ALQ December 2022 Significant Supreme Court decisions

Issue: December 2022

Significant Supreme Court decisions

The Territorial Reach of the Long Service Leave Act 1955

Access the decision: Wipro Limited v State of New South Wales and Anor [2022] NSWCA 265

NSW Employee Relations formed the view, based on existing authorities in NSW, that the second defendant was entitled to long service leave, having completed more than 10 years of service with the plaintiff; with the most recent 4 years and 9 months of service in NSW and the previous 5 years, 11 months in India. The plaintiff, relevantly, sought a declaration that it was not obliged to pay any such entitlement. The proceedings were removed to the Court of Appeal.

The Court of Appeal adopted the construction of the Long Service Leave Act 1955 (“the LSL Act”) for which the plaintiff contended, holding that: the “central conception” or “hinge” of the is the concept of “continuous service” such that its territorial reach is to be determined by considering whether the continuous service has a substantial connection with NSW. There is not to be a retrospective assessment from the point at which the entitlement accrues; the performance of service in NSW is one connecting factor but, depending on the circumstances, there may be other factors connecting the service to NSW, such as the contract having been made in NSW or directions having been given in NSW for an employee to work outside the jurisdiction.  The Court declared that the plaintiff is not obliged to pay the second defendant a long service leave entitlement under s. 4(5) of the LSL Act.

The importance of contemporaneous  documentation when characterising arrangements

Access the decision: Chief Commissioner of State Revenue v E Group Security Pty Ltd (No. 2) [2022 NSWCA 259

The key legal issue in this appeal was whether arrangements between the respondent and its related entities were “employment agency contracts” (and liable to payroll tax), which turned on whether the related entities procured the services of security guards for the respondent. The Chief Commissioner relied on the totality of the documentary evidence (including invoices issued to third parties) to support his submission that the related entities “procured” the security guards. The respondent submitted that the evidence supported the primary judge’s conclusion that the related entities merely performed a “payroll function”.

The Court of Appeal allowed the Chief Commissioner’s appeal, finding that there was sufficient documentary evidence, apart from the internal payroll agreements, which indicated that there was an arrangement which involved the related entities procuring the supply of security guards for their client, the respondent.  In making this finding, the Court noted that a fundamental difficulty with the respondent’s position was that it relied very heavily on the subjective views of its sole director as to how the related entities were intended to operate, which views were contradicted in varying degrees and respects by the various categories of documents.  The Court emphasised that the relevant legal issues fall to be determined primarily by reference to the contemporaneous documentation.

When a decision that Crown land was needed for an essential public purpose goes out of date

Access the decision: Darkinjung Local Aboriginal Land Council v Minister Administering the Crown Land Management Act 2016 [2022] NSWCA 275

The Land and Environment Court held that two lots of Crown land at Gosford were not claimable Crown land for the purposes of the Aboriginal Land Rights Act 1983 on the basis that the land was needed for an essential public purpose. At the date of claim, in 2009, the land was subject to a reserve trust and was occupied by Terama Industries Inc, which provided supported employment for disabled persons. The Court held that decisions of the State government in 1969 and 1971, relating to the use of the land by Terama Industries’ predecessor, together with the on-going use of the land for that purpose, established that the land was needed and that it was not claimable Crown land.

The appellant contended: that the primary judge misdirected herself as to what was meant by the statutory test of whether Crown land was needed or likely to be needed for an essential public purpose and failed to answer the question that that test required; and, further, that the primary judge’s decision was not reasonably open on the evidence before her. 

The Court of Appeal upheld the appeal, concluding that the primary judge erred on questions of law in finding that the land was not claimable as it was “infected by misdirection and misapplication of the statutory test and was not reasonably open on the evidence”. The Court adopted an interpretation of s. 36 that emphasised the words “when a claim is made for the lands” in the definition of “claimable Crown lands”. Accordingly, the Court considered that, while it was settled by previous authority that the requisite decision could be made before the date of the claim, it is necessary that there be evidence that the decision remains current, ie,  as the period between the date of the decision and the date of the claim extends, “there will increasingly become a need for other evidence to establish that the earlier decision is still operative and expresses the view of the government of the day at the date of the land claim”. The Court held that the Minister’s evidence did not establish this and, further, that the Minister’s evidence rather indicated that no consideration had been given to the land for an extended period of time.

