Thank you to those who attended our annual NSW Government lawyers CLE intensive day in our Sydney office last month. For those who missed it, the presentations were recorded and are now available for on-demand viewing. Click here to access the recording. We hope to see you again next year.
NSW Law Soc calls for government AI inquiry to factor in local and global precedents
The NSW Law Society has urged the state government to derive insights from both international and domestic precedents in the regulation of emerging AI technologies. NSW Law Society President Brett McGrath addressed a NSW Upper House Inquiry into AI on Monday, where he said that recommendations should reference the existing AI regulation efforts at the global and federal levels (12 March 2024). Read more here.
The Public Defenders of NSW – An Essential Arm of the Administration of Justice
The Public Defenders Criminal Law Conference was held on 9 March 2024, with an address given by The Hon. A S Bell Chief Justice of New South Wales (9 March 2024). Read more here.
Final sitting of the Hon. Justice Carolyn Simpson AO on Tuesday, 12 March 2024
Next Tuesday, 12 March 2024, will mark the final sitting of the Hon. Justice Carolyn Simpson AO as a judge of the Supreme Court of New South Wales. Prior to the hearing that morning, the President of the Bar Association, Dr Ruth Higgins SC and a Deputy Director of Public Prosecutions, Ms Helen Roberts SC, addressed the Court in a short sitting at 9.15am (12 March 2024). Read more here.
2024-25 State Budget NSW Local Government Priorities
Local Government NSW (LGNSW) is the peak body for local government in NSW, representing all NSW general purpose councils and related entities. LGNSW facilitates the development of an effective, community-based system of local government in the State. LGNSW provided a draft submission, subject to the LGNSW Board approval regarding Local Government Priorities within NSW State Budget for 2024-25 (29 February 2024). Read the draft submission here.
Amended new Practice Notes – Class 3 Valuation Objections and Class 3 Compensation Claims
The Land and Environment Court has issued Practice Notes for many of the types of cases it deals with. The Practice Notes explain the practice and procedure and the process to be followed for different types of cases from their commencement, through to the preliminary stages and preparation, to their resolution. The new Practice Notes – Class 3 Valuation Objections and Class 3 Compensation Claims have been reissued, making some minor amendments. These Practice Notes will commence on 2 April 2024 (8 March 2024). Read the practice notes here.
Agia Projects Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 16
COSTS – costs assessment – determination – self-represented litigant – Class 7 proceedings
APPEAL – appeal against conviction in Local Court wrongly commenced – conviction in Local Court annulled during proceedings in the Land and Environment Court – appeal discontinued – orders made that applicant pay 60% of respondent’s costs including costs of the application for costs
Crimes (Appeal and Review) Act 2001 (NSW), ss 4, 32, 36
Kitoko v Sydney Local Health District [2024] NSWCA 49
APPEALS – leave to appeal – arguable case
CIVIL PROCEDURE – jurisdiction – where applicant alleged that primary judge had exercised Federal jurisdiction to the exclusion of State jurisdiction
CIVIL PROCEDURE – summary disposal – where applicant had sought summary judgment – where respondents had not yet been required to file evidence in defence
CIVIL PROCEDURE – default judgment – where respondents had not yet been required to file a defence
CIVIL PROCEDURE – pleadings – amendment – where amendments were based on contentions the primary judge considered were doomed to fail – where applicant had not been able to identify the evidence on which he intended to rely – whether House v The King error was demonstrated
