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NSW Government Bulletin

06 February 2019

#Government

Christine Jones

Published by Christine Jones, Lauren Stables, Kate O'Mara

 NSW Government Bulletin

ALRC report: Integrity, Fairness and Efficiency – An Inquiry into Class Action Proceedings and Third-Party Litigation Funders (ALRC Report 134)

The Australian Law Reform Commission (ALRC) has released its final report: Integrity, Fairness and Efficiency – An Inquiry into Class Action Proceedings and Third-Party Litigation Funders (the Report). The Report reviews the integrity of third-party funded class actions and the efficacy of the class action system. In doing so, the report makes 24 recommendations for reform which aim to promote fairness and efficiency, protect litigants and assure the integrity of the civil justice system. 

Key recommendations include: 

  • to amend the Federal Court of Australia Act 1976 (Cth) (the FCA Act) to require all class actions to be initiated as open class
  • to amend the FCA Act to ensure that, wherever possible, there is a single class action in order to litigate a claim
  • a requirement for settlement administrators to provide a report to group members and the Federal Court outlining the distribution of settlement funds
  • improve the regulation of litigation funders by:
    • increasing the Court’s oversight of the litigation funding agreement
    • a requirement that the funder indemnifies the lead plaintiff against an adverse costs order
    • to create a presumption in favour of security for costs
  • introduction of a limited percentage-based fee model for solicitor fees
  • a requirement for third-party litigation funders to report to ASIC to show compliance with the requirement to avoid or mitigate conflicts of interest
  • develop a voluntary accreditation program for solicitors who act in class action proceedings
  • to prohibit conflicts of interests between solicitors and third-party funders.

The acting Attorney-General, the Honourable Greg Hunt MP, has recognised that the Report mandates careful consideration by the Government. The Government will continue to engage with key stakeholders before development a response to the Report.

While the legislative reforms proposed obviously relate to Commonwealth legislation, namely the FCA Act and the Corporations Act, the reforms are likely to touch NSW Government agencies and local government bodies as class action defendants (and plaintiffs, as councils have been active in this area) including where there may be some trickle through to reform in NSW.

The report can be accessed here

Authors: Christine Jones, Lauren Stables & Kate O'Mara

In the media

New agreement on disability needed to improve the wellbeing of people with disability
The Productivity Commission has called for a new National Disability Agreement (NDA) between all Australian governments to promote cooperation, enhance accountability and clarify roles (1 February 2019).  More...

Facebook remains coy on plans for Australian election advertising measures
Facebook will not be rolling out any special features to prevent interference in March’s NSW state election, but is planning to announce a series of measures ahead of the upcoming Federal election (30 January 2019).  More...

NSW custody statistics: Quarterly Update December 2018
New figures released by the NSW Bureau of Crime Statistics and Research (BOCSAR) show that the NSW prison population is continuing to show signs of decline (30 January 2019).  More...

NSW union election spending cap unconstitutional, High Court finds
Laws slashing the amount of money unions are allowed to spend on NSW state election campaigns are overturned by the High Court because they place an "impermissible" burden on free political speech (29 January 2019).  More... 

Australian Law Reform Commission inquiry into class action proceedings and third-party litigation funders
The Australian Law Reform Commission’s final report into class action proceedings and third-party litigation funders has been publicly released after being tabled in Federal Parliament (25 January 2019).  More...

Inquiry into Class Action Proceedings Final Report
On January 24 2019, the Attorney-General for Australia tabled in Parliament the ALRC report, In Inquiry into Class Action Proceedings and Third-Party Litigation Funders. The ALRC recommends a Government review of statutory enforcement regimes for regulators so to facilitate effective and consistent statutory redress schemes—to fill gaps and create an alternative to some class action proceedings (25 January 2019).  More...

Disgraced former NSW RSL president charged with fraud
NSW Police charge Don Rowe with fraud offences and accuse him of misusing his corporate credit card to cover personal expenses during his 11-year tenure at the NSW RSL (23 January 2019).  More... 

Report on Government Services
The Report on Government Services is a vital tool in providing information to the community and holding all Australian governments accountable for the effectiveness and efficiency of government services. The 2019 Report continues this important information provision. There remain, however, data limitations in some key areas (22 January 2019).  More...

