ALQ June 2022 Judicial review

Issue: June 2022

Judicial Review decisions

Challenge to new Legal Aid practitioner panel system dismissed

Access the decision: Donaghy GJ v Legal Aid Commission of NSW [2022] NSWSC 626.

The plaintiff challenged decisions of the Commission to refuse to appoint him to panels it had established under s. 49 of the Legal Aid Commission Act 1979 (the Act). The plaintiff had previously been appointed to certain panels which had been established under an earlier version of s. 49.

The refusal decision was made on grounds relating generally to concerns about the plaintiff's conduct of legal matters. The plaintiff contended that he had been denied procedural fairness and that the decision not to appoint him was irrational or unreasonable or involved irrelevant considerations.

The Commission contended that decisions to appoint solicitors to Legal Aid panels involved an exercise of non-statutory executive power, analogous to a tendering power, which was not judicially reviewable. It further contended that, if the decision was reviewable, it had not denied the plaintiff procedural fairness or otherwise committed any reviewable error.

His Honour rejected the substance of the complaints made on judicial review and, on that basis, held that it was not necessary to determine the 'difficult and contestable' question as to whether panel appointment determinations are reviewable at all.

In respect of the procedural fairness argument, his Honour held that the plaintiff was given an opportunity to consider and respond to the matters raised, including because he was notified of the critical issues in advance and, if there was anything which was unclear, could have asked that they be clarified. His Honour rejected the other grounds in short terms, noting, in particular, the high standard required to make good a case of irrationality or unreasonableness.

Supreme Court declares three local government elections void

Access the decision: NSW Electoral Commissioner v Kempsey Shire Council (No 2) [2022] NSWSC 282.

The plaintiff sought declarations to the effect that the election of councillors to 3 Councils due to the partial failure of the 'iVote' system for electronic voting during the 2021 local government elections.

This was argued on the basis that a statistical analysis indicated that the absent votes may have had a material effect on the outcome of the election. The affected Councils and some of the defendant councillors contended that the elections should not be voided, having regard to the significant disruption to the community and the hardship caused to individual councillors by the holding of fresh elections. They further submitted that any relief, if granted, should be limited to only those particular councillors whose election was in doubt.

Beech-Jones CJ at CL held that the failure of the iVote system gave rise to a breach of cl. 333E of the Local Government (General) Regulation 2021 and that, although the number of voters denied the franchise by the failure of the system was small, the system of proportional representation was such that the failure had the real potential to affect the election of at least one councillor to each of the affected Councils.

In those circumstances, his Honour held that he had limited discretion to refuse to declare the election void, despite the hardship that would occur with a full fresh election. His Honour also held that it was necessary to void the elections in whole, because a by-election for only the affected position would undermine the system of proportional voting required under the Local Government Act 1993.

It has since been announced that the fresh elections will occur on 30 July 2022. A scheme for the making of act of grace payments to affected councillors and parties has also been established under s. 5.7 of the Government Sector Finance Act 2018.

Legislative 'Inadvertence' and the Child Protection Register

Access the decision: Merrell v Commissioner of NSW Police [2022] NSWSC 337.

The plaintiff was convicted of 3 offences under s. 91H of the Crimes Act 1900, which is an offence of possessing child abuse material. It is a 'registrable offence' under the Child Protection (Offenders Registration) Act 2000 (the CPOR Act) and the plaintiff was a 'registrable person'.

The plaintiff sought (relevantly) a declaration in the Supreme Court that he was never a 'registrable person', relying on an exception to the definition where 'the person … as a child committed … a single offence' under section 91H of the Crimes Act 1900'' (s. 3A(2)(c)(ii) of the Act).

He invoked s. 3A(5), which defines 'single offence" to include 'more than one offence of the same kind arising from the same incident' and s. 3(3), which provides that offences 'arise from the same incident' only if they are committed 'against the same person'. The plaintiff contended that the requirement that offences be committed 'against the same person' could not sensibly be applied in the context of offences involving the possession of child abuse material.

Adams J held that the application of s. 3(3) did not produce a coherent result, including because it gave s. 3A(2)(c)(ii) very little work to do and because it resulted in a stricter application of the provisions in cases involving cartoons or drawings than those involving real victims.

