirements specified in BFSA compatible with maintaining the bushland character and biodiversity of the site – redesigned drainage system – whether all of drainage system should be constructed by Applicant before subdivision certificate is issued – how many trees can be retained – requirement for vegetation management plan (VMP) – when should VMP be prepared – conditions
Biodiversity Conservation Act 2016; Blue Mountains Local Environmental Plan 1991; Blue Mountains Local Environmental Plan 2015; Blue Mountains Local Environmental Plan 2015 (Amendment No 8); Conveyancing Act 1919; Environmental Planning and Assessment Act 1979, ss 79C, 91, 102 (repealed); 4.15, 4.46, 4.55, 8.9 (current); Land and Environment Court Act 1979; Rural Fires Act 1997; Standard Instrument (Local Environmental Plans Amendment (Land Use Zones) Order 2021; State Environmental Planning Policy No 1 – Development Standards and Uniform Civil Procedure Rules 2005.

Legislation

Act Compilation
Medical Research Future Fund Act 2015 22/11/2023 – Act No. 116 of 2015 as amended
Migration Act 1958 20/11/2023 – Act No. 62 of 1958 as amended
Housing Australia Act 2018 19/11/2023 – Act No. 65 of 2018 as amended
Health Insurance Act 1973 16/11/2023 – Act No. 42 of 1974 as amended
Income Tax Assessment Act 1997 15/11/2023 – Act No. 38 of 1997 as amended
Insurance Contracts Act 1984 15/11/2023 – Act No. 80 of 1984 as amended
Corporations (National Guarantee Fund Levies) Act 2001 15/11/2023 – Act No. 54 of 2001 as amended

Government Bills
 Crimes Amendment (Prosecution of Certain Offences) Bill 2023 – introduced LA 21/11/2023
Casino Control Amendment Bill 2023 – introduced LA 21/11/2023
Transport Administration Amendment (TAHE) Bill 2023 – introduced LA 21/11/2023
Thoroughbred Racing Amendment Bill 2023 – introduced LA 21/11/2023
Road Transport Legislation Amendment (Automated Seatbelt Enforcement) Bill 2023 – passed LA 21/11/2023
Energy Legislation Amendment Bill 2023 – introduced LA 21/11/2023

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.