HRNG ADELAIDE, 5-6 May 1996 (hearing), 7 February 1997 (decision) #DATE 7:2:1997

Counsel for defendant: Mr M F Gray QC with him Mr T R Baldock

The plaintiff is a member of the defendant Council, and applies for judicial review of a resolution of the Council, carried at its ordinary meeting held on 20 March 1996, that the Committees of which the plaintiff was a member be reconstituted by removing him therefrom. There is very little dispute as to the facts which are mainly to be derived from two affidavits of the plaintiff, one filed in support of the application when it was filed on 24 April 1996, and the other sworn on 5 December 1996 which I gave the plaintiff leave to file during the hearing before me.

The plaintiff has lived in the Penola Council area since 1982, and part owns and manages a motel and restaurant facility called Chardonnay Lodge at Coonawarra. He and his wife also operate two bed and breakfast cottages in Penola. In May 1995 he was elected unopposed as a councillor. Councillors Grant, Davis, Sutherland, Thomson and Hunt continued as councillors after the election. In addition to the plaintiff, five new councillors were also then elected, namely Councillors Muller, Aitken, Henderson, Adam and Copping. Mr Andrew Eastick was elected as Mayor.

At a special meeting of the Council held on 16 May 1995, it adopted a committee system consisting of three committees, namely the Civil Works Committee, the Planning and Development Committee and the Finance and Economic Development Committee. The Council also resolved to review the system in twelve months' time. It further resolved that membership of the three standing committees would comprise four councillors on the first and second mentioned committees, and three councillors on the third committee. It resolved that membership of the Planning and Development Committee should comprise Councillors Aitken, Muller, Sullivan and the plaintiff. It also resolved that "as an alternative model for consideration to the committee system next year that legal advice be sought on full Council serving on all committees with full delegated powers". It is convenient here in summarising the facts to quote from part of the plaintiff's first affidavit: "9. Shortly after becoming a member of the Council and of the

Planning Committee I became aware of what I believed to be considerable problems in the operation of the function of the

Council as a planning and building authority under the provisions of the Development Act. I considered that the actions of the Council's planning officer, Mr. Dean Burrow, were not of a standard which might reasonably be expected of a person in that position. At the same time I was becoming most concerned about the way in which aspects of the Council's administration was being operated.

10. Shortly after the election of the Council, the District Manager, Mr. A. Bawden ("Mr. Bawden") left for three months leave. During his absence, an Acting District Manager, Mr. Craig Wilson, was employed.

11. In or about July 1995 the Council resolved to offer Mr. Burrow a separation package. This package was formulated and accepted

after negotiations between Mr. Burrow, his union representative, the Mayor and myself. Mr. Burrow left the employment of the Council in or about 25th August 1995.

11.(sic) Shortly thereafter I became aware of what I believed to be considerable irregularities in relation to various other aspects of the operation of the Council administration. As a result the Council called for a series of reports about the administration of the Council. These were provided in confidence to the Council."

The reports were obtained from Bone and Tonkin Planners Pty Ltd, a confidential report from David Mexsom, a Development Officer employed by the Council, the District Council of Naracoorte and the Naracoorte City Council, a report from Maureen Lintvelt, a consultant in the area of office management procedures, and an audit report from Messrs Galpin Engler Bruins and Dempsey, chartered accountants, of Mount Gambier.

On or about 26 September 1995, a special meeting of the Council was held at which the Council's solicitor, Mr Ian Colgrave of Messrs Norman Waterhouse, was present. The purpose of the meeting was to discuss the basis of dissatisfaction with the actions of the District Manager, Mr Bawden, and the possible procedures that could be taken in relation to his performance. The Council resolved that a Committee composed of the Mayor and Councillors Adam and Grant would meet with Mr Bawden on his return from leave. It resolved unanimously that he was to be advised that he had the option of accepting a termination package or embarking upon the grievance procedure set out in the Municipal Officers (SA) Award. Upon his return, Mr Bawden decided to undertake the grievance procedure. Thereafter some of the Councillors sent Mr Colgrave letters setting out their various grievances. Mr Colgrave prepared a document specifying the grievances and performance issues, and wrote to Mr Bawden on 7 November 1995 enclosing a final list of grievances, specifying the agreed grievance procedure and asking for a written response. Mr Bawden's written response addressed to the Mayor and Councillors was dated 23 November 1995.

