Mind the gap – Legislation introduced to confer jurisdiction on the District Court for commercial claims

On 24 October 2018 the NSW Government introduced the Justice Legislation Amendment Bill (No 3) 2018 (the Bill). The Bill contains a range of miscellaneous amendments that are critical for the NSW justice system to function efficiently and effectively. Most notably, the Bill clarifies the jurisdiction of the District Court (the Court) in relation to actions arising out of commercial transactions.

District Court’s jurisdiction

Under section 44(1) of the District Court Act 1973 (NSW) (the Act), the Court has jurisdiction to hear and dispose actions which if brought in the Supreme Court would be assigned to the Common Law Division of the Supreme Court. Proceedings are assigned to the Common Law Division if they are not assigned to another Division of the Supreme Court.

In Forsyth v Deputy Commissioner of Taxation (2007) the High Court held that section 44(1) confers jurisdiction by reference to what was assigned to the Common Law Division of the Supreme Court when the Divisions were restructured on 2 February 1998.

Recent case law has cast doubt on the Court’s jurisdiction to hear matters arising from a commercial transaction. In NTF Group Pty Ltd v PA Putney Finance Australia Pty Ltd (2017) NSWSC 1194 and Nova 96.9 Pty Ltd v Natvia Pty Ltd (2018) NSWSC 1288, the Supreme Court held that section 44(1) did not confer jurisdiction on the Court to determine certain actions arising out of commercial transactions because those kinds of actions were assigned to the Commercial Division of the Supreme Court rather than the Common Law Division. This is in accordance with the Supreme Court Rules 1970 (NSW) Part 14 as at 2 February 1998, in which a proceeding was assigned to the Commercial Division if it arose out of a commercial transaction or in which there was an issue that had importance in trade or commerce.

The Supreme Court observed that it was a surprising and unwelcome result that the Court did not have jurisdiction to hear commercial matters, however acknowledged that it was simple matter of statutory construction.

Proposed amendments

Schedule 1.16 of the Bill inserts section 44(1)(c1) into the Act. Section 44(1)(c1) extends the Court’s jurisdiction to any action arising of out a commercial transaction in which the amount (if any) claimed does not exceed the Court’s jurisdictional limit.

Section 44(1)(c1) of the Act is retroactive. Accordingly, any action determined by the Court on or after 2 February 1998 that would have been within the Court’s jurisdiction to determine had s 44(1)(c1) been in force at the time is taken to have been within the jurisdiction of the Court.

The proposed amendments under the Bill clarify that the District Court does have jurisdiction to hear commercial matters up to the jurisdictional limit of $750,000. The proposed amendments will apply retroactively to ensure past judgments are protected from being challenged on appeal on a purely technical basis.

The Bill is currently before the Legislative Assembly and debate on the proposed amendments will resume on 31 October 2018.

In the media

Eighteen new correctional jobs aim to reduce reoffending in Northern NSW

Eighteen new jobs have been created at Grafton, Glen Innes, Tamworth and Mid-North Coast correctional centres as part of a Corrective Services NSW plan to reduce reoffending (23 October 2018). More...

More support for vulnerable victims in court​

Vulnerable people will be spared the ordeal of giving evidence multiple times in sexual assault trials, under legislation introduced to NSW Parliament. Attorney General Mark Speakman said the new provisions are designed to reduce the trauma and stress on witnesses whose evidence is needed in retrials or other court proceedings (23 October 2018). More...

NSW Government delivers apology to survivors of institutional child sexual abuse

Premier Gladys Berejiklian has delivered an apology to survivors of institutional child sexual abuse on behalf of the NSW Government at an official ceremony at the Sydney Opera House (22 October 2018). More...

New NCAT President appointed

The Attorney General has announced that Ms Lea Armstrong, NSW Crown Solicitor, has been appointed as the new President of the NSW Civil and Administrative Tribunal (NCAT). Ms Armstrong will be sworn in as a Supreme Court judge on 31 October 2018 (19 October 2018). More...

NSW Government commits $127 million to respond to Royal Commission

The NSW Government has announced a comprehensive $127 million package to implement the recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse (18 October 2018) https://www.justice.nsw.gov.au/Pages/media-news/media-releases/2018/government-funds-royal-commission-reforms.aspx

New Commissioner eyes surveillance devices

A new commissioner has been appointed to provide greater scrutiny of applications for surveillance device warrants under legislation introduced into Parliament. Attorney General Mark Speakman said the commissioner has been given scrutiny powers previously exercised by the NSW Solicitor General (17 October 2018). More...

Tightening controls on terror detainees

Juvenile detainees considered a threat to national security will be subject to tighter controls inside centres, including additional restrictions on mail, phone calls and visitors (16 October 2018). More...