In practice and courts

Report on Government Services 2019: Part C, Chapter 7 - Courts
The focus of this chapter is the court administration functions of Australian and State and Territory courts. Data are reported for the Federal Court, the Family Court of Australia and the Federal Circuit Court, the criminal and civil jurisdictions of the supreme courts (including probate registries), district/county courts, magistrates' courts (including children's courts), coroners' courts and the Family Court of WA (22 January 2019).  More...

New South Wales

Practice and procedure: New AVL Regulation commences
The Evidence (Audio and Audio Visual Links) Amendment (Bail Exemptions) Regulation 2019 (NSW) commenced on 25 January 2019. The object of this Regulation is to ensure that accused detainees held in custody at the Newcastle Justice Precinct are not required to appear physically before a court in bail proceedings.  More...

Practice and procedure: New rule for indexation of amounts under the Uniform Law
The Legal Profession Uniform General Amendment (Indexation) Rule 2019, made by the Legal Services Council pursuant to the Legal Profession Uniform Law, was published on the Legislation NSW website on 25 January 2019. The new rule provides the formula for indexation of amounts pursuant to s 471 Legal Profession Uniform Law, and commences on 1 July 2019.

New President of the NSW Court of Appeal
Prominent Sydney barrister Dr Andrew Bell SC will be elevated to the bench of the Supreme Court and will replace Governor-designate Justice Margaret Beazley AO QC as President of the Court of Appeal (23 January 2019).  More...

New barristers' conduct rule
The Legal Services Council (LSC) has published the Legal Profession Uniform Conduct (Barristers) Amendment (Refusal of Briefs) Rule 2018. The new rule comprises r 101A of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (r 101A) and replaces r 101(n). It commenced on 18 January 2019.  More...

ICAC to hold public inquiry into allegations concerning University of Sydney and contract security services providers
The will hold a public inquiry starting on Monday 11 February as part of an investigation it is conducting into allegations concerning the University of Sydney, its contracted security services provider Sydney Night Patrol & Inquiry Co Pty Ltd (SNP Security) and SNP Security’s subcontractor, S International Group Pty Ltd (SIG) (Operation Gerda) (25 January 2019).  More...

Prosecution outcomes and briefs with the DPP
Tables showing information about ICAC-related prosecution outcomes, and briefs with the DPP.  More...

ICAC: Operation Dasha public inquiry adjourned to 29 January 2019
The Operation Dasha public inquiry into allegations concerning the former Canterbury City Council is adjourned to Tuesday 29 January 2019.  More...

Consent in relation to sexual offences
The Attorney General has asked us to review s 61HA of the Crimes Act 1900 (NSW) which deals with consent in relation to sexual offences. The closing date for submissions was 1 February 2019 however you may still complete a brief survey that covers the main issues raised in the consultation paper.

Published – articles, papers, reports

Review of the National Disability Agreement: Study report
Productivity Commission: 01 February 2019
The report has found that a new National Disability Agreement (NDA) between the Australian, State and Territory Governments is needed to facilitate cooperation, enhance accountability and clarify roles and responsibilities.  More...

Inquiry into Class Action Proceedings Final Report
ALRC: 25 January 2019
Third party litigation funders are not subject to any comprehensive Commonwealth or state and territory regulation to address the structure, operation and terms on which they participate in the Australian legal system. The report raises complex issues which will need thorough consideration and the Government will carefully consider each of the report's recommendations.  More...

NSW Custody Statistics: Quarterly Update December 2018
BOSCAR: Embargo: Wednesday, 30 January 2019
Commenting on the findings, the Executive Director of the NSW Bureau of Crime Statistics and Research (BOCSAR) said the slowing growth in adult prisoner numbers was an encouraging sign given the rapid build-up in prisoner numbers over the last few years.  More...

Cases

Unions NSW v New South Wales [2019] HCA 1
CONSTITUTIONAL LAW (CTH) – Implied freedom of communication on governmental and political matters – where s 29(10) of Electoral Funding Act 2018 (NSW) ("EF Act") substantially reduced cap on electoral expenditure applicable to third-party campaigners from cap applicable under previous legislation – where third-party campaigners subject to substantially lower cap than political parties – where s 35 of EF Act prohibits third-party campaigner from acting in concert with another person to incur electoral expenditure exceeding cap – where preparatory materials to EF Act recommended reduction in cap for various reasons, including that third parties should not be able to "drown out" political parties, which should have a "privileged position" in election campaigns – where subsequent parliamentary committee report recommended that, before reducing cap, government consider whether proposed reduced cap would enable third-party campaigners reasonably to present their case – where no evidence that such consideration was undertaken – whether s 29(10) enacted for purpose compatible with maintenance of constitutionally prescribed system of representative government – whether s 29(10) necessary to achieve that purpose – whether necessary to decide validity of s 35.