At its meeting held on 20 December 1995, a motion was moved by Councillor Davis to the effect that the District Manager's written response was satisfactory to the Council and that the grievance procedure be discontinued. The Mayor refused to accept the motion, and he was subsequently advised by Mr Colgrave that his refusal was correct in the circumstances. In a separate letter of the same date addressed to the Mayor and councillors, Mr Colgrave outlined his reasons why the grievance procedures should be allowed to proceed to their natural conclusion. The letter included the following advice: "I would urge all elected members to seriously consider whether a motion to discontinue the Grievance Procedure would be in the best interests of the community of Penola. In saying this I have attempted to provide my advice objectively, not wishing to 'side' with any party.Whilst there is a temptation for some people in this situation to look for a 'win', or alternatively for a 'short cut', I do not believe that such a solution is in the best interests of the Council or community of Penola. The situation regarding the employment of the District Manager, having got to this stage, is not one that can be concluded by short cuts. I also do not believe it is one where the desire of some to publicly defeat and gain short term benefit against others will assist in solving any long term problems."

Notwithstanding this advice, at its meeting held on 14 January 1996, the Council resolved that Mr Bawden's written response was satisfactory to the Council and that the Grievance Procedures be discontinued. Councillors Copping, Grant, Davis, Sutherland, Hunt and Thomson voted in favour of the motion. Councillors Muller, Aitken , Henderson, Adam and the plaintiff voted against it. Counsel for the plaintiff drew attention to the fact that, with the exception of Councillor Copping, the councillors who voted in favour had been councillors prior to the May 1995 election.

The plaintiff decided to communicate with ratepayers and residents, and with the assistance of the other councillors who voted against the motion and of the Mayor, over 1,300 letters were sent to ratepayers and residents in the Penola Council area on or about 28 February 1996. The letter read:

On Wednesday the 14th January 1996, ratepayers of the Penola District Council area were done a great disservice when Councillors Copping, Grant, Davis, Sutherland, Hunt and Thomson voted by a majority of one to drop the grievance procedure which was in process with the District Manager, Mr Tony Bawden.Some months ago Council received legal advice on the administration of Penola District Council with regard to SERIOUS FAILINGS in the operation of Council in a number of important areas, including planning and

building responsibilities, the employment of casual and part-time staff, accounting regulations and requirements of the Local Government Act and regulations etc.Following that advice Council UNANIMOUSLY voted to offer the District Manager two alternatives. The District Manager chose to participate in a Grievance Procedure. This process, provided for in the Municipal Officer's Award, is a

way to FAIRLY resolve performance issues.Written matters of criticism and concern are formally provided to the officer, who

then responds in writing. An INDEPENDENT person with HUMAN RESOURCE SKILLS, agreed to by the Council and relevant Union, then examines the matters raised and answers given, interviewing Council officers and elected members, assessing the validity of the concerns raised and the answers given.A recommendation is then made to Council on the future of the officer and other considerations.Before the UNANIMOUS decision of Council to support the Grievance Procedure, Councillors WERE WELL AWARE that this method of conflict resolution can take up to six months to conclude and would incur considerable expenses.Just before the INDEPENDENT PERSON was to be appointed and begin his work, the six Councillors voted to discontinue the AGREED and RESPONSIBLE course of action.The procedure would most likely have been completed by the end of February, only 4 months from commencement.The dropping of the procedure means that the Performance Grievances against the District Manager cannot be raised again by Council nor does Council have the opportunity to possibly give the District Manager an official warning on any of the serious matters raised. However matters where breaches of statutory law have occurred can still be raised.Well reported SERIOUS DEFICIENCIES in planning and building administration for several years have not only lost Council substantial revenue but have also exposed Council to possible litigation. e.g. Structural failure, fire or industrial accident in incorrectly or unapproved buildings can lead to Council being sued.Just one substantial case could consume Council's total rate revenue.Council's records show that at least 10 persons have been employed by Council, some for up to 10 years, receiving direct payments for labour with no tax deductions, no tax file number registrations, no superannuation[sic] and insufficient workers compensation levy payments. In most cases there has been no presentation of time records to prove the work has even been completed. These persons include a member of the District Manager's own family.A settlement with one incorrectly employed person recently cost Council (and in turn ratepayers) many thousands of dollars. The amount Council spent on legal fees in the grievance procedure is insignificant compared to that payout, let alone the potential for further claims, fines etc. in relation to other matters.Under the Local Government Act the ultimate responsibility for administration of Council rests with the District Manager. Penola District Council's Manager receives a salary package which was recently calculated by an accountant to be of equivalent benefit to receiving a direct salary in excess of $90,000 per annum. Despite more than adequate compensation for those responsibilities it appears Councillors Copping, Grant, Davis, Sutherland, Hunt and Thomson do not believe that SERIOUS DEFICIENCIES in Council's administration, which are ultimately the responsibility of the District Manager should be further examined.Residents and Ratepayers should not be satisfied and should ask the six Councillors who voted to stop the grievance procedure;

Why did the six vote unanimously to invest substantial ratepayers' money in a process if they did not intend to complete it?

