Thank you to those who attended our annual NSW Government lawyers CLE intensive day in our Sydney office last month. For those who missed it, the presentations were recorded and are now available for on-demand viewing. Click here to access the recording. We hope to see you again next year.
In the media
NSW Law Soc calls for government AI inquiry to factor in
local and global precedents
The NSW Law Society has urged the state government to
derive insights from both international and domestic precedents in
the regulation of emerging AI technologies. NSW Law Society
President Brett McGrath addressed a NSW Upper House Inquiry into AI
on Monday, where he said that recommendations should reference the
existing AI regulation efforts at the global and federal levels (12
March 2024). Read more
here.
In the courts and practice
The Public Defenders of NSW – An Essential Arm of
the Administration of Justice
The Public Defenders Criminal Law Conference was held on 9
March 2024, with an address given by The Hon. A S Bell Chief
Justice of New South Wales (9 March 2024). Read more
here.
Final sitting of the Hon. Justice Carolyn Simpson AO on
Tuesday, 12 March 2024
Next Tuesday, 12 March 2024, will mark the final sitting
of the Hon. Justice Carolyn Simpson AO as a judge of the Supreme
Court of New South Wales. Prior to the hearing that morning,
the President of the Bar Association, Dr Ruth Higgins SC and a
Deputy Director of Public Prosecutions, Ms Helen Roberts SC,
addressed the Court in a short sitting at 9.15am (12 March 2024).
Read more
here.
Publications
2024-25 State Budget NSW Local Government
Priorities
Local Government NSW (LGNSW) is the peak body for local
government in NSW, representing all NSW general purpose councils
and related entities. LGNSW facilitates the development of an
effective, community-based system of local government in the State.
LGNSW provided a draft submission, subject to the LGNSW Board
approval regarding Local Government Priorities within NSW State
Budget for 2024-25 (29 February 2024). Read the draft
submission
here.
Amended new Practice Notes – Class 3 Valuation
Objections and Class 3 Compensation Claims
The Land and Environment Court has issued Practice Notes
for many of the types of cases it deals with. The Practice
Notes explain the practice and procedure and the process to be
followed for different types of cases from their commencement,
through to the preliminary stages and preparation, to their
resolution. The new Practice Notes – Class 3 Valuation
Objections and Class 3 Compensation Claims have been reissued,
making some minor amendments. These Practice Notes will commence on
2 April 2024 (8 March 2024). Read the practice notes
here.
Cases
Agia Projects Pty
Ltd v Woollahra Municipal Council [2024] NSWLEC
16
COSTS – costs assessment – determination –
self-represented litigant – Class 7 proceedings
APPEAL – appeal against conviction in Local Court wrongly
commenced – conviction in Local Court annulled during
proceedings in the Land and Environment Court – appeal
discontinued – orders made that applicant pay 60% of
respondent's costs including costs of the application for
costs
Crimes (Appeal and Review)
Act 2001 (NSW), ss 4, 32, 36
Kitoko v Sydney
Local Health District [2024] NSWCA 49
APPEALS – leave to appeal – arguable case
CIVIL PROCEDURE – jurisdiction – where applicant
alleged that primary judge had exercised Federal jurisdiction to
the exclusion of State jurisdiction
CIVIL PROCEDURE – summary disposal – where applicant
had sought summary judgment – where respondents had not yet
been required to file evidence in defence
CIVIL PROCEDURE – default judgment – where respondents
had not yet been required to file a defence
CIVIL PROCEDURE – pleadings – amendment – where
amendments were based on contentions the primary judge considered
were doomed to fail – where applicant had not been able to
identify the evidence on which he intended to rely –
whether House v
The King error was demonstrated
