Botany Bay City Council v The State of New South Wales and Minister for Local Government

Context

1. It is well known that the Minister is presently engaged in a state-wide process of considering whether there should be mergers of various local councils. The NSW Government has announced that a number of mergers have now taken place. This state-wide process has given rise to a number of proceedings in this Court, and also in the Land and Environment Court ("the LEC"). The Council has already, unsuccessfully, brought proceedings against the Minister in the LEC, and on appeal to the Court of Appeal.
2. This proceeding, as reformulated by the Amended Summons, is one in which the Council seeks orders against the Minister in relation to a proposal by the Minister to amalgamate the Council with Rockdale City Council. The Council also seeks orders against the Delegate and the Commission in relation to their conduct in dealing with the Minister's Proposal. As will become apparent, no relief was sought against the first defendant, the State of New South Wales. Although it appeared jointly with the other defendants by the same representative, it had no role to play in these proceedings. Its position can be put to one side.
3. For the reasons which follow, I have decided that the Amended Summons should be dismissed, and that the Council should pay the costs of the defendants.

Relevant Background

1. The relevant background, which is largely set out in the course of the previous litigation between the parties in the judgments of Pain J in the LEC and of the Court of Appeal, may be relatively briefly stated.
2. On 6 January 2016, the Minister referred a proposal to amalgamate the Council with Rockdale City Council ("the Minister's Proposal") to the Departmental Chief Executive for examination and report. That same day, the Departmental Chief Executive delegated his functions in respect of the Minister's proposal to Mr Rod Nockles as his delegate.
3. On 7 January 2016, the Delegate formally notified the Council of the Minister's Proposal and his appointment to examine that proposal. The Delegate encouraged the Council to make a submission in respect of the Minister's Proposal before 28 February 2016, which was the deadline set by the Delegate for the filing of submissions in respect of the Minister's Proposal. On 28 February 2016, the Council provided a submission to the Delegate, followed by an addendum on 3 March 2016 which the Delegate had agreed to receive.
4. On 7 March 2016, the Minister wrote to all NSW Mayors, informing them that any additional amalgamation proposals lodged by councils would be assessed to determine whether they constituted "proposals" under the Act and, if so characterised, would be referred for examination and report as required by the Act.
5. On 11 March 2016, the Council lodged a proposal with the Minister ("the Council's Proposal"). The Council's Proposal was that the Council be amalgamated with some parts of Rockdale City Council and also with parts of Randwick City Council and Sydney City Council. In a covering letter, the Council requested that the proposal not only be referred urgently to the Departmental Chief Executive, but that it be "…referred to the Delegate currently considering the Minister's proposal…".
6. On 18 March 2016, the Council's Proposal was referred by the Minister to the Departmental Chief Executive. On 21 March 2016, the Council's legal representatives wrote to the Delegate, enclosing the letter to the Minister of 11 March 2016 and the Council's Proposal. That same day, the Council's legal representatives wrote to the Departmental Chief Executive seeking confirmation that the Council's Proposal had been referred to the Delegate considering the Minister's Proposal. On 22 March 2016, the Crown Solicitor's Office responded to that letter, stating, inter alia, that the Delegate would consider the Council's submission lodged on 28 February 2016, but that any review of the Council's Proposal was a matter for the Departmental Chief Executive.
7. On 23 March 2016, the Council filed a summons in the LEC, seeking an order that its Proposal be considered by the Delegate in his examination of the Minister's Proposal. On 7 April 2016, Pain J dismissed the proceedings. On 15 April 2016, an expedited appeal to the NSW Court of Appeal against the decision of Pain J was dismissed
8. On 20 April 2016, the Departmental Chief Executive delegated his functions in respect of the Council's Proposal to the New Delegate. On 21 April 2016, the New Delegate advised the Council that he was accepting submissions on the Council's Proposal until 12 June 2016.
9. On 22 April 2016, the Council's legal representatives wrote to the Crown Solicitor's Office, requesting that the Council be given a copy of the Delegate's Report on the Minister's Proposal and the Commission's comments on that report ("the Commission's comments"). On 26 April 2016, the Crown Solicitor's Office responded to that letter, stating that the Minister "… does not propose to release the Delegate's Report until after he makes a recommendation to the Governor". The letter also advised that the Minister was unable to provide confirmation "… as to taking into account the Council's proposal before making any final decision with respect to his proposal …".
10. On 3 May 2016, the Council filed a Summons in this Court seeking relief against the Minister with respect to the exercise of his powers and duties under the Act. The Summons sought orders precluding the Minister from making a recommendation to the Governor on his proposal until the examination and report of the Council's Proposal was completed. The Summons also sought a declaration that the rules of procedural fairness required the Minister to provide the Council with the Delegate's Report and the Commission's comments on the Minister's Proposal and to provide it with an opportunity to make further submissions on that material.
11. On 5 May 2016, the Summons came before me for hearing. The Minister opposed the relief sought. At the end of the hearing, I reserved my judgment and informed the parties that judgment would be delivered at 12:45 pm on 13 May 2016. The Minister undertook not to make a recommendation to the Governor in respect of his proposal prior to 2pm on 13 May 2016.
12. On 12 May 2016, late in the afternoon, the Minister called a press conference to announce the amalgamation of various councils and the creation of 19 new councils in NSW. He also announced that a new "Stronger Councils" website, accessible by the public, had gone live. A page on that website is devoted to the Minister's Proposal for the amalgamation of the Council with Rockdale City Council. On that page, there appears the following statement: "The Minister for Local Government has announced in principle support for the following new council, subject to the decision of the courts." The website also made available for download the Delegate's Report on the Minister's Proposal, dated 20 April 2016, the Commission's comments on that report, dated 3 May 2016, and submissions made to the Delegate in the course of his examination and report on the Minister's Proposal.
13. As well, on that day, a formal written media release was also issued by the Minister. It was headed "DELEGATE REPORT INDICATES BENEFITS IN A NEW ROCKDALE-BOTANY COUNCIL". Among other things, it said: "Minister for Local Government … has said he supports in principle the creation of a new council for Rockdale and Botany, subject to the decision of the Court. … "The delegates report into the proposed merger of Rockdale and Botany Councils has found a stronger council that will deliver financial and community benefits", Mr Toole said. … Mr Toole said that it would be business as usual for local residents under a new council. … Under a new council, the delivery of key services would remain unchanged."
14. On 16 May 2016, the Crown Solicitor's Office wrote to the Council's solicitor, including the following terms: "I am instructed to invite your client to provide any written submissions that it might wish to make in relation to either or both of those reports, on or before 5pm on 20 May 2016. The Minister will consider any submissions received before that time."
15. On the following day the Council's solicitor responded, including these terms: "The Minister cannot now seek submissions because an amalgamation decision has already been made by him in respect of our client."
16. The Council's solicitor sought a period of 14 days to make submissions from 19 May 2016, which was the day upon which the matter was due to come before the Court.
17. Later that day the Crown Solicitor's Office informed the Council's solicitor that the Minister: "… considers that 7 days from the time when your client became aware of contents of the Delegate's report of the Boundaries Commission comments, is a sufficient period, given the extensive opportunity given to your client to be heard before the Delegate …"
18. The proceedings were heard finally on 19 May 2016. At the conclusion of the proceedings, judgment was reserved.

The Amended Summons

1. The Amended Summons seeks the following orders: "2. A declaration that, or to the effect that, the second defendant, when considering the merger proposal made by him dated January 2016 for the proposed merger of Rockdale City Council and Botany Bay City Council ('Minister's proposal') must have regard to the plaintiff's proposal made to the second defendant pursuant to section 218E(1) of the Local Government Act 1993 (NSW) ('Act') for the merger of the Council of the City of Botany Bay with parts of Randwick City Council and Sydney City Council and Marrickville Council and Rockdale City Council local government areas ('Council's proposal') after the Council's proposal has first been examined on and reported on to the second defendant by the delegate of the Chief Executive Officer of the Department of Local Government ('delegate'), the third defendant, and Local Government Boundaries Commission ('Boundaries Commission'), the fourth defendant. 3. Alternatively, an order in the nature of mandamus, or statutory mandamus pursuant to sections 65 and/or 69 of the Supreme Court Act 1970 (NSW) or a mandatory injunction, that the second defendant fulfil his statutory duty by not finally determining the Minister's proposal until he has received and considered the Council's proposal as sent to him by the delegate and/or the Boundaries Commission. 4. An order in the nature of certiorari, or a declaration setting aside or declaring invalid or unlawful or unlawfully made the report of the third defendant dated 20 April 2016. 5. An order in the nature of certiorari, or a declaration setting aside or declaring invalid or unlawful or unlawfully made the report or comments of the fourth defendant dated 3 May 2016. 6. A declaration that, or to the effect that the rules of procedural fairness or natural justice applied to the third and/or fourth defendants in the making of their respective reports and that the third and/or fourth defendants failed to afford the plaintiff procedural fairness or natural justice in the making of their respective reports. 7. An order in the nature of certiorari, or a declaration setting aside or declaring invalid or unlawful or unlawfully made the decision of the second defendant dated 12 May 2016 whereby he announced in principle support for the implementation of the Minister's proposal, subject to the decision of the courts. 8. A declaration that, or to the effect that the rules of procedural fairness or natural justice apply to the second defendant, when he is considering the Minister's proposal such that the plaintiff ought to be permitted to comment on or adduce any further material as to the delegate's report and the Boundaries Commission's report on the Minister's proposal. 9. Alternatively, an order in the nature of mandamus, or statutory mandamus pursuant to sections 65 and/or 69 of the Supreme Court Act 1970 (NSW) or a mandatory injunction, that the second defendant fulfil his statutory duty by providing forthwith to the plaintiff a copy of the delegate's report and the Boundaries Commission's report on the Minister's proposal and affording the plaintiff 14 days from delivery of same to make submissions and adduce any further material to the second defendant as to the Minister's proposal." (sic)
2. In order to consider the relief sought, it is necessary to identify the relevant statutory provisions.

