In the media
Portable bonds scheme to deliver cost of living
relief
Millions of renters across the state will soon be able to
move homes and transfer their bond with them with the Minns Labor
Government investing $6.6 million to develop and deliver the
nation's first Portable Rental Bonds Scheme. There is a
turnover of more than 330,000 tenancies every year across the
state, with the average tenancy 1.6 years (29 July 2024). Read more
here.
Veterans' employment exceeds targets in NSW
Since October 2022 there have been 773 veteran hires,
ahead of the 18-month target of 750. This includes 239 veterans
hired into roles in the last 6 months across various government
departments, led by the Department of Education, Department of
Communities and Justice, and NSW Health. Managed by the NSW Office
for Veterans Affairs, the Veterans Employment Program gives former
service men and women a better understanding of the public sector
job application process. The program is on track to secure 2,000
jobs for veterans by December 2026 (28 July 2024). Read more here.
New agreements deliver $296 million of road repair
funding in just three months
More than $296 million in fast tracked new funding has
flowed to regional NSW councils to repair roads and transport
infrastructure damaged during natural disasters in just three
months. The money flowed between April and June after the NSW Labor
Government announced the delivery of a series of new pilot funding
agreements between councils, the NSW Reconstruction Authority and
Transport for NSW (29 July 2024). Read more here.
Overdue protections for gig workers as NSW Government
updates industrial safeguards
The NSW Government will legislate long-overdue protections
for gig workers in the food delivery and ride share sectors,
delivery drivers and truck drivers. Our economy has changed rapidly
over recent years while industrial relations laws have not kept
pace. Currently gig workers have no minimum rates of pay or
conditions. They have no unfair dismissal protections, and no
recourse to an independent industrial umpire (28 July 2024). Read
more here.
Publications
Law Council Update – Law Council of
Australia
In this edition of LCA Update, read the LCA's
submission on the Statutory Review of the Online Safety Act 2021,
which emphasises on strengthening protections to ensure users of
online platforms, especially children, are safeguarded from
abusive, or harmful, content. Other advocacy updates include
submissions on Indigenous cultural and intellectual property rights
and the Government's Humanitarian Program for 2024/25. In
addition, Law Council President-elect, Juliana Warner, attended a
ceremonial sitting at the Federal Court of Australia in Sydney to
welcome the Honourable Justice Jane Needham as a new judge of that
Court (19 July 2024). Read this edition here.
In the courts and practice
New NCAT Deputy President and Division Head
appointed
Experienced Tribunal Member and solicitor Theresa Simon
has been appointed as the new Deputy President and Head of the
Consumer and Commercial Division of the NSW Civil and
Administrative Tribunal (NCAT). With more than 20 years working in
the legal sector, including the past decade at NCAT, Ms Simon is
committed to helping clients resolve a range of disputes, including
residential tenancy, consumer, home building and strata disputes
(29 July 2024). Read more here.
Consumers, carers and community members appointed to new
Advisory Council
The NSW Government has welcomed 14 community members to a
new Advisory Council to help guide how care is delivered across the
NSW public health system. By sharing their advice and perspectives,
the NSW Health Consumer, Carer and Community Advisory Council will
elevate the critically important voice of consumers, carers and
community members on system and statewide issues. The new members
will work with representatives from the Ministry of Health, to
identify areas for improvement and inform the development of better
policies, programs and services (29 July 2024). Read more here.
Inquiry into economic self-determination and
opportunities for First Nations Australians
The Law Council of Australia provides a submission to the
Joint Standing Committee on Aboriginal and Torres Strait Islander
Affairs in relation to its inquiry into economic self-determination
and opportunities for First Nations Australians. This submission is
targeted towards how legal mechanisms and initiatives can make a
positive impact along the path towards economic self-determination
for First Nations people (22 July 2024). Access the submission here.
Cases
Dibb v Transport for New South Wales (No
2) [2024] NSWCA 176
JUDGMENTS AND ORDERS – amending, varying and setting aside
– Court of Appeal – whether judgment should be set
aside under Uniform Civil Procedure Rules 2005 (NSW), r 36.16.
