Briscoe-Hough v Minister for Local Government (No 2)

Texts Cited: NA

Category: Principal judgment

Parties: Gregory Briscoe-Hough (Applicant)
Minister for Local Government (First Respondent)
Edward River Council (Second Respondent)

Representation: Counsel:
Self represented (Applicant)
M Keene (First Respondent)
Submitting Appearance (Second Respondent)
Solicitors:
Corrs Chambers Westgarth (First Respondent)

File Number(s): 2024/391391

Publication restriction: Nil

JUDGMENT

1. The Applicant Mr Briscoe-Hough has commenced judicial review proceedings by way of summons dated 22 October 2024 challenging the decision of the First Respondent the Minister for Local Government (Minister) to issue a performance improvement order (PIO) under s 438A of the Local Government Act 1993 (NSW) (LG Act) to Edward River Council. An earlier summons filed by Mr Briscoe-Hough seeking to challenge the same PIO in proceedings 2024/283767 was struck out on 11 October 2024: Gregory Jones Briscoe*‑*Hough v Ron Hoenig [2024] NSWLEC 128.

2. Mr Briscoe-Hough who is representing himself issued a notice to produce on 25 November 2024 identifying four categories of documents. The Minister filed a notice of motion on 20 January 2025 which sought to set aside the notice to produce in its entirety. The notice of motion was partially upheld by the Registrar on 14 May 2025 in relation to document categories 2 and 4 and those parts of the notice to produce were set aside; Briscoe-Hough v Minister for Local Government [2025] NSWLEC 1345. Categories 1 and 3 remain.

3. The Minister filed a notice of motion on 11 June 2025 seeking to review the Registrar’s decision enabling the production of documents answering categories 1 and 3 under r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). The notice of motion is supported by an affidavit of Mr Brcic solicitor dated 11 June 2025.

4. As became clear in argument, the Registrar referred to the notice to produce being issued under r 21.10 of the UCPR (documents produced between parties) possibly reflecting the Minister’s submissions to that effect. Mr Briscoe-Hough identified before me that the notice to produce was issued pursuant to r 34.1 as he is seeking production of documents to the Court.

The summons

5. The relief sought in the summons filed on 22 October 2024 is as follows:

1. The undated Performance Improvement Order issued to Edward River Council be declared null and void due to jurisdictional error associated with breach of Section 438C(2)(b) in the notice of intention of 17 June 2024;

2 In the event that the Court does not order the above, declarations be sought in respect of breaches of the Local Government Act (s438F) associated with the failure to meet the PIO requirements in respect of compliance reports one and two, and failure of Minister to vary order as necessary in respect of compliance report two;

3 To remedy the breaches noted in order 2, the undated Performance Improvement Order issued be declared null and void;

4 Or, if none of the above orders are made, the Court order the Minister to vary the undated Performance Improvement Order as required by statute s438A(6) & (7), s438C(2A), (3), (4) and (5) to remedy the breaches of the Local Government Act and afford procedural fairness to the new Councillors.

6. The grounds in the summons filed on 22 October 2024 are:

1 Before issuing a Performance Improvement Order under the Local Government Act 1993 to a Council or Councillors, the Minister needs to provide a notice of intention to a Council (or individual Councillors) that complies with section 438C.

2 Section 438C(2)(b) requires that a Notice of Intention served on a Council includes the evidence the Minister relies on for his reasons.

3 The Notice of Intention served on Council by the Minister dated 17 June 2024, (Attachment A) does not provide the required evidence that the Minister relied on for his reasons and renders the subsequent undated Performance Improvement Order (Attachment B) invalid due to jurisdictional error.

4 The reasons relied on by the Minister do not (and cannot) apply to the Council elected on 14 September 2024, and the undated PIO cannot survive once a new Council has met for the first time after an ordinary election. (cf. Sections 438C(6)(a) & 438ZA(b) LG Act).

7. The notice to produce in issue specifies:

1 An unredacted copy of the costs incurred as attached to the email of Ms Morphett dated 12 November 2024 to the applicant;

…

3 All official records, file notes, officer recommendations, reports (including drafts) and legal advice, in respect of instructions received in the making and defence of the purported undated PIO in respect of Edward River Council.

Local Government Act 1993 (NSW)

8. The LG Act provides:

Part 6 Performance management

438A Performance improvement order

(1) The Minister may issue an order in respect of a council if the Minister reasonably considers that action must be taken to improve the performance of the council.

(2) An order issued under this section is a performance improvement order.

(3) A performance improvement order is to specify—

(a) the reasons why the Minister has decided to issue the order, and

(b) the actions that the Minister requires to be taken to improve the performance of the council.

(4) Actions to improve the performance of a council include any actions the Minister considers necessary to improve or restore the proper or effective functioning of the council.