The Statutory Scheme

1. Speaking generally, there are two statutory schemes under which local government areas can be changed. Both statutory schemes are to be found in Part 1 of Chapter 9 of the Act. The first of the two schemes relies upon the provisions of Divisions 1 and 2 of Part 1 of Chapter 9. This statutory process is not engaged on the facts and circumstances here.
2. The second statutory scheme is to be found in Divisions 2A and 2B of Part 1 of Chapter 9. This scheme provides a mechanism for the amalgamation of councils, or an alteration of the boundaries of council areas, by way of a proclamation by the Governor pursuant to the provisions contained in Division 2A. Before that proclamation can be made, however, the requirements of Division 2B must be met. It is to those provisions which I now turn.
3. The following provisions of Division 2B are relevant: "Chapter 9 How are councils established? … Part 1 Areas … Division 2A How are areas amalgamated or their boundaries altered? … Division 2B What must be done before areas can be amalgamated or their boundaries altered? 218D Exercise of functions under secs 218A and 218B A function under section 218A or 218B may be exercised only after a proposal for the exercise of the function is dealt with under this Division. 218E Who may initiate a proposal? (1) A proposal may be made by the Minister or it may be made to the Minister by a council affected by the proposal or by an appropriate minimum number of electors. … 218F Referral of proposal for examination and report (1) On making or receiving a proposal, the Minister must refer it for examination and report to the Boundaries Commission or to the Departmental Chief Executive. (2) Sections 263, 264 and 265 apply to the examination of a proposal by the Departmental Chief Executive in the same way as they apply to the examination of a proposal by the Boundaries Commission. (3) For the purpose of examining a joint proposal of 2 or more councils for the amalgamation of two or more areas under section 218A, the Boundaries Commission or Departmental Chief Executive, as the case requires, must seek the views of electors of each of those areas: (a) by means of: (i) advertised public meetings, and (ii) invitations for public submissions, and (iii) postal surveys or opinion polls, in which reply-paid questionnaires are distributed to all electors, or (b) by means of formal polls. (4) The period over which the views of electors are to be sought as referred to in subsection (3) must be a period of at least 40 days. (5) ... (6) If a proposal that is not supported by one or more of the councils affected by it, or that is an amalgamation proposal, has been referred to the Departmental Chief Executive under subsection (1): (a) the Departmental Chief Executive must furnish the Departmental Chief Executive's report to the Boundaries Commission for review and comment, and (b) the Boundaries Commission must review the report and send its comments to the Minister. (7) The Minister may recommend to the Governor that the proposal be implemented: (a) with such modifications as arise out of: (i) the Boundaries Commission's report, or (ii) the Departmental Chief Executive's report (and, if applicable, the Boundaries Commission's comments on that report), and (b) with such other modifications as the Minister determines, but may not do so if of the opinion that the modifications constitute a new proposal. (8) The Minister may decline to recommend to the Governor that the proposal be implemented. …"
4. Section 263, contained in Part 3 of Chapter 10 of the Act, sets out the procedure for the examination and report on a proposal referred by the Minister. Although s 263 is addressed to the Commission, by virtue of s 218F(2) it also applies to the Departmental Chief Executive and therefore to the Delegate. Section 263 provides: "263 Functions of the Boundaries Commission (1) The Boundaries Commission is required to examine and report on any matter with respect to the boundaries of areas and the areas of operation of county councils which may be referred to it by the Minister. (2) For the purpose of exercising its functions, the Boundaries Commission: (a) may hold an inquiry if the Minister so approves, and (b) must hold an inquiry if the Minister so directs, but may not hold an inquiry otherwise than as referred to in paragraph (a) or (b). (2A) Despite subsection (2), the Boundaries Commission must hold an inquiry for the purpose of exercising its functions in relation to a proposal for the amalgamation of two or more areas that has been referred to it in accordance with section 218F. (2B) Reasonable public notice must be given of the holding of an inquiry under this section. (3) When considering any matter referred to it that relates to the boundaries of areas or the areas of operations of county councils, the Boundaries Commission is required to have regard to the following factors: (a) the financial advantages or disadvantages (including the economies or diseconomies of scale) of any relevant proposal to the residents and ratepayers of the areas concerned, (b) the community of interest and geographic cohesion in the existing areas and in any proposed new area, (c) the existing historical and traditional values in the existing areas and the impact of change on them, (d) the attitude of the residents and ratepayers of the areas concerned, (e) the requirements of the area concerned in relation to elected representation for residents and ratepayers at the local level, the desirable and appropriate relationship between elected representatives and ratepayers and residents and such other matters as it considers relevant in relation to the past and future patterns of elected representation for that area, (e1) the impact of any relevant proposal on the ability of the councils of the areas concerned to provide adequate, equitable and appropriate services and facilities, (e2) the impact of any relevant proposal on the employment of the staff by the councils of the areas concerned, (e3) the impact of any relevant proposal on rural communities in the areas concerned, (e4) in the case of a proposal for the amalgamation of two or more areas, the desirability (or otherwise) of dividing the resulting area or areas into wards, (e5) in the case of a proposal for the amalgamation of two or more areas, the need to ensure that the opinions of each of the diverse communities of the resulting area or areas are effectively represented, (f) such other factors as it considers relevant to the provision of efficient and effective local government in the existing and proposed new areas. (4) ... (5) The Boundaries Commission must allow members of the public to attend any inquiry held by the Commission under this section. (6) ... (7) ... …"
5. The final relevant provision is the delegation provision, s 745, which provides: "745 Delegation of functions by the Departmental Chief Executive (1) The Departmental Chief Executive may delegate to any person any of the Departmental Chief Executive's functions under this Act, other than this power of delegation …"
6. As I have earlier noted, there have been previous proceedings between the parties which have interpreted and applied this statutory scheme. It is convenient to give a summary of those proceedings.

Proceedings in the Land and Environment Court

1. As mentioned above, when the Minister's Proposal was being examined by the Delegate, the Council commenced judicial review proceedings seeking declaratory and other relief to the effect that the Delegate was required to have regard to the Council's Proposal in his examination and report upon the Minister's Proposal. The matter was heard in the LEC by Pain J on 31 March 2016.
2. The relief sought by the Council in its summons was as follows: "1. A declaration that the third respondent by his delegate, the fourth respondent, when considering the merger proposal made by the first respondent dated January 2016 for the proposed merger of Rockdale City Council and Botany Bay City Council ('the Minister's Proposal') must have regard to [the appellant's] proposal made to the first respondent pursuant to section 218E(1) of the Local Government Act 1993 (NSW) ('Act') for the merger of the Council of the City of Botany Bay with parts of Randwick City Council and Sydney City Council and Marrickville Council and Rockdale City Council local government areas ([the Council proposal]), which is a relevant matter or proposal for the purposes of section 263 of the Act. 2. An order in the nature of mandamus or, alternatively, a mandatory injunction, that the third respondent refer to or delegate to the fourth respondent [the Council proposal] so that the fourth respondent may properly have regard to [the Council proposal] as part of his consideration of the Minister's proposal. 3. An order in the nature of prohibition or alternatively, a mandatory injunction, that the second respondent be prohibited from reviewing and/or commenting on any report received by it from the fourth defendant concerning the Minister's proposal unless [the Council proposal] has been first considered by the fourth respondent. 4. An order in the nature of prohibition or alternatively, a mandatory injunction, that the first respondent be prohibited from considering and/or recommending to the Governor of NSW the Minister's proposal, or any modified version of it unless [the Council proposal] has been first considered by the fourth respondent. 5. …"
3. The Council submitted that s 263 of the Act, on its proper construction, required the Delegate to have regard to the Council's Proposal. The Council further submitted that there had been a denial of procedural fairness because it was not given the opportunity to make further submissions or have its proposal considered at or about the same time as the Minister's Proposal.
4. Pain J made the preliminary observation that an "obvious difficulty" confronting the Council's claim for the relief sought in prayers 1 and 2 of the Summons was that the Delegate was not authorised by the terms of the delegation to consider proposals other than the Minister's Proposal.
5. Her Honour then went on to consider the proper construction of s 263 of the Act. Her Honour held that there was no statutory basis for requiring the Delegate to have regard to the Council's Proposal in his consideration of the Minister's Proposal. Her Honour's elegant reasoning can be summarised adequately for present purposes in this way: 1. Under s 218F(7), the Minister may recommend to the Governor that a proposal be implemented with certain modifications, but must not do so if those modifications constitute, in his opinion, a "new proposal"; 2. The effect of s 218F(7) is that any "new proposal" must be separately referred for examination and report to the Commission or to the Departmental Chief Executive under s 218F(1); 3. Section 263 on its proper construction does not require the Delegate to consider the Council's Proposal in his examination of the Minister's Proposal. Under sub-s 263(1), the Delegate is required to examine and report "on any matter with respect to the boundaries of areas … which may be referred to [the Delegate] by the Minister". This provision therefore limits the "matter" to be examined by the Delegate to the matter which is referred to him by the Minister, which in this case is the Minister's Proposal. The reference in sub-s 263(3) to "any matter referred to [the Delegate] that relates to the boundaries of areas" is similarly confined to the "matter" referred by the Minister. The references to "any relevant proposal" in sub-s 263(3)(e1) and (e2) must be references to the Minister's Proposal; 4. The fact that the Council's Proposal has been referred for separate examination under s 218F(1) provides the proposal with no legal status in the examination of the Minister's Proposal. As a matter of law, the proposals and their examinations are separate; 5. Requiring the Delegate to consider new proposals made by Councils in his examination of the Minister's Proposal would halt the examination process and would not produce a coherent or timely statutory scheme."
6. Pain J was also unable to detect any denial of procedural fairness to the Council. The Council submitted that if the Minister's Proposal was recommended to the Governor and implemented, then the Council would be dissolved and its proposal would immediately come to an end. However, her Honour took the view that this submission was impermissibly speculative on the evidence and was not relevant to the issues of statutory construction in the proceedings.