What qualifications have the six suddenly gained to be able to judge this case when five of them have presided over years of administration deficiencies?

Why did the six accept the advice of Council's solicitors to commence the process then totally disregard the same solicitor's recent advice that there was 'no legal reason not to complete the process'?

How could the six make an informed decision to drop the grievance procedure when the Council has never met to discuss the individual grievances raised or the District Manager's answers?

If the six believed in the management capabilities of the District Manager why not have that belief proven by the set down process?

Ratepayers should be aware that Councillors Muller, Aitken, Henderson, Adam, Yates and Mayor Eastick are not satisfied with the dropping of the grievance procedure and will strive to see that ratepayers and residents of the Penola District Council area are serviced in a correct, legal and efficient manner.The purpose of this letter is not to wage a personal campaign against the District Manager but to inform of what has been taking place and to urge residents and ratepayers to seek a much better performance from some of their representatives.

Shortly thereafter an undated letter headed "Open Letter to Residents of the District Council of Penola", presumably prepared by Mr Bawden but also signed by the Mayor, was posted. In its issue dated 14 March 1996, the Naracoorte Herald, a newspaper circulating in the Penola Council area, published the following letter from the Mayor Mr Eastick: "Yates Letter is defended

Sir - On behalf of the District Council of Penola I have recently released a letter to residents of the district about the management of the council since May 1995.

The purpose of that letter is to indicate that serious deficiencies in the administration of the council in a number of key areas had been identified.

The letter also listed the actions that elected members, including me, have initiated to correct those deficiencies as quickly and efficiently as possible.

Residents will recall that at a meeting I had with then Local Government Minister, John Oswald, in late 1995, the Minister, in writing, allowed council until March 31 to correct these deficiencies and to write to him about the steps council had taken.

One of the steps undertaken was to implement a grievance process and the district manager to investigate how the councils administration could have become so deficient and to test the district manager's responsibility for that.

In January 1996, before the process was complete, council by a majority of one resolved to cease and conclude the investigation.

The letter recently circulated to residents of the Penola district by Cr James Yates describes the many deficiencies identified by elected members since May 1995 and the events leading up to the dropping of the grievance process.

Like Cr Yates and four other councillors, I strongly disagree with the action of council to cease and conclude the grievance process which I believe was not in the best interest of council, the community or the district manager.

It is very important that on my part the letter from council to residents is not seen to be contradicting that of Cr Yates, which I know to be accurate in all respects.

I quote again from the plaintiff's first affidavit: "28. A meeting of the council was held on 20th March 1996. The first portion of the meeting was occupied by questions without notice. Two questions without notice were directed to me by Councillor Grant. He asked me first, whether I had any remorse over sending the letter to ratepayers. He then asked whether I intended to continue my action in the grievance process. In respect to the first question, I answered that I had no remorse whatsoever. As to the second question, I replied that I was still considering carrying out some action in relation to grievances. By that I meant that I was considering my rights as a ratepayer to have statutory breaches by the Council or its officers investigated."

Towards the end of the meeting a motion was moved without notice by Councillor Grant and carried. He read from a typed sheet of paper which had apparently been prepared beforehand. The minutes of the meeting include the following: "16.5 MOVED Cr. Grant SECONDED Cr. Davis That this Council affirm its commitment to an open and informed debate about all matters affecting Council. That this Council however, acknowledge that some forms of comment may be so personal or ill informed as to not form part of such an informed debate but rather as to be a personal attack. That this Council considers Cr. Yates communications to go beyond informed and reasonable debate and this Council sanctions him for doing so. That having regard to Cr. Yates conduct and the effect it has had and will have on Council, Council determines that Cr. Yates is no longer an appropriate person to have on any Committee of Council and it is hereby resolved that the Committees of which Cr. Yates are a member [are] hereby reconstituted by removing Cr. Yates from such Committees.Cr. Henderson called for a division.The division was recorded, Councillors in favor of the motion being Crs. Thomson, Sutherland, Davis, Copping, Hunt and Grant and Councillors against being Crs. Yates, Muller, Adam, Henderson and Aitken."

The plaintiff was also a member of the Tourism Committee, the Bicycle Planning Committee, the Swimming Pool Committee and a committee to raise funds for the erection of a particular statute. He understands that the effect of the resolution was to exclude him from membership of all those committees.

