In the media
NSW public servants urged to prepare for binding code of
conduct
The NSW Public Service Commissioner has urged the
state's government employees to familiarise themselves with the
new code of conduct ahead of its introduction in November. The new
code sets out minimum expected standards of
behaviour that all employees must meet and provides a framework to
guide decisions and behaviour at every job level (15 July 2024).
Read more here.
As the Murray-Darling Basin Plan looks to keep more
water in our rivers, it's changing the way we grow our
food
The Murray-Darling Basin Plan (MDBP) was introduced to
help conserve one of the country's greatest natural resources,
its largest river network. Acknowledging that for too long, too
much water had come out of the rivers, the plan set a target to
ensure more water stayed in the system (12 July 2024). Read more here.
NSW government announces key appointments
Senior Customer Services executive John Tansey has started
a new role as the next Commissioner of the Health Care Complaints
Commission (HCCC) for a five-year term following recruitment by the
NSW Public Service Commissioner (8 July 2024). Read more here.
'Lack of transparency' around Rozelle
Interchange decisions, NSW Parliamentary inquiry finds
There was a "concerning lack of clarity and
transparency" around contractual arrangements between the NSW
Government and Transurban over the delivery of the trouble-plagued
Rozelle Interchange, a NSW parliamentary inquiry has found. The
legislative council report has made a slew of findings critical of
the delivery of the spaghetti junction that has caused traffic
issues in Sydney's inner west at peak times since the
interchange opened in November (15 July 2024). Read more here.
Toll roads charge too much yet we don't have enough
of them. To fix both things, NSW should buy their private
owners
Sydney's very high tolls encourages drivers to
under-use toll roads and over-use suburban streets, needlessly
exposing people on those streets to noise, pollution and danger. In
NSW a single corporation, Transurban, operates most toll roads to
maximise the profits accruing to its shareholders, rather than
tolls that will ensure its roads are well used. This article
suggests the NSW government ought to buy Transurban to ensure toll
roads are properly managed (5 July 2024). Read more here.
Publications
Protecting children at risk: an assessment of whether
the Department of Communities and Justice is meeting its core
responsibilities
This special report was completed as part of the NSW
Ombudsman's Community Services monitoring and review functions.
The Department of Communities and Justice (DCJ), the lead agency
for child protection in NSW, has three core responsibilities: to
respond to children reported at risk, support children in statutory
out of home care, and provide early intervention and family
preservation services. The report found that DCJ cannot demonstrate
that it is meeting its core responsibilities, and that the NSW
child protection system operates in a disconnected, fragmented way
which is reflected in the poor tracking of outcomes achieved for
children (5 July 2024). Access the report here. Read the report here.
In the courts and practice
Justice Ingmar Taylor and Industrial Court welcomed
during ceremonial sitting
The Industrial Court of NSW has formally been opened
during a ceremonial sitting held at the Chief Secretary's
Building in Sydney. Justice Ingmar Taylor was welcomed during the
ceremony as a judge of the Industrial Court and President of the
Industrial Relations Commission (IRC) (10 July 2024). Read more here.
Justice David Chin welcomed as NSW Industrial Court
judge and Vice President of Industrial Relations Commission
Experienced barrister, Justice David Chin, has been
officially welcomed as a judge of the Industrial Court of NSW and
Vice President of the Industrial Relations Commission of NSW.
Justice Chin is a specialist in workplace health and safety,
industrial, employment and discrimination law, who co-authored The
Modern Contract of Employment. With 30 years' experience as a
solicitor, barrister, lecturer and author, he has a long-held
passion for advocacy, and for industrial law and justice making a
positive change to people's lives (12 July 2024). Read more here.
Have Your Say – Protect consumers and raise
standards in the legal profession
The Professional Standards Councils invite comments and
submissions, until 24 July 2024, from interested stakeholders in
relation to the proposed professional standards scheme, The Law
Society of New South Wales Professional Standards Scheme. Access
the survey here.
Have Your Say – NSW Suicide Prevention
Legislation
The NSW Government is seeking feedback, by 18 August 2024,
on the NSW Suicide Prevention Legislation. Every suicide is a
tragedy that deeply affects individuals, families, and communities,
leaving a lasting impact on those left behind. Legislation is one
of many tools the government will use to strengthen NSW's whole
of government approach to suicide prevention. Access the online
consultation here.
