New South Wales Court of Appeal - Decisions of Interest Search - Area of law: Administrative law


   

  1. 07/02/2017
    Administrative law: building case ultimately determined in District Court; s 69 Supreme Court Act 1970 (NSW); supervisory jurisdiction

    Torbey Investments entered into a building contract with Mr and Mrs Ferrara, pursuant to which it undertook building and construction work on the Ferraras’ residential property in Maroubra. Completion was delayed for several reasons, and the Ferraras pruported to terminate the contract.

    The issue on appeal was whether the contract had been validly terminated and what were the appropriate orders. This raised a question:

    • whether the contractual terms imposing procedural requirements and time limits for notices of breach and termination were mandatory; and
    • relating to the power of the Court of Appeal to substitute orders in the exercise of its supervisory jurisdiction.

    Held:

    • The contract had been validly terminated, and the owners were entitled to recover the cost of completion.
    • The order of the District Court with respect to interest, made in favour of the Ferraras despite their not being entitled to interest and not having sought it, should not have been made. Accordingly, the orders made in favour of the Ferraras should be altered.
    • The Court of Appeal, in the exercise of its supervisory jurisdication, has the power to make an order not merely quashing the determination of the court below, but making in its place the only order available in law, consistent with the reasoning of the court below. Therefore, the Court of Appeal ordered that Torbey Investments is liable to the Ferraras for damages for defective and incomplete building works in the amount that should have been ordered by the District Court.

    Torbey Investments Corporated Pty Ltd v Ferrara  [2017] NSWCA 9
  2. 22/12/2016
    Administrative law: examination and report on proposal for local government amalgamation by delegate of Departmental Chief Executive pursuant to Local Government Act 1993 (NSW), s 218F; extent of obligation to afford procedural fairness; whether delegate under a duty to notify affected local government council of key material upon which it proposed to rely in preparation of report; review and comment by Boundaries Commission following referral of proposal to delegate for examination and report; extent of obligation to afford procedural fairness; whether Boundaries Commission’s required to afford affected local government council reasonable opportunity to respond to delegate’s report

    Woollahra Municipal Council v Minister for Local Government  [2016] NSWCA 380
  3. 22/12/2016
    Administrative law: proposal for amalgamation of local government areas under Local Government Act 1993 (NSW), s 218E; accounting firm provided public statements regarding Minister’s proposal for amalgamation of three local government areas; statements represented that accounting firm had conducted “independent analysis and modelling”; whether accounting firm independent; whether statements misleading; whether misleading statements impugned statutory process under Local Government Act 1993 (NSW)

    Woollahra Municipal Council v Minister for Local Government  [2016] NSWCA 380
  4. 22/12/2016
    Administrative law: examination and report on proposal for local government amalgamation by delegate of Departmental Chief Executive pursuant to Local Government Act 1993 (NSW), s 218F; mandatory relevant considerations pursuant to ss 218F(2) and 263(3)(a)-(f); whether delegate required to have regard to financial advantages or disadvantages of proposal for residents and ratepayers of individual local government areas concerned; whether delegate conducted examination into financial advantages or disadvantages

    Woollahra Municipal Council v Minister for Local Government  [2016] NSWCA 380
  5. 15/12/2016
    Administrative law: judicial review; jurisdictional error; collateral challenge to a costs order; not available in the costs assessment process
     

    Coshott v Barry  [2016] NSWCA 358
  6. 15/12/2016
    Administrative law: judicial review; jurisdictional error; application for judicial review of a dismissal of an appeal against a decision of a costs review panel; costs assessment conducted on the basis that the solicitors were entitled their professional costs as part of their costs of representing themselves; “Chorley exception”; whether primary judge erred by affirming a position that did not reflect the law in New South Wales
     

    Coshott v Barry  [2016] NSWCA 358
  7. 06/12/2016
    Administrative law: judicial review; District Court dismissal of purported appeal against Local Court convictions; convictions entered in applicant’s absence; applicant had not made s 4 application for annulment of Local Court convictions; Crimes (Appeal and Review) Act 2001 (NSW) s 12(2); purported conviction appeal dismissed by primary judge for want of jurisdiction; complaint of apprehended bias; whether fair-minded lay observer might reasonably apprehend primary judge might not bring impartial or unprejudiced mind; alleged bias said to occur on occasion after hearing and subject decision
     

    Bagshaw v Director of Public Prosecutions (NSW)  [2016] NSWCA 340
  8. 06/12/2016
    Administrative law: stay of execution; judicial review of decision of District Court dismissing appeal from Local Court; statutory stay of execution of orders other than apprehended domestic violence orders; Supreme Court Act 1970 (NSW), s 69C; whether statutory stay extends to execution of costs orders made following applications for apprehended domestic violence orders
     

    Majak v Rose (No 2)  [2016] NSWCA 337
  9. 05/12/2016
    Administrative law: judicial review; jurisdictional error; decision of District Court to dismiss a conviction appeal for an offence of using a carriage service to cause offence; proper construction of s 474.17 of the Criminal Code (Cth); no error in applying the same construction of a similar offence applied by the High Court in Monis v The Queen; Droudis v The Queen (2013) 249 CLR 93
     

    Brown v Commonwealth Director of Public Prosecutions  [2016] NSWCA 333
  10. 01/12/2016
    Administrative law: judicial review; reasonable apprehension of bias; decision to suspend respondent trainer after horse tested positive for prohibited substances; member of disciplinary committee determining penalty involved in selecting horse for testing and overseeing horse swabbing procedure and sample testing procedures; whether fair-minded observer might reasonably apprehend decision-maker might not apply an impartial mind; whether member had an “interest” in the process akin to that of a prosecutor that might cause him to deviate from proper decision-making
     

    Agricultural Societies Council of NSW v Christie  [2016] NSWCA 331