In the media
NSW government announces $224 million social housing
package
New South Wales Premier, Chris Minns, announced an
allocation of $224 million towards social and affordable housing.
This will be split between $70 million in direct investment in new
social housing units and funding for existing social housing and
homelessness programs. (16 September 2023). Read more here.
NSW sets up new $3.6 billion Essential Services Fund to
cover wage rises for public sector workers
The New South Wales Government will set up a new fund
worth $3.6 billion over the next four years to lift wages for
public sector workers and help fill critical shortages. The
Essential Services Fund will cover the wage rises for nurses,
paramedics, firefighters, teachers and other frontline workers. (17
September 2023). Read more here.
NSW councils bogged down by court cases say state
planning laws need to change
The New South Wales Government and councils are at odds
over a planning law that requires development applications to be
assessed within 40 days. The Government says the time frame is
necessary to confront the housing crisis, but councils say the
deadline is impossible to meet (15 September 2023). Read more here.
NSW parliamentary inquiry submissions warn of lead,
gold, silver, zinc mining impacts
An Upper House committee has been tasked with examining
the current and potential impacts of gold, silver, lead and zinc
mining on human health, land, air and water quality. Many
submissions focus on three mines in the Central West with residents
and community groups telling the inquiry they did not believe the
Cadia Mine near Orange was properly regulated due to recent dust
pollution breaches (15 September 2023). Read more here.
NSW government halts logging within proposed Great Koala
National Park
Logging has been stopped in parts of the proposed Great
Koala National Park on NSW's Mid North Coast while the state
Government determines the impact on koalas and timber industry
jobs. The Nature Conservation Council has described the moratorium
on logging as a big win for koalas and the environment movement (12
September 2023). Read more here.
NSW government abandons Wyangala Dam expansion
Water Minister Rose Jackson announced that Labor will not
proceed with an expansion of Wyangala Dam near Cowra. The expansion
was announced in 2019 by the former Coalition governments,
promising $650 million. However, the bill has since
"ballooned", estimated now to cost billions of dollars
(12 September 2023). Read more here.
NSW government announces $3 billion investment into
Western Sydney Hospitals
The NSW Government has announced it will put a record $3
billion dollars of funding into public hospitals in Western Sydney.
The multi-billion dollar investment will be allocated in the state
budget for spending on building new hospitals, and upgrading
existing hospitals across greater Western Sydney (10 September
2023). Read more here.
State's first youth justice trade centre
The Cobham Youth Justice Centre in Werrington has unveiled
a state-of-the-art trade centre where young inmates can start
rebuilding their lives. The new centre provides Cobham's
low-risk young people in custody the chance to access on-site trade
training for the skills they need to secure jobs when rejoining the
community (12 September 2023). Read more here.
NSW government invests $3.5 billion on school
infrastructure backlog
The NSW Government will invest $3.5 billion to develop and
upgrade more than 60 public schools in Sydney's western
suburbs. These upgrades will deliver new facilities and address
overcrowding. The Government is due to hand down the findings of
its Enrolment Growth Audit later this year to ensure education is
factored into future planning for the city and expanding suburban
areas (11 September 2023). Read more here.
In the courts
ATT Bulletin No. 18/2023
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. (11 September 2023). Read more here.
New South Wales Supreme Court Practice Note SC Gen
20
This Practice Note was issued on 12 September 2023 and
commences on 1 October 2023. It applies to the citation of
authorities in all proceedings in the Supreme Court of New South
Wales, the Court of Appeal and the Court of Criminal Appeal (12
September 2023). Read more here.
Local Court of New South Wales Specialist Family
Violence List Pilot Practice Note
This Practice Note was issued on 6 September 2023 and
commences on 25 September 2023. It establishes the Specialist
Family Violence List Pilot and the procedural measures to be
applied by the Court and court users (6 September 2023). Read more
here.
Cases
Clark v Attorney General
(NSW) [2023] NSWCA 208
ADMINISTRATIVE LAW – judicial review – crime –
application to set aside decision of judge to refuse to consider or
otherwise deal with an application for an inquiry into a conviction
– whether error of law on the face of the record or
jurisdictional error.
