Loder v Narrabri Shire Council

Catchwords

[2009] HCA 41 Australian Securities and Investments Commission v King (2020) 376 ALR 1[2020] HCA 4 Brayson Motors Pty Ltd (in liq) v Federal Commissioner of Taxation (1985) 156 CLR 651[1985] HCA 20 Calabria Community Club Ltd [2013] NSWSC 998 CIC Insurance Ltd v Bankstown Football Club (1997) 187 CLR 384[1997] HCA 2 Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297[1981] HCA 26 Empire Waste Pty Ltd v District Court of New South Wales (2013) 86 NSWLR 142[2013] NSWCA 394 Harrison v Melhem (2008) 72 NSWLR 380[2008] NSWCA 67 House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498[2000] NSWCA 44 Hunter Resources Ltd v Melville (1988) 164 CLR 234[1988] HCA 5 Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1[2008] HCA 38 Mine Subsidence Board v Wambo Coal Pty Ltd (2007) 154 LGERA 60[2007] NSWCA 137 Minister Administering the Crown Lands Act 1989 v New South Wales Aboriginal Land Council (2018) 231 LGERA 145[2018] NSWLEC 26 Minister for Planning v Walker (2008) 161 LGERA 423[2008] NSWCA 224 O'Connell v Nixon (2007) 16 VR 440[2007] VSCA 131 Plaintiff M47-2012 v Director General of Security (2012) 251 CLR 1

Judgment (26 paragraphs)

[1]

Roden v Bandora Holdings Pty Ltd (2015) 213 LGERA 103; [2015] NSWLEC 191 Ross v The Queen (1979) 141 CLR 432; [1979] HCA 29 Ryan v Heiler (1990) 69 LGRA 307 Ryan v Heiler [1990] NSWCA 160 Thiering v Daly (2011) 83 NSWLR 498; [2011] NSWSC 1345 Unions NSW v New South Wales (2019) 264 CLR 595; [2019] HCA 1 Wilson v State Rail Authority of New South Wales (2010) 78 NSWLR 704; [2010] NSWCA 198 Texts Cited: AD Lang, Horsley's Meetings: Procedure, Law and Practice (7th ed, 2015, LexisNexis Butterworths) D Pearce, Statutory Interpretation in Australia (9th ed, 2019, LexisNexis Butterworths) New South Wales Legislative Assembly, Parliamentary Debates (Hansard) 28 May 2002 New South Wales Legislative Assembly, Parliamentary Debates (Hansard) 2 May 2006 Macquarie Dictionary Shorter Oxford Dictionary Category: Principal judgment Parties: Ann Loder (Applicant) Narrabri Shire Council (Respondent) Representation: COUNSEL: R White (Applicant) J Lazarus SC (Respondent)

[2]

SOLICITORS: Crennan Legal (Applicant) Local Government Legal (Respondent) File Number(s): 20/155016

[3]

Judgment

The Applicant Ms Ann Loder has commenced Class 4 proceedings seeking a declaration that her civic office as a councillor on Narrabri Shire Council (the Council) has not become vacant under the Local Government Act 1993 (NSW) (LG Act). The dispute between the parties arises following the Applicant's illness diagnosed in February 2020 and subsequent absence from three consecutive ordinary Council meetings due to ongoing medical treatment and recovery.
At issue is the operation of s 234(1)(d) of the LG Act which provides for the vacation of a civic office if the holder of that office is absent from three consecutive ordinary meetings of the council without prior leave of the council or leave granted by the council at any of the meetings concerned. The Applicant contends that resolutions of the Council at the three meetings to accept the Applicant's apologies, together with surrounding circumstances, were sufficient to constitute a leave of absence granted by the Council. The Council disagrees and says that the acceptance of an apology at a council meeting is not sufficient to qualify as "leave granted by the council" within the meaning of s 234(1)(d)(ii).
The summons filed on 25 May 2020 seeks the following relief: 1. A Declaration that the absence of the Applicant from the Ordinary Meetings of the Respondent Council on 25 February 2020, 24 March 2020 and 28 April 2020 ("the three consecutive meetings") were with leave granted by the Respondent at each of the meetings concerned for the purposes of s 234(1)(d) Local Government Act 1993. 2. A Declaration that the civic office as a councillor on Narrabri Shire Council has not become vacant by her absence from the three consecutive meetings. 3. Order that the Respondent restore to the Applicant all rights and privileges of a councillor with Narrabri Shire Council. 4. Order that the Respondent pay to the Applicant all councillor remuneration due from 28 April 2020 to date. 5. Such further or other Orders as the Court sees fit. 6. Costs.