In practice and courts

High Court Bulletin

High Court of Australia Bulletin [2018] HCAB 08 (24 October 2018)

OAIC Statements

Commissioner’s opening statement - Senate Estimates (22 October 2018)

AAT: Reporting on our performance

The AAT’s Annual Report 2017-18 is now available (19 October 2018)

AAT Bulletins 2018

Issue No. 41/2018, 22 October 2018

AAT’s recent senate estimates appearance

The AAT was called to appear before the Senate Legal and Constitutional Affairs Legislation Committee on Tuesday 23 October 2018. An excerpt of the opening statement provided by the Registrar is outlined here. The AAT remains dedicated to providing a review process that is accessible, fair, just, economical, informal and quick. The full testimony from the hearing will soon be available on theCommittee website via Hansard. More...

Law Council of Australia Submissions

25 October 2018—Law Council

Human Rights and Technology

18 October 2018—Law Council

Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018

High Court Amendment (Constitutional Writs and Other Matters) Rules 2018

These Rules were registered on the Federal Register of Legislative Instruments on 17 October 2018 and commence on 1 November 2018. Click here to download the Amendment. Click here to download the Explanatory Statement.

Qld Bar Association

Following a review of the provisions in the High Court Rules 2004 relating to applications for writs of mandamus, prohibition, certiorari, habeas corpus and quo warranto, the Justices of the High Court have agreed a number of amendments to Part 25 of the Rules to provide a more streamlined procedure for the filing and consideration of applications. More...

AHRC: National Workplace Sexual Harassment Inquiry – Conversation toolkit

The National Workplace Sexual Harassment Inquiry launched a conversation toolkit to assist businesses and organisations conduct facilitated conversations about workplace sexual harassment. The conversation toolkit has been developed to help employers, individuals and groups open respectful and productive discussions in their places of work, and to feed that input into their submissions to the National Inquiry (26 October 2018). More...

ALRC reminder: Review of the Family Law System Discussion Paper

The Discussion Paper asks 33 questions and makes 124 proposals for change to the family law system,which focus on support for children in the family law system, improving public understanding of the family law system, accessible and coordinated service delivery, and enhanced oversight of the family law system and its workforce. Submissions close on 13 November 2018. More...

Review of national arrangements for the protection and management of identity information

The Review will consider ways to enhance or strengthen arrangements for the protection, use and management of identity information in Australia. Public submissions were received until 26 October. The review is to report by the end of November. More...

NCAT: New reinstatement application form

NCAT has developed a new standard form for applying for a reinstatement of proceedings. If there is a reasonable excuse for not appearing at the hearing, the applicant or appellant can apply to NCAT to reinstate the proceedings (22 October 2018). More...

IPC delivers Annual Report 2017/18 to NSW Parliament

The IPC has released its Annual Report 2017/18 which documents our work and achievements during the reporting period, as well as outlining our directions for the coming year (22 October 2018). More...

ICAC: Prosecution briefs with the DPP and outcomes

Tables summarising information about briefs that are with the DPP, and prosecution outcomes. Last updated 26 October 2018. More...

ICAC: Register now for new investigation and management workshops: 13 November 2018, Sydney CBD

Renowned local and international facilitators will lead interactive training on electronic evidence gathering, open source intelligence and forensic accounting, investigating serious incidents in the disability sector, institutional integrity, and advanced investigative training for administrative oversight agencies. More...

ICAC: Public inquiry into allegations concerning the former Canterbury City Council adjourned

The ICAC Operation Dasha public inquiry into allegations concerning the former Canterbury City Council will resume on Monday 10 December (23 October 2018). More...

​Review of the Domestic Violence Justice Strategy

The Department of Justice is seeking feedback from people who have been the victim or perpetrator of a domestic or family violence incident in the last two years. Your feedback will inform our review of the Domestic Violence Justice Strategy and will help us to improve the NSW justice system’s response to domestic and family violence in the coming years. You can have your say online by 28 October 2018. More...

Published – articles, papers, reports

Victim appeal: how to address manifestly inadequate sentences

Andrew Bushnell; Institute of Public Affairs: 19 October 2018

This paper recommends that victims of crime be given the right to instruct the DPP to seek leave to appeal sentences that they find unjustly lenient. The primary goal of this reform is to address community concern that the judiciary is out-of-touch with community standards.

Police use of CCTV on the rail network

Anthony Morgan, Maggie Coughlan; Australian Institute of Criminology: 18 October 2018

Despite support from police for the use of CCTV, and its popularity in public places, there has been limited research into the use of CCTV by police for investigative purposes. This study attempted to better understand police demand for CCTV footage from the NSW rail network.

Young people in child protection and under youth justice supervision: 1 July 2013 to 30 June 2017

Australian Institute of Health and Welfare: 16 October 2018

This report presents information on people aged 10–17 who were in the child protection system and under youth justice supervision from 1 July 2013 to 30 June 2017.