ADMINISTRATIVE LAW – judicial review – boundary of
legal unreasonableness – whether little weight accorded to a
factor of great importance – need for caution to avoid review
of merits.
CRIMINAL PROCEDURE – functions of judge considering an
application for an inquiry into a conviction under Pt 7 of Crimes
(Appeal and Review) Act 2001 (NSW) – functions non-judicial
– where previous unsuccessful applications – refusal to
consider or further deal with fresh application – no function
to review correctness of earlier decisions.
Crimes Act 1900 (NSW) s 66C; Crimes (Appeal and Review) Act 2001
(NSW) Pt 7 ss 78, 79; Supreme Court Act 1970 (NSW) s 69; Criminal
Appeal Rules (NSW) r 50C (repealed).
Sydney Trains v Argo Syndicate AMA 1200
(No 2) [2023] NSWDC 381
CONTRACTS – express terms.
CONTRACTS – formation – incompleteness –
implication of terms – breach – causation – novus
actus interveniens – waiver.
INSURANCE – liability insurance – professionals –
exclusions – definitions.
INSURANCE – liability insurance – public
liability.
INSURANCE – construction – exclusion clauses –
performance warranties – professional activity.
PRACTICE AND PROCEDURE – release from Harman
undertaking.
Civil Liability (Third Party Claims Against Insurers) Act 2017
(NSW), s 5; Compensation to Relatives Act 1897 (NSW), s 3, s 4;
Corporations Act 2001 (Cth), s 601AG; Evidence Act 1995 (NSW), s
136; Law Reform (Miscellaneous Provisions) Act 1946 (NSW), s 5.
Hildard Pty Ltd ATF Hildard Trust v
Chief Commissioner of State Revenue [2023]
NSWCATAD 247
TAXES AND DUTIES – land tax – whether trust is a fixed
trust – use that can be made of unstamped documents –
principal place of residence exemption.
Administrative Decisions Review Act 1997 (NSW), ss 55, 63; Civil
and Administrative Tribunal Act 2013(NSW), s 41; Corporations Act
2001 (Cth), s 601RAA; Duties Act 1997 (NSW), s304; Land Tax Act
1956 (NSW), s 3AL, Sch 13; Land Tax Management Act 1956 (NSW), ss
3, 3A, 3B, 10, 25A, Sch 1A; Taxation Administration Act 1996 (NSW),
ss 96,100, 101, 119; Trustee Companies Act; Uniform Civil Procedure
Rules 2005, cl 31.
Rahme v North Sydney
Council [2023] NSWLEC 1519
APPEAL – modification of development consent – part
constructed residential flat building – building construction
– consent orders hearing – public participation.
Environmental Planning and Assessment Act 1979, ss 2.19, 4.15,
4.16, 4.55, 4.8, 8.9; Environmental Planning and Assessment
Regulation 2000, cl 115; Environmental Planning and Assessment
Regulation 2021, Sch 6, s 3; North Sydney Local Environmental Plan
2013.
Sell & Parker Pty Ltd v Minister
for Planning [2023] NSWLEC
1523
DEVELOPMENT APPLICATION – state significant development
– increased throughput for metal recovery and recycling
facility – acoustic walls – noise impacts on
residential and non-residential receivers – project noise
trigger levels – operational hours – operational noise
limits – noise performance monitoring – need for real
time monitoring – flooding implications of noise walls
– air quality monitoring – ongoing function of
Secretary of the Department of Planning and Environment –
structural aspects of consent document – extensive
disagreement on consent conditions.
Blacktown Local Environmental Plan 2015, cll 5.21, 7.3, 7.5;
Environmental Planning and Assessment Act 1979 ss 4.12, 4.15, 4.17,
4.36, 4.38, 4.40, 4.5; Land and Environment Court Act 1979, s 39;
Protection of the Environment Operations Act 1997, Ch 3; State
Environmental Planning Policy (Planning Systems) 2021, ss 2.6, 2.7,
Sch 1, s 23; State Environmental Planning Policy (Resilience and
Hazards) 2021, Ch 3, ss 3.11, 3.12, 4.6; State Environmental
Planning Policy (Transport and Infrastructure) 2021, ss 2.153,
2.122.
