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Benchmark Publication Friday, 12 February 2021 Weekly Construction Law Review Selected from our Daily Bulletins covering Construction Search Engine Click here to access our search engine facility to search legal issues, case names, courts and judges. Simply type in a keyword or phrase and all relevant cases that we have reported in Benchmark since its inception in June 2007 will be available with links to each case. Executive Summary (1 minute read) Minister for Home Affairs v Benbrika (HCA) - constitutional law - terrorism - determination of question: "Is all or any part of Division 105A of the Criminal Code (Cth) and, if so, which part, invalid because the power to make a continuing detention order under section 105A.7 of the Code is not within the judicial power of the Commonwealth and has been conferred, inter alia, on the Supreme Court of Victoria contrary to Chapter III of the Commonwealth Constitution?" - question answered in the negative Bob Brown Foundation Inc v Commonwealth of Australia (FCAFC) - environmental law - 'forestry operations' - "critically endangered" Swift Parrot - application for declaratory relief - determination of separate question - separate question determined in affirmative - declaratory relief refused Commonwealth Director of Public Prosecutions v Wallenius Wilhelmsen Ocean AS (FCA) - consumer law - 'cartel conduct' - criminal law - corporations - Accused (WWO) pleaded guilty to 'single rolled-up charge of intentionally giving effect to cartel provisions contrary to' s44ZZRG Competition and Consumer Act 2010 (Cth) - $24 million fine imposed Civil Contractors (Aust) Pty Ltd v Galaxy Developments Pty Ltd & Ors; Jones v Galaxy Developments Pty Ltd & Ors (QCA) - security of payments - primary judge found adjudicator's decision void - Civil Contractors' appeal dismissed - adjudicator's appeal dismissed Collaery v The Queen (ACTCA) - vacation of appeal date - requirement that Attorney General amend certificate issued under s26 National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) in order that new Senior Counsel could receive instructions - Page 1 failure to amend certificate until 'on or about' 21/1/21 - unfairness to appellant - application to vacate appeal date granted Summaries With Link (Five Minute Read) Minister for Home Affairs v Benbrika [2021] HCA 4 High Court of Australia Kiefel CJ; Bell, Gageler, Keane, Gordon, Edelman & Steward JJ Constitutional law - terrorism - respondent was terrorist offender who had served 15 year prison sentence - Supreme Court of State or Territory empowered under scheme in Division 105A Criminal Code (Cth) to order a terrorist offender's 'continuing detention' - Minister required to satisfy court "to a high degree of probability, on the basis of admissible evidence", that offender posed "unacceptable risk" 'of committing one or more terrorism-related offences' - proceedings concerned determination of question: "Is all or any part of Division 105A of the Criminal Code (Cth) and, if so, which part, invalid because the power to make a continuing detention order under section 105A.7 of the Code is not within the judicial power of the Commonwealth and has been conferred, inter alia, on the Supreme Court of Victoria contrary to Chapter III of the Commonwealth Constitution?" - held: Court answered question in the negative. Minister for Home Affairs [From Benchmark Thursday, 11 February 2021] Bob Brown Foundation Inc v Commonwealth of Australia [2021] FCAFC 5 Full Court of the Federal Court of Australia Griffiths, Moshinsky & SC Derrington JJ Environmental law - separate question - proceedings arising from applicant's concern for "critically endangered" Swift Parrot - applicant, under s475(2) Environmental Protection and Biodiversity Conservation Act 1999 (Cth), sought 'final and interim injunctions' to restrain 'Forestry Tasmania trading as Sustainable Timber Tasmania' from undertaking 'forestry operations' 'unless and until it' obtained 'environmental approvals' - applicant also sought orders for repair or mitigation of environmental damage caused by forest operations - separate question also reserved for Full Court's determination: "Is the Tasmanian RFA (as referred to in the Applicant’s Amended Concise Statement at [7]) an “RFA” or “Regional Forest Agreement” for the purposes of the [RFA Act] and s 38(1) of the [EPBC Act]?" - whether decision in Forestry Tasmania v Brown [2007] FCAFC 186 'plainly wrong' - held: separate question answered in affirmative - declaratory relief refused. Bob Brown Foundation [From Benchmark Monday, 8 February 2021] Commonwealth Director of Public Prosecutions v Wallenius Wilhelmsen Ocean AS [2021] FCA 52 Federal Court of Australia Page 2 Wigney J Consumer law - 'cartel conduct' - criminal law - corporations - Accused (WWO) pleaded guilty