Anderson v Byron Shire Council

Land and Environment Court (NSW)|2021-11-12|Before: Pain J

Solicitors: Wall & Company Lawyers (Applicant) Marsdens Law Group (Respondent) File Number(s): 2021/314337

EX TEMPORE Judgment

Mr John Anderson the Applicant has commenced Class 4 proceedings seeking judicial review of a decision by the General Manager of Byron Shire Council (the Council) on behalf of the Byron Shire Council to exclude him from the Council's premises for 12 months from 19 May 2021. The substantive relief sought is a declaration that the decision of the Council to do so on 19 May 2021 as advised by letter to the Applicant is invalid and of no effect and a consequential order restraining the Council from excluding him. An interlocutory application for interim relief comes before me as duty judge, seeking an order that the Council be restrained from preventing the Applicant firstly, attending Council meetings in accordance with s 10 of the Local Government Act 1993 (NSW) (LG Act) and secondly, attending Council property to access materials and information in accordance with s 11 of the LG Act.

Local Government (General) Regulation 2021

Clause 233 of the Local Government (General) Regulation 2021 (the Regulation) states: Part 10 Meetings … 233 Expulsion for acts of disorder (1) The chairperson may require a councillor - (a) to apologise without reservation for an act of disorder referred to in section 182(a), (b) or (e), or (b) to withdraw a motion or an amendment referred to in section 182(c) and, where appropriate, to apologise without reservation, or (c) to retract and apologise without reservation for any statement that constitutes an act of disorder referred to in section 182(d) or (e). (2) A councillor may, as provided by section 10(2)(a) or (b) of the Act, be expelled from a meeting of a council for having failed to comply with a requirement under subsection (1). The expulsion of a councillor from the meeting for that reason does not prevent any other action from being taken against the councillor for the act of disorder concerned. (3) A person (other than a councillor) may, as provided by section 10(2)(a) or (b) of the Act, be expelled from a meeting of a council for having engaged in disorderly conduct at the meeting.

Inclosed Lands Protection Act 1901

Section 4(1) of the Inclosed Lands Protection Act 1901 (NSW) (Inclosed Lands Act) states: 4 Unlawful entry on inclosed lands (1) Any person who, without lawful excuse (proof of which lies on the person), enters into inclosed lands without the consent of the owner, occupier or person apparently in charge of those lands, or who remains on those lands after being requested by the owner, occupier or person apparently in charge of those lands to leave those lands, is liable to a penalty not exceeding - (a) 10 penalty units in the case of prescribed premises, or (b) 5 penalty units in any other case.

Evidence

The Applicant read the affidavit of Ms Emma Moses solicitor dated 5 November 2021 which provided relevant correspondence between the Council and the Applicant including the banning notice dated 19 May 2021. An additional police fact sheet dated 12 June 2021 tendered in Local Court proceedings and newspaper advertisement placed by the Applicant on 2 June 2021 were tendered as Ex A.
The Council read two affidavits of Mr Ralph James solicitor dated 11 and 12 November 2021.
In summary, a banning notice was issued to the Applicant on 19 May 2021 to apply for one year as a result of alleged unruly behaviour by the Applicant including in relation to Councillor Ndiaye set out on pages 2 and 3 of the Council's letter dated 19 May 2021. The notice was given on the basis that the Council as owner of Council property withdrew consent for the Applicant to enter it. Reference to s 4(1) of the Inclosed Lands Act was made.
Councillor Ndiaye caused to be issued from the Local Court an Apprehended Personal Violence Order (APVO) against the Applicant on 24 May 2021.
On 11 June 2021 the Applicant was charged with a breach of the conditions of the APVO and signed bail conditions including acknowledging that he was not to go within 20 metres of the Council's offices.
On 21 June 2021 the Applicant's bail conditions in relation to the APVO were amended to require compliance with the Council's banning notice issued on 19 May 2021. Those bail conditions will continue to apply until the matter is heard in the Local Court on 5 April 2022 in the absence of any other action by the Applicant.
The Applicant challenged the validity of the banning notice dated 19 May 2021 in a letter to the Council dated 2 July 2021. The most recent letter in relation to this matter was sent by the Applicant's solicitor to the Council on 4 August 2021. These proceedings were commenced on 5 November 2021.
There is one more meeting to be held before Council elections on 4 December 2021 and the Council is presently operating in "caretaker mode". Mr James' affidavit included the agenda for the next Council meeting. The first meeting of the newly elected Council in January 2022 will be an induction meeting. The first meeting to consider any substantive matters will be in February 2022. Meetings have been livestreamed during COVID and will continue to be broadcast online. In addition, written questions can be provided to be read out at Council meetings and the Applicant has done so on eight occasions.

Applicant's submissions

The Applicant submitted there was clearly a serious question to be tried given that his clear statutory rights under s 10 of the LG Act to attend council meetings and s 11 to obtain documents concerning council business have been traversed by the Council's banning notice. The Council's power to exclude persons is confined by cl 233(3) of the Regulation which requires a person's conduct to be disorderly in the opinion of a council before they are expelled from a meeting.
Given the strength of the Applicant's case the balance of convenience favours the granting of interlocutory relief. No evidence addressing the balance of convenience was made in submissions in chief and the submission was made that the balance of convenience was irrelevant to the Court's consideration. That there are separate apprehended personal violence proceedings in the Local Court by Councillor Ndiaye in relation to which an order has been made restraining the Applicant from approaching one councillor should not be considered in this matter as that will be dealt with entirely separately. The documents in Ex A show that the APVO arose in part from a newspaper advertisement placed by the Applicant. In reply on the balance of convenience, in terms of the harm to the Applicant, the general submission appeared to be that his statutory rights under the LG Act have been directly impacted and that amounted to harm for the purposes of this application.