Her Honour attributed this incoherence to 'inadvertence and/or omission by Parliament' and rejected a submission to the effect that reading down the provisions to avoid the issue would involve impermissible legislative repair. Accordingly, she made the orders sought by the plaintiff.

Procedural fairness in vexatious proceedings applications

Access the decision: Collier v Attorney General for New South Wales (No 2) [2022] NSWCA 40.

The Attorney General applied for an order under s. 8 of the Vexatious Proceedings Act 2008 against the plaintiff. The plaintiff (Mrs Collier), filed a Notice of Motion which sought, inter alia, the summary dismissal of the Attorney General's Summons. That motion was dismissed by Beech-Jones CJ at CL: Attorney General for New South Wales v Collier [2021] NSWSC 1483.

Mrs Collier sought leave to appeal. The Attorney General submitted that Mrs Collier's application for leave to appeal was out of time and raised no issue of principle, question of public importance or clear injustice.

The Court held that the plaintiff had raised no doubt as to the correctness of the decision below. However, it was concerned about whether the timetabling orders requiring Mrs Collier to file and serve her evidence before the Attorney General filed his submissions might deny her procedural fairness, if she was required to file evidence before she knew the particulars of the case against her.

The Attorney General offered to allow a further extension of time for Mrs Collier to file evidence. This appeared to allay the Court's concerns about procedural fairness.

Public interest immunity in coronial proceedings

Access the decision: Commissioner of Police v Attorney General for New South Wales [2022] NSWSC 595.

The plaintiff made PII claims and sought suppression and non-publication orders in relation to certain information which it was proposed would be included in a coronial brief of evidence.

The Coroner rejected the Commissioner's PII claims and made only some of the other orders sought. The plaintiff sought judicial review of the Coroner's decision. The Attorney General was joined as a defendant in order to act as a contradictor.

The plaintiff's main argument was that the Coroner had failed to apply the three-step PII analysis required at common law (see, eg, Alister v The Queen). Specifically, the plaintiff contended that the Coroner had not properly assessed and weighed the competing aspects of the public interest.

Wright J accepted the Commissioner's key argument. First, his Honour held that the Coroner had erred in considering that the potential relevance of a document to an issue in the inquest or to a recommendation which might be made was sufficient to justify the rejection of a PII claim made over that document.

Secondly, observing, on the one hand, that 'tailored orders' can curtail open justice and, on the other, that such orders are not watertight, his Honour held that the availability of tailored orders cannot be a decisive reason to reject a PII claim. His Honour held that it is necessary to assess the impact which such orders, if made, might have on the various aspects of the public interest required to be taken into account at common law.

Supreme Court departs from two-step test for Joinder under s. 98(3) of the Children and Young Persons (Care and Protection) Act 1998

Access the decision: In re a Child [2022] NSWSC 671.

An application was made under s. 98(3) of the Children and Young Persons (Care and Protection) Act 1998 (the CYPCP Act) by the paternal aunt of a young person to be joined to proceedings filed by the father appealing a decision of the Children's Court under s. 91 of the CYPCP Act. The application was opposed by the Secretary of the Department of Communities and Justice, the mother and the young person's Direct Legal Representative.

Hammerschlag CJ in Eq rejected the 'two step' test for joinder under s. 98(3) of the CYPCP Act set out in EC v Secretary, NSW Department of Family and Community Services [2019] NSWSC 226.

His Honour considered that it was not helpful to split the test into two steps because considerations relevant to the question of 'genuine concern' will also be relevant to the overall consideration of the child's best interests. His Honour noted that whether the question involves subjective or objective elements (or both) depends on the particular circumstances of the case and refused to grant leave to join the proceedings on various grounds argued by the opponents.

High Risk Offenders: Construction of s. 5B(b) of the Crimes (High Risk Offenders) Act 2006

Access the decision: State of New South Wales v Kaiser [2022] NSWCA 86.