to 'single rolled-up charge of intentionally giving effect to cartel provisions contrary to' s44ZZRG Competition and Consumer Act 2010 (Cth) (CCA) - proceedings concerned imposition of penalty - offence's 'objective seriousness' - parity with fines imposed previously on Nippon Yusen Kabushiki Kaisha and Kawasaki Kisen Kaisha Ltd - 'Respect Arrangement' - 'antitrust law' - consideration of 'specific incidents' - offence's elements - determination of penalty - held: Court imposed fine of $24 million. Commonwealth [From Benchmark Thursday, 11 February 2021] Civil Contractors (Aust) Pty Ltd v Galaxy Developments Pty Ltd & Ors; Jones v Galaxy Developments Pty Ltd & Ors [2021] QCA 10 Court of Appeal of Queensland Fraser & McMurdo JJA; Jackson J Security of payments - adjudicator found Civil Contractors (Aust) Pty Ltd (CCA) entitled to recover amount from Galaxy Developments Pty Ltd - primary judge found decision of adjudicator void on basis it was 'beyond any relevant time limit under' Building Industry Fairness (Security of Payment) Act 2017 (Qld) - primary judge also accepted 'alternative argument' that on 'proper construction of' Queensland Building and Construction Commission Act 1991 (Qld) and Queensland Building and Construction Commission Regulation 2018 (Qld), the building contract under which CCA had claimed payment was void on basis CCA 'did not hold a building licence to carry out all of the work in question', with result decision of adjudicator was also void - primary judge also declared adjudicator not entitled to payment of 'fees or expenses' and ordered adjudicator to 'refund to CCA all monies which had Civil Contractors [From Benchmark Monday, 8 February 2021] Collaery v The Queen [2021] ACTCA 1 Court of Appeal of the Australian Capital Territory Burns J Vacation of appeal date - appellant charged with alleged breaches of s39 Intelligence Services Act 2001 (Cth) (Intelligence Services Act) and conspiracy to breach s39 Intelligence Services Act - primary judge conducted hearing under s27 National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) and made orders 26/6/20 - appellant filed notice of appeal against orders on 3/8/20 - appeal listed for hearing on 15/2/21 with 2 day estimate - Mr Walker SC offered to represent appellant pro bono 'on or about' 23/12/20 - Mr Walker SC unavailable on appeal dates as listed - appellant sought vacation of date for hearing of appeal - requirement that Attorney-General amend certificate issued under s26 Nationa Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) ('s26 certificate') in order for Mr Walker SC to receive instructions - certificate not amended until 'on or about' 25/1/21 - significant reduction of benefit to appellant of briefing Mr Walker arising from Attorney-General's failure to amend - unfairness Page 3 to appellant - held: application for vacation of appeal date granted. Collaery [From Benchmark Friday, 12 February 2021] Page 4 Verses to the Shearwater—On the Morning after a Storm at Sea By: Richard Alsop WHENCE 1 with morn’s first blush of light Com’st thou thus to greet mine eye, Whilst the furious storm of night Hovers yet around the sky? On the fiery tossing wave, 5 Calmly cradled dost thou sleep, When the midnight tempests rave, Lonely wanderer of the deep? Or from some rude isle afar, Castled ’mid the roaring waste, 10 With the beams of morning’s star, On lightning pinion dost thou haste? In thy mottled plumage drest, Light thou skimm’st the ocean o’er, Sporting round the breaker’s crest 15 Exulting in the tempest’s roar. O’er the vast-rolling watry way While our trembling bark is borne, And joyful peers the lamp of day, Lighting up the brow of morn; 20 As through yon cloud its struggling beams Around a partial lustre shed, And mark at fits with golden gleams The mountain billow’s surging head; Whilst the long lines of foamy white, 25 At distance o’er the expanse so blue, As domes and castles spiring bright, Commingling, rise on fancy’s view— From wave to wave swift skimming light, Now near, and now at distance found, 30 Thy airy form, in ceaseless flight, Page 5 Cheers the lone dreariness around. Through the vessel’s storm-rent sides, When the rushing billows rave; And with fierce gigantic strides, 35 Death terrific walks the wave, Still on hovering pinion near, Thou pursuest thy sportive way; Still uncheck’d by aught of fear, Calmly seek’st thy finny prey. 40 Far from earth’s remotest trace, What impels thee thus to roam? What hast thou to mark the place When thou seek’st thy distant home? Without star or magnet’s aid, 45 Thou thy faithful course dost keep; Sportive still, still undismay’d, Lonely wanderer of the deep! https://en.wikipedia.org/wiki/Richard_Alsop Click Here to access our Benchmark Search Engine Page 6 Powered by TCPDF (www.tcpdf.org).
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