The Court was referred to Regulation 43 of the Local Government (Proceedings of Councils) Regulations 1984 which reads: "43.(1) Subject to subregulation (4) of this regulation, a motion, the effect of which, if carried, would be to revoke or amend any resolution passed at any time since the last periodical election shall not be accepted by the chairman, unless the member intending to move the motion gives notice in the form of a written notice of motion to the chief executive officer at least six clear days prior to the meeting at which the motion is to be moved.

(2) The chief executive officer shall include any notice of motion under subregulation (1) of this regulation on the agenda for the meeting at which it is to be moved.

(3) If a motion to revoke or amend a resolution is negatived, a motion to the same effect, shall not be entertained before the next periodical election.

(4) Notwithstanding subregulation (1) of this regulation, this regulation shall not apply to any resolution revoking or amending any resolution passed pursuant to Part XXIIA of the Local Government Act, 1934, or the Parking Regulations, 1981, as varied."

The plaintiff contends, inter alia, that the motion that was passed at the meeting on 20 March 1996, supra, was improperly accepted by the Mayor owing to the absence of the six days' notice.

The plaintiff states that his dismissal from these committees has been widely publicised in the region on radio, television and in the print media. He states that he has always enjoyed a very good reputation in the region, and he believes that his reputation has been severely affected.

An ordinary meeting of the Council was held on 15 May 1996. Item No 9 of the Agenda was specified as "District Manager's Report". I infer that the District Manager's report dated 8 May 1996 was circulated with the Agenda. The Report included the following: "1.0 REVIEW OF COMMITTEE SYSTEM Council resolved last year to review the effectiveness of its standing committees system and structure after 12 months of operation.As such, Council need now to review: 1. The number and type of the three standing committees it has appointed, 2. The membership of these committees, 3. The meeting times and frequency of these,

Under the heading "15.0 OTHER BUSINESS: - Motions without notice", the minutes of the meeting included: "15.6 MOVED Cr. Grant SECONDED Cr. Thomson That all Councillors except those excluded from sitting on Committees be appointed to Councils three standing committees (Planning and Environmental Services, Finance and Economic Development and Civil Works) and these Committees meet on the Tuesday in the week before Wednesdays monthly Council Meeting. CARRIED"

Rule 98.04 of the Supreme Court Rules provides that upon the filing of any summons seeking judicial review, the plaintiff shall file an affidavit containing, inter alia, details of the relief sought and the grounds upon which it is sought. The plaintiff's first affidavit did not comply with that rule, although it did include the following paragraph: "33 I believe that the motion referred to in paragraph 29 [the motion of 20 March] was moved for the purpose of punishing me for sending out the letter referred to in paragraph 25. No other action has been taken against any of the other Councillors or the Mayor for their association with that letter. I believe that the motion of the Council was moved for an improper purpose and that the decision is an unreasonable exercise of the Council's power. I believe that the Council has acted capriciously and in the manner which is so unreasonable as to justify the intervention of this Honourable Court in relation to that decision. I therefore seek the orders set out in the Summons herein."

In all the circumstances it seemed to me to be proper to give leave to the plaintiff to file his second affidavit. It is unnecessary here to set out what orders he sought therein, but the grounds upon which he relied were stated as follows: "8. The grounds upon which I rely are:- (i) I have a legitimate expectation that I may stand for election to and serve upon committees of the Council and once elected remain upon such committees and enjoy the benefits thereof which expectation has without just cause been denied me by the resolutions of the Council of the 20th March 1996 and the 15th May 1996. (ii) In exercising its discretion to remove me from committees of Council the Council has denied me procedural fairness. (iii) The reasons given for the passing of the resolution of the 20th March 1996 are or include improper motives, namely the desire to sanction me and to prevent me from communicating publicly on matters of major community interest. (iv) The Council in passing the motion of the 20th March 1996 has taken into account irrelevant matters when exercising its discretion, namely the matters contained in my letter to ratepayers and residents of Penola District Council dated 26th February 1996.

(v) The resolutions of the Council of the 20th March 1996 and the 15th May 1996 are so devoid of any plausible justification that no reasonable body of persons could have so resolved. (vi) In passing the resolutions of the 20th March 1996 and the 15th May 1996, both of which have the effect of rescinding or altering the resolutions of Council of the 16th May 1995, the Council failed to comply with the procedures prescribed by Regulation 43 of the Local Government (Proceedings of Council) Regulations 1984."

