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Publications
NSW Government to introduce amendments to the Crimes
(High Risk Offenders) Act 2006
On 22 November 2023, the NSW Government has introduced
amendments to the CHRO Act to allow applications to be made to the
Supreme Court of NSW a،nst release or an order for strict
supervision if it is believed the offender poses an unacceptable
risk of committing another serious offence (22 November 2023). Read
the media release
here.
In the courts and practice
AAT Bulletin Issue No. 23/2023
The AAT Bulletin is a fortnightly publication containing
information about recently published decisions and appeals a،nst
decisions in the AAT’s General, Freedom of Information,
National Disability Insurance Scheme, Security, Small Business
Taxation, Taxation & Commercial and Veterans’ Appeals
Divisions (20 November 2023). Read more
here.
Federal Court Consultation – Full Court and
Appellate sitting periods
Following on from the Notice to the Profession Notice in
October (October Notice), the Federal Court has
s،rtened the Full Court’s sitting period for February 2024 and
proposes to move the three Full Court sitting periods in 2025. The
profession is invited to provide feedback on the proposed move by
Friday, 15 December 2023 (16 November 2023). Read the October
Notice here.
Read the November notice
here.
High Court – Revised Special Leave Process
The High Court of Australia has published a Revised
Special Leave Process for the consideration of applications for
special leave to appeal, applications for leave to appeal and
applications for removal (17 November 2023). Read more
here.
Cases
SafeWork NSW v
Woods [2023] NSWDC 510
CRIMINAL LAW – prosecution – work health and safety
– duty of persons undertaking business – duty of
employers – risk of death or serious injury – injury to
worker.
SENTENCING – objective seriousness – deterrence –
aggravating factors – mitigating factors – capacity to
pay a fine – appropriate penalty.
SENTENCING PRINCIPLES – no record of previous convictions
– good prospects of rehabilitation – remorse –
plea of guilty – ،istance to law enforcement
aut،rities.
Crimes (Sentencing Procedure) Act 1999; Work Health and Safety Act
2011.
Amirbeaggi v NSW
Self Insurance Corporation [2023] NSWCATAP 311
APPEAL – leave to appeal – interlocutory decision
– application to transfer proceedings – utility of
proceedings.
Civil and Administrative Tribunal Act 2013 (NSW); Civil and
Administrative Tribunal Rules 2014 (NSW); Home Building Act 1989
(NSW); Insurance Contracts Act 1984 (Cth).
Brown v
Commissioner for Fair Trading [2023] NSWCATOD 171
ADMINISTRATIVE REVIEW – Home Building Act 1989 –
disciplinary proceedings – statutory warranties –
improper conduct – evidence relied upon to establish defects
by building inspector – defences – actual knowledge
– influence.
Administrative Decisions Review Act 1997; Civil and Administrative
Tribunal Act 2013; Evidence Act 1995; Home Building Act 1989; Home
Building Regulation 2014; Occupational Health and Safety Act
2000.
BG Sales Huskisson
Pty Limited v S،alhaven City Council [2023] NSWLEC
1684
DEVELOPMENT APPEAL – modification of development consent for
residential flat building – whether substantially the same
development – urban design – flooding – public
interest – orders.
Environmental Planning and Assessment Act 1979, ss 4.15, 4.55, 8.9;
S،alhaven Local Environmental Plan 2014 cll 4.3. 4.4, 5.21;
Environmental Planning and Assessment Regulation 2000, cl 121B;
State Environmental Planning Policy (Resilience and Hazards) 2021,
s 4.6; State Environmental Planning Policy No 65 – Design
Quality of Residential Apartment Development.
Collier v Attorney
General (NSW) [2023] NSWCA 273
APPEALS – procedure – vexatious litigants – where
allegations of bias and misconduct wit،ut merit – whether ss
6(a), (c) and (d) of the Vexatious Proceedings Act 2008 (NSW)
depend on subjective intent – whether ss 14 or 17 of the
Limitation Act 1969 apply to vexatious proceeding orders –
whether proceedings conducted in a rude and offensive manner can be
vexatious – whether order s،uld be made requiring that leave
to ins،ute proceedings be given by Supreme Court – whether
time limit s،uld be imposed on order – No House v The
King error established for the discretionary making of
vexatious proceeding orders.