COSTS – application to vary costs order – whether
parties should be permitted to make further submissions on
costs.
Civil Procedure Act 2005 (NSW), s 56; Uniform Civil Procedure Rules 2005 (NSW), r
36.16.
Davies v Commissioner of Police, NSW Police
Force [2024] NSWCATAD 210
Administrative Law – licensing – firearms –
revocation of licence – fit and proper person – public
interest.
Civil and Administrative Tribunal Act 2013; Administrative
Decisions Review Act 1997; Firearms Act 1996; Firearms Regulation
2017.
Cornish v Penrith City Council (No 2)
[2024] NSWCATAP 146
COSTS – Rule 38A Civil and Administrative Tribunal Rules 2014
– where party given leave to be legally represented on the
condition that it may not recover legal costs – special
circumstances.
LOCAL GOVERNMENT – councillors.
Civil and Administrative Act 2013 (NSW); Civil and
Administrative Tribunal Rules 2014 (NSW).
Berejiklian v Independent Commission Against
Corruption [2024] NSWCA 177
ADMINISTRATIVE LAW – judicial review of "serious corrupt
conduct" findings made by Independent Commission Against
Corruption against former Premier – where Commission's
report adopted findings of credibility made by person who presided
at public inquiries – where the appointment of the person who
presided at public inquiries as an Assistant Commissioner expired
after conclusion of those public inquiries and that person
appointed as a consultant and accordingly officer of Commission
prior to report being finalised – whether assistance of
presiding officer as consultant in preparation of report outside
limits of her authority – whether Commission could adopt
credibility assessments made by presiding officer after her
appointment as Assistant Commissioner had expired.
ADMINISTRATIVE LAW – judicial review of "serious corrupt
conduct" findings made by Independent Commission Against
Corruption against former Premier – whether "no
evidence" to support finding applicant influenced by her
private interest in maintaining close personal relationship –
whether non-pecuniary personal relationship capable of being
"private interest" giving rise to conflict of interest
and public duty – whether applicant as parliamentarian and
Minister of the Crown had legally enforceable positive duty to act
only according to what she believed to be in public interest
– whether Commission made findings about merits of funding
proposals – whether s 7 of NSW Ministerial Code and cll 10-12 of
Schedule to code applies to Premier – whether applicant's
conduct in relation to funding decisions constrained by duty to act
impartially – whether finding of partial conduct requires
finding that but for unacceptable reason conduct would not have
occurred – whether finding of partial conduct requires
comparative exercise – whether Commission reached illogical
or irrational result by making "serious corrupt conduct"
finding but also refusing to recommend advice be sought as to
whether to prosecute applicant – whether
"dishonest" in s 8(1)(b) of Independent
Commission Against Corruption Act 1988 (NSW)
requires person to realise his or her conduct dishonest according
to standards of ordinary people.
Constitution Act 1902 (NSW), s 35E(1) ; Evidence Act 1995 (NSW), s
55(1); Independent Commission Against Corruption Act 1988 (NSW), ss
2A, 3(1), 4(1), 5(1), 6, 6A, 7(1), 8, 9, 11, 13, 17, 18(2), 20, 30,
31, 31B, 55, 57B, 74, 74A-74D, 75, 77, 77A, 104B, 107, 111, 112(1),
Sch 1, cl 5(4); Interpretation Act 1987 (NSW), s 35; Restart NSW
Fund Act 2011 (NSW), s 3; Supreme Court Act 1970 (NSW), ss 48,
51(2), 69; Independent Commission Against Corruption Regulation
2017 (NSW), cl 5; NSW Ministerial Code of Conduct, Preamble, cll 1,
3, 4, 11, ss 1, 4, 6-12, Sch, cll 2(3)(c), 3(5)(c), 10-13, 27.
Whites Beach Investments Pty Ltd v Byron Shire
Council [2024] NSWLEC 75
JUDICIAL REVIEW – whether development consent has lapsed
– whether evidence establishes physical commencement –
whether declaration appropriate where no contradictor.