The plaintiff seeks the following orders in his Amended Summons: "2. An order in the nature of certiorari to quash the decision of the District Council of Penola being resolution No 16.5 dated 20th March 1996.

3. A declaration that the plaintiff from the date of his election was and has at all times continued to be entitled to be appointed a member of any committee of the defendant.

4. An injunction restraining the defendant from preventing the plaintiff from attending and carrying out the duties of a member and, when applicable, the chairman of any committee of the defendant.

5. Such further order or directions as this Honourable Court thinks fit."

I was referred to the following sections of the Local Government Act, 1934: "38.(1) A council may establish committees of its members for the purpose of - (a) inquiring into and reporting to the council on any matters within the ambit of the council's responsibilities; (b) exercising, performing or discharging delegated powers, functions or duties.

(2) A member of a committee established under this section holds office as such at the pleasure of the council.

(3) A committee may establish sub-committees for the purpose of inquiring into, and reporting on, any matters within the ambit of the committee's responsibilities.

(4) The mayor or chairman of a council is, ex officio, a member of any committee or sub-committee.

41.(1) Subject to this section, a council may delegate any power,

function or duty vested, conferred or imposed in or on the council under this or any other Act. (1a) A delegation may be made - (a) to a council committee; (b) to a committee consisting of officers or employees of the council; (c) to a committee the membership of which is drawn from at least two of the following classes of persons: (i) members of the council; (ii) officers or employees of the council; (iii) persons nominated for membership of the committee by a

Minister of the Crown;or (d) to an officer or employee of the council."

Section 41(2) lists matters which may not be delegated, and s41(4) provides that a delegation by a council is revocable by resolution of the council and does not derogate from the power of the Council to act itself in any matter.

The Act provides for the arrangements and procedure to be followed at meetings of Councils (ss58 to 60) and separately for meetings of Council committees (s61). The Act allows for the payment of allowances to Council members in performing official duties (s49). The plaintiff received such a benefit and, in addition, an allowance of $200 as Chairman of the Planning and Development Committee. There is no provision in the Act for appeals against the appointment by the Council of members to committees. In addition to the provisions of the Act, regulations may be made regulating the procedure to be observed at meetings of councils (s691(1)(f). I have referred to Regulation 43 earlier in these reasons. Other regulations which may be relevant are: "19.(1) A member may bring forward any business in the form of a written notice of motion.

(2) The notice of motion shall be given to the chief executive officer at least six clear days before the meeting at which the motion is to be moved and shall be included on the agenda for that meeting.

(3) The chairman shall refuse to accept a motion when the subject matter of such motion in his opinion is ultra vires.

(4) A notice of motion shall, unless seconded, lapse.

(5) A notice of motion shall not be proceeded with when called upon unless the member who gave notice, or some member authorised by him in writing to proceed is present.

20.(1) A member may bring forward any business by way of a motion without notice.

(2) A member proposing a motion without notice shall, if required by the chairman, put it in writing.

(4) A member proposing a motion without notice shall state the purpose of the motion before addressing the meeting on the subject of the motion.

34.(1) The chairman may call to order a member who is in breach of any provision of these regulations or the Act.

(2) A member may draw to the attention of the chairman a breach of

the regulations or the provisions of the Act, and shall state briefly the nature of the alleged breach.

(3) A point of order shall take precedence over all other business until determined.

(4) The chairman when called upon to decide a point of order shall give his decision.

(5) If any objection is taken to the decision of the chairman, a motion that the decision of the chairman be not agreed with, shall

be moved forthwith provided that prior to the motion being put, the chairman shall be entitled to make a statement in defence of his decision.

(6) A resolution under sub-regulation (5) of this regulation shall bind the meeting.

(7) If a motion under sub-regulation (5) of this regulation is not seconded, the business of the meeting shall be proceeded with at

Counsel for the defendant argued that Regulation 43 does not affect the explicit authority given by ss38(2) and 39(2) of the Act. He relied on Manton v Brighton Corporation [1951] 2 KB 398. The plaintiff in that case was an alderman of a county borough and had been appointed to serve on three standing committees. An ad hoc committee appointed to enquire into certain alleged conduct of the plaintiff recommended that he no longer serve on any committee of the Corporation. That recommendation was adopted at a meeting of the Council who thereafter treated the plaintiff as having been removed from each of the three committees on which he had been previously appointed to serve. He unsuccessfully sought an injunction to restrain the Corporation from interfering with the exercise by him of his rights and privileges as a member of all committees to which he had been appointed until his term of office should expire. It was held that the Corporation as a delegating authority could not only at any time resume their own authority with which they had never in fact parted, but could revoke that authority even arbitrarily or capriciously. At p404 Slade J said: "If there is power to revoke the authority of a committee as a whole, in my judgment there must be a power to revoke the authority of any single member, which in some cases will include, of course, the authority of a person who is not a member of the council. In the result, therefore, I hold that this action fails." (See Cross and Bailey on Local Government Law 1986 para4-04)

