In the media
Review underway into Sydney's toll road impact on
cost of living
The NSW government review will look at claims that the
city's toll road system is costly and confusing. It will
examine pricing inconsistencies, the cost of living impacts, and
fairness and equity for road users (26 April 2022). More...
NSW teachers vote to strike next Wednesday over pay and
conditions
The NSW Teachers Federation has announced its members will
strike next Wednesday, May 4 over pay and conditions. They have
also authorised members to walk off school grounds if a NSW
government MP enters them, and have put an immediate ban on the
implementation of new policies (26 April 2022). More...
A new era for farm forestry
The NSW Government is introducing new Farm Forestry Codes
of Practice that will ensure long-term sustainability for the
industry and provide robust environmental protections across the
NSW private forestry estate (26 April 2022). More...
NSW government criticised for 'dismissive'
response to inquiry into kangaroo population
Just two of the 23 recommendations handed to the New South
Wales government after an inquiry into kangaroo population levels
and culling practices have been accepted in full (22 April 2022).
More...
Red tape cut to mobilise interstate tradies
Working in NSW is about to become easier for interstate
tradespeople, with the Government rolling out the welcome mat to
ease construction industry labour shortages (22 April 2022).
More...
More than half a million hectares of land cleared in
NSW
The latest NSW State of Environment report launched this
year notes there needs to be significant action if NSW is to
achieve its emissions reduction targets in sectors including
agriculture, energy and land clearing (22 April 2022). More...
Update on COVID settings
The NSW Government today announced close contacts of a
confirmed COVID-19 case will not be required to isolate, provided
they comply with NSW Health guidelines (20 April 2022). More...
NSW government funds housing modules for communities
affected by floods in Northern Rivers
The NSW government will send up to 2,000 modular homes to
communities across the Tweed, Byron, Ballina, Richmond Valley and
Lismore local government areas (17 April 2022). More...
Flammable cladding still on NSW buildings
Most of the buildings in NSW with combustible cladding
have been identified but removal of the banned building materials
has been inefficient and inconsistent according to Margaret
Crawford, NSW Auditor-General (14 April 2022). More...
Practice and courts
Commonwealth
AAT Bulletin Issue No. 8/2022 19 April 2022
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. Read more here.
NSW
Supreme Court of NSW Court of Appeal
Supreme Court of NSW Court of Appeal Decisions Reserved as
at 22 April 2022. Read more here.
Published - articles, papers and reports
Darkinjung plans for 600 homes on exhibition
A proposal to build up to 600 homes and help Aboriginal
people take greater control of their land on the Central Coast, is
now on exhibition for community feedback. Read more here.
Housing 2041: NSW Housing Strategy
Housing 2041 represents a 20-year vision for housing in
NSW. It embodies the government's goals and ambitions to
deliver better housing outcomes by 2041 - housing in the right
locations, housing that suits diverse needs and housing that feels
like home. Read more here.
Council establishes internal Ombudsman
A NSW council has established an Internal Ombudsman to
investigate complaints against staff, contractors, consultants and
volunteers in response to the recommendations from the independent
Governance, Human Resources and Statutory Reporting Review of
Wingecarribee Shire Council released last year. Read more here.
Luddenham Village Interim Strategy
The Interim Strategy identifies how the planning framework
for Luddenham Village has changed as a result of the finalisation
of the Planning Package, and identifies the work needed to finalise
the Luddenham Village Plan. Read more here.
Cases
Lichi v Industrial Relations Secretary
on behalf of Department of Communities and
Justice (No. 2) [2022] NSWIRComm
1030
UNFAIR DISMISSAL - respondent unreasonably failed to
agree to a settlement of the claim - costs awarded.
Woods v Murray River
Council [2022] NSWDC 120
TORT - personal injury - work injury damages claim by council
worker against his employer.
Griffin and others v Health Secretary;
Thorncraft and others v Secretary of the Department of
Education [2022] NSWIRComm 1027
UNFAIR DISMISSALS - threshold issues - Public Health Orders -
Employer Determinations - unvaccinated workers prohibited from
working in public health and public education sectors -
impracticability of reinstatement or re-employment orders.
Tom v Commissioner of Fair
Trading [2022] NSWCATAD 130
ADMINISTRATIVE LAW - REVIEW OF DECISION BY EXTERNAL
DECISION-MAKER - decision to cancel contractor licence and
disqualify a licence holder pursuant to section 62 of the Home
Building Act 1989 (NSW).