(5) The order may require action to be taken by the council, by individual councillors, or both.

(6) A performance improvement order may require the quorum for a meeting of the council to be determined as specified by the Minister in the performance improvement order.

(6A) The Minister may vary a performance improvement order (and, if an order is varied, a reference in this Act to the order is a reference to the order as varied).

(7) A copy of the performance improvement order, or the variation of a performance improvement order, is to be served on the council.

(7A) The making of a performance improvement order, or the fact that such an order is in force, does not derogate from a power of the Minister or any other person to make any other order or take any other action under this Act.

(8) In relation to a performance improvement order, a reference to an action, or the taking of any action, includes a reference to doing any thing or refraining from doing any thing.

…

438C Minister to give notice of intention to issue or vary performance improvement order

(1) The Minister is to give a council notice in writing of his or her intention to issue or vary a performance improvement order in respect of the council.

(2) If it is proposed to issue a performance improvement order, the notice is to specify the following—

(a) the terms of the proposed performance improvement order, including the period for compliance with the order and any proposed appointment of a financial controller,

(b) the reasons why it is proposed to issue the performance improvement order (including any evidence supporting the Minister’s opinion that improvement is required),

(c) the actions that may be taken by the Minister if the performance improvement order is not complied with.

(2A) If it is proposed to vary a performance improvement order, the notice is to specify the following—

(a) the terms of the proposed variation,

(b) the reasons why it is proposed to vary the order.

(3) The notice must invite the council to make submissions in respect of the proposed performance improvement order or variation within a consultation period specified in the notice.

(4) The notice is to specify a consultation period of not less than 7 days from the date the notice is served on the council.

(5) The Minister is to have regard to any submissions made by the council during the consultation period in deciding—

(a) whether to issue the proposed performance improvement order or proposed variation, and

(b) whether any changes should be made to the terms of the proposed performance improvement order or proposed variation.

(6) The Minister is not required to give notice to a council of his or her intention to issue or vary a performance improvement order in respect of the council if—

(a) the council is suspended under Part 7, or

(b) the order is issued or varied in response to the results of a public inquiry in relation to a council.

…

438F Compliance report

(1) A council must provide the Minister with written reports on its compliance with a performance improvement order as required by the order.

(2) Such a report is referred to in this Part as a compliance report.

(3) A compliance report must specify any actions taken that demonstrate compliance with the performance improvement order.

(4) A compliance report must comply with any requirements specified in the performance improvement order.

Minister’s submissions

9. The summons as pleaded raises a narrow jurisdictional point of whether the Minister’s notice of intention letter of 17 June 2024 complied with s 438C(2)(b) of the LG Act.

10. Crucially, Mr Briscoe-Hough has not pleaded, nor does the summons seek to establish:

(a) a challenge to the merits of the Minister's decision to issue the PIO; (b) that the Minister failed to form the requisite ‘reasonable consideration’ under LGA s 438A(1) (a subjective jurisdictional fact); (c) that the Minister’s decision was affected by Wednesbury unreasonableness or irrationality; or (d) that there was ‘no evidence’ from which the Minister could form his opinion, in the sense of an absence of probative material to support his decision. This would relate to the validity of the Minister's ultimate satisfaction under s 438A, a matter distinct from the form of the s 438C notice.

11. Category 1 seeks an unredacted costs invoice issued in relation to earlier proceedings now dismissed in relation to the same PIO (matter number 2024/283767). The costs in prior related interactions or proceedings are not relevant to the case as pleaded in the summons concerning the validity of the PIO. Accordingly category 1 is irrelevant.

12. Category 3 is irrelevant to the matter pleaded in the summons that there was a jurisdictional impediment to issuing the PIO based on s 438C(2)(b) of the LG Act. This calls for statutory construction based on the terms of the letter issued by the Minister on 17 June 2024. The category is otherwise an impermissible fishing expedition.

13. Category 3 is also oppressive for the reasons identified in the affidavit of Mr Brcic solicitor dated 11 June 2025 at paragraphs 23 and 24 given its very broad wording, lack of specification of a timeframe and seeking of draft documents. According to Mr Brcic’s 11 June 2025 affidavit he was instructed that a review of documents potentially captured by category 3 would be a substantial, resource intensive and time-consuming task involving multiple government agencies. It would require examination of the documents to identify any information that may be protected from disclosure under the Public Interest Disclosures Act 2022 (NSW). Where a potential claim for public interest immunity arose the matter would be referred to the Crown Solicitor’s Office (CSO) in accordance with government guidelines and the CSO would provide advice before any claim was formulated. Any public interest immunity claim would be required to be approved by the Solicitor-General for NSW before it could be asserted in a court. Mr Brcic stated he believed undertaking this process for documents not apparently relevant to the narrowly pleaded issues in these proceedings would be oppressive.