The plaintiff relied in part on the decision of the House of Lords in Wheeler and Others v Leicester City Council [1985] UKHL 6; [1985] 1 AC 1054. The headnote adequately summarises the facts and reads: "A city council, which had a policy of withholding support for and

discouraging sporting links with South Africa because of that country's practice of apartheid, had over a period of several years permitted the city's leading rugby football club to use a recreation ground for matches and training. In March 1984 the English Rugby Football Union decided to send a touring team to play in South Africa, and three members of the club were selected for that team. The council put questions to the club as to whether (1) it supported the government opposition to the tour, (2) it agreed that the tour was an insult to a large proportion of the local population, (3) it would condemn the tour and press for its cancellation, and (4) it would press the players not to participate in the tour. The council indicated that only affirmative answers would be acceptable. In response, the club, which was multi- racial, stated that it condemned apartheid but recognised that there were differences of opinion over the way in which apartheid could be broken down. It further stated that the players, as amateur sportsmen, had individual choice as to when and where to play, subject only to the constraints of Rugby Football Union rules and club loyalty but it had supplied a memorandum prepared by the anti-apartheid movement to the players and asked them seriously to consider the contents before finally deciding whether to play in South Africa. The tour took place in May and June 1984 with the three club members participating. In August 1984 the council

passed a resolution banning the club from using the recreation ground for 12 months. Six members of the club, acting on their own behalf and on behalf of the other members of the club, sought judicial review."

The leading speech was delivered by Lord Roskill. At pp1078-1079, his Lordship said: "None of the learned judges in the courts below have felt able to hold that the action of the club was unreasonable or perverse in the Wednesbury sense. They do not appear to have been invited to consider whether those actions, even if not unreasonable on Wednesbury principles, were assailable on the grounds of procedural impropriety or unfairness by the council in the manner in which, in the light of the facts which I have outlined, they took their decision to suspend for 12 months the use by the club of the Welford Road recreation ground.

I greatly hesitate to differ from four learned judges on the Wednesbury issue but for myself I would have been disposed respectfully to do this and to say that the actions of the council were unreasonable in the Wednesbury sense. But even if I am wrong in this view, I am clearly of the opinion that the manner in which the council took that decision was in all the circumstances unfair within the third of the principles stated in Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374. The [Leicester City] council formulated those four questions in the manner of which I have spoken and indicated that only such affirmative answers would be acceptable. They received reasoned and reasonable answers which went a long way in support of the policy which the council had accepted and desired to see accepted. The views expressed in these reasoned and reasonable answers were lawful views and the views which, as the evidence shows, many people sincerely hold and believe to be correct. If the club had adopted a different and hostile attitude, different considerations might well have arisen. But the club did not adopt any such attitude.

In my view, therefore, this is a case in which the court should interfere because of the unfair manner in which the council set about obtaining its objective. I would not, with profound respect, rest my decision upon the somewhat wider ground which appealed to Browne-Wilkinson L.J. in his dissenting judgment.

Since preparing this speech I have had the advantage of reading in draft the speech of my noble and learned friend Lord Templeman with which I find myself in complete agreement.

I would, therefore, allow the appeal and order certiorari to issue to quash the decision of 21 August 1984, the terms of which I have already set out. I do not think that the declaration or the injunction sought is necessary at this juncture, but lest they become so, I would remit the matter to the High Court with liberty to the club to apply for such further relief as may be thought necessary to protect their rights."

The other four members of the House agreed with the reasons given by Lord Roskill for allowing the appeal. In addition, Lord Templeman added some reasons of his own, with which the other members also expressed their agreement. At pp1080-1081, Lord Templeman said: "The council does not contend that the club should have threatened or punished the three club members who participated in the tour or that the club could properly have done so. Nevertheless, the club has been punished by the council according to Mr. Soulsby for 'failing to condemn the tour and to discourage its members from playing.' My Lords, the laws of this country are not like the laws of Nazi Germany. A private individual or a private organisation cannot be obliged to display zeal in the pursuit of an object

sought by a public authority and cannot be obliged to publish views dictated by a public authority.