Carver v State of New South
Wales [2023] NSWCA 223
CIVIL PROCEDURE – Court of Appeal – stay of judgment
pending appeal – judgment for possession of Crown land
– where applicant claims adverse possession – whether
proposed appeal raises an arguable case – whether balance of
convenience favours stay of enforcement of judgment.
Crown Land Management Act 2016 (NSW), s 13; Limitation Act 1969
(NSW), ss 27, 28.
Joseph v Kiama Municipal Council (No
3) [2023] NSWCATAD 243
ADMINISTRATIVE LAW – administrative review – government
information – application for recusal – alleged
improper conduct of the agency – whether a GIPA applicant can
seek an order referring an Agency to the responsible minister
before completion of an administrative review – whether
allegations made by a GIPA applicant in relation to s 112 of the
GIPA Act operate such that the respondent is deemed to have waived
privilege over documents sought under a summons under s 125 of the
Evidence Act.
Administrative Decisions Review Act 1997 (NSW); Civil Procedure Act
2005 (NSW); Civil and Administrative Tribunal Act 2013 (NSW);
Copyright Act 1968 (Cth); Evidence Act 1995 (NSW); Government
Information (Public Access) Act 2009 (NSW); Government Information
(Public Access) Regulation 2018 (NSW); Interpretation Act 1987
(NSW); Privacy and Personal Information Protection Act 1998
(NSW).
oOh!media Fly Pty Limited v Transport
for NSW [2023] NSWLEC 26
COMPULSORY ACQUISITION – claim for compensation –
resumption of leasehold interest – 18 advertising billboards
owned by claimant – billboards located on road between
international and domestic terminals at Sydney Airport –
compensation claim for hypothetical digitisation of signs prior to
date of acquisition – no legal basis for a claim – if
wrong, contingent determination of number of signs which might have
been digitised – two signs would have been digitised.
COMPULSORY ACQUISITION – method to be used for calculating
value of leasehold interest – discounted cashflow method
appropriate basis of calculation – determination of input
factors for such calculation.
COMPULSORY ACQUISITION – claim for "Digital
advantage" – "Digital advantage" claim
separate from "Halo effect" claim – no proper
evidentiary basis for "Digital advantage" advantage claim
– claim rejected.
COMPULSORY ACQUISITION – claim for "Halo effect"
– "Halo effect" said to arise because of
claimant's ability to market billboards in combination at
multiple airport locations in other cities – no proper
evidentiary basis for claim – claim mere assertion –
claim rejected.
COMPULSORY ACQUISITION – claim for fees of forensic
accountant – fees claimed pursuant to s 59(1)(a) of the Land
Acquisition (Just Terms Compensation) Act 1991 – fees said to
be incurred as part of providing legal advice to claimant –
fees properly claimed – reimbursement of claimed fees to be
ordered.
DIRECTIONS – matter adjourned to permit the parties to
consider the findings and calculate compensation based on them and
to bring in orders to reflect the determined outcomes.
Land Acquisition (Just Terms Compensation) Act 1991; Land Tax Act
1956, s 3AL; State Environmental Planning Policy No. 64 -
Advertising and Signage.
Independent Liquor & Gaming
Authority v 4 Boys (NSW) Pty Ltd [2023] NSWCA
210
LICENSING – Gaming Machines Act 2001 (NSW) – gaming
machine entitlements ("GMEs") –
gaming machine threshold – application to Independent Liquor
& Gaming Authority ("Authority") to
increase gaming machine threshold from 20 to 24 – application
accompanied by "Local Impact Assessment"
(LIA) – application and LIA approved –
subsequent applications to transfer seven GMEs – applications
approved and gaming machine threshold increased from 24 to 27
– application to Authority seeking revocation of earlier
approval – power to revoke earlier approval of LIA –
whether power to revoke earlier approval of increase in threshold
– whether power to revoke earlier approval of transfer of
GMEs – power of Authority to reduce threshold – whether
power to "set" threshold under s 32(1) of Gaming Machines
Act could be re-exercised from time to time to permit increase or
decrease in threshold.