Environmental Planning and Assessment Act 1979 (NSW), s 99
(repealed); Evidence Act 1995 (NSW), s 144; Local Government Act
1919 (NSW) (repealed); Miscellaneous Acts (Planning) Repeal and
Amendment Act 1979 (NSW), s 2, Sch 3 cll 1, 7 (repealed); Interim
Development Order No 1 – Shire of Byron 1968 (NSW).
Borg v Blacktown City Council [2024]
NSWLEC 1425
APPEAL – development application – alterations and
additions to existing dwelling house to raise it by 3m –
existing dwelling house in flood prone land.
Environmental Planning and Assessment Act 1979, ss 4.15, 8.7; Land
and Environment Court Act 1979, s 34AA; Blacktown Local
Environmental Plan 2015, cll 4.2A, 5.21; State Environmental
Planning Policy (Biodiversity and Conservation) 2021, Ch 6, ss 6.6,
6.7, 6.8, 6.9; State Environmental Planning Policy (Resilience and
Hazards) 2021 s 4.6; Standard Instrument (Local Environmental
Plans) Amendment (Flood Planning) Order 2023; Standard Instrument
(Local Environmental Plans) Order 2006, cl 8.
Moujalli v Penrith City Council [2024]
NSWLEC 1424
DEVELOPMENT APPLICATION – mixed use development with approval
for use of ground and first floors as a childcare centre –
whether, given its width, the site is suitable for the proposed
development – whether the proposed development provides safe
access to the basement and parking spaces - whether built form of
the proposed development is incompatible with the character of the
locality – insufficient landscaping and impacts on trees
– whether the proposed development will have an unacceptable
impact on the amenity of neighbouring residential properties
– whether the internal amenity of the proposed childcare
centre is acceptable -whether the development has been designed and
will be constructed and operated in a sustainable manner- appeal
dismissed.
Environmental Planning and Assessment Act 1979, ss 4.15, 8.7; Land
and Environment Court Act 1979, ss 34, 39; Penrith Local
Environmental Plan 2010, cll 2.3, 4.3, 4.4, 7.4, 7.30; State
Environmental Planning Policy (Transport and Infrastructure) 2021,
ss 2.3, 3.22, 3.23, 3.26, 3.27, Ch 3.
Denton v Chief Commissioner of State
Revenue [2024] NSWCATAD 206
TAXES AND DUTIES – consideration of penalties and interest
– no reasonable care – no remission.
Administrative Decisions Review Act 1997 (NSW); Civil and
Administrative Tribunal Act 2013 (NSW); Duties Act 1997 (NSW);
Foreign Acquisitions and Takeovers Act 1975 (Cth); Taxation
Administration Act 1996 (NSW); Treasury and Revenue Legislation
Amendment Act 2023 No 26 (NSW).
Commissioner of the Australian Federal Police v
Xin [2024] NSWSC 891
CRIME – proceeds of crime – Proceeds of
Crime Act 2002 (Cth) – application to exclude property
from restraining orders – whether Official Trustee was
negligent in the management of the property.
Proceeds of Crime Act 2002 (Cth), ss 29, 31, 38, 39(1)(b), 76, Part
2-1 Div 6, 190, 191; Civil Liability Act 2002 (NSW), Part 5;
Contracts Review Act 1980 (NSW).
Beryar v Sydney Trains [2024] NSWCATAD
205
ADMINISTRATIVE LAW – Freedom of information – access to
information – GIPA – CCTV footage – public
interest considerations in favour of disclosure – public
interest considerations against disclosure – balancing
exercise – pixelation of personal information.
Administrative Decisions Review Act 1997; Civil and Administrative
Tribunal Act 2013 (NSW); Government Information (Public Access) Act
2009 (NSW); Privacy and Personal Information Protection Act 1998
(NSW).
Jaggi v City of Parramatta Council (No 3)
[2024] NSWIRComm 1043
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations
Commission – procedure and powers – costs –
whether proceedings instituted without reasonable cause.