CIVIL PROCEDURE – summary disposal – where primary
judge had summarily dismissed the proceedings – whether
proceedings were doomed to fail
COURTS AND JUDGES – bias – actual and apprehended bias
– whether primary judge had pre-judged the applicant's
claim – whether primary judge was intimidatory and bullying
towards the applicant
APPEALS – procedural fairness – whether applicant was
afforded a reasonable opportunity to adduce relevant evidence
Civil Procedure Act 2005
(NSW), ss 56, 57, 58, 64, 67, 143; Constitution (Cth),
s 77; Evidence Act 1995 (NSW),
s 135; Judiciary Act 1903 (Cth),
ss 39(2), 79; Supreme Court Act 1970
(NSW), s 101(2)(l); Uniform Civil Procedure
Rules 2005 (NSW), rr 6.18, 13.1, 13.4, 14.3, 14.28, 51.9;
16.3, 31.36, 31.44
Crawford v State
of Western Australia [2024] FCA 222
CONSTITUTIONAL LAW – validity of provisions of
the Children's
Court of Western Australia Act 1988 (WA) ('CCWA Act') and
the Magistrates Court
Act 2004 (WA) ('MC Act') concerning
allocation of responsibilities to dually appointed magistrates
– whether those provisions undermine judicial independence
– whether those provisions substantially impair the
institutional integrity of the Magistrates Court and Children's
Court
STATUTORY INTERPRETATION – proper construction of
impugned provisions of the CCWA Act and MC Act –
whether s 25(1) of
the MC
Act impliedly amended by amendments to the CCWA Act –
scope of permitted considerations under ss 11 and 12A of
the CCWA
Act
Constitution ss 75, 76, 77(iii); Judiciary Act 1903
(Cth) ss 39(2), 44(1); Federal Court Rules
2011 (Cth); High Court Rules 2004
(Cth) r 1.05; Children's Court of
Western Australia Act 1988 (WA) ss 5(1), 6, 7, 10, 11, 12A, 13(5); Courts Legislation Amendment
(Magistrates) Act 2022 (WA); Magistrates Court (Civil
Proceedings) Act 2004 (WA); Magistrates Court Act
2004 (WA) ss 4, 6, 7, 10, 11, 24, 25, 37(1),
Sch 1 cll 2,
3, 5, 6, 11-15; Salaries and Allowances Act
1975 (WA) ss 7, 18, 50(1)
Jaggi v City of
Parramatta Council No 2 [2024] NSWIRComm 1017
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations
Commission – jurisdiction
EMPLOYMENT AND INDUSTRIAL LAW – discrimination –
victimisation
Industrial Relations Act
1996, ss 6, 163, 210, 213; Local Government Act
1993, s 335
FKX v Southern NSW
Local Health District [2024] NSWCATAD 68
ADMINISTRATIVE REVIEW – Government Information
(Public Access) Act 2009 (NSW) – whether overriding
public interest against disclosure – prejudice the effective
exercise by an agency of the agency's functions –
endanger or prejudice any system or procedure for protecting the
life, health or safety of a person – expose a person to a
risk of harm or serious harassment or serious intimidation.
Administrative Decisions
Review Act 1997 (NSW), ss 9, 55, 63; Civil and
Administrative Tribunal Act 2012 (NSW) ss 49, 64; Government
Information (Public Access) 2009 (NSW) ss 3, 4, 5, 9, 12, 13, 14,
15, 55, 80, 53, 58, 80, 100, 105, 107,
Schedule 4; Government Sector Employment
Act 2013 (NSW), ss 3, 23,
Schedule 1; Health Services Act 1997
(NSW), ss 6, 9, 10, 17,
Schedule 1; Health Records and
Information Privacy Act 2002 (NSW), s 29; Mental Health Act 2007
(NSW), ss 12, 13, 14, 34, 35, 42, 44, 57, 58, 156
Environment
Protection Authority v Crush and Haul Pty Ltd [2024]
NSWLEC 15
APPEAL – s 56A appeal
from decision of acting commissioner on question of law in finding
that applicant company a fit and proper person under Protection of the Environment
Operations Act 1997 (NSW) – no
failure to consider matter not identified to acting commissioner at
hearing – no failure to consider correct statutory test
– no failure to consider specific paragraphs of judgment in
separate criminal case – attribution of weight to relevant
factors by acting commissioner not reviewable under statutory
scheme – decision not legally unreasonable – appeal
dismissed
Environmental Planning and
Assessment Act 1979 (NSW); Land and Environment Court