Proceedings in the Court of Appeal

1. The Council appealed Pain J's decision to the Court of Appeal, contending that Pain J was incorrect to conclude that the Delegate was not required to have regard to the Council's Proposal in his examination of the Minister's Proposal, and that there had been no denial of procedural fairness. The appeal was heard by way of an expedited hearing on 11 April 2016.
2. The Court of Appeal undertook a detailed analysis of s 263 of the Act and reached the same conclusion as Pain J, namely that s 263 does not require the Delegate to consider the Council's Proposal in examining the Minister's Proposal. The Court held that the provisions in ss 263(1) and 263(3) were limited in their scope to the Minister's Proposal. The Court noted that the reasoning of Pain J accorded with this construction.
3. It followed from the Court of Appeal's construction of s 263, that the Council was not denied procedural fairness by the Delegate, as the Council's Proposal was not relevantly before the Delegate.
4. The Court of Appeal acknowledged that if the Minister's Proposal was recommended to the Governor and implemented, then the Council would be unlikely to exist as a body politic, and that such dissolution of the Council might occur before the examination and report on the Council's Proposal was completed. However, the Court observed that this was: "…a matter of speculation and as we have indicated, the Council has not sought any relief independent of its claim that the Council proposal should be considered by the Delegate as part of its examination and report of the Minister's proposal".

The Present Proceedings

1. It is convenient to approach the present proceedings by examining the claim against the Delegate, then the Commission and finally the Minister in that order as it reflects the legislative scheme and the chronology of events as they have unfolded.

Claim against the Delegate

1. The Council seeks relief against the Delegate as set out in paragraphs 4 and 6 of the Amended Summons. Shortly put, the Council claims that it was denied procedural fairness by the Delegate in the preparation of his report and that, accordingly, the report is invalid.
2. The Council submitted that the Delegate's report results, ultimately, in findings and recommendations to the Minister which must necessarily inform the Minister's exercise of power to make recommendations to the Governor pursuant to s 218F(7) and (8) of the Act. The Council reasons that as the Minister's exercise of that power affects the interests of the Council, the Delegate has an obligation to accord procedural fairness to it. The Council submits that the content of that obligation, in the circumstances here, obliges the Delegate to give the Council the opportunity to comment on any adverse information held and/or seen by the Delegate which is "… credible, relevant and significant" to the Council: see Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 629 (per Brennan J); VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88 at [17].
3. The Council submitted that in a single, but significant, respect it was denied procedural fairness by the Delegate. A mandatory consideration for the Delegate in examining an amalgamation proposal is "the attitude of the residents and ratepayers of the areas concerned": see s 263(3)(d) of the Act. In addressing that consideration in his report, the Delegate noted, in Chapter 7 at page 43, that the Council had conducted a poll of its residents and ratepayers. He noted the numerical outcome of the poll, including that 98% of those who participated in the poll voted against the merger. The Delegate then said: "The Council of the City of Botany Bay campaigned vigorously against the proposal through its 'Hands off Botany Bay' campaign, and framed the poll as an opportunity for residents to voice their opposition rather than consider both the benefits and disadvantages of the proposal. Council were at liberty to campaign against the proposal, but to do so while conducting a poll and failing to provide a balanced treatment of the merits or defects of that proposal limits the value of that poll in the context of this public inquiry process. The results cannot be given full weight because there was not a proper campaign of communication and advocacy both in favour and in opposition to the proposal."
4. At page 44, he said: "The review recognises that there are a substantial number of residents in the Botany Bay local government area that are opposed to the Minister's proposal. Indeed, this opposition is considered throughout this report. However, there is no evidence that these submissions represent the weight of opinion, or the majority of views within the local government area. It is appropriate that the Minister and a new council gives regard to these opinions and recognises specific concerns. However, the weight of consideration needs to be tempered by the limitations of the public poll conducted by the City of Botany Bay and more broadly by the benefits inherent in the merger proposal."
5. The Council submitted that the Delegate was in error to report that there was not "a proper campaign of communication and advocacy both in favour and in opposition of the proposal". It submits that this amounted to an adverse finding of which it ought to have been informed and which, if accorded procedural fairness, it would have corrected. If that statement of the Delegate had been corrected then, the Council submits, a different report would or may well have resulted.
6. The Council has drawn the Court's attention to a document reproduced in its submissions to the Delegate, which was also distributed to its residents and ratepayers prior to the poll being conducted. It submitted that this document presented a balanced and proper communication to its ratepayers which set out the cases for and against the merger contained in the Minister's Proposal. The Council, in reliance on this document, submitted that the comment in the Delegate's report was erroneous, and that the Council would have drawn that error to the Delegate's attention by referring to this document. This document, which is reproduced in full as an annexure to this judgment, can be described as a "flyer".
7. The Council also submitted that the Court should infer that the Delegate plainly did not read, or take into account, the contents of the flyer. Accordingly, the Council submitted that the Delegate had failed to take into account a relevant consideration, thereby falling into jurisdictional error.
8. The Minister submitted that: 1. it was reasonably open to the Delegate to form the conclusion which he did, and there was no demonstrated error of a kind which would support a claim for relief by way of judicial review; 2. the Delegate was merely exposing his thought processes, or else an evaluative conclusion with respect to material which was before him, neither of which were subject to any obligation of procedural fairness; 3. having regard to the fact that the Delegate was required, mandatorily, to address the attitudes of residents and ratepayers to the merger, the contents of Chapter 7 of his report demonstrated that he did address that mandatory factor, and that the Council's complaint is in substance directed to the weight which the Delegate attached to that factor in coming to his conclusion. The Minister submitted that given that this was a matter of weight in the Delegate's reasoning, it was not subject to any obligation of procedural fairness; and 4. even if the Court were to accept that the Delegate was in error in the conclusion which he reached, such error fell within his jurisdiction and, accordingly, judicial review would not go to correct the error because it was not one which demonstrated that he exceeded his jurisdiction, nor did it constitute jurisdictional error as that phrase is understood.
9. Finally, the Minister submitted that even if, contrary to his earlier submissions, there was an error in the Delegate's Report, there is no appropriate relief by way of judicial review which could be granted. In particular, since the only possible relief would be a declaration, then in circumstances where the Council had not put its case based on reputational damage, such relief would be unnecessary and inappropriate.