Civil Procedure Act 2005; Industrial Relations Act 1996, s 181.
Strathfield Municipal Council v Malass (No
5) [2024] NSWLEC 74
COSTS – application for gross sum costs order under s 98(4)(c) of the Civil
Procedure Act 2005 (NSW) in certain amount – sufficient
material before court to enable gross sum costs order to be made
– circumstances of substantive civil enforcement proceeding
justify making a gross sum costs order.
Environmental Planning and Assessment Act 1979 (NSW); Civil
Procedure Act 2005 (NSW), s 98; Legal Profession Uniform Law 2014
(NSW).
Mundine v Forestry Corporation of NSW
[2024] NSWLEC 70
JUDICIAL REVIEW: decision to approve forestry operational plans
– whether compliance with principles of ecological
sustainable forestry management a mandatory precondition or
consideration – whether satisfaction of principles of
ecological sustainable forestry management a jurisdictional fact
– whether compliance with the conditions of the Coastal
Integrated Forestry Operations Approval 2018 a mandatory
consideration – whether respondent obliged to consult
applicant on planned forestry operations – whether applicant
denied procedural fairness – materiality.
Forestry Act 2012, ss 3, 5, 10, 11, 21, 22, 69G, 69K, 69L, 69M,
69N, 69NA, 69P, 69Q, 69R, 69RA, 69SA, 69SB, 69W, 69X, 69Y, Pt 3,
Div 2, Pt 4, Div 2, Pt 5A, Pt 5B, Div 2; Forestry Legislation
Amendment Bill 2018; Land and Environment Court Rules 2007, r 4.2;
Native Title Act 1993 (Cth), Pt 2, Div 3.
MXS2 v Georges River Grammar School formerly
known as St Paul's Choir School [2024] NSWSC 893
COSTS – costs assessment – specified gross sum costs
order – Civil Procedure Act, s 98(4)(c) – specified gross sum costs
order made – application for assessed costs rejected –
discount applied.
Civil Procedure Act 2005 (NSW) ss 67, 98; Felons (Civil
Proceedings) Act 1981 (NSW) ss 4, 5; Legal Profession Uniform Law
2014 (NSW) s 172(1); Uniform Civil Procedure Rules 2005 (NSW) rr
2.1, 36.16(3); Vexatious Proceedings Act 2008 (NSW) s 8.
Smith v Transport for New South Wales
[2024] NSWCATOD 103
ADMINISTRATIVE REVIEW – drivers' authority – bus
driver - good repute – fit and proper person – s 11 Passenger Transport Act 1990 (NSW) – s 12 Passenger Transport Act 1990 (NSW).
Administrative Decisions Review Act 1997 (NSW), ss 9. 63; Passenger
Transport Act 1990 (NSW), ss 4,11,12, 52.
Kanaan v Commissioner for Fair Trading
[2024] NSWCATOD 106
ADMINISTRATIVE LAW – home building – application for
individual contractor licence – general building work –
application of instrument – experience requirements –
"wide range of building construction work".
Administrative Decisions Review Act 1997 (NSW); Civil and
Administrative Act 2013 (NSW); Home Building Act 1989 (NSW);
Licencing Registration (Uniform Procedures) Act 2002 (NSW).
Sethi v Secretary, Department of Communities
and Justice [2024] NSWCATAP 142
PRATICE AND PROCEDURE – failure to comply with directions
– relevance of Tribunal complaint process to determination of
appeal – obligation on a party to comply with directions
– dismissal for want of prosecution, abuse of process and
failure to comply with directions.
Civil and Administrative Tribunal Act, 2013 (NSW); Civil and
Administrative Tribunal Rules, 2014 (NSW); Civil Procedure Act 2005
(NSW); Government Information (Public Access) Act 2009 (NSW).
