In 5 February 2014's edition of Government Bulletin, we discussed the introduction of the Mining Amendment (ICAC Operations Jasper and Acacia) Act 2014 (NSW) (MA Act), which cancelled the mining licences for the Mount Penny, Doyles Creek and Glendon Brook mines, following the Independent Commission Against Corruption (ICAC) Operations Jasper and Acacia.
By way of update, on 26 June 2014, NuCoal Resources Ltd (NuCoal) made an announcement to the Australian Securities Exchange, informing the market that it has filed a Writ of Summons and Statement of Claim in the High Court challenging the constitutional validity of the MA Act.
NuCoal's arguments are that:
- the MA Act is a purported exercise of judicial power, which is not allowed by the State and Federal Constitutions;
- the MA Act was intended to be a punishment resulting from the ICAC findings, however, NuCoal and its directors were not subject to the ICAC findings;
- the MA Act expropriates NuCoal's valuable property; and
- even if the NSW Parliament had the power to pass legislation in the form of the MA Act, it did not do so in accordance with the rule of law as it did not provide NuCoal with procedural fairness.
NuCoal has not yet filed a summons for directions and there is not yet an indication of a listing date. It will be interesting to see over the next few months whether the NuCoal High Court case will be heard with Travers Duncan of Cascade Coal's High Court challenge over the same legislation.
Upcoming events
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In the media
Review of Bail Act
NSW Premier Mike Baird and Attorney General Brad Hazzard have today
announced the NSW Government will conduct a review of the new bail
laws to ensure the safety of the community, victims and witnesses
is at the forefront of all decisions made on bail (27 June 2014)
More...
Government Bail Act Review is premature for
NSW
The President of the NSW has urged the NSW Government to exercise
caution in relation to the premature review of the new Bail Act
provisions which only commenced operation on 20 May 2014. Last week
the Government announced that a review would be conducted of the
new Bail Act by the Hon John Hatzistergos, a former member of the
NSW Parliament (01 July 2014)
More...
ICAC finds former Ryde City Council Mayor and others
corrupt
The ICAC has found that the former mayor of the City of Ryde, Ivan
Petch, engaged in corrupt conduct in relation to the release of
confidential information for various purposes including attempts to
cast doubt on the suitability of John Neish to serve as the
Council's general manager (30 June 2014)
More...
Labor Calls For Government To Support Extension Of Royal
Commission
The Royal Commission into Institutional Responses to Child Sexual
Abuse handed down its Interim Report. In addition to describing the
harrowing work of the Royal Commission to date, in its Interim
Report the Royal Commission calls on the Government to extend its
final reporting date by two years to 15 December 2017 (30 June
2014)
More...
Coal miner takes NSW govt to High Court
A NSW coal company is mounting a constitutional challenge in the
High Court to a state law cancelling corruption-tainted exploration
licences. NUCOAL Resources claims the law amounts to an act of
judicial power by the NSW parliament, which is prohibited by the
state and federal constitutions. This is the second constitutional
challenge to the law, passed in response to findings by the ICAC
(30 June 2014)
More...
NSW review upholds Metgasco CSG
suspension
A drilling licence for a controversial coal seam gas mine in the
NSW Northern Rivers region will remain suspended. Metgasco has
filed for a judicial review in the Supreme Court, and plans to
argue the Minister's decision was "unlawful" because
it wasn't authorised in legislation and denied the company
procedural fairness (26 June 2014)
More...
New self-representation service to provide legal support
for those going it alone
A new federally funded program which will support people
representing themselves in Federal and Federal Circuit Courts in
NSW, Victoria, ACT and Tasmania is currently under construction at
Justice Connect, with the service due to open its doors in August
(24 June 2014 )
More...
In practice and courts
ICAC: Prosecutions information now on dedicated ICAC
webpage
The ICAC has launched a new page on its website, providing easily
accessible information about prosecution activity related to ICAC
investigations (03 July 2014)
Prosecutions information now on dedicated ICAC webpage
NCAT: Fact Sheet Released
The NSW Civil and Administrative Tribunal (NCAT)
has released
About NCAT (May 2014), a fact sheet "introducing the
[NCAT] as the one-stop-shop for tribunal services in NSW".