Article: Australian Information Commissioner and Privacy Commissioner in The Australian

OAIC: 23 October 2018

Human error and deception. Compromised credentials. One-off incidents. This is the reality of most data breaches notified to the Office of the Australian Information Commissioner since mandatory reporting began in February.

Judicial Decision-Making in Times of War and Relative Peace – The Hon Susan Kiefel AC

In some controversial decisions during World War II and in its aftermath, the Court held invalid statutory and regulatory measures.

Social values and the criminal law's adaptability to change

Chief Justice Susan Kiefel AC, Paper delivered at the International Criminal Law Congress, Byron Bay, 6 October 2018.

Cases

Dezfouli v Health Care Complaints Commission [2018] NSWCATAD 245

HUMAN RIGHTS — Equal Opportunity — leave required for complaint to proceed — principles applying to grant of leave HUMAN RIGHTS — Equal Opportunity — discrimination in the area of services — identification of relevant service.

Balnaves Foundation Pty Ltd v Minister for Planning (No 2) [2018] NSWLEC 163

JUDICIAL REVIEW — Whether the consent authority had the power to impose a condition requiring contributions to be paid – whether a regulation empowering the imposition of a condition is inconsistent with the primary enactment authorising the making of the regulation – whether the regulation is “of a savings or transitional nature” – whether the regulation is “consequent on” the enactment of a later Act – regulation validly enacted and the imposition of condition of consent lawful. STATUTORY CONSTRUCTION — Whether delegated legislation is inconsistent with primary legislation authorising the making of the delegated legislation – applicable principles of statutory construction – proper construction of transitional and savings provisions.

Legislation

Commonwealth

Regulation

High Court Amendment (Constitutional Writs and Other Matters) Rules 2018

17/10/2018 - This instrument amends the High Court Rules 2004 to provide for a more streamlined procedure when filing and considering applications for Constitutional Writs.

Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Regulations 2018

16/10/2018 - These Regulations amend the Designs Regulations 2004, Patents Regulations 1991, Plant Breeder’s Rights Regulations 1994, and Trade Marks Regulations 1995 to prescribe matters required under provisions of the Acts as amended by the Intellectual Property Laws Amendment (Productivity Commission Response Part 1 and Other Measures) Act 2018, and to align and streamline certain processes involved with obtaining and maintaining IP rights.

Bills

Copyright Amendment (Online Infringement) Bill 2018

HR Third reading 24/10/2018 - The purpose of the Copyright Amendment (Online Infringement) Bill 2018 (Bill) is to amend the online copyright infringement scheme , as set out in section 115A of the Copyright Act 1968 (the Act) , which is aimed at blocking access by users in Australia to overseas online locations that facilitate large-scale infringement of copyright.

Discrimination Free Schools Bill 2018

Introduced Senate – 16/10/2018 - This Bill amends the Sex Discrimination Act 1984 (the Act), removing the current exemption for religious schools to discriminate against students and teachers on the basis of sexual orientation or gender identification.

Acts

Government Procurement (Judicial Review) Act 2018

22/10/2018 - Act No. 129 of 2018

New South Wales

Regulations and other miscellaneous instruments

Bills introduced Government – 19 October

Crimes (Administration of Sentences) Legislation Amendment Bill 2018

Crimes (Domestic and Personal Violence) Amendment Bill 2018

Crimes Legislation Amendment Bill 2018

Road Transport Amendment (National Facial Biometric Matching Capability) Bill 2018

Statute Law (Miscellaneous Provisions) Bill (No 2) 2018

Surveillance Devices Amendment (Statutory Review) Bill 2018

Terrorism (Police Powers) Amendment (Statutory Review) Bill 2018

Non-Government

Gambling Advertising Prohibition Bill 2018

Bills passed by both Houses of Parliament

Civil Liability Amendment (Organisational Child Abuse Liability) Bill 2018

Community Gaming Bill 2018

Bills introduced Government – 26 October

Children and Young Persons (Care and Protection) Amendment Bill 2018

Crimes Legislation Amendment (Victims) Bill 2018

Fair Trading Legislation Amendment (Miscellaneous) Bill 2018

Government Information (Public Access) Amendment Bill 2018

Justice Legislation Amendment Bill (No 3) 2018

National Disability Insurance Scheme (Worker Checks) Bill 2018

Non-Government – 26 October

Exhibited Animals Protection Amendment (Prohibitions on Exhibition) Bill 2018

Justice Legislation Amendment (Walama Court) Bill 2018

Liquor Legislation Amendment (Repeal of Lock-out Laws) Bill 2018

Bills passed by both Houses of Parliament – 26 October

Fair Trading Legislation Amendment (Reform) Bill 2018

Statute Law (Miscellaneous Provisions) Bill (No 2) 2018