PRACTICE AND PROCEDURE - INTERLOCUTORY ORDER - interim decision
- factors relevant to exercise of the power to make the
interim decision under section 60 of the Administrative Decisions
Review Act 1997 (NSW) - interlocutory decision to take effect
retrospectively.
EPQ v Children's
Guardian [2022] NSWCATAD 129
ADMISTRATIVE LAW - refusal of a working with children check
clearance - disqualified person seeking an enabling order - 2001
disqualifying offence aggravated with an act of indecency - s
61M(1) of the Crimes Act 1900 NSW.
EIG v North Sydney
Council [2022] NSWCATAD 127
ADMINISTRATIVE LAW - administrative review - personal information -
health information - disclosure of health information -
contravention of Health Privacy Principle 4 and Health Privacy
Principle 11 - appropriate relief.
Diaz v Secretary, Ministry of Health
in respect of Pathology No. 3 [2022] NSWIRComm
1028
EMPLOYMENT AND INDUSTRIAL LAW - Industrial Relations Commission -
Procedure and powers - motion to set aside summons to produce -
relevant principles.
Eminem Kids Academy Pty Ltd v
Secretary, Department of Education [2022]
NSWCATAD 126
REVIEW OF DECISION BY EXTERNAL DECISION-MAKER - decision to
cancel provider approval by the regulatory authority under section
33 of the Children (Education and Care Services) National Law
(NSW).
PRACTICE AND PROCEDURE - stay of the decision under appeal
- factors relevant to exercise of the power to stay decision
under section 43 of the Civil and Administrative Tribunal Act 2013
(NSW).
Environment Protection Authority v
University of Sydney [2022] NSWLEC 41
SENTENCING - offence under Radiation Control Act of failing to
ensure regulated material not in possession of person with
appropriate license - accidental disposal of PET scanner with
radiation source - late plea of guilty.
SENTENCING - offence under Radiation Control Regulation of
disposing of regulated material without consent of Environment
Protection Authority - accidental disposal of PET scanner with
radiation source at tip - late plea of guilty.
SafeWork NSW v Edstein Creative Pty
Ltd [2022] NSWDC 117
CRIMINAL LAW - prosecution - work health and safety - duty of
persons undertaking business - risk of death or serious
injury.
CRIMINAL PROCEDURE - whether proceedings brought outside limitation
period - whether particulars of offence are adequate.
Environment Protection Authority v
Cleanaway Equipment Services Pty Ltd [2022]
NSWLEC 40
SENTENCING - plea of guilty to charge of water pollution resulting
from spill of industrial solvent into stormwater system and
Molonglo River due to valve failure - no aggravating factors -
actual environmental harm caused - medium level of objective
seriousness - mitigating factors - early guilty plea -
contrition.
SENTENCING - plea of guilty to charge of water pollution from spill
of industrial solvent into stormwater and Molonglo River - second
spill occurred after attempted clean-up of original spill - no
aggravating factors - actual environmental harm caused - medium
level of objective seriousness - mitigating factors - early guilty
plea - contrition.
SENTENCING - plea of guilty to charge of failing to immediately
notify water pollution incident - notification of EPA within four
hours of becoming aware that spill of industrial solvent had
entered stormwater system - low level of objective seriousness - no
aggravating factors - early plea of guilty.
CFJ v Children's Guardian (No 3) [2022] NSWCATAD 124
ADMINISTRATIVE LAW - Application for review under s 27 of Child Protection (Working with Children) Act 2012 - risk assessment by respondent due to notification of concern from the NSW Ombudsman - whether the applicant poses a risk to the safety of children - the correct and preferable decision.
O'Grady v Sutherland Shire Council
(No 2) [2022] NSWCATAD 125
ADMINISTRATIVE LAW - Government Information (Public Access)
- Grounds for refusing access - Balancing competing
public interest factors for and against disclosure.
Fraser v Commissioner of Fire and
Rescue NSW [2022] NSWIRComm 1026
APPEAL - public sector disciplinary appeal - demotion from Deputy
Manager, ComSafe Training Services, Operational Support Level 3 to
Senior Firefighter - settlement reached - Deed of Release -
demotion altered to Assistant Equipment Management Officer role,
Operational Support Level 2 - appellant initially placed in
Technical Officer role, Operational Support Level 2 - whether the
Deed constitutes a bar to the appellant pursuing his disciplinary
appeal - whether respondent had repudiated the Deed -
appellant did not accept the repudiation through his conduct.
