Substantial Legal Actions involving Finance
Commonwealth of Australia v BIS Cleanaway Ltd
The Commonwealth commenced proceedings on 28 June 2006 in the NSW Supreme Court against BIS Cleanaway Limited (now known as Transpacific Cleanaway Pty Ltd). This action relates to the depositing of industrial wastes by a private entity between 1973 and 1980 on Commonwealth land at Lucas Heights in Sydney under a licence granted by the Commonwealth.
Since reporting this matter in Finance’s 2006-07 and subsequent Annual Reports, the department has continued to pursue this action. On 23 July 2008, the NSW Court of Appeal struck out Finance’s application for leave to appeal a previous decision on this matter. Negotiations with BIS Cleanaway Ltd and the NSW Department of Environment, Climate Change and Water (DECCW) continue. Finance’s legal advisers, Clayton Utz, are continuing to liaise with DECCW to ensure the matter is resolved to the satisfaction of all interested parties.
Commonwealth of Australia v Davis Samuel Pty Ltd & Ors
Since reporting this matter in Finance’s 2001-02 and subsequent Annual Reports, Finance continues to pursue the funds defrauded by Mr David Muir, which he distributed to a number of parties. All criminal proceedings have now been completed and the civil hearing in relation to this matter commenced against 15 defendants in the ACT Supreme Court on 10 June 2008. Final submissions were lodged on 27 February 2009 and the defendants have asked the Court to re-list the matter. The Commonwealth opposed the request and the Court is yet to decide on this issue. A written decision on the matter is expected in late 2009.
John Cornwell v Commonwealth of Australia
On 6 March 2005, the ACT Supreme Court found against the Commonwealth of Australia in a claim for negligence and breach of contract relating to superannuation benefits by Mr John Cornwell, a former employee of the then Department of the Interior. Mr Cornwell claimed that he was disadvantaged by advice he received from his manager in relation to his ineligibility to join a Commonwealth superannuation scheme. Following two unsuccessful appeals, the Commonwealth settled with Mr Cornwell in October 2007.
As at 30 June 2009, there were 22 further cases where the plaintiff had filed proceedings against the Commonwealth in the ACT Supreme Court alleging negligent mis-statement, negligence and breach of statutory duty in relation to superannuation entitlements. Each matter is progressing in line with the court timetable.
G & M Nicholas Pty Ltd v Minister for Finance and Deregulation
On 29 February 2008, G & M Nicholas Pty Ltd filed proceedings in the Federal Court of Australia seeking a review under the Administrative Decisions (Judicial Review) Act 1977 of a decision by the Minister for Finance. The Minister had declined a request for an Act of Grace payment (under Section 33 of the FMA Act) relating to a compensation claim for alleged business losses and reputational damage due to a statement by a former Minister for Health and Ageing, which named the applicants in Parliament. A hearing was held on 17 and 19 September 2008 and the Court handed down its judgement on 20 February 2009. It found that, by not providing the applicants with an opportunity to comment on a summary of a Question Time Brief in a document used by the Minister in making his decision, the Minister had not provided the applicants with procedural fairness. The Court referred the matter back to the Minister to reconsider.
Sharjade v Darwinia and the Commonwealth of Australia
The Commonwealth was a second defendant in an action by Sharjade, which the NSW Supreme Court heard from 7 to 24 July 2008. Sharjade alleged that the Commonwealth induced Darwinia to breach an agreement made in 2000 between Sharjade and Darwinia in relation to the sale of Commonwealth land at Turramurra (NSW) to Darwinia for the construction of a retirement village for ex-service personnel. The Court dismissed the claim against the Commonwealth on 8 October 2008. Sharjade subsequently appealed the decision.6
Southern Cross Airports Corporation Pty Ltd v Chief Commissioner of State Revenue
On 17 November 2006, the NSW Office of State Revenue (OSR) issued an assessment for land rich duty arising from the sale of the Sydney Airport to Southern Cross Airports Corporation Holdings Limited in 2002. Finance formally objected to the assessment on 11 January 2007 on the basis that the valuation methodology adopted by the OSR was not in accordance with the relevant legislation and standard valuation practices, and that the Commissioner should have exercised his ‘just and reasonable’ discretion not to assess stamp duty.
Since reporting this matter in Finance’s 2007-08 Annual Report, the department has continued to pursue the matter and pre-trial procedures are still in progress. The matter is likely to be listed for hearing in early 2010.
Woodlands Pty Limited and W R Hyles & Co v Commonwealth of Australia
On 17 January 2008, the former owners and operators of the property that is now the site of the Defence Headquarters Joint Operation Command (located between Queanbeyan and Bungendore, NSW) instituted proceedings in the Federal Court of Australia against the Commonwealth. The family company Woodlands Pty Limited was the registered proprietor of the land and members of the family, being the partners of the W R Hyles & Co partnership, conducted farming business on the land.
The claimants sought a determination of compensation by the Federal Court as an entitlement under the Lands Acquisition Act 1989. The Commonwealth made an offer of compensation to Woodlands Pty Limited on 20 July 2007 but it was not accepted.The matter was resolved through mediation on 9 December 2008.