ALQ September 2022 Other decisions

Issue: September 2022

Other significant decisions

Supreme Court finds Tribunal erred in reinstating Working With Children's Check Clearance

Access the decision: Office of the Children’s Guardian v EQE [2022] NSWSC 871

The appellant appealed to the Supreme Court against a decision of the Tribunal to set aside the decision of the Guardian in refusing to grant a Working with Children Check clearance (WWCCC) to an applicant in light of multiple sexual offences allegedly perpetrated against his stepdaughter: EQE v Children's Guardian [2021] NSWCATAD 357.

The appellant argued that the Tribunal misconstrued the Child Protection (Working with Children Act) 2012 by failing to properly consider whether EQE posed a risk to the safety of children and by considering whether it was in the public interest to allow EQE to work with children by reference to his private interests.

In upholding the appeal, the Court found that: the Tribunal had failed to necessarily assess whether the possibility that such conduct occurred may support a view that the applicant poses a risk to the safety of children; consideration of the applicant's career prospects in the Tribunal's determination was misconceived; and, that the central consideration of public interest had been overlooked, being the need to protect children from sexual and physical harm.

Employment agency contracts and payroll tax liability

Access the decision: Chief Commissioner of State Revenue v E Group Security Pty Ltd [2022] NSWCA 115

In the Supreme Court proceeding below, the respondent had sought review of payroll tax assessments that were issued by the Chief Commissioner on the basis that he had determined the respondent was an 'employment agent' (within the meaning of that term in s. 37 of the Payroll Tax Act 2007) and liable for payroll tax on payments made to its service providers. The determination related to the provision of security guarding services by the respondent to its clients.

Sections 37(1) provides:

(1) For the purposes of this Act, an employment agency contract is a contract, whether formal or informal and whether express or implied, under which a person (an employment agent) procures the services of another person (a service provider) for a client of the employment agent.

The Court of Appeal held, in dismissing the appellant's three appeal grounds concerning the interpretation of s. 37(1) of the Act, that there should be no departure from existing authority in UNSW Global Pty Ltd v Chief Commissioner of State Revenue [2016] NSWSC 1852.

Sole use of a parcel of land for the purposes of the childcare exemption to land tax

Access the decision: Mourched v Chief Commissioner of State Revenue [2022] NSWCATAD 180

The applicants applied for review of the respondent's decision not to grant the childcare exemption pursuant to either ss. 10(1)(u) or 10(1)(v) of the Land Tax Management Act 1956 (the LTM Act) to a parcel of land owned by the applicants.

The applicants submitted that the childcare exemption should apply to the entirety of Lot 105, notwithstanding the Valuer General's treatment of the constituent Parcels A and B as separate parcels. Parcel B only contained a wastewater treatment facility whose purpose the applicants contended was to service the childcare facility on Parcel A.

The respondent argued that, for the purpose of assessing land tax (and therefore any exemption) under the LTM Act, 'land' is to be determined by reference to land assessed and recorded in the Register of Land Values pursuant to s. 14CC of the Valuation of Land Act 1916 (ie, Parcels A and B) and not on the basis of the use of Lot 105 as a whole. Moreover, the applicants' contention that Parcel B was used solely as a sewerage treatment facility was contradicted by evidence that significant preparatory work for commercial land development was occurring on the land.

The Tribunal held that the land to which an exemption applies under the LTM Act was to be determined by reference to the parcels of land as recorded in the Register of Land Values and that the applicants had not disproved that the preparatory work undertaken in the early part of the land tax year was not continuing as at the date the liability arose. Accordingly, the Tribunal held that the applicants did not discharge their onus in showing the sole use of Parcel B was for a childcare centre.

The decision is currently the subject of an appeal.

Supreme Court revokes duties notice of assessment issued by Chief Commissioner of State Revenue

Access the decision: Meridian Energy Australia Pty Ltd v Chief Commissioner of State Revenue [2022] NSWSC 1074

The plaintiff challenged a duties notice of assessment issued by the defendant in respect of the plaintiff's acquisition of 100% of the issued shares in GSP Energy Pty Ltd (GSP) from Trustpower Limited (Trustpower). The assessment was for an amount of landholder duty of $7,979,740, which was calculated based on GSP's land holdings and goods being valued by the defendant in the amount of $145.35 million. At the time of the acquisition, GSP was the operator of three hydro-electric power stations in New South Wales and the lessee of the land on which the power stations were situated.

The issues for determination were: whether, at the time of the acquisition, the power stations were 'land holdings' within the meaning of s. 146 of the Duties Act 1997; what was the correct valuation of certain leases and water agreements; whether the power stations were 'goods'; if the power stations were goods, whether the s. 163G 'discretion' should be exercised; and, the dutiable value of the acquisition.

Ward CJ in Eq found that: GSP's interest in the power stations was not an interest in land but, rather, an innominate sui generis property interest under a vesting order; it was not appropriate to apply the 'Pacific Hydro Methodology' in this case, in light of her Honour's conclusions as to the nature of the interest in the power stations; had the issue arisen, her Honour would have concluded that the power stations or power station assets were not 'goods'; the question of whether the s. 163G discretion should be exercised did not arise; the dutiable value of the acquisition was nil on the basis that the power stations were not 'land holdings'.

DCJ not providing 'service' under Anti-Discrimination Act 1977 when removing children from care pursuant to s. 43 of the Children and Young Persons (Care and Protection) Act 1998.