The club having committed no wrong, the council could not use their statutory powers in the management of their property or any other statutory powers in order to punish the club � In my opinion, this use by the council of its statutory powers was a misuse of power. The council could not properly seek to use its statutory powers of management or any other statutory powers for the purposes of punishing the club when the club had done no wrong."

These dicta were applied by the Court of Appeal in R v Lewisham London Borough Council; ex parte Shell UK Limited [1988] 1 All ER 938. The Court of Appeal held that fostering good race relations could justify a Council boycott of a company with South African subsidiaries, but the boycott was struck down because it was also motivated by the hope that the parent company would withdraw from South Africa. At p951, Neill LJ said after referring to Wheeler's case: "From this decision it seems clear that � a council cannot use its statutory powers in order to punish a body or person who has done nothing contrary to English law. Nor can a council exercise its statutory powers in a way which involves some procedural impropriety or some unfairness towards a body or person who has acted reasonably and in no way in a hostile attitude towards the council."

At p952, his Lordship said: "It seems to me to be quite clear, however, from the letter of 16 March from the leader of the council and from the surrounding circumstances, that the purpose of the decision was not merely to satisfy public opinion in the borough or to promote good race relations in the borough, but was in order to put pressure on Shell UK and Shell Transport to procure a withdrawal of the Shell group

from South Africa. Furthermore, as I see it, the wish to achieve this purpose exerted a very substantial influence on the decision.

It is to be remembered that neither Shell UK nor any of the other UK Shell companies was acting in any way unlawfully. Nor is there any suggestion whatever that Shell UK or any of the other UK companies was in any way in breach of the contract compliance scheme devised by the Commission for Racial Equality. The attitude which Shell UK and Shell Transport adopted was a responsible one. The council, and indeed a great many other people, may strongly disagree with the policy adopted by the Shell group and as to the efficacy of this policy in bringing about any change in the South African regime, but I find it impossible in the light of the authorities to escape from the conclusion that by seeking to bring pressure on Shell UK to change the Shell policy towards South Africa the council was acting unfairly and in a manner which requires the court to intervene.

The wish to change the Shell policy towards South Africa was inextricably mixed up with any wish to improve race relations in the borough and this extraneous and impermissible purpose has the effect of vitiating the decision as a whole.

It must also follow that, in my judgment, the council is acting ultra vires in taking part in a campaign to persuade other local authorities effectively to boycott trade with Shell UK and its associated companies. Joint campaigns between boroughs and councils are of course to be expected and can be justified in many fields. But the statutory powers of a local authority cannot be employed in order to persuade other authorities to bring pressure to bear on trading companies in circumstances such as the present.

Accordingly, for these reasons I for my part would grant the relief sought in the amended notice of application."

At p952, Taylor J stated that he agreed with the judgment of Neill LJ. (See also Regina v Sheffield City Council (1985) 84 Knight's LGR 563.)

The next case to which I refer is R v Greenwich London Borough Council; ex parte Lovelace [1991] 1 WLR 506. In that case the applicant, an elected member of the respondent Council, was a member of the majority Labour Party and also a member of the Council's housing committee. The Council's standing orders provided that the Council might at any time dissolve a committee or alter its membership. The Court of Appeal upheld a Council decision reconstituting the membership of the Housing Committee so as to sack members of the ruling group who voted against party directions. At p520, Neill LJ said: "I have looked at the evidence in this case with great care and I have considered the submissions put forward on behalf of the applicant. I find myself quite unable to accept that the decision to remove the applicant from the housing committee was taken in order to punish her or for any other improper motive. It was taken because both the majority of the Labour group and other councillors wanted the housing committee to be able to take its part in formulating an acceptable budgetary strategy. The eight councillors, according to the uncontradicted evidence of Councillors Farlie and Picton, had no alternative proposals to put forward.

In my judgment the reason for the decision was a legitimate reason. A councillor is always under some pressures from outside. The risk of not being re-elected at the next election is one obvious constraint. It seems to me however that at the present day, when local government is organised on party lines, some additional constraints resulting from the existence of a party line or strategy on particular issues are inevitable. Penalties by way of punishment must clearly be avoided or any action which is vindictive or malicious. But a political party is entitled to take steps to ensure its cohesion and I can see nothing intrinsically wrong in a decision to change a party's representation on a committee or sub-committee so as to advance the policies which the party considers desirable. In this sense 'group discipline' does not connote punishment but an attempt to keep the party group together.

The line between constraints which are acceptable and even inevitable to enable a party group to function together, and constraints which are unacceptable because they involve improper coercion, may often be a narrow one. I am satisfied that in this case the line was not crossed."