Discernment

1. There are some additional facts which need to be examined and described for the purpose of dealing with the submissions with respect to the Delegate's position.
2. At a time prior to 15 February 2016 (the precise date is not clear), the Council wrote a letter to its residents over the signature of Ms Lara Kirchner, which enclosed with it the "flyer" which the Council copied to the Delegate as part of its submissions, and upon which the Council relies in this Court.
3. That letter, on the letterhead of the City of Botany Bay, contained the following statements: "You may be aware that the NSW Government has proposed a merger of the City of Botany Bay with Rockdale City Council. A copy of the Minister for Local Government's proposal and further details are available at www.councilboundaryreview.nsw.gov.au. This proposal is at odds with the consistent and clear views of our community. Throughout the NSW Government's four year reform process, local residents, community groups and local businesses have made it clear that they want the City of Botany Bay to remain independent. In addition, Rockdale City Council has already expressed a preference to merge with Hurstville and Kogarah Councils to create a new council in the St George region. It is important that as a local resident and as a local community, you make your voice heard on this important issue. You can do this in the following ways: … Given the very short timeframe to enable us to consult the community, the Council has prepared information outlining the advantages and disadvantages of the merger proposal, to assist you to make an informed decision …"
4. I have omitted from this extract of the letter the details about where the community poll was to be conducted, the nature of the question to be asked, and details with respect to completion of a postal vote.
5. The evidence before this Court, initially put before it by the Council on 13 May 2016 when the application to re-open was announced, included a series of messages from the Deputy Mayor of the Council which were published in the Southern Courier (which I infer is the local newspaper for the Botany Bay Council area) over the insignia of the Council.
6. In submissions in reply, senior counsel for the Council asserted that the Council had given these documents to the Court mistakenly and that the Court should ignore them because, he said, "We could have taken them out". He also submitted that the documents were not before the Delegate and that the Court should therefore ignore them.
7. The difficulty with both of these submissions is that the evidence in the documents was in fact put before the Court, and was not sought by any specific application to be withdrawn. The assertion by senior counsel of error was neither pursued, nor supported, by evidence. The Council did not seek to prove what was actually before the Delegate, although it was clear from the webpage to which earlier reference has been made, that at least some of the material before the delegate had been publicly released.
8. In short, there is no basis for the Court to refrain from considering this evidence, and there is no factual basis upon which the Court can conclude that the material was not before the Delegate and that this Court ought not to have regard to it in coming to its decision. Whether it was before the Delegate was not the subject of proof by either party. The nature of the material was such that it was in the public domain.
9. The series of messages commenced with one on 19 January 2016, which referred to the community poll. The Deputy Mayor noted that it was to be held on Saturday 27 February 2016. His message then said this: "The opportunity for our community to have its say through this poll and other means may be the final chance to influence the NSW Government to abandon this ill-informed proposal to merge our city with Rockdale. Further details will be available in the forthcoming weeks through this column, our Facebook page, our website www.botanybay.nsw.gov.au and your letterbox."
10. On Tuesday 26 January 2016, a further message from the Deputy Mayor appeared. It was in the following form: "AMALGAMATION - EVERYTHING TO LOSE, NOTHING TO GAIN Like many local residents my elected colleagues and I are deeply concerned by the State Government's proposal to merge the City of Botany Bay with Rockdale Council. This proposal will deliver little benefit for our community at tremendous cost. It is important to note that Rockdale Council and Botany Bay Council actually agree - neither council wants this amalgamation. … Since 1995, the City of Botany Bay has been debt free. Successive council administrations have worked hard so that our council is not only debt free, but has additional funds saved for contingencies. By contrast, last year Rockdale Council reported it had more than $7 million in debt. The geography of our two councils is a key reason why this proposal will not be successful. We are linked by one roadway, through a tunnel, and a nothing else. We offer a level of service and regularity of service that far exceeds that delivered by Rockdale; such services will only be diluted in any merger."
11. On Tuesday 2 February 2016, another message from the Deputy Mayor included the following: "DID YOU KNOW THE FOLLOWING ARE SOME FACTS about the proposed Botany Bay and Rockdale merger to keep in mind over the coming weeks: The City of Botany Bay has been debt free since 1995 while in 2015 Rockdale Council reported it had more than $7 million in debt. Rockdale residents paying higher average rates than Botany Bay residents. The average residential rate in Rockdale is $810.90, while the average residential rate in Botany Bay is $614. Rockdale rate payers have been hit with a Special Rate Variation (SRV) of 26.3% over the next 4 years. A special rate variation is when a council asks permission to increase their rates on a temporary basis to cover their costs and it is approved by the Minister! Botany Bay has more than $70 million in investments saved for future use on services and community infrastructure to reduce our reliance on rate income. A merged Botany Bay-Rockdale would see this money - your money - spent across a large area and outside your local area. Because of the position of the airport, Botany Bay and Rockdale have no neighbouring suburbs. This is a key reason why we do not share geographical or community connections. Botany Bay is an economic powerhouse with 63,257 local jobs, a regional economy worth $9.5 billion (GRP) and a daytime population of up to 310,000 people. By contrast Rockdale's regional economy is worth $3.99 billion and reports only 28,208 local jobs."
12. The Deputy Mayor's message of Tuesday 9 February 2016 commenced with a photograph of a group of people who attended at the public inquiry conducted by the Delegate at that time. It shows a large number of placards, clearly identical in content, commencing with the words "HANDS OFF BOTANY BAY" and concluding with the words "SAY NO TO AMALGAMATIONS". This is no doubt part of the "Hands Off Botany Bay" campaign to which the Delegate referred in his report. The message went on to describe the Deputy Mayor's appearances at the public inquiry and criticised the government for its ill-conceived and factually flawed merger. It included the following: "The NSW Government does not understand that local democracy is important to local communities. If there is community resistance, the merger will inevitably fail. I spoke strongly on this to the delegate assessing the proposal and told him that the views of our community are paramount and must be a significant factor in his consideration of the proposal."
13. The message from the Deputy Mayor, published in the Southern Courier on Tuesday 16 February 2016, commenced with a photograph of the Deputy Mayor with another man (who was not identified in the message). Both are holding orange balloons. One balloon features the words "Hands off Botany Bay", the other balloon features the words "Vote No".
14. The message included the following: "The State Government wants to merge the City of Botany Bay and Rockdale City Council. It is important that as a community you make your voice heard and VOTE in the community poll on Saturday 27 February 2016. Whether you sent in a postal ballot or vote in person - make sure you have your say. Any merger will effect rates, access to and the type of services delivered, infrastructure programs and local representation. It is up to all of us to decide what kind of city we will live in in the future."
15. On Tuesday 23 February 2016, four days before the poll, the Deputy Mayor published another message. The message provided information about where persons could vote, and then continued: "Things to consider when you VOTE. When it comes time to place your vote remember you have to write your answer in the box provided. The question you need to answer is 'Do you agree the City of Botany Bay should merge with Rockdale City Council?' The only acceptable answers are 'No' or 'Yes'. Here are some quick facts to consider when you are deciding how you will vote on Saturday. The State Government says that the merger of Botany Bay and Rockdale will give residents a larger council BUT the City of Botany Bay has been debt free since 1995, Rockdale has loan borrowings over $7.2 million. The State Government says that the merger will result in a single rating system across the proposed merged council areas BUT this will mean an approximate increase in the average residential rate in Botany Bay by up to 25%. The State Government says it will fund a newly merged council $20 million over at 10 year period BUT costs associated with the merger are understated and according to the State's own data, may range from $11 million up to $35 million. The State Government says a larger merged council will have an estimated net saving of $52 million over 20 years BUT these savings rely on a reduction in services, service delivery and staffing. The State Government will achieve efficiencies through reduction in staff and back office functions BUT our community have overwhelmingly said they are satisfied with and value the current services provided and wish to remain independent. The State Government says council will use its larger population to partner with the NSW and Australian Government on significant infrastructure projects BUT counsel assets are at risk of being sold and services are at risk of being outsourced. The State Government says there will be a reduction across both council areas from 22 councils to 15 BUT only 4 out of 15 councillors are likely to be representing our community. The State Government says the proposed merger will increase the ratio of residents to elected councillors BUT Botany Bay residents will no longer be able to directly elect their mayor and local representation will decrease by 60%."
16. A few days after the community poll, on Tuesday 1 March 2016, the Deputy Mayor published a message which claimed the community poll as an outstanding success, stating that Botany Bay residents had recorded a resounding "No". He described the numbers who had voted and the percentage of those against the merger proposal. He urged the State Government to pause and reflect on the proposal to merge the City of Botany Bay and Rockdale City Council in the face of this clear community opposition.
17. This material amply justified the Delegate's conclusion that there had not been a balanced campaign by the Council prior to the poll being taken. These facts demonstrate that the Council formed a view, as it was entitled to do, that the merger ought to be opposed, and it conveyed that view strongly, and consistently over time, to its constituents.
18. It is also relevant to consider whether the flyer was itself, as senior counsel for the Council argued, an example of balanced and fair communication of both the "Yes" and "No" votes with respect to the Minister's Proposal.
19. Set out in the table below is a comparison of the summary of the benefits of the Minister's Proposal contained in the proposal itself, and the summary contained in the council-distributed flyer. Minister's Proposal Council Flyer • A $72 million in net financial benefit over a 20 year period that may be used to deliver better community services, enhanced infrastructure and/or lower rates; • A projected 22 per cent improvement in annual operating results within 10 years that will strengthen the council's balance sheet and free up revenue for critical infrastructure; • The merger of Botany Bay with Rockdale will give residents a larger council. • NSW Government funding of $20 million to meet merger costs and provide a head start on investing in services and infrastructure that the savings from mergers will ultimately support; • A single rating system across the proposed merged council areas. • Greater efficiencies through the removal of back office and administrative functions, increased purchasing power of materials and contracts, and reduced expenditure on councillor fees all of which are expected, on average, to generate savings of around $4 million every year from 2020; • NSW Government indicates it will fund a newly merged council $20 million over a ten year period. • Greater capacity to effectively manage and reduce the $22 million infrastructure backlog across the two councils by maintaining and upgrading community assets; • A larger merged council will have an estimated net saving of $52 million over 20 years. • Reducing the reliance on rate increases through SRVs to fund local community infrastructure projects and services; • Achieving efficiencies through reduction of staff and back office functions. • Better integrating strategic planning and economic development to more efficiently respond to the changing needs of the community; • The new council will use its larger populations to partner with the NSW and Australian Government on significant infrastructure projects. • Building on the shared communities of interest and strong local identity across the area; • Reduction across both council areas from 22 councillors to 15. • Providing effective representation through a council with the required scale and capacity to meet the future needs of the community; and • The proposed merger will increase the ratio of residents to elected councillors. • Being a more effective advocate of the area's interests and better able to deliver on priorities in partnership with the NSW and Australian governments.