14. No additional basis establishing relevance of the category 3 documents arises from the relief sought in prayers 2/3 and 4 or ground 4 (if that is intended to relate to these prayers) of the summons.

Mr Briscoe-Hough’s submissions

15. It is in the interests of justice that the documents sought be required to be produced, a relevant factor identified in Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [7] (Tomko). Mr Briscoe-Hough also relied on Coates Hire Operations Pty Limited T/A Coates Hire Limited v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) [2013] FWC 1585 (Coates) at [20]-[22] which extracts Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd [1984] 1 NSWLR 710 (Southern Pacific) at 719-720 (footnotes omitted):

[20] The issue of balancing the various rights of the parties was considered by Clarke J in Southern Pacific Hotel Services Inc v Southern Pacific Hotel Corporation Ltd 4:

If a court is called upon to rule that a subpoena is an abuse of process (ie oppressive) in this sense, it will need to carry out an exercise of judgment upon the particular facts in each case, including but not limited to the terms of the subpoena, bearing in mind the need to balance the reasonableness of the burden imposed upon the recipient and the invasion of his private rights with the public interest in the due administration of justice and, in particular, that all material relevant to the issues be available to the parties to enable them to advance their respective cases. There is, in every case, a clash between these competing interests and whilst the balancing exercise to which I have referred must be carried out, it is the latter interest which is predominant. If the needs of justice require or could require that a stranger be obliged to carry out a very burdensome task in the collection, transportation and production of a large number of documents, then a subpoena calling upon the stranger to produce those documents will be upheld.

16. The Minister has not established oppression in having to answer category 3 and should have made a better attempt to quantify this. Any public interest immunity claim is spurious. The affidavit sworn in support refers to the Public Interest Disclosures Act 2022 (NSW) and an earlier affidavit of Mr Brcic dated 2 June 2024 attached an extract of that Act and s 64(2)(g)-(i) refutes the Minister’s premise.

17. Notices to produce issued under UCPR r 34.1 can enable a wider scope of documents to be produced than a notice to produce issued under r 21.10. The wording of the sections are relevantly different. Rule 21.10 refers to ‘may’ require the production of a ‘specific document’. Rule 34.1 refers to ‘any specified matter or thing’. A party must comply with a notice to produce issued under r 34.1 pursuant to r 34.2. The statutory differences mean that the Minister’s submissions referring to r 21.10 are addressing the wrong rule. The differences are supported by observations in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 (Blacktown) at [31], [41], [56], [58], [59], [63], [72], [80], [87] and [89].

18. The Registrar found that category 3 in the notice to produce was not fishing; Briscoe-Hough v Minister for Local Government [2025] NSWLEC 1345 at [24].

19. Evidence underlying the Minister’s decision to issue the PIO is relevant to the exercise of his power. Category 3 seeks that material.

20. The Minister is not happy with the Registrar’s decision and does not want to comply, amongst other complaints made by Mr Briscoe-Hough about the Minister which I do not set out as they are not relevant to what I am determining.

Consideration

21. The basis for review of a Registrar’s decision under r 49.19 as identified in Tomko at [7] per Hodgson JA and reaffirmed in Sebie v Krejci (No 3) [2023] NSWCA 221 and Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131 is not in the nature of an appeal. There is no need to find error by the Registrar before her decision is varied (Tomko at [6] per Hodgson JA). Additional material not before the Registrar can be relied on, such as fresh evidence (Tomko at [52] per Basten JA). While there was no new evidence before me about the case intended to be made by Mr Briscoe-Hough, he made an additional argument not made before the Registrar relying on prayers 2/3 and 4 and ground 4 (read by me for the purposes of this notice of motion only as if it is intended to support prayers for relief 2/3 and 4). I am exercising my discretion afresh mindful of the reasons of the Registrar (Tomko at [53] per Basten JA).

22. The Minister bears an onus in seeking to have the decision set aside of proving that it is in the interests of justice to do so. At issue is principally whether the material sought has ‘apparent relevance’ to the case as pleaded in the summons.

23. No difference in considerations of relevance and oppression inter alia arises for the production of documents pursuant to UCPR r 34.1 or r 21.10. The two rules simply provide for different means to produce documents, one to other parties and one to a court. No statutory construction or other basis such as case law was identified by Mr Briscoe-Hough to support his submission that the scope of r 34.1 is wider than r 21.10. While he has pointed to minor differences in the language used, the effect of both regimes is essentially the same. Mr Briscoe‑Hough’s reliance on specified paragraphs in Blacktown does not assist his argument. The differences being discussed there concerned caselaw developed in different contexts such as discovery in contrast to production of documents pursuant to a subpoena. No discussion in Blacktown suggests that there is any practical or other difference in the assessment of the basis for compliance with r 21.10 and r 34.1. That there is reference to r 21.10 in the Minister’s arguments has no consequence.