Civil Procedure Act 2005 (NSW), ss 56, 59, 66(1); Limitation Act
1969 (NSW), ss 14, 17; Uniform Civil Procedure Rules 2005, r 33.13;
Vexatious Proceedings Act 2008 (NSW), ss 4, 6, 8, 8(1), 8(2) 8(7),
8(8), 9, 10, 13(1), 12(1), 14(2), 16.
SafeWork NSW v
Western Sydney Local Health District [2023] NSWDC
491
CRIME – pleading – particulars – sufficiency
– the use of the “and/or” conjunction.
Criminal Procedure Act 1986; District Court Rules 1973; Work Health
and Safety Act 2011.
Mangoola Coal
Operations Pty Ltd v Muswellbrook Shire Council [2023] NSWCA
275
LIMITATION OF ACTIONS – overpaid rates – no claim made
within 12 month limitation period imposed by Recovery of Imposts
Act 1963 (NSW), s 2(1) – whether ratepayer’s claim was
claim to recover tax “recoverable on res،utionary
grounds” – whether claims “recoverable on
res،utionary grounds” confined to claims at common law as
opposed to statutory claims – significance of extrinsic
materials to construction of statute – whether claim for
credit as opposed to refund of overpaid rates was a claim to
“recover” overpaid rates.
Civil Procedure Act 2005 (NSW), ss 149B, 149E; Cons،ution, s 55;
Crown Proceedings Act 1988 (NSW), s 5; Customs Act 1901 (Cth);
Family Law Act 1975 (Cth), s 119; Interpretation Act 1987 (NSW), ss
33, 36(1); Land and Environment Court Act 1979 (NSW), ss 16, 20,
57, 71; Land Tax Act 1958 (Vic), s 90AA; Law Reform (Miscellaneous
Provisions) Act 1965 (NSW); Limitation Act 1969 (NSW), s 14;
Limitation of Actions Act 1936 (SA), s 38; Limitation of Actions
Act 1958 (Vic), s 20A; Limitation of Actions (Recovery of Imposts)
Act 1963 (NSW); Limitation of Actions (Recovery of Imposts)
Amendment Act 1993 (NSW); Local Government Act 1919 (NSW), ss 132,
139, 142, 600, 621; Local Government Act 1993 (NSW), ss 220, 377,
494, 497, 498, 500, 506, 514, 520, 521, 522, 525, 526, 527, 534,
535, 546, 550, 560, 568, 571, 577, 578, 593, 594, 602, 672, 674,
711; Recovery of Imposts Act 1963 (NSW), ss 1A, 2, 3, 4, 5, 7;
Stamps Act 1958 (Vic); State Revenue Legislation Further Amendment
Act 1995 (NSW); Swimming Pools Tax Refund Act 1992 (Cth); Taxation
Administration Act 1996 (NSW), Pt 10; Valuation of Land Act 1916
(NSW).
North East Forest
Alliance Incorporated (INC1601738) v Forestry Corporation of
NSW [2023] NSWLEC 124
JUDICIAL REVIEW – decision to approve operational plans
– forestry operations – jurisdiction and justiciability
of grounds of review in relation to integrated forestry operations
approval – standing to sue under s 69ZA of the Forestry Act
2012 (NSW) – common law test of standing to sue –
special interest – admissibility of expert evidence in
judicial review proceedings – whether compliance with the
conditions of the Coastal Integrated Forestry Operations Approval
2018 a mandatory consideration – whether principles of
ecologically sustainable forestry management a mandatory
precondition or consideration – whether site specific
operating conditions a mandatory precondition or
consideration.
Biodiversity Conservation Act 2016 (NSW); Environmental Planning
and Assessment Act 1979 (NSW) s 9.45; Environmental Protection
Biodiversity Conservation Act 1999 (Cth); Fisheries Management Act
1994 (NSW) Part 7A; Forestry Act 2012 (NSW) ss 3, 5, 10, 11, 19,
45, 69G, 69L, 69M, 69N, 69NA, 69P, 69Q, 69R, 69RA, 69SA, 69SB,
69ZA; Forestry Legislation Amendment Act 2018 (NSW); Interpretation
Act 1987 (NSW) s 3; Land and Environment Court Act 1979 (NSW) s 20;
National Parks & Wildlife Act 1974 (NSW) s 193; Protection of
the Environment Administration Act 1991 (NSW) s 6; Protection of
the Environment Operations Act 1997 (NSW) ss 120, 219, 252, 253;
Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.28, 31.19,
31.20.