1. It can be immediately observed that the description in the flyer of the "Yes" proposal did not contain, even in summary form, a full description of the benefits of the proposal articulated in the Minister's Proposal itself. It contained fewer advantages than the Minister had listed, and it used language which did not suggest any support for the proposal.
2. By way of example, the Minister's Proposal concluded that there would be a projected 22% improvement in annual operating results, which was not mentioned in the Council's flyer. The net financial benefit by way of savings was said to be $72M in the Minister's Proposal and $52M in the Council's flyer. The Council's flyer stated that the merger of the two Councils would "… give residents a larger Council". Whilst this is undoubtedly a correct statement, the effect of that larger council was unstated in the Council's flyer, but was described as having particular benefits in the Minister's Proposal, such as giving the newly merged council a greater capacity to manage and reduce a $22M infrastructure backlog, and achieving efficiencies through, amongst other things, increased purchasing power of materials and contracts.
3. In setting out these examples, it is not the function of this Court to decide whether the Minister's claimed benefits would all be achieved. Rather, the relevance of drawing attention to the differences outlined above is to determine whether the Council has demonstrated, contrary to the report of the Delegate, that it conducted a balanced campaign for and against the Minister's Proposal.
4. I have concluded that no error has been demonstrated by the Council regarding the report of the Delegate in the respect relied upon. First, there was clearly a campaign being conducted by the Council against the merger. The Council in its submissions to the Court accepted that this was so. The campaign was called "Hands Off Botany Bay". There were signs and balloons which, I infer, were provided by the Council which visually demonstrated the existence of such a campaign.
5. Secondly, the context in which the poll was to be taken, and the Council's attitude to it, can be discerned from the messages of the Deputy Mayor published weekly in the Southern Courier as part of the Council's advertisement as to its activities. Each of these messages urged voters to vote against the merger proposal. The merger proposal was described in unflattering terms.
6. Thirdly, the letter accompanying the flyer that was distributed and authored by the Council's General Manager also contained information which suggested that voters should exercise their vote against the merger proposal.
7. Finally, the flyer was, in my view, an inadequate document to present a balanced view of the factors which favoured a merger proposal and those which did not.
8. The material provided to this Court indicates that the conclusion of the Delegate was not only open to him, but manifestly correct.
9. However, as it seemed to me from its argument, the Council was submitting that the issue of whether the Delegate erred with respect to the weight given to the community poll should be judged by this Court simply by comparing the Delegate's remarks with the contents of the flyer. Whilst the contents of the flyer would be a relevant document for the Delegate to examine in considering whether or not the context for the poll was a balanced one, I am not persuaded that it is the only document which the Delegate was entitled to examine.
10. It was a matter for the Delegate to have regard to all of the material which was put before his inquiry and to decide, based on that material, what view he would form of the strength and weight which ought to be given to the poll. The Council did not undertake in this Court the task of demonstrating what material the Delegate had before him and, it follows, did not discharge its onus of demonstrating that the impugned conclusions of the Delegate were not open to him.
11. One of the documents which the Council tendered was listed as a document available for download from the website created by the Minister. With respect to the Minister's Proposal to merge the City of Botany Bay and Rockdale City Councils, the website permitted a visitor to the site to download and read the public inquiry transcripts and a bundle of documents described as a "Submissions Pack". The website noted that the submissions pack download was very large. The public inquiry transcripts were not tendered to the Court, nor was the Court given the contents of the Council's "Submissions Pack" as described on the website. Whilst the Court was provided with the submissions made by the Council to the Delegate, it was not provided with the submissions, if any, made by Rockdale City Council.
12. In the absence of being provided with all of the material that was available to the Delegate, the Court is not able to conclude that the statements by the Delegate, by comparing what the Delegate said with the contents of the flyer, were erroneous by reference to all of the other material before him.
13. Even if this Court was to disregard the evidence tendered to it with respect to the Council's campaign, and to accept the premise advanced by the Council, which is that the only material which the Delegate had about the Council's campaign was the flyer, I am not persuaded that the Delegate fell into error.
14. The flyer did not itself present a balanced view of the arguments for and against the merger proposal. I have earlier at [82] set out in a table a comparison which demonstrates that the case in favour of the merger proposal was not set out in a full and comprehensive way. In addition to that inequity, there are others to be found on the flyer. In two separate paragraphs of the advantages of the Minister's Proposal there were statements about the prospect of lower rates, or a reduction in rate increases. These were not mentioned in the flyer. On the contrary, in the reasons listed to vote against the merger proposal, the Council stated that there would be a projected increase in the average residential rate of 25%.
15. The physical layout of the flyer also contributes to an unbalanced presentation of the case for and against the merger. The headline entitled "Reasons to vote YES" is printed in white letters on a bright red solid background. The headline entitled "Reasons to vote NO" is printed on a green background. These different colours would readily be perceived as encouraging a "No" vote and discouraging a "Yes" vote. As well, the flyer contains the statement that the reasons to vote "Yes" are "Based on NSW Government Proposal" and the reason to vote "No" are "Based on City of Botany Bay's proposal". Whether the content of the words below the descriptions of the reasons to vote "No" were or were not, as the Council argued, based on the Council's proposal, is beside the point. The question is rather how the words would be perceived by a reasonable recipient of such a flyer. In my view, those words would be perceived as indicating that the Council's interests would only be supported by a "No" vote. For all of these reasons, I conclude that the flyer itself does not present a balanced view of the cases for and against the merger.
16. It is necessary also to consider the way in which the Delegate reached his conclusion with respect to the material which he discussed in Chapter 7. His ultimate conclusion was that he recognised that there were a substantial number of residents in the Botany Bay local government area that were opposed to the Minister's Proposal. He recognised that, in a numerical sense, there was no basis for concluding that the overall weight of opinion throughout the whole of the local government area was represented by those who had voted. This was an appropriate caution to note. He then informed the Minister that in his view it was appropriate for the Minister and a new council to have regard to these opinions, and any specific concerns which they raised. Ultimately, he cautioned that the "weight of consideration" needed to be tempered by the limitations of the public poll and the benefits inherent in the merger proposal, which he had identified.
17. Shortly put, the Delegate recognised the nature of the opposition to the merger, noted that the Minister should have regard to it, and advised that the weight of that opposition should be balanced against other considerations, in particular the unbalanced nature of the Council's campaign, and the benefits inherent in the Minister's proposal.
18. Importantly, the Delegate did not suggest that the Minister should ignore the results of the poll, or the expressions of opinion. He ultimately drew a series of matters to the attention of the Minister which might affect the weight of those expressions of opinion. He clearly took into account the attitudes, and expressed his views with respect to them.
19. Having concluded that the Delegate's Report was not erroneous in this respect, either on the basis of the material provided in these proceedings, or on the basis of the Council's flyer itself, it is nevertheless necessary to consider whether it was a matter about which the Delegate was required to extend procedural fairness to the Council.
20. I do not think that it was. Accepting, without deciding, that the Delegate was obliged to give the Council procedural fairness after he had concluded his examination of the Minister's proposal and prior to delivering his report to the Commission for review and comment, the content of that obligation did not extend to revealing the entirety of his report including his attribution of diminished weight to any of the mandatory considerations. Nor did it extend to his conclusions about the arguments, either explicitly or implicitly advanced by the Council, which related to the Minister's Proposal.
21. Whilst it is possible to read the impugned passage as a conclusion of fact, potentially adverse to the Council, that is not how the relevant passage ought to be read. The Delegate had before him a supplementary submission by the Council which consisted of four pages. It encouraged the Delegate to take the view that: "Each 'No' vote should be considered as an individual submission against the proposal to merge our City with Rockdale City."
22. The council urged the Delegate to regard the 8,070 "No" votes as being the equivalent of a verbal submission at the public session of the Delegate's inquiry.
23. The submission brought to the Delegate's attention that "98% of formal votes opposed the plan to amalgamate the City of Botany Bay with Rockdale City".
24. In light of that submission to the Delegate, and the facts of which the Council had actual knowledge, namely: 1. the contents of the flyer and the covering letter; 2. the conduct of its "Hands Off Botany Bay" campaign; and 3. its advocacy against the Minister's Proposal, the process of establishing the weight to be given to the Council's submissions was one contemplated by the Council, and upon which it had the opportunity to make, and had made, submissions.
25. The Council was not entitled to be notified by the Delegate of his reasoning process, or his decision to diminish the weight of a submission or to balance an unqualified submission against other material known to, or received by, his inquiry or which might be regarded as material in the public domain. That is all that occurred here. I conclude that there was no breach of procedural fairness.
26. The Council also submitted that the contents of the Delegate's Report on the poll demonstrated, seemingly self-evidently, that the Delegate had not read or considered the Council's submissions, in particular, the content of the flyer. There was no direct evidence that this was so. The Delegate's Report does not suggest that he had not read the Council's submissions. The fact that the Delegate refers to the poll results and the circumstances surrounding the poll suggests, contrary to the Council's argument, that he did read and take into account the contents of the flyer. This submission is not made out by the Council. No failure to take account of the contents of the flyer has been demonstrated.
27. The final basis upon which the Council sought to suggest that the Delegate had breached his obligation to provide procedural fairness was with respect to boundary realignments which were proposed to him in and about the Sydney Airport.
28. The Sydney Airport Corporation had made a submission to the Delegate that the whole of Sydney Airport, amounting to 907 hectares and which was located across the boundaries of three local government areas - Botany Bay, Rockdale and Marrickville - ought be located within the one local government areas. The Sydney Airport Corporation argued that the existing position of council boundaries increased compliance and regulatory burdens upon it and upon the aviation and other businesses operating in and around Sydney Airport. The Delegate went on to note that the Council submitted "… the airport should be located entirely within the current or expanded Botany Bay boundary rather than through a merger with Rockdale". The Delegate noted that the submission made by the Council in favour of placing Sydney Airport in one local government area would avoid a series of complications relating to dealing with separate councils with differing requirements, and complications concerning the management of commercial sub-leases in different locations. The submissions of the Council had also noted that Sydney Airport was presently split between NSW planning districts (Central and South) which it suggested was inappropriate.
29. The Delegate accepted these points and concluded that they "… not only provide weight to the Minister's merger proposal, but also a potential boundary change that would place 100% of the airport under the merged council area". The Delegate went on to recommend to the Minister that he consider a boundary adjustment to include the 6% of Sydney Airport which was located in the Marrickville local government area.
30. At pages 74 and 75, the Delegate listed his findings and recommendations. Under a heading "Dealing with other matters for attention and consideration" the following is contained: "(d) that the Boundaries Commission and the Minister for Local Government give consideration to a boundary adjustment to relocate 100% of Sydney Airport and Port Botany within the new boundaries of a merged LGA involving the City of Botany Bay and Rockdale Council."
31. In the Council's written submissions, it noted that this finding and recommendation "… were favourable to the plaintiff's case, but only partly so".
32. The Council submitted: "Given that the Delegate was recommending part only of the plaintiff's case, he was in fact recommending a different proposal from the Minister's proposal. Because the proposal still involved the dissolution of the plaintiff, but for different reasons, the plaintiff should have been afforded procedural fairness and been given an opportunity to be heard by the Delegate on what was effectively a new proposal for amalgamation."
33. In oral submissions the content of this submission remained elusive. It was best encapsulated in this statement by senior counsel: "We say that this because it involved accepting part of my client's case before the Delegate, but not the rest of it, it is essentially a different animal and the plaintiff really should have been afforded procedural fairness to be heard."
34. I am unpersuaded that the recommendation made by the Delegate to the Minister with respect to a boundary change of the Minister's Proposal so as to include 6% of the area of the Airport which is presently located in the Marrickville local government area, and which was supported as a concept by the Council but which was not supported in the sense that the Council did not support the merger of the Council and Rockdale City Council as the Minister contended for in his proposal, is of a kind which can be regarded as adverse to the interests of the Council. I am not persuaded that it is of a kind which gave rise to any obligation for procedural fairness.
35. The recommendation was the result of the Delegate receiving various submissions from the Sydney Airport Corporation, the Council and others about the position of Sydney Airport with respect to local government boundaries. There was unanimity, it would appear, that Sydney Airport ought to be contained within a single local government area. All the Delegate has done is to analyse the various submissions and put forward a recommendation based on accepting part, but not all, of the submissions. This is precisely the task which the Delegate was asked to engage in, and he has made the recommendation based on material which was known to the Council, which was obvious from the Minister's Proposal and the simple logic of local government arrangements.
36. There was simply nothing about this recommendation which required the Delegate to notify the Council of it. In particular, there was nothing about this recommendation which meant that the Minister's Proposal had been substantially altered, or that it had changed into a different proposal. The recommendation fell within the Delegate's remit on the consideration of the Minister's Proposal.
37. I am not prepared to uphold this basis for an attack on the Delegate's Report.
38. The Council has not persuaded me that the Delegate has come to any factual conclusion or recommendation which required the Council to be notified and given a further opportunity to put submissions to the Delegate.
39. More importantly, the Council has not persuaded me that the extent of the Delegate's obligations required him to take the steps which it proposes.