CIVIL PROCEDURE – summary disposal – where primary judge had summarily dismissed the proceedings – whether proceedings were doomed to fail
COURTS AND JUDGES – bias – actual and apprehended bias – whether primary judge had pre-judged the applicant’s claim – whether primary judge was intimidatory and bullying towards the applicant
APPEALS – procedural fairness – whether applicant was afforded a reasonable opportunity to adduce relevant evidence
Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 64, 67, 143; Constitution (Cth), s 77; Evidence Act 1995 (NSW), s 135; Judiciary Act 1903 (Cth), ss 39(2), 79; Supreme Court Act 1970 (NSW), s 101(2)(l); Uniform Civil Procedure Rules 2005 (NSW), rr 6.18, 13.1, 13.4, 14.3, 14.28, 51.9; 16.3, 31.36, 31.44
Crawford v State of Western Australia [2024] FCA 222
CONSTITUTIONAL LAW – validity of provisions of the Children’s Court of Western Australia Act 1988 (WA) (‘CCWA Act’) and the Magistrates Court Act 2004 (WA) (‘MC Act’) concerning allocation of responsibilities to dually appointed magistrates – whether those provisions undermine judicial independence – whether those provisions substantially impair the institutional integrity of the Magistrates Court and Children’s Court
STATUTORY INTERPRETATION – proper construction of impugned provisions of the CCWA Act and MC Act – whether s 25(1) of the MC Act impliedly amended by amendments to the CCWA Act – scope of permitted considerations under ss 11 and 12A of the CCWA Act
Constitution ss 75, 76, 77(iii); Judiciary Act 1903 (Cth) ss 39(2), 44(1); Federal Court Rules 2011 (Cth); High Court Rules 2004 (Cth) r 1.05; Children's Court of Western Australia Act 1988 (WA) ss 5(1), 6, 7, 10, 11, 12A, 13(5); Courts Legislation Amendment (Magistrates) Act 2022 (WA); Magistrates Court (Civil Proceedings) Act 2004 (WA); Magistrates Court Act 2004 (WA) ss 4, 6, 7, 10, 11, 24, 25, 37(1), Sch 1 cll 2, 3, 5, 6, 11-15; Salaries and Allowances Act 1975 (WA) ss 7, 18, 50(1)
Jaggi v City of Parramatta Council No 2 [2024] NSWIRComm 1017
EMPLOYMENT AND INDUSTRIAL LAW – Industrial Relations Commission – jurisdiction
EMPLOYMENT AND INDUSTRIAL LAW – discrimination – victimisation
Industrial Relations Act 1996, ss 6, 163, 210, 213; Local Government Act 1993, s 335
FKX v Southern NSW Local Health District [2024] NSWCATAD 68
ADMINISTRATIVE REVIEW – Government Information (Public Access) Act 2009 (NSW) – whether overriding public interest against disclosure – prejudice the effective exercise by an agency of the agency’s functions – endanger or prejudice any system or procedure for protecting the life, health or safety of a person – expose a person to a risk of harm or serious harassment or serious intimidation.
Administrative Decisions Review Act 1997 (NSW), ss 9, 55, 63; Civil and Administrative Tribunal Act 2012 (NSW) ss 49, 64; Government Information (Public Access) 2009 (NSW) ss 3, 4, 5, 9, 12, 13, 14, 15, 55, 80, 53, 58, 80, 100, 105, 107, Schedule 4; Government Sector Employment Act 2013 (NSW), ss 3, 23, Schedule 1; Health Services Act 1997 (NSW), ss 6, 9, 10, 17, Schedule 1; Health Records and Information Privacy Act 2002 (NSW), s 29; Mental Health Act 2007 (NSW), ss 12, 13, 14, 34, 35, 42, 44, 57, 58, 156
Environment Protection Authority v Crush and Haul Pty Ltd [2024] NSWLEC 15
APPEAL – s 56A appeal from decision of acting commissioner on question of law in finding that applicant company a fit and proper person under Protection of the Environment Operations Act 1997 (NSW) – no failure to consider matter not identified to acting commissioner at hearing – no failure to consider correct statutory test – no failure to consider specific paragraphs of judgment in separate criminal case – attribution of weight to relevant factors by acting commissioner not reviewable under statutory scheme – decision not legally unreasonable – appeal dismissed
Environmental Planning and Assessment Act 1979 (NSW); Land and Environment Court Act 1979 (NSW), ss 38, 39, 56A; Protection of the Environment Operations Act 1997 (NSW), ss 45, 48, 55, 83, 287, Sch 1, cll 16, 19