Cases
Lawrence v Commissioner of Corrective
Services [2024] NSWSC 855
CIVIL PROCEDURE – subpoenas – review of Registrar's
decision to set aside – subpoena issued in administrative law
proceedings – review of decisions to place plaintiff in
protective and segregated custody whilst on remand – legal
unreasonableness – where decision-makers provided statements
of reasons – where subpoena sought documents relating to the
preparation of those reasons – where plaintiff seeks to
challenge credit of decision-makers through cross-examination
– misapprehension of administrative law proceedings –
credibility not in issue – not a merits-based inquiry –
except in two instances decisions-makers have appropriately annexed
documents they relied on – legitimate forensic purpose in
seeking documents referred to but not annexed – remainder of
subpoena goes beyond what is needed for proper conduct of
proceedings – subpoena set aside except for two
paragraphs.
Crimes (Administration of Sentences) Act 1999 (NSW) ss 10, 11, 72A; Crimes (Administration of Sentences)
Regulation 2014 (NSW); Supreme Court Act 1970 (NSW) ss 23, 69, 75A;
Uniform Civil Procedure Rules 2005 (NSW) rr 2.1, 33.6, 49.19, 59.7,
59.9.
Commissioner of the Australian Federal Police v
Hills Greenery Pty Ltd [2024] NSWSC 847
PROCEEDS OF CRIME – application for leave to apply for
exclusion from forfeiture order and compensation order.
Proceeds
of Crime Act 2002 (Cth); Criminal Code Act 1995 (NSW).
Moran v State of New South Wales [2024]
NSWSC 856
CIVIL PROCEDURE – interrogatories – application for
– cause of action in malicious prosecution, misfeasance in
public office and false imprisonment – whether claim is for
damages arising out of "bodily injury" requiring
demonstration of special reasons under r 22.1(3) of the Uniform Civil
Procedure Rules 2005 (NSW) – whether administration of
interrogatories is "necessary" within r 22.1(4) of the UCPR
– application to administer interrogatories granted.
Evidence
Act 1995 (NSW); Surveillance Devices Act 2007 (NSW); Uniform Civil
Procedure Rules 2005 (NSW).
Commissioner of Australian Federal Police v
Xin; Tara Global Pty Ltd v The Official Trustee in Bankruptcy
[2024] NSWSC 851
CIVIL LAW – proceeds of crime – restraining orders
against 20 defendants – one defendant brings a motion
alleging negligence by the Official Trustee in the management of
restrained real property – failure to make mortgage
repayments – default in mortgage – penalties charged
– where mortgagee seeks to exercise right of sale –
separate negligence proceedings – motions to stay or adjourn
negligence proceedings and negligence motion – whether
duplication of proceedings – where Judge ordered or suggested
proceedings should be brought by separate proceedings –
whether cause of action proceeds of crime – whether any
damages for negligence would inevitably be subject of restraining
orders – where forfeiture orders to be determined in the
future – where Judge who made ex parte restraining orders
allocated motion to stay proceedings – unfortunate
happenstance.
Bankruptcy
Act 1966 (Cth) ; Civil Liability Act 2002 (NSW), Pt 5; Civil
Procedure Act 2005 (NSW), ss 5(1), 56, 56(1), 58, 59, 66, 67;
International Covenant on Civil and Political Rights, art 14(1); Proceeds of
Crime Act 2002 (Cth), ss 18, 18(2)(c), 19, 21, 29, 31, 38, 39,
276, 290, 319, 319(1), 319(2), 319(6), 329, 330; Real Property Act
1900 (NSW), ss 57(2)(b), 58(1).
Secretary of the Department of Education v
SafeWork NSW [2024] NSWIRComm 1042
WORKPLACE HEALTH AND SAFETY – application for external review
– determination of work groups – balance of
considerations.
Work Health and Safety Act 2011; Work Health and Safety Regulation
2017.
Ireland v Commissioner of Police, NSW Police
Force [2024] NSWCATAD 190
COSTS – administrative review – special circumstances
– costs where proceedings dismissed following appeal and
remittal for reconsideration with fresh evidence.
Civil and Administrative Tribunal Act 2016; Firearms Act 1996.
Storty Pty Ltd v Campbelltown City Council
[2024] NSWLEC 1397
DEFERRED COMMENCEMENT CONDITION – compliance – right of
way granted or not – two way lawful access.
Civil
Procedure Act 2005, s 64 ; Conveyancing Act 1919, ss 88, 88B, Sch 4A ; Environmental Planning and Assessment Act 1979,
ss 4.16, 4.17, 8.7, 8.14, 14, 39; Land and Environment Court Act 1979, ss 17, 34, 39 ; Local Government Act 1919; Real Property
Act 1900, s 47 ; Environmental Planning and Assessment Regulation
2021, ss 76, 113 ; Road Rules 2014, ss 11, 12, 129, 131 ; Uniform Civil Procedure Rules (2005), s 64.