Claim against the Commission

1. On 3 May 2016, the Chair of the Commission forwarded to the Minister its comments on the Delegate's Report. In so doing it noted that its comments were made pursuant to s 218F(6) of the Act. The comments of the Commission included a statement of its role. The Commission said this: "The Local Government Boundaries Commission is an independent statutory authority constituted under s 260 of the Act. The Boundaries Commission examines and reports on any matter referred to it by the Minister in relation to the boundaries of Local Government Areas and the areas of operation of County Councils. The Boundaries Commission has several functions under the Act. In the current context (where the Minister has elected to refer the proposal to the Office of Local Government, rather than the Boundaries Commission, for examination), the most relevant Commission functions are set out in s 218F(6) of the Act. This section requires: The Chief Executive to furnish the report on the examination of the merger proposal to the Boundaries Commission for review and comment, and The Boundaries Commission to review the report and send its comments to the Minister. The Commission's role does not involve re-examining the advantages and disadvantages of the proposed merger, accepting submissions or holding public inquiries."
2. At the commencement of its comments, the Commission said: "The Boundaries Commission has reviewed the Delegate's report on the proposed merger of City of Botany Council and Rockdale City Council to determine whether it shows that the legislative process has been followed and the Delegate has taken into account all the factors required under the Local Government Act 1993 (the Act). The Commission has assessed that: the Delegate's report shows that the Delegate has undertaken all the processes required by s 263 of the Act, the Delegate's report shows that the Delegate has adequately considered all the factors required by s 263(3) of the Act, with the exception of the fact that listed under sub-section 263(3)(e5) (Diverse Communities), and the Delegate's recommendation in relation to the proposed merger is supported by the Delegate's assessment of the factors."
3. In broad terms, the Commission's detailed comments then identify the process followed by the Delegate, and review the mandatory factors the Delegate must consider under s 263 of the Act. In respect of each of these mandatory factors, the Commission made specific comments.
4. The Council submitted that the Commission, in dealing with the Delegate's Report, fundamentally misunderstood its role. It submitted that it had misconstrued the statute conferring authority upon it, and misapprehended the nature of its functions and powers. Accordingly, the Council submitted that the Commission's comments were invalid, and it followed that the appropriate statutory process had not been followed.
5. The Council submitted that the Commission misconstrued its functions and powers under the Act because it determined that its powers to review the Delegate's Report were limited to whether the report on its face showed that the relevant legislative process had been followed and that the Delegate had taken into account the mandatory factors in s 263 of the Act. The Council submitted that a correct construction of s 218F(6)(b) of the Act was that the review of the Delegate's Report by the Commission was not limited in any respect at all. In particular, the Council pointed to the fact that the Commission is an expert body under the Act and that the only purpose of giving the Commission the opportunity to review and comment on the Delegate's Report was for that body to use its undoubted expertise to consider the merits of the Minister's Proposal and not just the process followed by the Delegate.
6. Further, the Council contended that because the Commission described itself as not having the power to re-examine the advantages and disadvantages of the proposed merger or to accept submissions itself on that issue, it mistook its power and accordingly its comments were invalid.
7. Finally, the Council submitted that the Commission misapprehended its functions and powers such that its determination that the boundary adjustments concerning the Airport and Port Botany were matters for the Minister to consider, and that they were not matters for the Commission to comment on. The Council submitted that, as a consequence, the Commission's comments were invalid.
8. As an alternative to its submission about invalidity, the Council also submitted that the Commission had an obligation of procedural fairness, the content of which was that it was obliged to put "… adverse information or findings that were 'relevant, credible and significant' to the plaintiff, or the plaintiff's case, for comment". The Council submitted that because the Commission adopted the Delegate's comments regarding the Council's poll, it failed to provide procedural fairness to the Council, because the Delegate failed to provide procedural fairness to the Council.
9. Senior counsel for the defendants submitted that the language of the legislation with respect to the Commission's task was clear, namely that in circumstances where it had not undertaken the principal inquiry - such as existed here where the Delegate had undertaken the principal inquiry and prepared the Report - the Commission's functions were to review and comment upon the Report of the Delegate, not on the underlying proposal. Senior counsel submitted that the Commission had done precisely what the legislation required of it, namely to consider the Delegate's Report and review it, and having done so to provide comments about it to the Minister. Senior counsel submitted that there was no basis to interpret the word "review" in s 218F(6)(b) of the Act as meaning a re-hearing or de novo hearing of the entire inquiry process conducted by the Delegate.
10. Senior counsel for the defendants also submitted that with respect to the issue of boundary adjustment, the Commission did not misapprehend its functions and powers. On the contrary, he submitted that all the Commission did was comment that the Delegate had adequately considered the issue under s 263(3)(f) of the Act, which required him to have regard to "such other factors as it considers relevant to the provision of efficient and effective local government in the existing and proposed new areas", and that the Commission did not propose to embark on a separate hearing of that issue. Senior counsel for the defendants submitted that it was within the power of the Commission to make such comments.
11. Finally, with respect to the question of procedural fairness, senior counsel for the defendants relied upon the integrity of the Delegate's Report and the absence of the denial of any procedural fairness by the Delegate as indicating there was no basis for the Commission to be criticised for any denial of procedural fairness.