FVY v SafeWork NSW [2024] NSWCATAD 64
ADMINISTRATIVE LAW – privacy – application by the respondent for summary dismissal of the applicant’s administrative review application and interim order application – whether the applicant’s application for review identified a relevant administratively reviewable decision (conduct) of the respondent – whether the applicant’s formal request for amendment was an internal review request
Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Health Records and Information Privacy Act 2002 (NSW); Privacy and Personal Information Protection Act 1998 (NSW)
Wynne v Commissioner of Police, New South Wales Police Force [2024] NSWCATAD 67
LICENSING – firearms licensing – licence revocation – pistol stolen or lost – delay in reporting – fit and proper person – public interest
Administrative Decisions Review Act 1997 (NSW); Civil and Administrative Tribunal Act 2013 (NSW); Firearms Act 1996 (NSW); Firearms Regulation 2017 (NSW)
Cooke v Tweed Shire Council [2024] NSWCA 50
APPEALS – judgment of Land and Environment Court – standard of review – characterisation of land use – evaluative judgment – correctness standard applied
ENVIRONMENT AND PLANNING – civil enforcement proceeding – Local Environment Plan – permissible uses not requiring consent – characterisation of land use – cultivation of low-THC hemp – processing hemp leaves – production of goods for sale – whether cultivating hemp was “horticulture” or “extensive agriculture” – whether processing ancillary or incidental to cultivation activities – uses requiring consent – processing plant agricultural products for commercial purposes – “rural industry” – separate uses or one integrated purpose
Environmental Planning and Assessment Act 1979 (NSW), s 3.13; Hemp Industry Act 2008 (NSW), s 5;
Land and Environment Court Act 1979 (NSW), s 56A, 57, 58
Acts compilation
Government Bills
Ageing and Disability Commissioner Amendment Bill 2023 – introduced LA 29 November 2023, passed LA 12 March 2024
Bail and Crimes Amendment Bill 2024 – introduced LA 12 March 2024
Electoral Funding Amendment (Local Government Electoral Expenditure Caps) Bill 2024 – introduced LC 8 February 2024, passed LC 12 March 2024, introduced LA for concurrence 12 March 2024
Environmental Legislation Amendment (Hazardous Chemicals) Bill 2024 – introduced LC 8 February 2024, passed LC 12 March 2024, introduced LA for concurrence 12 March 2024
Environmental Planning and Assessment Amendment (Sea Bed Mining and Exploration) Bill 2024 – amended in LA 12 March 2024, passed LA 12 March 2024
Marine Pollution Amendment (Review) Act 2021 No 8 (2024-55) – published LW 8 March 2024
Regulations and other miscellaneous instruments
Marine Pollution Regulation 2024 (2024-56) – published LW 8 March 2024
Marine Safety Amendment (Penalty Notice Offences) Regulation 2024 (2024-57) – published LW 8 March 2024
Workers Compensation (Indexation) Order 2024 (2024-58) – published LW 8 March 2024
Environmental Planning Instruments
Campbelltown Local Environmental Plan 2015 (Amendment No 37) (2024-59) – published LW 8 March 2024
Campbelltown Local Environmental Plan 2015 (Map Amendment No 11) (2024-60) – published LW 8 March 2024
Hawkesbury Local Environmental Plan 2012 (Amendment No 34) (2024-61) – published LW 8 March 2024
Orange Local Environmental Plan 2011 (Amendment No 39) (2024-62) – published LW 8 March 2024
Snowy River Local Environmental Plan Amendment (Kosciuszko Alpine Region) 2024 (2024-65) – published LW 8 March 2024
The Hills Local Environmental Plan Amendment (The Hills Growth Centre Precincts Plan) 2024 (2024-63) – published LW 8 March 2024
Willoughby Local Environmental Plan 2012 (Amendment No 36) (2024-64) – published LW 8 March 2024
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 newsletter is accurate at the date it is received or that it will continue to be accurate in the future.
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