On 5 December 2018, the appellant filed an amended summons seeking an extended supervision order (ESO) against the respondent. On 8 June 2021, the primary judge dismissed the Amended Summons on the basis that the respondent was not a 'supervised offender' as required by s. 5B(b) of the Crimes (High Risk Offenders) Act 2006 (the CHRO Act).

In dismissing the application, the primary judge observed that there is a duplication in paragraphs (b) and (c) of s. 5B and that, to conclude that it was not necessary for a person against whom an order is sought to be serving a sentence of imprisonment within the meaning of s. 5I(2)(a) as at the time the application is determined (ie, at the time of the final hearing) would render s. 5B(b) 'otiose'.

The primary judge also held that the earliest date upon which any ESO in respect of the respondent could commence was 10 December 2022, being the date following the expiry of the head sentence being served by him at that time, notwithstanding the offence giving rise to that sentence did not constitute a 'serious offence' for the purposes of s. 5A(1).

In upholding the appeal, Simpson AJA held (Bell P and Beech-Jones JJA agreeing) that s. 5B(b) of the CHRO Act requires that the person in respect of whom an ESO is sought be a 'supervised offender', within the meaning of s. 5I, at the time the application is made, noting that s. 5I defines a 'supervised offender' as an offender who meets the criteria stated in s. 5I(2) as at the time 'when the application is made.'

The Court held that the language of s. 10(1) clearly specifies that an ESO commences when it is made, or when the offender's current custody or supervision expires, whichever is the later, noting that the term 'current custody or supervision' is given a particular meaning in s. 5I(2).

In obiter, Simpson AJA observed that in respect of proceedings under the CHRO Act there is limited (if any) scope for the application of the principle of legality, given that one of the objects of the CHRO Act was the abrogation or curtailment of the right to personal liberty.

'Crown land restricted' within the meaning of valuation law

Access the decision: Sydney Fish Market Pty Ltd v Valuer-General [2022] NSWLEC 71.

The applicant argued that a lease of the Fish Markets site granted by Minister Causley was 'Crown lease restricted' as it was granted under the Crown Lands Act 1987 and preserved under the Crown Lands Management Act 2016. It was therefore a 'holding' under that Act.

While the Minister did not administer that Act, s. 37A(3) of the Constitution gave the Minister power to grant the lease. The Valuer-General argued that that the Minister granted the lease under the Fish Marketing Act 1994 as was specifically provided for under that Act. Further, the vesting of the land in State Property took the land from the Crown estate and the lease was not therefore a 'holding' under the Crown lands legislation.

The Court accepted the applicant's submissions and held that the land was 'Crown lease restricted' within the meaning of s. 14I of the Valuation of Land Act 1916.

Activities which may appear to be separate may be considered as part of an integrated operation when considering the dominant use of land for the primary production exemption.

Access the decision: Godolphin Australia Pty Ltd v Chief Commissioner of State Revenue [2022] NSWSC 430.

The plaintiff argued that the activities taking place on two properties owned by it were uses for the dominant purpose of selling racehorses and their bodily produce, so as to attract the primary production exemption from land tax in s. 10AA of the Land Tax Management Act 1956.

It argued that the stallion covering activities and the breeding and maintenance of the other thoroughbred horses on the properties was an integrated operation.

The defendant argued that there were two uses of the contested land: maintenance of the plaintiff's stallions who covered broodmares for a fee, which took place on a comparatively small part of one of the two properties in issue; and the maintenance on both properties of broodmares, yearlings, geldings and other racehorses which were trained and spelled between race campaigns.

The Court held that the activities on the two properties formed an integrated operation in which the preparation of horses for racing was for the overall or dominant purpose or objective of increasing or maximising the revenue from the nomination/covering fees (ie, the sale of bodily produce) and from the sale of the progeny produced by the broodmares.

Relevant to the Court's conclusion was an acceptance that the racing prowess of the horses (and ultimately their progeny) was an important factor in the pricing of the stallions' covering services. This indicated that the plaintiff's overall operations on the land was to be properly viewed, in context, as an integrated stud operation.

If you have any questions about the contents of this newsletter, please contact john.mcdonnell@cso.nsw.gov.au.

Other decisions in this issue

Last updated:

09 Jun 2023