Discernment

1. I reject the Council's submission with respect to the Commission's comments. I am not persuaded that the Commission has misconstrued its powers.
2. On the contrary, the Commission seems to have well understood its powers. In the circumstances of this case, where the Delegate has produced a detailed report after a lengthy public inquiry, the Commission has carried out its powers by reviewing the Delegate's report and providing comments upon it.
3. In the first place, the provisions of the statute, s 218F(6), provide that the Delegate's Report is furnished "… to the Boundaries Commission for review and comment", and that the Commission "… must review the report and send its comments to the Minister". The statutory obligation, in the particular circumstances here, falling upon the Boundaries Commission is not to undertake an inquiry of the kind which it would do had the Minister's proposal been forwarded to it by the Minister pursuant to s 218F(1) of the Act. If it had received the Minister's proposal pursuant to that section, then it would have been obliged to apply the provisions set out in s 263 of the Act, which mark out its functions in such a circumstance. However, what it is required to do here is to review the report of the Departmental Chief Executive (or his delegate). Having reviewed that report, it is tasked to comment upon it and send its comments to the Minister.
4. Here it is plain from the Commission's comments that it did review the Delegate's Report. It has identified the section of the Act under which it has received the report, reviewed it and commented upon it: see [122] above. As well, it has explicitly enunciated, at the commencement of its comments, that it has undertaken a review of the Delegate's Report: see [123] above.
5. In those circumstances, the statutory power does not contain any mandatory requirement for the content of any comments made by the Commission. There is no minimum requirement for such comments, nor any maximum requirement. It is a matter for the judgment of the Commission as to what comment, or comments (if any) it wishes to make.
6. Secondly, the Commission has made a professional judgment, which it is entitled to do, as to what aspects of the Delegate's report will be commented upon, and what aspects it will ignore. It has chosen to approach its task by making limited comments on what was quite a lengthy process undertaken by the Delegate. What has occurred is not a misapprehension by the Commission of its powers, but rather the Commission has chosen to exercise its powers in a particular way. That choice was open to it and involved no error on its part.
7. The Council also submitted that the Commission misunderstood its powers because it did not consider the issue of the boundary adjustments relating to the airport as being matters for it to comment upon, rather it noted that they were matters for the Minister to consider. I do not accept this submission. The airport boundary adjustment issue was dealt with by the Delegate, by making a recommendation to the Minister with respect to it. The boundary adjustment was not directly contained within the Minister's proposal, but was a consideration raised by reason of the submissions made to the Delegate during his inquiry process. It was open to the Delegate to make a recommendation, as he did, with respect to that adjustment, that the Minister consider such an adjustment. It would be ultimately a matter for the Minister to determine whether the adjustment amounted to a new proposal or not.
8. The Commission in considering the Delegate's Report was entitled to consider that recommendation, and make such comment upon it as it saw fit. In indicating that it was a matter for the Minister, the Commission was discharging its function. There is no basis for contending that the Commission misunderstood this aspect of its obligation.
9. Finally, it is necessary to consider the submission that the Commission breached its obligations of procedural fairness to the Council. There seems to be two aspects to this submission. First, that if the Delegate had failed to provide procedural fairness, then in commenting upon any recommendation affected by such failure, unless the Commission remedied that failure by itself providing procedural fairness to the Council, it was in breach of its obligations. Secondly, the Commission failed to inform the Council of its comments upon the Delegate's Report, thereby denying it procedural fairness.
10. I have already determined that the Delegate did not deny the Council procedural fairness. Accordingly, the first basis for this contention fails.
11. In the second respect, there has been no denial of procedural fairness by the Commission. It was not obliged to bring its comments and review to the attention of the Council for the Council's consideration before it provided them to the Minister. As well, there is nothing contained within the particular comments of the Commission that was adverse to the Council in such a way as to suggest the need to inform the Council in advance of delivering the comments to the Minister.

Claim against the Minister

1. In support of the relief sought against the Minister in paragraphs 2, 3, 8 and 9 of the Amended Summons, the Council made two principal submissions. As in the LEC proceedings, the submissions first addressed an issue of statutory construction and then an issue of procedural fairness. It is convenient to address these submissions first, before considering the relief sought against the Minister with respect to his announcement of Thursday 12 May 2016 which is referred to above at [29].
2. The first submission dealt with the proper construction of s 218E of the Act. The plaintiff contended that, on the proper construction of s 218E, the Minister could not, as a matter of law, make any recommendation to the Governor on the Minister's Proposal before the Council's Proposal was examined and reported on by the Delegate and the Commission's comments on that report had been sent to the Minister.
3. The Council's second submission made at the initial hearing was that the Minister had an obligation to accord procedural fairness to the Council which, in the respect being considered here, required the Minister to provide the Council with the Delegate's report and the Commission's comments on the Minister's Proposal, and to permit the Council to make further submissions, before the Minister makes any recommendation to the Governor in respect of his Proposal. However, as these documents have now been provided to the world at large, including the Council, notwithstanding the Minster's earlier blanket refusal so to do, there is no further purpose to be served by further consideration of this issue. This point is now moot save for the question of whether the timing allowed was adequate.
4. It is to be observed that the relief sought in these proceedings closely mirrors the relief sought in the LEC proceedings. The principal difference is the stage of the statutory process in respect of which the relief is sought. In the LEC proceedings, it was the Delegate's examination of the Minister's Proposal in respect of which relief was sought. In these proceedings, it is the Minister's decision and recommendations to the Governor in respect of which relief is sought.
5. It is convenient now to deal with the first submission.

Statutory Construction

1. The Council argues that the Minister presently has before him, and is aware of, two competing proposals which affect the Council.
2. The first, the Minister's Proposal, seeks to merge the Council with Rockdale City Council. As noted above, the Minister's Proposal was referred by the Minister to the Departmental Chief Executive for examination and report. The Departmental Chief Executive, pursuant to his power of delegation, delegated the examination and report of the Minister's Proposal to a delegate. The Delegate's Report is completed, and was sent to the Commission for its review and comment. The Commission has sent its comments to the Minister in the form of a report dated 5 May 2016.
3. The second proposal, the Council's Proposal, advocates a rather more complex amalgamation than that contained in the Minister's Proposal, involving the development of a new local government area including the whole of the Botany Bay City Council area and parts of three other council areas including Rockdale City Council. In contrast to the Minister's Proposal, the Council's Proposal does not involve the amalgamation of the whole of Rockdale City Council with Botany Bay City Council.
4. The Council's Proposal has been referred by the Minister to the Departmental Chief Executive, who has in turn referred it to a delegate for examination and report. The Council's Proposal is still at the stage of being examined by the new delegate.
5. The Council submits that, in circumstances where there are two different proposals advanced pursuant to the statutory scheme in Division 2B of Part 9 of the Act, both of which concern the amalgamation of the Council with other council areas, it would be an error of law for the Minister to make a decision on the Minister's Proposal prior to receiving the Commission's comments together with the Delegate's report on the Council's Proposal. The Council submits that s 218E(1) of the Act essentially enables a council to make an "alternative proposal" to the Minister's and that, under such a scheme, the Minister cannot act so as to render the alternative proposal nugatory.
6. The plaintiff submits that if the Minister were to consider only his Proposal and recommend its implementation to the Governor pursuant to s 218F, then the Council would inevitably be dissolved and would cease to exist. In those circumstances, the plaintiff submits that there would be no one to propound, advocate or support the Council's Proposal. It submits that its proposal would effectively be "… dead in the water". I note that a similar submission in the LEC proceedings was described in the judgment of the Court of Appeal at [56] as "… a matter of speculation …". However, the Minister's recent public announcement of "in principle" support for his own proposal, in the context of his other actions on 12 May 2016, suggests that in the absence of any order for restraint emanating from this Court, there is an inevitability about the dissolution of the Council. That would not result automatically in the termination of the statutory process dealing with the Council's proposal.
7. The Council submits that upon a proper construction of the Act, the Minister's statutory duty is to consider the two proposals together or at about the same time. The Council submits that the Minister, before making a recommendation on his proposal, must, at a minimum, have before him the Delegate's report on the Council's proposal and the Commission's comments on that report. The Council also points to the obvious logicality of its position, and puts that all it seeks is that which the good and orderly exercise of executive power requires, namely the consideration of both proposals, each of substance, at the same time in a balanced and ordered fashion.
8. The Council put forward an alternative basis for this submission, namely that if the Minister made a recommendation to the Governor on his proposal before receiving the Delegate's report and the Commission's comments on the Council's Proposal, "… he would be failing to take into account relevant considerations in making an administrative decision under statutory power which is a long-established jurisdictional error …".
9. The Council submitted that, having regard to the subject matter, scope and purpose of the Act, the Delegate's report and the Commission's comments on the Council's Proposal constitute relevant information which the Minister must consider when determining what recommendation, if any, should be made to the Governor about his own proposal. In writing it put its submission this way: "It cannot be Parliament's intention that the Minister's initiating proposal may be implemented before the statutory examination and reporting process in respect of the Council's proposal, made in direct response to the Minister's proposal as an 'affected council' has been completed. It would entirely defeat the purpose of the Act permitting an initiating proposal to be made and referred for examination and report pursuant to ss 218E(1) and 218F(1) of the Act. There should be no race to the finish or contest in this process. The Act plainly envisages that all lawfully made initiating proposals will be heard and investigated and determined."
10. In contrast, the Minister submitted that he was under no obligation to consider the Council's Proposal prior to making a recommendation to the Governor on his own Proposal under s 218F of the Act.
11. In the first place, the Minister submitted that the statute does not expressly, or by implication, impose an obligation of the kind contended for by the Council.
12. Secondly, the Minister submitted that an interpretation of the kind contended for by the Council would make the statutory scheme unworkable. There could be multiple proposals made with respect to an identified area. If the Council's submission with respect to the construction of the Act is accepted, then the Minister would be unable to make any recommendations in respect of a particular proposal until the statutory process for all other proposals with respect to the same identified area had been completed. The Minister submitted that this result would be contrary to the purpose of the provisions of Divisions 2A and 2B of Part 1 of Chapter 9 of the Act, which is to provide a streamlined process for the examination and report on amalgamation or boundary alteration proposals and for the recommendation of those proposals by the Minister to the Governor.
13. Thirdly, the Minister submitted that the proposition contended for by the Council, namely that the Minister would be failing to take into account a relevant consideration if he did not wait to receive the Delegate's Report and the Commission's comments on the Council's Proposal, was in substance the same submission which had been rejected by Pain J in the LEC proceedings and by the Court of Appeal. The Minister's submission acknowledged that those proceedings were concerned with the performance of the Chief Executive or his delegate. However, it submitted that it would be a curious result if a matter was not a mandatory relevant consideration for the delegate, yet was a mandatory consideration for the Minister when considering the delegate's report.