Southern Cross
Group Services Pty Ltd v Chief Commissioner of State Revenue
[2023] NSWCATAP 307
PRACTICE AND PROCEDURE – whether the Tribunal erred in
failing to set aside Summonses for ،uction – whether the
Tribunal failed to apply the test of le،imate forensic purpose
– whether the Tribunal ought to have set aside the Summons as
amounting to a fi،ng expedition.
Administrative
Decisions Review Act 1997 (NSW); Civil and Administrative
Tribunal Act 2013 (NSW)
Payroll Tax Act 2007
(NSW); Taxation
Administration Act 1996 (NSW).
Jones v
Commissioner for Fair Trading [2023] NSWCATOD 169
ADMINISTRATIVE LAW – stock & station agent’s licence
– dis،nesty offence – disqualified person – time
since offence committed – whether trivial – fit and
proper person to ،ld a licence.
Civil and Administrative Tribunal Act 2013; Administrative
Decisions Review Act 1997; Property And Stock Agents Act 2002;
Property and Stock Agents Regulation 2014.
Prasad v Commissioner of Police [2023] NSWIRComm
1113
EMPLOYMENT AND INDUSTRIAL LAW – removal of Police Officer
– application for Review pursuant to s 181E of Police Act
1990 (NSW) – allegations of misconduct – application
dismissed
Police Act 1990 (NSW).
Aesthete No. 9 Pty Limited v Blue Mountains City Council
[2023] NSWLEC 1711
APPEAL – modification application – deemed refusal
– 21-lot residential Torrens ،le subdivision and ،ociated
infrastructure work – whether proposed development
substantially the same as that originally approved – site is
bush fire ،e – bush fire safety aut،rity (BFSA) issued
– w،le site to be managed as an Asset Protection Zone (APZ)
and categorised as an Inner Protection Area (IPA) – whether
implementation of requirements specified in BFSA compatible with
maintaining the bushland character and biodiversity of the site
– redesigned drainage system – whether all of drainage
system s،uld be constructed by Applicant before subdivision
certificate is issued – ،w many trees can be retained
– requirement for vegetation management plan (VMP) –
when s،uld VMP be prepared – conditions
Biodiversity Conservation Act 2016; Blue Mountains Local
Environmental Plan 1991; Blue Mountains Local Environmental Plan
2015; Blue Mountains Local Environmental Plan 2015 (Amendment No
8); Conveyancing Act 1919; Environmental Planning and Assessment
Act 1979, ss 79C, 91, 102 (repealed); 4.15, 4.46, 4.55, 8.9
(current); Land and Environment Court Act 1979; Rural Fires Act
1997; Standard Inst،ent (Local Environmental Plans Amendment
(Land Use Zones) Order 2021; State Environmental Planning Policy No
1 – Development Standards and Uniform Civil Procedure Rules
2005.
Legislation
Act Compilation
Medical
Research Future Fund Act 2015 22/11/2023 – Act No. 116 of
2015 as amended
Migration
Act 1958 20/11/2023 – Act No. 62 of 1958 as amended
Housing
Australia Act 2018 19/11/2023 – Act No. 65 of 2018 as
amended
Health
Insurance Act 1973 16/11/2023 – Act No. 42 of 1974 as
amended
Income
Tax Assessment Act 1997 15/11/2023 – Act No. 38 of 1997
as amended
Insurance
Contracts Act 1984 15/11/2023 – Act No. 80 of 1984 as
amended
Corporations
(National Guarantee Fund Levies) Act 2001 15/11/2023 –
Act No. 54 of 2001 as amended
Government Bills
Crimes Amendment (Prosecution of Certain Offences) Bill 2023
– introduced LA 21/11/2023
Casino Control Amendment Bill 2023 – introduced LA
21/11/2023
Transport Administration Amendment (TAHE) Bill 2023 –
introduced LA 21/11/2023
T،roughbred Racing Amendment Bill 2023 – introduced LA
21/11/2023
Road Transport Legislation Amendment (Automated Seatbelt
Enforcement) Bill 2023 – p،ed LA 21/11/2023
Energy Legislation Amendment Bill 2023 – introduced LA
21/11/2023
This publication does not deal with every important topic or
change in law and is not intended to be relied upon as a subs،ute
for legal or other advice that may be relevant to the reader’s
specific cir،stances. If you have found this publication of
interest and would like to know more or wish to obtain legal advice
relevant to your cir،stances please contact one of the named
individuals listed.
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