[4]

Local Government Act 1993 (NSW)

Relevant sections of the LG Act provide: Chapter 9 How are councils established? … Part 2 Councils … Division 3 The councillors 232 The role of a councillor (1) The role of a councillor is as follows - (a) to be an active and contributing member of the governing body, (b) to make considered and well informed decisions as a member of the governing body, (c) to participate in the development of the integrated planning and reporting framework, (d) to represent the collective interests of residents, ratepayers and the local community, (e) to facilitate communication between the local community and the governing body, (f) to uphold and represent accurately the policies and decisions of the governing body, (g) to make all reasonable efforts to acquire and maintain the skills necessary to perform the role of a councillor. (2) A councillor is accountable to the local community for the performance of the council. … 234 When does a vacancy occur in a civic office? (1) A civic office becomes vacant if the holder - (a) dies, or (b) resigns the office by writing addressed to the general manager, or (c) is disqualified from holding civic office, or (d) is absent from 3 consecutive ordinary meetings of the council (unless the holder is absent because he or she has been suspended from office under this Act or because the council has been suspended under this Act or as a consequence of a compliance order under section 438HA) without - (i) prior leave of the council, or (ii) leave granted by the council at any of the meetings concerned, or (e) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or (f) becomes a mentally incapacitated person, or (g) is dismissed from civic office, or (g1) in the case of the office of a councillor, is elected as mayor by the electors, or (h) ceases to hold the office for any other reason. (2) For the purposes of subsection (1)(d), a councillor applying for a leave of absence from a meeting of a council does not need to make the application in person and the council may grant such leave in the absence of that councillor. (3) If the holder of a civic office attends a council meeting (whether or not an ordinary meeting) despite having been granted leave of absence, the leave of absence is taken to have been rescinded as regards any future council meeting. (4) Subsection (3) does not prevent the council from granting further leave of absence in respect of any future council meeting. (5) The office of a mayor elected by councillors becomes vacant if the mayor ceases to hold office as a councillor. … Chapter 12 How do councils operate? Part 1 General 355 How a council may exercise functions A function of a council may, subject to this Chapter, be exercised - (a) by the council by means of the councillors or employees, by its agents or contractors, by financial provision, by the provision of goods, equipment, services, amenities or facilities or by any other means, or (b) by a committee of the council, or (c) partly or jointly by the council and another person or persons, or (d) jointly by the council and another council or councils (including by means of a joint organisation or a Voluntary Regional Organisation of Councils of which the councils concerned are members), or (e) by a delegate of the council (which may, for example, be a joint organisation or a Voluntary Regional Organisation of Councils of which the council is a member). … Part 2 How are decisions made? Division 1 Code of meeting practice 360 Conduct of meetings of councils and committees (1) The regulations may prescribe a model code of meeting practice for the conduct of meetings of councils and committees of councils of which all the members are councillors. (2) The model code may contain both mandatory and non-mandatory provisions. (3) A council must, not later than 12 months after an ordinary election of councillors, adopt a code of meeting practice that incorporates the mandatory provisions of the model code prescribed by the regulations. The adopted code may also incorporate the non-mandatory provisions and other provisions. (4) A code adopted or amended by the council must not contain provisions that are inconsistent with the mandatory provisions. (5) A council and a committee of the council of which all the members are councillors must conduct its meetings in accordance with the code of meeting practice adopted by it. … Division 2 Other provisions concerning council meetings 365 How often does the council meet? The council is required to meet at least 10 times each year, each time in a different month. … 367 Notice of meetings (1) The general manager of a council must send to each councillor, at least 3 days before each meeting of the council, a notice specifying the time and place at which and the date on which the meeting is to be held and the business proposed to be transacted at the meeting. (2) Notice of less than 3 days may be given of an extraordinary meeting called in an emergency. (3) A notice under this section and the agenda for, and the business papers relating to, the meeting may be given to a councillor in electronic form but only if all councillors have facilities to access the notice, agenda and business papers in that form. … 370 What are the voting entitlements of councillors? (1) Each councillor is entitled to one vote. … 371 What constitutes a decision of the council? A decision supported by a majority of the votes at a meeting of the council at which a quorum is present is a decision of the council. … Part 3 Delegation of functions 377 General power of the council to delegate (1) A council may, by resolution, delegate to the general manager or any other person or body (not including another employee of the council) any of the functions of the council under this or any other Act, other than the following: … (r) a decision under section 234 to grant leave of absence to the holder of a civic office, … Chapter 17 Enforcement Part 1 General Division 1 Legal proceedings 672 What constitutes a breach of this Act for the purposes of this Part? In this Part - (a) a breach of this Act means - (i) a contravention of or failure to comply with this Act, (ii) a threatened or an apprehended contravention of or a threatened or apprehended failure to comply with this Act, and (b) this Act includes - (i) an approval under Part 1 of Chapter 7, and (ii) an order under Part 2 of Chapter 7, and (iii) the regulations. … 674 Remedy or restraint of breaches of this Act - other persons (1) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act. (2) The proceedings may be brought by a person on the person's own behalf or on behalf of the person and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings. (3) Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings. (4) (Repealed) (5) Subsection (1) does not apply in relation to anything done or omitted to be done under Division 3 of Part 1 of Chapter 14. … 676 Functions of the Land and Environment Court (1) If the Land and Environment Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. (2) If a breach of this Act would not have been committed but for the failure to obtain an approval under Part 1 of Chapter 7, the Court on application being made by the defendant, may - (a) adjourn the proceedings to enable an application to be made under Part 1 of Chapter 7 to obtain that approval, and (b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned. (3) The functions of the Court under this section are in addition to and not in derogation of any other functions of the Court.