Piety Developments Pty Ltd v Cumberland City
Council [2024] NSWCA 173
CONTRACTS – formation – acceptance of offer –
whether there was sufficient communication of acceptance –
where the respondent Council had passed a resolution accepting the
appellant's offer during a Council meeting which was open to
the public and livestreamed on its website and published a copy of
the unsigned minutes of the meeting (which recorded that such
resolution was passed) on its website the following day –
where a rescission motion was lodged in respect of that resolution
shortly after the meeting ended and the Council took no steps to
notify the appellant that such resolution had been passed or to
otherwise directly communicate its acceptance of the offer to the
appellant – whether the legislative and regulatory framework
affecting the Council's operations were matters of context
relevant to the objective assessment of whether there was effective
communication of acceptance.
LAND LAW – conveyancing – requirements of Writing
– whether the signed minutes of the Council meeting comprised
a "memorandum or note" of a contract for sale for the
purposes of s 54A of the Conveyancing Act 1919 (NSW) –
whether the mayor and general manager who signed the minutes were
lawfully authorised signatories pursuant to s 54A.
LOCAL GOVERNMENT – whether land acquired by resumption under
s 532 of the Local
Government Act 1919 (NSW) was "land subject to a trust for
a public purpose" and therefore should be classified as
"community land" for the purposes of cl 6(2)(b) of Sch 7 of the Local
Government Act 1993 (NSW).
Conveyancing Act 1919 (NSW), s 54A; Local Government Act 1919 (NSW)
ss 331, 526, 532, 536A; Local Government Act 1993 (NSW), ss 9, 10,
10A, 220, Ch 12, ss 360, 367, 371, 372, 375, Sch 7 cl 6(2)(b);
Local Government (General) Regulation 2005 (NSW), Pt 7, reg
178(3)(e); Local Government (General) Regulation 2021 (NSW), reg
178(1)(a), (3)(e), reg 232, reg 393B.
Legislation
Regulation and other miscellaneous instruments
Environmental Planning and Assessment Amendment (High Speed Rail Authority) Regulation 2024 (2024-315) – published LW 26 July 2024
Workers Compensation Amendment (Information Disclosure) Regulation 2024 (2024-314) – published LW 24 July 2024
Child Protection (Working with Children) Amendment (Fee Increase) Regulation 2024 (2024-303) – published LW 19 July 2024
National Disability Insurance Scheme (Worker Checks) Amendment (Fee Increase) Regulation 2024 (2024-304) – published LW 19 July 2024
Environmental Planning Instruments
Dubbo Regional Local Environmental Plan 2022 (Amendment No 5) (2024-316) – published LW 26 July 2024
Goulburn Mulwaree Local Environmental Plan 2009 (Map Amendment No 9) (2024-317) – published LW 26 July 2024
Gunnedah Local Environmental Plan 2012 (Map Amendment No 1) (2024-318) – published LW 26 July 2024
Parramatta Local Environmental Plan 2023 (Map Amendment No 5) (2024-319) – published LW 26 July 2024
Willoughby Local Environmental Plan 2012 (Amendment No 38) (2024-320) – published LW 26 July 2024
Canterbury-Bankstown Local Environmental Plan 2023 (Map Amendment No 2) (2024-305) – published LW 19 July 2024
North Sydney Local Environmental Plan 2013 (Map Amendment No 7) (2024-306) – published LW 19 July 2024
Ryde Local Environmental Plan 2014 (Amendment No 32) (2024-307) – published LW 19 July 2024
Upper Hunter Local Environmental Plan 2013 (Amendment No 5) (2024-308) – published LW 19 July 2024
Waverley Local Environmental Plan 2012 (Amendment No 26) (2024-309) — published LW 19 July 2024
Waverley Local Environmental Plan 2012 (Amendment No 27) (2024-310) – published LW 19 July 2024
Willoughby Local Environmental Plan 2012 (Amendment No 37) (2024-311) – published LW 19 July 2024
Woollahra Local Environmental Plan 2014 (Amendment No 36) (2024-312) – published LW 19 July 2024
Woollahra Local Environmental Plan 2014 (Amendment No 37) (2024-313) – published LW 19 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.