When a decision is not an “ultimate determination” under s. 69 of the Supreme Court Act 1970

Access the decision: Secretary, Department of Communities and Justice v KH & Ors [2022] NSWCA 221

The respondent appealed to the District Court against orders of the Children’s Court removing her child from her care. The District Court delivered an interim judgment in which it found that there was a realistic possibility of restoration of the child to the respondent. The Secretary sought judicial review of the interim judgment and orders quashing its findings.

The Court of Appeal held that the reasons of the primary judge did not form part of the record, as they did not constitute an “ultimate determination” for the purposes of s. 69(4) of the Supreme Court Act 1970. An “ultimate determination” refers to a final determination of the parties’ rights, not a decision in the process of determining their rights. The orders made by the primary judge constituted a partial completion of the permanency plan obligation under s. 83 of the Children and Young Persons (Care and Protection) Act 1998. A preliminary decision may constitute an “ultimate determination” if it affects the legal rights of parties. However, in this case, the issues of parental responsibility, contact and permanent care plans were not settled. 

Notwithstanding this, the Court considered whether any errors of law were present in the primary judge’s reasoning and concluded that he had fallen into error in taking into account an irrelevant consideration. 

Implied power of revocation: Section 48 of the Interpretation Act

Access the decision: 4 Boys (NSW) Pty Ltd v Independent Liquor and Gaming Authority [2022] NSWSC 1689

The plaintiff applied for the revocation of decisions by the Independent and Liquor and Gaming Authority (“the Authority”) to allow applications to increase the gaming machine threshold at a hotel owned by the plaintiff, the Seaview Tavern, from 20 to 24 (which involved the approval of an accompanying local impact assessment requiring the making of a “community benefit payment” of $401,919.21) and then 24 to 27, and to transfer certain gaming machine entitlements to the Seaview Tavern from another hotel owned, at the time, by the plaintiff. The revocation was sought in circumstances where, after the transfer and gaming machine threshold increase applications were approved, circumstances arose which the plaintiff considered would permit it to achieve the same outcome without being required to make a community benefit payment.

The Authority’s primary submission was that s. 48(1) of the Interpretation Act 1987, which provides that “[i]f an Act or instrument confers or imposes a function on any person or body, the function may be exercised (or, in the case of a duty, shall be performed) from time to time as occasion requires”, unless excluded by contrary intention, did not include or confer a power of revocation. Alternatively, if the Court were to conclude that s. 48(1) operated so as to include or confer a power of revocation, then the Gaming Machines Act 2001 (“the GM Act”) evinced a contrary intention such that s. 48(1) did not apply and the Authority was not conferred a power to revoke its previous decisions made under ss. 20A and 34(4) of the GM Act. 

The Court held that s. 48(1) of the Interpretation Act does include and confer a power of revocation and that the GM Act does not evince a contrary intention such that s. 48(1) did not apply to the relevant provisions of the GM Act. Accordingly, the Court made declarations that, if requested to do so by the plaintiff, as had occurred, the Authority has power to revoke the relevant decisions. An appeal is being considered.

Supreme Court dismisses challenge to validity of emergency regulation

Access the decision: Alamdo Holdings Pty Ltd v Croc’s Franchising Pty Ltd [2022] NSWSC 1746

The Supreme Court dismissed a challenge to the validity of Sch. 5 to the Conveyancing (General) Regulation 2018 (“the Regulation”) on the basis that it was not validly authorised by s. 87 of the Retail Leases Act 1994 (“the Act”). Section 87(1)(a) and (b) authorises regulations prohibiting the recovery of possession or termination of a lease under relevant legislation. Section 87(1)(c) authorises regulations preventing the exercise of “another right of a lessor” under relevant legislation or a lease agreement. Section 87(1)(d) authorises regulations exempting lessees from the operation of relevant legislation or lease agreements. 

The Attorney General, who intervened to support the validity of the Regulation, accepted that s. 87(1)(a) and (b) could not support the Regulation, which dealt with rights under leases rather than under the relevant legislation. The issue was whether s. 87(1)(c) or (d) supported it. The plaintiff argued that s. 87(1)(c) only dealt with “another right” (being a right other than those relating to recovery of possession or termination of leases) and that s. 87(1)(d) also did not authorise the Regulation.