SafeWork NSW v Acon Projects Pty Ltd
[2024] NSWDC 275
CRIMINAL PROCEDURE – duplicity – whether charge is bad
for duplicity or uncertainty – whether s 31 Work Health and Safety Act creates two offences
– recklessness or gross negligence – whether
prosecution must elect a fault element.
Criminal Procedure Act 1986
(NSW); Work Health and Safety Act 2011 (NSW),
ss 19, 31, 32, 233; Work Health and Safety Amendment (Review) Bill
2020 (NSW).
SafeWork NSW v Linda June Priest [2024]
NSWDC 276
CRIMINAL LAW – prosecution – work health and safety
– duty of persons undertaking business – risk of death
or serious injury.
SENTENCE – objective seriousness – mitigating factors
– aggravating factors – plea of guilty – general
deterrence – specific deterrence – capacity to pay
appropriate penalty.
COSTS – prosecution costs.
OTHER – quad bike – worker rode onto dam wall –
bike tipped over – worker struck and trapped – labour
hire company – failure to inquire as to the nature of work to
be done by labour hires – failure to ensure company undertook
risk assessment – failure to ensure protective equipment was
installed and provided to workers – failure to consult,
co-operate and co-ordinate to ensure safety.
Crimes
(Sentencing Procedure) Act 1999 (NSW), ss 3A, 9, 21A, 22; Fines Act
1996 (NSW), ss 6, 122 ; Work Health
and Safety Act 2011 (NSW), ss 3, 19, 32, 46.
SafeWork NSW v The Owners Strata Plan No
93899 [2024] NSWDC 277
CRIMINAL LAW – prosecution – work health and
safety – duty of persons undertaking business – risk of
death or serious injury.
SENTENCE – objective seriousness – mitigating factors
– aggravating factors – plea of guilty – general
deterrence – specific deterrence – capacity to pay
appropriate penalty.
COSTS – prosecution costs.
OTHER – gate damaged by vehicle collision – worker
subsequently fatally crushed by damaged gate which fell on him
– failure to prevent manual operation of gate – failure
to direct workers not to operate gate until replaced or repaired
– failure to post signage instructing workers not to operate
gate until replaced or repaired – failure to urgently repair
gate – failure to conduct risk assessment – failure to
remove gate from service.
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 22, 26,
27, 28, 30A, 30B, 30D, 30E; Fines Act 1996 (NSW), ss 6, 122; Strata
Schemes Management Act 2015 (NSW), ss 8, 106; Work Health and
Safety Act 2011 (NSW), ss 3, 20, 32.
Lew v Commissioner for Fair Trading; KML Truck
Electrics and Airconditioning Pty Ltd v Commissioner for Fair
Trading [2024] NSWCATOD 96
ADMINISTRATIVE LAW – motor dealers licence – motor
dealers certificate – administrative review of decision to
cancel licence – disqualification from holding a licence
– death of employee – fit and proper person –
carrying on business – moral integrity and rectitude of
character – seriousness or otherwise of particular conduct
– imposition of condition.
Administrative Disputes Review Act 1997; Civil and
Administrative Tribunal Act 2013; Motor Dealer and
Repairer's Act 2013.
State Wage Case 2024 [2024] NSWIRComm
1
STATE WAGE CASE – adoption of National Decision – Wage
Fixing Principles – whether National Decision ought to be
adopted – whether the Wage Fixing Principles ought to be
retained or amended – directions made for submissions.
Industrial Relations Act 1996 (NSW) Pt 3 Ch 2, ss 50, 52;
Industrial Relations Amendment Act 1996 (NSW).
Commissioner of the Australian Federal Police v
Mazzco Investments Pty Ltd & Ors. (No 4) [2024] NSWSC
837
CIVIL PROCEDURE – proceeds of crime – where
Commissioner has utilised production order power in s 202 of the Proceeds of
Crime Act 2002 (Cth) to obtain property-tracking documents
following the commencement of proceedings – where fourth
defendant is disputing the use of the documents obtained –
whether the Commissioner used the production order power for the
sole or dominant purpose to obtain documents for use in the
proceedings – whether use of the s 202 power by the Commissioner gave an unfair
advantage to the Commissioner amounting to a contempt of court
– requisite sole or dominant purpose not established –
no relevant advantage secured by Commissioner, or disadvantage
occasioned to the fourth defendant, by use of s 202 power to amount to contempt of court
– fourth defendant's cross summons dismissed.
Criminal Code Act 1995 (Cth); Food Act 2003 (NSW); Proceeds of
Crime Act 2002 (Cth); Supreme Court Rules 1970 (NSW); Trade
Practices Act 1974 (Cth).