Act 1979 (NSW), ss 38, 39, 56A; Protection of the Environment
Operations Act 1997 (NSW), ss 45, 48, 55, 83, 287,
Sch 1,
cll 16, 19
FVY v SafeWork
NSW [2024] NSWCATAD 64
ADMINISTRATIVE LAW – privacy – application by the
respondent for summary dismissal of the applicant's
administrative review application and interim order application
– whether the applicant's application for review
identified a relevant administratively reviewable decision
(conduct) of the respondent – whether the applicant's
formal request for amendment was an internal review request
Administrative Decisions
Review Act 1997 (NSW); Civil and Administrative
Tribunal Act 2013 (NSW); Health Records and
Information Privacy Act 2002 (NSW); Privacy and Personal
Information Protection Act 1998 (NSW)
Wynne v
Commissioner of Police, New South Wales Police
Force [2024] NSWCATAD 67
LICENSING – firearms licensing – licence revocation
– pistol stolen or lost – delay in reporting –
fit and proper person – public interest
Administrative Decisions
Review Act 1997 (NSW); Civil and Administrative
Tribunal Act 2013 (NSW); Firearms Act 1996
(NSW); Firearms
Regulation 2017 (NSW)
Cooke v Tweed
Shire Council [2024] NSWCA 50
APPEALS – judgment of Land and Environment Court –
standard of review – characterisation of land use –
evaluative judgment – correctness standard applied
ENVIRONMENT AND PLANNING – civil enforcement proceeding
– Local Environment Plan – permissible uses not
requiring consent – characterisation of land use –
cultivation of low-THC hemp – processing hemp leaves –
production of goods for sale – whether cultivating hemp was
"horticulture" or "extensive agriculture"
– whether processing ancillary or incidental to cultivation
activities – uses requiring consent – processing plant
agricultural products for commercial purposes – "rural
industry" – separate uses or one integrated
purpose
Environmental Planning and
Assessment Act 1979 (NSW), s 3.13; Hemp Industry Act 2008
(NSW), s 5;
Land and Environment Court
Act 1979 (NSW), s 56A, 57, 58
Legislation
Acts compilation
Government Bills
Ageing and Disability Commissioner Amendment Bill
2023 – introduced LA 29 November 2023, passed LA 12
March 2024
Bail and Crimes Amendment Bill 2024 – introduced LA
12 March 2024
Electoral Funding Amendment (Local Government Electoral Expenditure
Caps) Bill 2024 – introduced LC 8 February 2024,
passed LC 12 March 2024, introduced LA for concurrence 12 March
2024
Environmental Legislation Amendment (Hazardous Chemicals) Bill
2024 – introduced LC 8 February 2024, passed LC 12
March 2024, introduced LA for concurrence 12 March 2024
Environmental Planning and Assessment Amendment (Sea Bed Mining and
Exploration) Bill 2024 – amended in LA 12 March
2024, passed LA 12 March 2024
Proclamations commencing Acts
Marine Pollution Amendment (Review) Act 2021 No 8 (2024-55) – published LW 8 March 2024
Regulations and other miscellaneous instruments
Marine
Pollution Regulation 2024 (2024-56) – published LW 8
March 2024
Marine
Safety Amendment (Penalty Notice Offences) Regulation
2024 (2024-57) – published LW 8 March 2024
Workers
Compensation (Indexation) Order 2024 (2024-58) –
published LW 8 March 2024
Environmental Planning Instruments
Campbelltown
Local Environmental Plan 2015 (Amendment No 37) (2024-59)
– published LW 8 March 2024
Campbelltown
Local Environmental Plan 2015 (Map Amendment No
11) (2024-60) – published LW 8 March 2024
Hawkesbury
Local Environmental Plan 2012 (Amendment No 34) (2024-61)
– published LW 8 March 2024
Orange
Local Environmental Plan 2011 (Amendment No 39) (2024-62)
– published LW 8 March 2024
Snowy
River Local Environmental Plan Amendment (Kosciuszko Alpine Region)
2024 (2024-65) – published LW 8 March 2024
The
Hills Local Environmental Plan Amendment (The Hills Growth Centre
Precincts Plan) 2024 (2024-63) – published LW 8
March 2024
Willoughby
Local Environmental Plan 2012 (Amendment No 36) (2024-64)
– published LW 8 March 2024
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.