ALQ March 2022 Merits review

Issue: March 2022

Merits review

Guidance on application of s. 86 of the Local Land Services Act 2013

Access the decision: Ryan v Northern Tablelands Local Land Services (No 2) [2021] NSWCATAD 378.

Having previously refused to summarily dismiss this appeal, and notwithstanding some awkwardness in the respondent's processes, the Tribunal held that the applicant did not have standing to bring an appeal under s. 86 of the Local Land Services Act 2013 (LLS Act) (as a matter of construction of the relevant provisions, only the successful applicant in a preliminary EOI process had such standing) and dismissed the appeal as misconceived. For completeness, the Tribunal examined the merits of the decision and held that, even if the applicant did have standing, it would have upheld the respondent's decision refusing to grant him a permit.

The decision provides useful guidance as to the application of s. 86 of the LLS Act and, in particular, the issue of the Tribunal's jurisdiction.

'Fair trial values' not guaranteed by the Constitution

Access the decision: R v Kinghorn [2021] NSWCCA 313.

Prior to charges being laid under the Criminal Code (Cth), the accused was compulsorily examined under s. 264 of the Income Tax Assessment Act 1936 (Cth). This examination was transcribed.

Adamson J ruled that the transcript was inadmissible at trial. In the Court of Criminal Appeal, Bathurst CJ and Payne JA (Bell P, Ward CJ in Eq and Bellew J agreeing) allowed the appeal and gave answers permitting the use of the transcript.

The Court of Appeal held that, where the material was obtained lawfully pre-charge, the 'companion rule' had no application. The Court doubted the correctness of the decision of the Queensland Court of Appeal in R v Leach [2019] 1 Qd R 459, which held otherwise.

In any case, as a matter of construction, the Court found that the enabling legislation would have abrogated the companion principle if it did apply pre-charge. In respect of a constitutional argument, the Court held that no authority supported the contention that the companion rule was constitutionally guaranteed. An application for special leave to appeal has been filed.

Other decisions in this edition

Last updated:

16 Nov 2022

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