NCAT's media release (25 June 2014)
NSW Supreme Court - Operational
Statistics
The Supreme Court has published its finalised
Operational Statistics (19 June 2014) for 2013, which relate to
filings, disposals and pending cases and timeliness
Further information from the Supreme Court
Operation Cavill Report Concerning Ryde City Council to
be Furnished 30 June 2014
The NSW Independent Commission against Corruption
(ICAC) will furnish its report on the Operation
Cavill investigation to the Deputy President of the Legislative
Council on 30 June 2014. If the Deputy President makes the report
public, it will be made available for download from the ICAC
website at www.icac.nsw.gov.au (26 June
2014)
National Investigations Symposium 2014
The 10th National Investigations Symposium will be held from 5 - 7
November 2014 at the Four Seasons Hotel, Sydney. This biennial
event, for public sector investigators and complaint-handlers, is
run by the NSW ICAC, NSW Ombudsman and the Institute of Public
Administration Australia (NSW Division).To express interest in
attending the 2014 symposium, visit the
IPAA NSW website.
Cases
Sahade v The Owners - Strata Plan 62022 [2014] NSWCA
208
ADMINISTRATIVE LAW - judicial review - error of law - tribunal
declined to reallocate unit entitlements in strata scheme - appeal
to District Court - remittal to tribunal ordered on the basis that
there was a failure to give reasons - whether an error of law
disclosed in requiring the issue of control of strata scheme
management to be considered on remittal More...
Nefiko Pty Ltd v Statewide Form Pty Ltd (No 2) [2014]
NSWSC 840
ADMINISTRATIVE LAW - judicial review - grounds of review -
Building and Construction Industry Security of Payment Act 1999
(NSW) - adjudication determination - whether identity of parties to
construction contract a jurisdictional fact - whether decision by
adjudicator as to identity of contracting parties reviewable for
jurisdictional error - distinction between determination of a
jurisdictional fact with binding legal effect and the formation of
an opinion by an administrative body in relation to a
jurisdictional fact - whether denial of natural justice - whether
adjudicator took into account all relevant factual matters More...
Workers Compensation Nominal Insurer v Bui [2014] NSWSC
832
ADMINISTRATIVE LAW - civil - decision of Workers Compensation
Commission - appeal decision of Medical Appeal Panel -procedure of
Medical Appeal Panel - whether the Panel erred in failing to carry
out a hearing de novo - Panel's consideration of 'fresh
evidence' - whether the Panel erred in giving insufficient
reasons - whether the Panel's statement of reasons complies
with its statutory obligation – proceedings set aside More...
Regional Express Holdings Limited v Dubbo City Council
(No 3) [2014] NSWLEC 87
JUDICIAL REVIEW - challenge to local council decision to charge
fee for service of passenger security screening at regional airport
- whether power to charge entity not receiving the service -
statutory requirements for notification of public of intended fee
complied with - no failure to accord procedural fairness to
applicant - council decisions not irrational or unreasonable - no
failure to consider mandatory relevant matters - irrelevant matters
not considered - dismissed More...
Nemeth v Australian Litigation Funders Pty Ltd [2014]
NSWCA 198
APPEAL AND NEW TRIAL - Appeal - Interference with primary
judge's findings of fact - Finding by primary judge that
contract not unjust - Functions of appellate court - Appellate
review to accord with principles for an appeal by way of rehearing
- Appellate court able to determine whether contract was unjust
based on proper inferences to be drawn from established facts -
Principles in Fox v Percy and House v The King apply - Whether
primary judge's findings were inconsistent with
incontrovertible facts or uncontested testimony, or were glaringly
improbable or contrary to compelling inferences
CONTRACTS - General contractual principles - Harsh and
unconscionable contracts and statutory remedies - Contracts Review
Act 1980 s 7 - Unjust contracts - Whether the funding agreement was
substantially unjust - Whether the contract was merely a "risk
free loan", offensive to community standards, or improvident
JUDICIAL REVIEW - Grounds of review - Procedural fairness - Hearing
rule - Nature of Hearing - Whether appellant was denied the
opportunity to make submissions - Whether primary judge made
findings that were not open on the evidence nor pleaded by either
party – dismissed More...