At p 522 Staughton LJ said: "Standing order A31 (iii) of the council provides: 'the council may at any time dissolve a committee or alter its membership.' This

necessarily allows a member to be removed from a committee in mid- term rather than at the annual meeting of the council. But it is conceded that the power is not unlimited in scope. As Glidewell 33. said in the Divisional Court [1990] 1 W.L.R. 18, 23:'the power must be exercised lawfully, for a purpose within the ambit of the Local Government Act 1972, not for an extraneous purpose, a purpose for which the power was not given. Moreover, the power must be exercised rationally, not perversely, and the procedures adopted for exercising it must be fair.'

The three principles there stated accord with the speech of Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374, 410."

At p523 his Lordship said: "However, in the particular context of this case, it is agreed that the council could not lawfully take any step with the motive of punishing a councillor for the way in which he had cast his vote. Notice that it is the council on which this restraint operates, not any individual or party - and it is the council which is reproached

in this case for removing the applicant from the housing committee. Furthermore it is accepted that the decision will have been unlawful if the motive of punishment, although not the sole or main reason for taking it, exerted a substantial influence.

I see no reason to differ from the law thus accepted by the parties to this appeal. It appears to me to accord with the decisions of the Court of Appeal in Reg. v. Waltham Forest London Borough Council, Ex parte Baxter [1988] Q.B. 419; of the House of Lords in Wheeler v. Leicester City Council [1985] UKHL 6; [1985] A.C. 1054 and of the Divisional Court in Reg. v. Lewisham London Borough Council, Ex parte Shell U.K. Ltd. [1988] 1 All E.R. 938 and Reg. v. Derbyshire County Council, Ex parte The Times Supplements Ltd., The Times, 19 July 1990. Those cases show that it is not, in general, the business of local authorities to punish people who have committed no legal wrong. That is to be distinguished from sanctions imposed by the group which is formed by members of a political party. Sir John Donaldson M.R. in the Waltham Forest case, at p. 424, referred to 'removal from chairmanships' as a party sanction. I am not sure which chairmanships might be involved or whether removal might not require action by the council as well as by the party.

The Lewisham case is also authority for the 'substantial influence' test where a council has acted for two motives of which one is good and the other bad. There was some contest as to what precisely are the boundaries of punishment in this context. It may have the narrow meaning of retribution and nothing more, as would be the case if the council were about to be abolished and there could be no opportunity for repetition. Or it may include measures taken to deter the councillor in question, or others, from voting in the future in a manner which the council would find distasteful. In my judgment the wider meaning is correct."

At p526, Stocker LJ said he agreed with the conclusions of Neill and Staughton LJJ.

I also refer to Aronson and Dyer: Judicial Review of Administrative Action 1996 at p328 where the learned authors say: "Australian cases suggest a 'substantial purpose" test, in the sense that the decision would not have been made without the illegitimate purpose". They refer, inter alia, to Thompson v Randwick Corp [1950] HCA 33; (1950) 81 CLR 87 at 106.

Local Government in Australia is not organised on party political lines as far as I know - certainly not in Penola. The plaintiff is clearly what is commonly called a "trouble-shooter". I do not doubt his conduct was irritating to some of the defendant's councillors, but so far from acting illegally or doing anything wrong, he was really only pursuing a policy which the defendant's own solicitor had advised. Whether the test is articulated as it has been in English cases or as it has been in the Australian cases, I have not the slightest doubt that Councillor Grant and the other councillors who supported his motion wished to punish or penalise the plaintiff. In a very real sense, they usurped the role of the ratepayers. The Shorter Oxford English Dictionary includes the word "penalise" as a meaning for the word "sanction", but says such a use is "of doubtful acceptability at present". I suspect Councillor Grant and his supporters really intended "censure" in using the word they did. Be that as it may, the clear fact remains the plaintiff has been penalised. In reaching my conclusion, I have noted that none of the councillors filed any affidavit material to counter the allegations of impropriety.

I have decided that the plaintiff is entitled to relief here without having to rule on his attractive alternative arguments that he was denied procedural fairness, that the resolution was ultra vires because it was contrary to Regulation 43 (compare Regina v Rushmoor Borough Council; ex parte Crawford, The Times 28 November 1981), or that the resolution was unreasonable or perverse in the sense discussed in Associated Provincial Picture Houses v Wednesday Corporation [1947] EWCA Civ 1; (1948) 1 KB 223.

I make an order in the nature of certiorari to quash the decision of The District Council of Penola being Resolution No 16.5 dated 20 March 1996. I will hear the parties further as to what, if any, further relief is required.