GDO v NSW Trustee and Guardian [2024]
NSWCATAD 187
ADMINISTRATIVE LAW – Merits Review – where NSW Trustee
and Guardian decided to approve the sale of a property of a person
who is the subject of a financial management order – alleged
marital separation – family members allege intention of
protected person to transfer ownership of property to nephew
– objection to sale – paramount consideration is the
welfare and interests of the person subject to the financial
management order – correct and preferable decision.
Administrative Decisions Review Act 1997 (NSW); Civil and
Administrative Tribunal Act 2013 (NSW); Guardianship Act 1987
(NSW); NSW Trustee and Guardian Act 2009 (NSW).
Boensch v Transport for NSW (No 2) [2024]
NSWCA 165
JUDGMENTS AND ORDERS – amending, varying and setting aside
– orders for costs of appeal and underlying proceedings
– where notice of motion not filed within 14 days of judgment
being entered but notice given to Court and parties of that
application – whether Court can dispense with requirement to
file and serve notice of motion – no basis to vary costs
order.
Civil Procedure Act 2005 (NSW), s 14; Uniform Civil Procedure Rules
2005 (NSW), rr 18.2, 36.16.
Lahoud v Willoughby City Council [2024]
NSWCA 163
ENVIRONMENT AND PLANNING – development consent for the
adaptive reuse of existing commercial building – judicial
review – building exceeds height standard – whether
consent authority satisfied of cl 4.6 of Willoughby Local
Environment Plan 2012 before granting development consent –
whether consent authority satisfied building had active street
frontage – whether development for permissible use of shop
top housing – whether consent authority failed to consider if
land is contaminated.
LIMITATION OF ACTIONS – whether proceedings time-barred
– time limit of three months after public notice in
accordance with regulations published – earlier notifications
not notices in accordance with regulations.
Environmental Planning and Assessment Act 1979 (NSW), ss 4.8, 4.16,
4.17, 4.59, 9.1, 9.46; Land and Environment Court Act 1979 (NSW),
ss 25B, 58; Environmental Planning and Assessment Regulation 2000
(NSW), cl 124; State Environmental Planning Policy 55 –
Remediation of Land, cl 7; Willoughby Local Environmental Plan
2012, cll 4.3, 4.6, 6.7, Dictionary.
Legislation
Proclamations commencing Acts
Bail and Other Legislation Amendment (Domestic Violence) Act 2024 No 30 (2024-284) – published LW 1 July 2024
Energy Legislation Amendment (Clean Energy Future) Act 2024 No 41 (2024-291) – published LW 5 July 2024
Regulation and other miscellaneous instruments
Environmental Planning and Assessment Amendment (Development Levies) Regulation 2024 (2024-297) – published LW 12 July 2024
Water Management (Application of Act to North Western Water Source) Proclamation 2024 (2024-298) – published LW 12 July 2024
Industrial Relations Commission Amendment (Industrial Court) Rules 2024 (2024-289) – published LW 1 July 2024
NSW Greyhound Racing Rules (2024-285) – published LW 1 July 2024
Treasurer's Direction TD24-21 - Amendment to TD23-11 Annual reporting requirements (2024-286) – published LW 1 July 2024
Treasurer's Direction TD24-22 - Financial and Annual Reporting by former reporting GSF agencies (2024-287) – published LW 1 July 2024
Victims Rights and Support (Victims Support Levy) Notice 2024 (2024-290) – published LW 1 July 2024
Work Health and Safety Amendment (Penalty Notices) Regulation 2024 (2024-288) – published LW 1 July 2024
Environmental Planning Instruments
Ballina Local Environmental Plan 2012 (Amendment No 55) (2024-299) – published LW 12 July 2024
Canada Bay Local Environmental Plan 2013 (Amendment No 29) (2024-300) – published LW 12 July 2024
Parramatta Local Environmental Plan 2023 (Amendment No 5) (2024-301) – published LW 12 July 2024
Wentworth Local Environmental Plan 2011 (Map Amendment No 7) (2024-302) – published LW 12 July 2024
Bega Valley Local Environmental Plan 2013 (Amendment No 43) (2024-292) – published LW 5 July 2024
Bega Valley Local Environmental Plan 2013 (Map Amendment No 7) (2024-293) – published LW 5 July 2024
Bega Valley Local Environmental Plan Amendment (Complying Development) 2024 (2024-294) – published LW 5 July 2024
Cumberland Local Environmental Plan 2021 (Amendment No 7) (2024-295) – published LW 5 July 2024
Parramatta Local Environmental Plan 2023 (Map Amendment No 4) (2024-296) – published LW 5 July 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.