ADMINISTRATIVE LAW – Interpretation Act 1987 (NSW), s 48(1)
– exercise of function from time to time as occasion requires
– whether s 48(1) confers power to revoke previous decision
made under a statutory power – whether s 48(1) requires every
function to which the provision is directed to be interpreted as
including power or authority to revoke earlier exercise of that
function – effect of re-exercise of function or power may be
to reverse or revoke earlier exercise of power – power
conferred by s 19(2)(a) of Gaming Machines Act to approve transfer
of GMEs does not include power to revoke earlier approval of
transfer of GMEs – power conferred by s 34(4) of Gaming
Machines Act to approve increase in threshold does not include
power to revoke earlier approval of increase in threshold –
in the alternative Gaming Machines Act manifests contrary intention
to implication of any such powers of revocation.
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), s 64;
Acts Interpretation Act 1901 (Cth), ss 5, 32, 33; Gaming Machines
Act 2001 (NSW), ss 10, 11, 16, 19, 20, 25, 32, 34, 35, 36, 56;
Gaming Machines Regulation 2019 (NSW); Interpretation Act 1889
(UK), s 32; Interpretation Act 1897 (NSW), s 32; Interpretation Act
1987 (NSW), s 48; Liquor Act 1982 (NSW), s 182; Liquor Act 2007
(NSW), s 53; Migration Act 1958 (Cth), ss 12, 501; Sir H.
Meux's Settled Estate Act 1863 (UK), s 3; Supreme Court Act
1970 (NSW), s 101.
Legislation
NSW legislation
Bills introduced by Government
Motor Dealers and Repairers Amendment Bill
2023 – passed LC 14 September 2023
Radiation Control Amendment Bill 2023 –
introduced LC 14 September 2023
State insurance and Care Governance Amendment
(ICNSW Governance) Bill 2023 – introduced LA 13 September
2023
Paintball Amendment Bill 2023 –
introduced LA 13 September 2023
Bills introduced by non-government
Parliamentary Evidence Amendment (Ministerial
Accountability) Bill 2023 – introduced LC 13 September
2023
Petroleum (Onshore) Amendment (Liverpool Plains
Prohibition) Bill 2023 – introduced LC 13 September
2023
Rural Fires Amendment (Red Fleet) Bill 2023
– introduced LA 14 September 2023
Bills passed by both Houses of Parliament
Sydney Olympic Park Authority Amendment (Hill Road
Upgrade) Bill 2023 – 13 September 2023
Explosives Amendment Bill 2023 – 14
September 2023
Crimes Amendment (Corrupt Benefits for Trustees)
Bill 2023 – 12 September 2023
Civil and Administrative Tribunal Amendment Bill
2023 – 14 September 2023
Regulations and other miscellaneous instruments
Public Health Amendment (Scheduled Medical
Conditions and Notifiable Diseases) Order 2023 (SI 442) –
published LW 11 August 2023
Local Government (General) Amendment (Tendering)
Regulation 2023 (SI 101)
Commonwealth
Acts compilation
International Transfer of Prisoners Act 1997
18/09/2023 – Act No. 75 of 1997 as amended
Telecommunications (Interception and Access) Act
1979 16/09/2023 – Act No. 114 of 1979 as amended
Crimes Act 1914 16/09/2023 – Act No. 12
of 1914 as amended
Surveillance Devices Act 2004 16/09/2023
– Act No. 152 of 2004 as amended
Foreign Evidence Act 1994 16/09/2023 –
Act No. 59 of 1994 as amended
Privacy Act 1988 16/09/2023 – Act No. 119
of 1988 as amended
Australian Crime Commission Act 2002 16/09/2023
– Act No. 41 of 1984 as amended
Anti-Money Laundering and Counter-Terrorism
Financing Act 2006 16/09/2023 – Act No. 169 of 2006 as
amended
Mutual Assistance in Criminal Matters Act 1987
16/09/2023 – Act No. 85 of 1987 as amended
Biosecurity Act 2015 16/09/2023 – Act No.
61 of 2015 as amended
Crimes Act 1914 12/09/2023 – Act No. 12
of 1914 as amended
Carob Credits (Carbon Farming Initiative) Act
2011 12/09/2023 – Act No. 101 of 2011 as amended
Environment Protection and Biodiversity
Conservation Act 1999 08/09/2023 – Act No. 91 of 1999 as
amended
Social Security (Administration) Act 1999
07/09/2023 – Act No. 191 of 1999 as amended
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.