Owners - SP 76269 v Draybi Bros Pty Ltd [2014] NSWCATAP
29
ADMINISTRATIVE LAW - Civil and Administrative Tribunal (NSW) -
appeal - application for leave to appeal - no significant
miscarriage of justice - no significant new evidence identified -
application denied - claims for relief for breaches of warranties
under the Home Building Act 1989 (NSW) (the HB Act). The claims
were dismissed on the basis that they had been made outside the
relevant period under ss 18E and 48K of the HB Act.
More...
Legislation
NSW
Proclamations commencing Acts
Crimes (Sentencing Procedure) Amendment (Family Member Victim
Impact Statement) Act 2014 No 18 (2014-396) — published
LW 27 June 2014
This Proclamation appoints 1 July 2014 as the day on which the
Crimes (Sentencing Procedure) Amendment (Family Member Victim
Impact Statement) Act 2014 No 18 commences.
Regulations and other miscellaneous instruments
Administrative Arrangements (Administration of Acts—Amendment
No 2) Order 2014 (2014-412) — published LW 30 June
2014
This Order makes amendments to the allocation of administration of
acts as outlined in the Schedule 1.
Administrative Arrangements (Administrative
Changes—Miscellaneous Agencies) Order 2014 (2014-413)
— published LW 30 June 2014
The object of this Order is to make amendments to the name of the
Department of Police and Justice and transfers responsibility of
different governmental offices to different New South Wales state
departments.
Criminal Procedure Amendment (Fees) Regulation 2014 (2014-414) — published LW 4 July 2014 This Order increases the fees payable in relation to criminal proceedings.
Evidence (Audio and Audio Visual Links) Amendment (Bail Exemption)
Regulation 2014 (2014-416) — published LW 4 July
2014
This Regulation provides an exemption from the requirement for an
accused detainee to physically appear before a court in bail
proceedings and prescribes Wollongong Police Station as an
exemption, so that an accused detainee who is being held there will
be exempt from the requirement to appear physically before the
court in bail proceedings.
Prisoners (Interstate Transfer) Regulation 2014 (2014-417)
— published LW 4 July 2014
The object of this Regulation is to remake, without substantive
changes, the Prisoners (Interstate Transfer) Regulation 2009, which
would otherwise be repealed on 1 September 2014 by section 10(2) of
the Subordinate Legislation Act 1989.
Bail Amendment (Juvenile Justice) Regulation 2014 (2014-411)
— published LW 27 June 2014
The object of this Regulation is to permit a centre manager or
assistant manager of a children's detention centre and certain
other Juvenile Justice officers to exercise functions such as
giving an accused person a bail acknowledgement, accepting a signed
bail acknowledgement from an accused and accepting money or
security deposited under a bail condition.
Civil and Administrative Tribunal Amendment (Fees) Regulation
2014 (2014-404) — published LW 27 June 2014
The object of this Regulation is to increase certain fees payable
in connection with proceedings before the Civil and Administrative
Tribunal.
Civil Procedure Amendment (Fees) Regulation 2014 (2014-405)
— published LW 27 June 2014
The object of this Regulation is to increase certain fees payable
in relation to civil proceedings generally and other fees that are
payable to the Sheriff.
Bills assented to
Crimes (Domestic and Personal Violence) Amendment (Information Sharing) Act 2014 No 27 — Assented to 24 June 2014
Election Funding, Expenditure and Disclosures Consequential Amendment Act 2014 No 28 — Assented to 24 June 2014
Electoral and Lobbying Legislation Amendment (Electoral Commission) Act 2014 No 30 — Assented to 24 June 2014
Law Enforcement (Powers and Responsibilities) Amendment Act 2014 No 31 — Assented to 24 June 2014
Statute Law (Miscellaneous Provisions) Act 2014 No 33 — Assented to 24 June 2014
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