Whilst the Court held that the plaintiff’s construction of s. 87(1)(c) was available, it preferred the Atorney’s construction, which was open, consistent with the purpose of the emergency regulation-making power and which would favour validity of the Regulation. It also held that the Regulation involved an “exemption” within the scope of s. 87(1)(d). 

Utility and basis for seeking declaratory relief

Access the decision: Jay v Petrikas (No 4) [2022] NSWSC 1497

The plaintiffs had commenced District Court proceedings seeking damages against members of the Rural Fire Service. They subsequently filed a statement of claim in the Supreme Court, which sought only declaratory relief, and sought to have the District Court proceedings transferred to the Supreme Court. The defendants filed a motion seeking to dismiss the Supreme Court proceedings. 

The Supreme Court ordered that the relief sought be dismissed, that the statement of claim be refused and the plaintiff’s motion for transfer be dismissed. In its reasons, the Court made some detailed observations about the utility and basis for seeking declaratory relief, the need to relate the relief sought to a relevant legal or equitable right, and the need to avoid duplication of judicial resources where the District Court was the court of appropriate jurisdiction to hear and determine the injurious falsehood claim and make the necessary findings in accordance with the evidence and the law.

No Priority for Relatives over Carers under Care Act

Access the decision: Re Leonardo [2022] NSWSC 1265

The plaintiffs, authorised carers for the child Leonardo under out-of-home-care arrangements, were notified by the Secretary that the child would be transitioned into the care of his paternal uncle and aunt. The plaintiffs brought an urgent application in the Supreme Court seeking to restrain the Minister from removing the child from their care. 

The Court considered that the real issue in dispute was the proper construction of s. 10A(3) of the Children and Young Persons (Care and Protection) Act 1998 (“the Care Act”), which sets out the permanent placement principles for the placement of a child or young person in out-of-home care. In particular, the question was whether the Secretary, in approving the paternal uncle and aunt as long-term carers, failed to adequately consider the plaintiffs as other suitable persons to care for Leonardo long-term.

The Court held that the provision did not prioritise kin placement over other suitable persons -  there were no preferences inherent in the definitions of “relative” or “suitable person” within the definitions section of the Care Act, nor in the overall structure of the Care Act, nor in the wording of s. 10A(3)(b) - and made a series of orders, including that the Minister be restrained from removing Leonardo from his current placement with the plaintiffs until further order, except where the Secretary reasonably considers there is an immediate risk of harm to Leonardo on fresh information about such harm. 

Court’s power to determine collateral Issues in contravention proceedings

Access the decision: Secretary, Ministry of Health v The New South Wales Nurses and Midwives’ Association [2022] NSWSC 1178

In February and March 2022, the plaintiff obtained orders from the Industrial Relations Commission (“the Commission”) requiring the defendant to cease organising and refrain from taking industrial action in the form of a 24-hour State-wide strike.  On 15 February and 31 March 2022, the defendant contravened these orders by organising a State-wide strike. The plaintiff commenced contravention proceedings in the Supreme Court seeking the imposition of a financial penalty against the defendant pursuant to s. 139 of the Industrial Relations Act 1996 (“the IR Act”), which provides that the Court must deal expeditiously with any alleged contraventions of dispute orders.

The defendant asserted that the Commission’s orders were infected by jurisdictional error and were therefore invalid. The Court found that these challenges were properly characterised as collateral issues to these proceedings and that the private clause contained in s. 179 of the IR Act did not prevent the Court from determining a collateral attack involving jurisdictional error, in reliance on the High Court’s determination in Kirk v Industrial Court (NSW) (2010) 239 CLR 531, where it was held that a decision infected by jurisdictional error was not a “decision” to which s. 179 of the IR Act applied. 

The Court held that it had a discretion to hear the collateral issues raised in the proceedings, based on its obligation to deal with alleged contraventions of dispute orders “expeditiously”, and that a number of factors weighed in favour of the determination of the issues including: the consequences of a finding that the defendant had contravened the dispute orders (ie. the imposition of a financial penalty); the statutory availability of an appeal to the Full Bench of the Commission; and, various procedural requirements associated with an application for judicial review (ie. time limits on the commencement of judicial review proceedings). 