Discernment

1. I do not accept the Council's submission on the construction of the Act, nor do I accept that the Minister is under an obligation to have regard to, and take into account, the Delegate's report and the Commission's comments on the Council's Proposal prior to giving consideration to his own proposal.
2. First, the wording of s 218F of the Act refers only to a single proposal. The section does not envisage a wide‑ranging inquiry by a delegate into all proposals for a merger of councils or boundary alterations, nor does the wording of the statute suggest explicitly, or by necessary implication, that the Minister is to do anything more than deal with a single proposal upon which he may make recommendations to the Governor. The wording of s 218F of the Act does not support the interdependency of statutory processes engaged in to deal with separate proposals. As the Court of Appeal recognised in its judgment, the Council's Proposal is an entirely different proposal from the Minister's Proposal. It would not fall within the description of a modified version of the Minister's Proposal.
3. Secondly, I do not accept the submission that the Council's Proposal would not be fully dealt with in accordance with the statutory process, which has been engaged with respect to it and which has commenced, merely because the Council is dissolved prior to that process being completed. Acceptance of that submission ignores the statutory obligation upon the Departmental Chief Executive to refer the report, once completed, to the Commission for review and comment: s 218F(6)(b). Contrary to the Council's submissions, the statutory process must continue and be completed even if the Council does not exist. The evidence does not enable me to conclude that, in the event that the Council is dissolved, and even accepting that the Council is to be regarded as the principal proponent of its proposal, there would be no other proponents or supporters of it during the balance of the statutory process.
4. Thirdly, the submission of the Council presents an unworkable construction of the Act. If the Minister was obliged, as the Council submits, to refrain from the exercise of his powers under s 218F(7) of the Act with respect to his proposal until he has the new Delegate's Report on the Council's Proposal and the Commission's comments on that report, then it would follow that in the event that a third proposal is initiated under s 218E, perhaps by one of the three councils affected by the Council's Proposal, then the Minister would have to wait until the statutory process with respect to that third proposal was undertaken and completed before considering what recommendations he might make with respect to his proposal. Because there is no limit on the number of proposals that can be initiated pursuant to s 218E of the Act, this interpretation presents an unworkable cascading effect which may have the consequence that the Minister is unable to make a decision with respect to his proposal for some considerable time.
5. Fourthly, the Court of Appeal, at [48] and [49], held that it was open to the Delegate in preparing his report on the Minister's Proposal to have regard to the submission made by the Council to the Delegate which referred to the Council's Proposal. However, the Court of Appeal held that it was not a mandatory consideration. Nor was the Council's Proposal itself a mandatory consideration for the Delegate. Upholding the Council's submission in this case with respect to the obligation falling upon the Minister at the end of the statutory process, would not present a coherent interpretation of the statutory scheme for the amalgamation of councils in Divisions 2A and 2B of Part 1 of Chapter 9 of the Act. Pain J in the LEC judgment considered an analogous submission. She concluded that the construction advanced there by the Council would "… not give rise to a coherent or timely statutory scheme": at [35]. That is the conclusion which I have reached here. The submission by the Council would not result in a coherent or timely statutory scheme.
6. In coming to this conclusion, I refrain from expressing any view about the submission of the Council that the consideration by the Minister of his own proposal, in the particular circumstances here where only one other alternative exists, before receiving the Delegate's Report and Boundaries Commission comments on the alternative proposal, lacks logic and does not demonstrate attention to efficient principles of public administration. It is inappropriate in judicial review proceedings for this Court to have regard to such considerations. Whilst the Council's submission on its face appears sensible and logical, namely that if there are two proposals dealing with the amalgamation of one council area, before the Minister makes a recommendation with respect to one, he should receive and consider the other, it is not the role of this Court to determine how, or in what sequence, the Minister should choose to go about his statutory function. The Court's only concern is to deal with whether the Minister's statutory function and powers are being exercised in accordance with the terms of the statute. For the reasons which I have explained, the Council's submission does not succeed.

Procedural Fairness

1. The Council's submissions commenced by drawing attention to the fact that the Minister had refused to provide the Council with the Delegate's Report and the Commission's comments on his proposal prior to making any recommendations to the Governor: see [26] above. The Council submitted that the Minister had an obligation to accord procedural fairness to it by providing it with that material. As the Minister has now done this, there is no need to consider this submission further.
2. The Council however submitted that the period which the Minister had allowed of 7 days was, in the circumstances, too short to enable it to make a proper submission and that, therefore, there was, at least constructively, a failure to provide procedural fairness.
3. In his submissions, the Minister submitted that the Council had failed to establish any denial of procedural fairness. The Minister pointed to the fact that the Council had received an opportunity to be heard and make written submissions in the course of the Delegate's examination and report on the Minister's Proposal and that, accordingly, the time allowed was adequate for the provision of any further submissions to him.

Discernment

1. In the context of administrative decision making, the common law imposes: "… a duty to act fairly in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention." See Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584 per Mason J.
2. Here, the administrative decision of the Minister is to be made pursuant to a statutory power. In applying the duty to act fairly, careful attention must be paid to the statutory power in question. As Mason J said in Kioa at 585: "The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual concerned in the light of the statutory requirements, the interests of the individual and the interest and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations …"
3. The content of an obligation for procedural fairness has a flexible quality which varies according to the circumstances in which the power is to be exercised: see Kioa per Brennan J at 612. At 628, Brennan J went on to point out that a person whose interests were likely to be affected by an exercise of a power: "… must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise ..." (at 628)
4. However, his Honour noted that such an obligation did not involve the affected person having an opportunity to comment on every adverse piece of information. He explained that administrative decision-making was not to be clogged by inquiries into allegations of no credence or which were irrelevant. He said (at 629): "Nevertheless, in the ordinary case where no problem of confidentiality arises, an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made."
5. That statement was the subject of consideration by the High Court of Australian in VEAL. At [17], the Court noted: "It follows that what is 'credible, relevant and significant' information must be determined by a decision-maker before the final decision is reached. That determination will affect whether the decision-maker must give an opportunity to the person affected to deal with the information. … 'Credible, relevant and significant' must therefore be understood as referring to information that cannot be dismissed from further consideration by the decision-maker before making the decision."
6. The Court at [25] said that the application of the principles of procedural fairness in a particular case "… must always be moulded to the particular circumstances of that case". It drew attention to what it had earlier said in Re Minister for Immigration, Multicultural and Indigenous Affairs; Ex Parte Lam [2003] HCA 6; (2003) 214 CLR 1; per Gleeson CJ at 1 [37]; per McHugh and Gummow JJ at [48].
7. Here, the content of the Minister's Proposal is open and contains information readily available to the public. It is public knowledge that the Minister's Proposal seeks the dissolution of the Council and the creation of a new council to be the local government authority for the newly established area. The Council had the opportunity to make (and in fact made) submissions on that issue in the context of the Delegate's inquiry and report. The requirements of procedural fairness, having regard to the statutory scheme in place under the Act, do not seem to me to oblige the Minister to give the Council any longer period than that actually provided. There is no evidence of inadequacy of resources on the part of the Council to make its submissions to the Minister within the time allowed. The length and content of the Delegate's report, and the Commission's comments, are not such as to suggest, without more, that a longer time is needed. The claimed inadequacy of time is simply an unsubstantiated assertion by the Council. I am unpersuaded that the time is inadequately short. It is certainly not so short as to amount to a denial of procedural fairness.
8. I am unpersuaded by the submissions of senior counsel for the plaintiff that the Minister ought to be the subject of any relief by way of an order or declaration in this respect.

Relief

1. In light of these conclusions, there is no basis upon which this Court ought to grant any relief to the Council. Accordingly, the Amended Summons must be dismissed.
2. There is no reason apparent from the argument or material put before the Court to make any order for costs other than that which is ordinarily made, namely, that costs should follow the event.

Orders

1. I make the following orders: 1. Grant leave to the plaintiff to re-open its case. 2. Grant leave to the plaintiff to file an Amended Summons dated 13 May 2016. 3. Amended Summons dated 13 May 2016 dismissed. 4. Plaintiff to pay the defendants' costs.

Amendments 15 February 2018 - Incorrect formatting within [45]. Subsequent paragraph numbering amended accordingly. 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: 15 February 2018