Parker v Warrumbungle Shire
Council [2022] NSWPIC 160
WORKERS COMPENSATION - Application for declaration that
applicant was not required to attend earning capacity assessment
pursuant to section 44A of the Workers Compensation Act 1987, where
liability for the claim has been disputed;
Held - there is no dispute before the
Commission; and it has no jurisdiction to make the declaration
sought; consideration of Chatto v Transfield Services (Australia)
Pty Ltd; Widdup v Hamilton; University of New South Wales v Lee; De
Vries v Bega Valley Shire Council; the order sought is declined and
the Application is dismissed.
Environment Protection Authority v
Afram [2022] NSWLEC 38
SENTENCING - pleas of guilty to three offences of supply of
misleading information in a material respect about waste in the
course of dealing with waste - defendant already sentenced for
overlapping fraud offence under Crimes Act - potential for
significant environmental harm as asbestos waste delivered to rural
property - early plea of guilty - limited other mitigating
circumstances.
SENTENCING - plea of guilty to land pollution offence - deposition
of asbestos and other waste on rural property unbeknownst to land
holder who expected clean fill to be supplied - actual harm to the
environment caused - potential for significant environmental harm -
early guilty plea - limited other mitigating circumstances.
Bonner v Chief Commissioner of State
Revenue [2022] NSWSC 441
TAXES AND DUTIES - payroll tax - liability - employment agency
contracts - agency contracts with clients to provide services of
models - whether agency's contracts with models are
"employment agency contracts" - did models work "in
and for the conduct of the business" of the agency's
clients - fact-sensitive inquiry - UNSW Global Pty Ltd v Chief
Commissioner of State Revenue [2016] NSWSC 1852; 104 ATR 577
discussed.
STATUTORY INTERPRETATION - principles - whether literal meaning
produced absurd results - reading down employment agency contract
provisions by implied limitations - importing concepts from
repealed provisions - purposive construction - use of extrinsic
materials to divine purpose - Payroll Tax Act 2007 (NSW), Pt 3 Div
8.
STATUTORY INTERPRETATION - extrinsic materials - legislative
history - Pay-roll Tax Act 1971 (NSW).
Godolphin Australia Pty Ltd v Chief
Commissioner of State Revenue [2022] NSWSC
430
TAXES AND DUTIES - Land tax - Assessments
- Exemption for land used for primary production - Where
plaintiff used land for the maintenance of horses both for the
purpose of training those horses for racing and for the purpose of
selling those horses or their bodily produce, namely their semen
- Distinction between dominant use of land and dominant
purpose of land.
NSW Education Standards Authority v
Thomas [2022] NSWCATAP 110
APPEAL - administrative review - meaning of 'misconduct' in
s 24(1)(e) of the Teacher Accreditation Act 2004 (NSW) - whether
the Tribunal misconstrued the meaning of 'misconduct' -
whether the Tribunal erred in determining that conduct alleged to
be in breach of NSW Department of Education Code of Conduct could
not constitute 'misconduct' - whether the Tribunal erred by
determining that non-compliance with the Australian Professional
Standards for Teachers approved under s 19(1) of the Education
Standards Authority Act 2013 (NSW) could not constitute misconduct
- whether the Tribunal erred in its discretion to find in the
alternative that the respondent's suspension was
disproportionate and not sufficiently serious to warrant such
suspension.
Commissioner for Fair Trading, NSW
Department of Customer Service v Kalkan [2022]
NSWCATAP 112
ADMINISTRATIVE LAW - whether in reviewing administratively
reviewable decision under Administrative Decisions Review Act 1997
(NSW) Tribunal is to apply version of enabling legislation in
effect at time of Tribunal's decision.
Legislation
NSW
Regulations and other miscellaneous instruments
Legal Profession Uniform Law Australian Solicitors' Conduct Amendment (No 2) Rules 2022 LW 22 April 2022
Environmental Planning Instruments
Ballina Local Environmental Plan 2012 (Map Amendment No 4) LW 22 April 2022
Bankstown Local Environmental Plan 2015 (Amendment No 14) LW 22 April 2022
Campbelltown Local Environmental Plan 2015 (Amendment No 29) LW 22 April 2022
Clarence Valley Local Environmental Plan 2011 (Amendment No 50) LW 22 April 2022
Parramatta Local Environmental Plan 2011 (Amendment No 65) LW 22 April 2022
Sydney Local Environmental Plan 2012 (Amendment No 74) LW 22 April 2022
The Hills Local Environmental Plan Further Amendment (North Kellyville Precinct) 2022 LW 22 April 2022
Willoughby Local Environmental Plan 2012 (Amendment No 21) LW 22 April 2022
Woollahra Local Environmental Plan 2014 (Map Amendment No 1) LW 22 April 2022
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.