Council's submissions

The onus of establishing that interlocutory relief should be granted is borne by the Applicant. The main issue is whether the balance of convenience favours grant of interlocutory relief a component of which, as identified in Tegra (NSW) Pty Ltd v Gundagai Shire Council (2007) 160 LGERA 1; [2007] NSWLEC 806 is what irreparable harm the Applicant would suffer if interim relief is not granted. A feature of this application is that there is no evidence or submission of what prejudice or detriment the Applicant will suffer as result of the Court declining grant of interlocutory relief. That is fatal to this application.
The Council accepts that there is a serious question to be tried although it does not accept that the Applicant necessarily has a strong case. The relationship between statutory rights in ss 10 and 11 in the LG Act and s 4(1) of the Inclosed Lands Act will be in issue in a final hearing. Section 4(1) of the Inclosed Lands Act creates liability and a penalty for entering land when consent to do so has been withdrawn by an owner. Implicit within that section is that an owner of land has the power to either withdraw or to impose a condition that there be no consent for entry onto enclosed lands. The Council has acted in pursuance of that provision which is a right any owner has to forbid another person entering onto its land without lawful excuse. At issue will be whether ss 10 and 11 of the LG Act amount to a lawful excuse for the purposes of s 4(1) of the Inclosed Lands Act. The Court at a final hearing will have to consider the interesting interplay between statutory regimes including workplace legislation imposing obligations on the Council to maintain a safe workplace. These are matters for final trial. The Applicant's case is not strong but nor is it hopeless.
A further consideration relevant to this interlocutory application is that the exercise of the statutory rights in ss 10 and 11 of the LG Act by the Applicant may potentially be a criminal offence as his attendance at a Council meeting is likely to result in a breach of the APVO. Exercise of these rights is at least likely to result in bail being revoked and the Applicant will be incarcerated if he attends the next Council meeting in the event that relief is granted.
Balance of convenience is where this application fails. No detriment has been identified by the Applicant as a result of refusal on why he needs to attend the Council's premises for the next non-controversial meetings or to exercise his right to interrogate documents tabled at a meeting pursuant to s 11. No explanation has been provided as to why the Applicant needs to attend the Council's premises.
The Council's evidence establishes that there are other means for the Applicant to attend and be informed about Council meetings and business, through livestreaming of Council meetings and the ability to lodge written questions which can be considered at Council meetings.
The application is delayed when the timelines are considered, another reason to refuse relief.

Consideration

The onus of proof for having an interlocutory order made by a court rests on the Applicant. There is no real dispute that there is a serious question to be tried albeit that the parties identify what that issue is in different terms. I make no finding as to the strength of the Applicant's case and do not accept the submission that self-evidently the case has strong prospects of success.
The Applicant provided no evidence to support his application in relation to the balance of convenience, namely what irremediable harm would be caused to him if interlocutory relief is not granted. Initially this was said to have no relevance and later was said to be supported by general submissions by the Applicant's counsel that essentially as the Applicant's statutory rights were abridged the balance of convenience favoured the making of the interlocutory order. That is simply insufficient to justify the order sought. Given that the Applicant is able to participate in Council meetings remotely as identified in the Council's evidence and obtain information, as he has done in the course of pandemic measures in recent months, and given the current caretaker mode of the Council with pending Council elections no evidence of irredeemable harm is evident.
The Council's evidence and further submissions above identify why the balance of convenience ought to be decided in its favour. While I accept that the APVO proceedings in the Local Court are of course separate from this matter legally the necessary factual matrix in which I am considering this matter appropriately includes reference to those proceedings as they are factually interlinked for the reasons outlined by the Council. The basis for the APVO now includes complying with the Council's banning notice. The circumstances giving rise to the APVO go well beyond the matters identified in Ex A.
I also agree with the Council that the Applicant has delayed in seeking interlocutory relief given that the banning notice was made on 19 May 2021 and these proceedings were not commenced until 5 November 2021. That the relief relates to future conduct is immaterial in this regard.
That an interlocutory undertaking as to damages has been offered is noted but does not assist the Applicant in light of my findings above.
I note that the Council has undertaken to provide Council documents for viewing at the office of the Applicant's solicitor one day after any Council meeting, which essentially accords with what is provided for in s 11 of the LG Act.
In the exercise of my discretion the interlocutory relief sought by the Applicant is refused.
As costs generally follow the event in Class 4 proceedings, the Applicant is to pay the Council's costs of this application.

Orders

The Court orders: 1. The Applicant's application for interlocutory relief in paragraph five of the summons dated 5 November 2021 is refused. 2. The Applicant is to pay the Respondent's costs of the application for interlocutory relief referred to in Order 1. 3. Vacate the first directions hearing listed for 4 February 2022. 4. List the matter for first directions on 26 November 2021.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 November 2021

At a glance

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Judgment (11 paragraphs)

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Legislation Cited (2)

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