24. The core test for any notice to produce is legitimate forensic purpose, requiring apparent relevance to the issues in the proceedings and absence of oppression; Blacktown at [69] and [71] per Bell P and at [88] per Brereton JA. The apparent relevance of documents must be ascertained by examining their description ‘in light of the issues in the case, as they present themselves on the pleadings, in particulars and/or in affidavits or witness statements’; Blacktown at [68] per Bell P and [89] per Brereton JA; SingTel Optus Pty Ltd v Weston [2010] NSWSC 1491 at [30]-[31] per Ward J; ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 at [9] per Tobias JA.

25. In Blacktown at [71] Bell P stated that a relatively low threshold of apparent relevance applies, and Brereton JA at [89] held that ‘no more is required to support the issue of a subpoena for production than that there is a reasonable basis for supposing the material called for would add to relevant evidence’. Accepting these statements, apparent relevance must not be based on speculation, see Cosco Holdings Pty Ltd v Commissioner for Taxation [1997] FCA 1504.

26. The decision of Coates at [20] in particular extracting Southern Pacific relied on by Mr Briscoe-Hough does not suggest anything different should apply to my consideration.

27. I will apply these principles to the two categories in issue.

Category 1

28. No basis for apparent relevance has been established in relation to category 1 concerning a costs invoice related to earlier proceedings that have been dismissed. Nothing in the summons identifies how that could be relevant to the case alleged. That category should be set aside.

Category 3

29. Category 3 relates to the issue of the PIO by the Minister. In light of the relief sought in prayer 1 of the summons, and grounds 1 to 3 which I understand relate to that prayer, I was unable to discern from Mr Briscoe-Hough’s submissions how this very broadly drafted category was relevant to the breach of the LG Act alleged. The focus is that the form of the notice did not comply with s 438A(2)(c) because no evidence was attached. The Minister’s substantive opinion giving rise to the PIO is not raised as an issue in the summons. As the Minister submitted a narrow jurisdictional ground has been identified which gives rise to a question of statutory construction based on the document issued by the Minister. Any document which extends beyond the form of the s 438C notice is not apparently relevant to the pleaded issue and lacks legitimate forensic purpose.

30. The relief in prayers 2/3 refers to s 438F of the LG Act, which imposes an obligation on the Council to prepare a compliance report. The meaning of prayer 2 is unclear in that it refers to the Minister and the basis for doing so was not articulated in a way that I could relate to the obligation placed on the Council in s 438F. In any event category 3 seeks documents relating to the issuing of the PIO and does not refer to compliance reports. Prayers 2/3 do not support the production of category 3 documents.

31. The relief sought in prayer 4 is expressed as an alternative order so that, if none of the other orders sought are made, the Court should order the Minister to vary the undated PIO as required by s 438A(6) & (7) of the LG Act (this was clarified in argument by Mr Briscoe-Hough to be intended to refer to subs (6A)) and s 438C(2A), (3), (4) and (5) to remedy the breaches of the LG Act and afford procedural fairness to the new Councillors. Ground 4 as stated in the summons was submitted to support prayers 2/3 and 4 and states that ‘the reasons relied on by the Minister do not (and cannot) apply to the Council elected on 14 September 2024, and the undated PIO cannot survive once a new Council has met for the first time after an ordinary election. (cf. Sections 438C(6)(a) & 438ZA(b) LG Act)’. Once again the relevance of category 3 documents to these prayers for relief and ground 4 is not apparent.

32. I otherwise consider the widely drafted category 3 which specifies no time period and seeks drafts and final versions of a wide range of documents oppressive based on Mr Brcic’s evidence, as identified in the Minister’s submissions above at [13]. Consideration of the public interest cuts both ways so that while Mr Briscoe-Hough asserts that public interest considerations favour him, they apply equally to the Minister who should not be required to answer such a broad call for documents in these circumstances.

Costs

33. The Minister seeks costs of the notice of motion as he has been successful. As Mr Briscoe-Hough has not had the opportunity to make submissions on costs I will allow time for that to occur before finalising any costs order.

Orders

34. The Court orders:

35. Pursuant to rule 49.19 of the Uniform Civil Procedure Rules 2005 (NSW), the decision of Registrar Froh made on 14 May 2025 (Briscoe-Hough v Minister for Local Government [2025] NSWLEC 1345) be varied by ordering that categories 1 and 3 of the notice to produce filed by the Applicant on 25 November 2024 be set aside.

36. Costs are reserved.

**********