The Court held that the Commission’s orders in February 2022 were invalid but that the defendant had contravened the Commission’s orders made in March 2022 and imposed a financial penalty of $25,000.

28 Years Later: Vexatious Proceedings Order Made

Access the decision: Attorney General for the State of New South Wales v Collier (No 2) [2022] NSWSC 903

The Attorney sought the making of an order against the defendant under the Vexatious Proceedings Act 2008 (“the VP Act”). He identified 56 proceedings instituted by the defendant over the course of 28 years, which he alleged to be vexatious. The proceedings were brought against various parties, including the State of NSW, the Country Women’s Association and Telstra. The Attorney, accordingly, sought a blanket or universal order under the VP Act, rather than one confined to particular types of proceedings or parties. While the subject matter and parties varied, the Attorney identified seven common features of the proceedings: re-agitation of previously determined claims; unsubstantiated allegations of bias; unsubstantiated allegations of perjury, criminal conduct and fraud; baseless appeals and interlocutory applications; failure to comply with court rules and timetables; disruptive behaviour in court; and, voluminous correspondence with the Court, including ex parte communications.

The defendant broadly disputed the Attorney’s submissions but left the hearing without making oral submissions. The Court found that the defendant had frequently instituted vexatious proceedings over at least 28 years and made an order under the VP Act prohibiting the defendant from instituting proceedings in NSW, without the leave of the Court. Unusually, the Attorney was not awarded costs. 

Challenge to Thermal Energy from Waste Regulation Unsuccessful

Access the decision: The Next Generation (NSW) Pty Ltd v State of New South Wales [2022] NSWLEC 138

The applicant challenged the validity of the Protection of the Environment Operations (General) Regulation 2022 (“the Regulation”)  and the Energy from Waste Infrastructure Plan (“the plan”) as inconsistent with the Protection of the Environment Operations Act 1997 (“the POEO Act”) and the Environmental Planning and Assessment Act 1979 (“the EPA Act”). The applicant was appealing a decision of the Independent Planning Commission refusing its State significant development application and the respondents to that appeal had sought to rely on the Regulation and the plan.

The applicant submitted that the Regulation was not supported by the regulation-making power in s 323 of the POEO Act. The respondent submitted that those inconsistencies either did not arise or, to the extent that one did, the Regulation could be construed so as to avoid inconsistency productive of invalidity.

The Land and Environment Court dismissed the applicant’s summons, adopting the respondent’s reasons and giving further reasons consistent with the respondent’s submissions, including that, to the extent that the EPA Act and the Regulation seemed in conflict, this could be resolved as a matter of construction, by concluding that the EPA Act provisions would prevail.

Whether the whole or part of Claimed Land was lawfully used or occupied

Access the decision: New South Wales Aboriginal Land Council – Little Bay v Minister Administering the Crown Land Management Act [2022] NSWLEC 142

The applicant brought an appeal pursuant to s. 36(6) of the Aboriginal Land Rights Act 1983 (“the ALR Act”) in relation to the Minister’s refusal of an Aboriginal land claim lodged in 2016 over land in Little Bay. The land comprised a building used as the office of Surf Lifesaving Sydney (“SLSS”) and surrounding open space (“the Curtilage Land”). 

The applicant conceded that the building was lawfully used and occupied by SLSS but submitted that the Curtilage Land was claimable Crown land under s. 36 of the ALR Act on the basis that it was not lawfully used or occupied as at the claim date. SLSS had a lease over the whole of the land, but the lease did not permit SLSS to use the Curtilage Land for anything other than ingress and egress, and there was no evidence of any actual use of the Curtilage Land. The Minister submitted (inter alia) that the claimed land was not divisible for the purposes of applying the definition of “claimable Crown lands” in s. 36(1) of the ALR Act. 

The Court upheld the appeal, holding that the Minister had failed to establish on the evidence that the Curtilage Land was lawfully used or occupied such that it is not claimable Crown land and ordered the transfer to the applicant of the land except the area including the building, a paved area to the north of the building, an access path and a reasonable area around these features. 

Other decisions in this issue


Last updated:

30 Dec 2022

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