Access the decision: FGW v Department of Communities and Justice [2022] NSWCATAD 291

FGW, the mother of two children who had been removed from her care by the Secretary, Department of Communities and Justice, pursuant to s 43(1) of the Children and Young Persons (Care and Protection) Act 1998 (the Care Act), filed a discrimination complaint with the Anti-Discrimination Board alleging that, in removing the children, she had been directly discriminated against on the grounds of a disability, being a diagnosis of borderline personality disorder and a drug addiction. FGW sought, by way of remedy, the return of the children to her care.

The President of the Board accepted the complaint for investigation but dismissed it under s. 92 of the Anti-Discrimination Act 1977 (the AD Act).

The Tribunal dismissed the applicant's application for leave because: there was no evidence to suggest that FGW was discriminated against on the grounds of disability; FGW was not the recipient of a service provided by the respondent; the respondent was exercising a statutory power in removing the children under s 43 of the Care Act; nothing in the AD Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of any other Act (s. 54(1) of the AD Act); and, the Tribunal could not grant the relief sought - it was not within the jurisdiction of the Tribunal to return the children to FGW's care.

No priority for relatives over carers under the Care Act

Access the decision: Re Leonardo [2022] NSWSC 1265

In December 2021, the plaintiffs, authorised foster carers for the child Leonardo, filed an application seeking to be joined as a party to the Children's Court proceedings for Leonardo pursuant to s. 98(3) of the Care Act. In July 2022, the Children's Court dismissed the application, and the plaintiffs appealed the dismissal to the District Court. In August 2022, Leonardo's paternal uncle and aunt were authorised as long-term carers for Leonardo. The plaintiffs then brought an urgent application in the Supreme Court's parens patriae jurisdiction, seeking that the Minister for Families, Communities and Disability Services (the Minister) be restrained from removing Leonardo from their care until related Children's Court proceedings in relation to Leonardo had been determined on a final basis.

The Secretary and Minister submitted that a true construction of s. 10A(3)(b) of the Care Act stipulates that priority is given to relatives and kinship carers over what is described in that paragraph as 'other suitable carer(s)' and Departmental policy prioritised placement with 'family/kin' over 'other suitable person(s)'.

The Court held, however, that s. 10A(3)(b) of the Care Act, which sets out the permanent placement principles for the placement of a child or young person in out-of-home care, did not prioritise kin placement over other suitable persons. In particular, the Court held that extrinsic material did not affirmatively suggest the intention of Parliament was to preference relative/kin over other suitable persons and that 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).

Orthodox application of principle in challenge to public health orders

Access the decision: Kikuyu v Hazzard (No 2) [2022] FCA 812

The applicant was a former registered nurse whose employment with the State was terminated because she did not meet COVID-19 vaccination requirements. She sought declarations that certain public health orders made by the NSW Minister for Health under s. 7 of the Public Health Act 2010 and a determination made by the Secretary, Ministry of Health under s. 116A of the Health Services Act 1997 were invalid pursuant to s. 109 of the Constitution (Cth).

The applicant's sole ground was that the State provisions authorising those instruments were indirectly inconsistent with provisions of the Biosecurity Act 2015 (Cth), on the basis that, while the Governor-General's declaration of a 'human biosecurity emergency' in relation to COVID-19 under Pt. 2 of Ch. 8 of the Biosecurity Act was in force, the Commonwealth Parliament evinced an intention for those provisions to be exclusive law regarding the subject matter of the 'prevention and control of the emergence, establishment or spread' of COVID-19 in Australia. and invalid to the extent of the inconsistency.

Justice Lee rejected the applicant's claim, holding that it was 'legally misconceived'. His Honour found no inconsistency between the Commonwealth and the State provisions, noting that the Biosecurity Act did not evince an intention to state completely or exhaustively the law on emergency requirements and ministerial directions in a human biosecurity emergency period. In relation to the Secretary's determination, his Honour also found that the subject matter of s. 116A of the Health Services Act differed fundamentally from that of the relevant Commonwealth provisions.

The applicant has appealed to the Full Court of the Federal Court.

Orders under the Vexatious Proceedings Act 2008 not limited to specified categories of proceedings

Access the decision: Attorney General for the State of New South Wales v Collier (No 2)

ney sought the making of an order against Mrs Collier under the Vexatious Proceedings Act 2008 (the VP Act) based on 56 proceedings instituted by Mrs Collier over the course of 28 years. Her proceedings had been 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:

1. Re-agitation of previously determined claims.

2. Unsubstantiated allegations of bias.

3. Unsubstantiated allegations of perjury, criminal conduct and fraud.

4. Baseless appeals and interlocutory applications.

5. Failure to comply with court rules and timetables.

6. Disruptive behaviour in court.

7. Voluminous correspondence with the Court, including ex parte communications.

Mrs Collier broadly disputed the Attorney's submissions but left the hearing without making oral submissions.

The Court found that Mrs Collier had frequently instituted vexatious proceedings over at least 28 years and made an order under the VP Act prohibiting Mrs Collier from instituting proceedings in New South Wales, without the leave of the Court. However, in contrast to the previous cases in which the Attorney obtained his costs following successful applications under the VP Act, the Attorney was not awarded costs.

Other decisions in this issue

Last updated:

09 Jun 2023