DRD v Secretary Department of Family and Community Services [2019] NSWCATAD 22
ADMINISTRATIVE LAW - Whether administratively reviewable decision – where decision to change contact regime for child in authorised care – where internal review has not occurred or been sought in relation to the decision sought to be reviewed – where no jurisdiction to review challenged decision. 

Hanna v NSW Ministry of Health [2019] NSWCATAD 21
ADMINISTRATIVE LAW – Government information public access - refusal to deal with access application - substantial and unreasonable diversion of resources. 

Simiana v Harness Racing New South Wales [2019] NSWSC 11
ADMINISTRATIVE LAW – Judicial review – decision of Harness Racing New South Wales – procedural fairness – manifest unreasonableness – whether imposition of certain licence conditions ultra vires – error established 

Legislation

Proclamations commencing Acts

Justice Legislation Amendment Act (No 3) 2018 No 87 (2019-17) — published LW 25 January 2019
The object of this Proclamation is to commence amendments to the Victims Rights and Support Act 2013 that enable the Commissioner of Victims Rights to provide funding from the Victims Support Fund.

Regulations and other miscellaneous instruments

Children and Young Persons (Care and Protection) Amendment (Prescribed Bodies) Regulation 2019 (2019-43) — published LW 1 February 2019
Criminal Procedure Amendment (Child Sexual Offence Evidence Pilot Scheme) Regulation 2019 (2019-44) — published LW 1 February 2019
Criminal Procedure Amendment (Penalty Notices for Drug Possession) Regulation 2019 (2019-22) — published LW 25 January 2019
Evidence (Audio and Audio Visual Links) Amendment (Bail Exemptions) Regulation 2019 (2019-24) — published LW 25 January 2019
Legal Profession Uniform General Amendment (Indexation) Rule 2019 (2019-25) — published LW 25 January 2019

NSW Government Bulletin editor:
Christine Jones, Partner - Construction & Infrastructure (Dispute Resolution) 
T: +61 2 8083 0477 
E: christine.jones@holdingredlich.com

Other contacts:
Dispute Resolution, Inquiries and Administrative Law
Greg Wrobel, Partner 
T: +61 2 8083 0411 
E: greg.wrobel@holdingredlich.com

Bede Haines, Partner 
T: +61 2 8083 0447 
E: bede.haines@holdingredlich.com

Workplace Relations & Safety
Michael Selinger, Partner 
T: +61 2 8083 0430 
E: michael.selinger@holdingredlich.com

Privacy & Data Protection
Lyn Nicholson, General Counsel 
T: +61 2 8083 0463 
E: lyn.nicholson@holdingredlich.com

Planning, Property & Environment
Robina Kidd, Partner 
T: +61 2 8083 0454 
E: robina.kidd@holdingredlich.com

Vanya Lozzi, Partner 
T: +61 2 8083 0462 
E: vanya.lozzi@holdingredlich.com

Cameron Sheather, Partner 
T: +61 2 8083 0461 
E: cameron.sheather@holdingredlich.com

Breellen Warry, Partner 
T: +61 2 8083 0420 
E: breellen.warry@holdingredlich.com

Lindsay McGregor, Partner
T: +61 2 8083 0459 
E: Lindsay.McGregor@holdingredlich.com

Alexander McNutt, Special Counsel 
T: +61 2 8083 0495 
E: Alexander.McNutt@holdingredlich.com

Peter Holt, Special Counsel 
T: +61 2 8083 0421 
E: peter.holt@holdingredlich.com

Construction and Infrastructure (Projects and Procurement)
Scott Alden, Partner 
T: +61 2 8083 0419 
E: scott.alden@holdingredlich.com

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources.

Christine Jones

Published by Christine Jones, Lauren Stables, Kate O'Mara

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