[5]

Historic legislative materials

The Council tendered a bundle of legislative materials (marked Exhibit 6) which included inter alia the following historic provisions of the LG Act and its predecessor, extracted below along with other relevant historical provisions.

[6]

Local Government Act 1919 (NSW)

Section 35(e) of the Local Government Act 1919 (NSW) (LG Act 1919) as made stated: 35. An extraordinary vacancy in a civic office shall occur if the person elected or appointed thereto- … (e) is absent without leave of the council from four consecutive ordinary meetings of the council; or …
Following amendment by the Local Government (Elections) Amendment Act 1987 (NSW), s 35(e) of the LG Act 1919 provided: 35. An extraordinary vacancy in a civic office shall occur if the person elected or appointed thereto: … (e) is absent without leave of the council from three consecutive ordinary meetings of the council; or …

[7]

Local Government Act 1993 (NSW)

The Local Government Act 1993 (NSW) (LG Act) came into effect on 1 July 1993. Section 234 of the LG Act provided: When does a vacancy occur in a civic office? 234. A civic office becomes vacant if the holder: … (d) is absent without prior leave of the council from 3 consecutive ordinary meetings of the council; or …
The Local Government Amendment Act 1998 (NSW) (LG Amendment Act 1998) inserted the words "unless the holder is absent because he or she has been suspended from office under section 482" in brackets in s 234(d) (LG Amendment Act 1998 Sch 1).
The Local Government Amendment (Miscellaneous) Act 2002 (NSW) (LG Amendment Act 2002) provided in relation to s 234 of the LG Act: Schedule 1 Amendment of Local Government Act 1993 … [21] Section 234 When does a vacancy occur in civic officer? Omit s 234(d). Insert instead: (d) is absent from 3 consecutive ordinary meetings of the council (unless the holder is absent because he or she has been suspended from office under section 482) without: (i) prior leave of the council, or (ii) leave granted by the council at any of the meetings concerned, or [22] Section 234(2) Insert at the end of section 234: (2) For the purposes of subsection (1)(d), a councillor applying for a leave of absence from a meeting of a council does not need to make the application in person and the council may grant such leave in the absence of that councillor.
The Second Reading Speech (New South Wales Legislative Assembly, Parliamentary Debates (Hansard) 28 May 2002 at p 2105)) for the LG Amendment Act 2002 relevantly stated: However, local communities are legitimately concerned when elected councillors do not attend council meetings, particularly when this becomes a regular occurrence or habit. Councils are able to grant a leave of absence to a councillor, and there are many cases in which this will be entirely appropriate. For example, a councillor may suffer from an illness, may need to care for a family member, or may be required to travel for employment or business reasons. In all these cases, the local community would be likely to regard the grant of a leave of absence as necessary and satisfactory. An amendment in this bill will clarify the meaning of the leave provisions under the Act to make it clear that a councillor may seek leave either prior to the meeting from which the councillor is seeking leave, or at that meeting. There are legitimate circumstances that may prevent a councillor from attending a meeting and it may not always be possible to seek that leave at an earlier meeting of council, given that there will often be a period of up to one month before the leave is required. Procedures relating to the attendance of councillors at council meetings enhance public confidence in local government as well as increase accountability to the community. For those reasons this clarifying amendment is considered to be necessary. Another issue that is addressed in this bill is the case of a councillor taking a period of leave and receiving fees for that period. … Under the Act, there is also a limit to the number of council meetings a councillor may miss without obtaining the prior leave of the council before the civic office is declared vacant and a by-election is called. After missing three consecutive ordinary meetings of the council without prior leave, the position is automatically declared vacant and a by-election must be held. This was the case at Queanbeyan City Council, where, following the grant of leave for almost eight months for which the councillor fees were paid, former Councillor Carol Atkins missed three meetings, and a by-election was held to replace her.

[8]

Local Government (General) Regulation 2005 (NSW)

The LG Amendment Act 2006 (Sch 2) also amended the Local Government (General) Regulation 2005 (NSW) (LG Regulation), inserting reg 235A which provided as follows: Part 10 Meetings … Division 2 Convening of, and attendance at, council meetings … 235A Leave of absence (1) A councillor's application for leave of absence from council meetings should, if practicable, identify (by date) the meetings from which the councillor intends to be absent. (2) A councillor who intends to attend a council meeting despite having been granted leave of absence should, if practicable, give the general manager at least 2 days' notice of his or her intention to attend. …
The Local Government (General) Amendment (Governance) Regulation 2018 (NSW) provided as follows: Explanatory note The object of this Regulation is to give effect to changes made to the governance of councils by the Local Government Amendment (Governance and Planning) Act 2016 as follows: … (c) by prescribing a model code of meeting practice for the conduct of meetings of councils and of those committees of councils all the members of which are councillors. This Regulation also: … (c) repeals existing provisions about conduct, the disclosure of pecuniary interests and meetings that are either no longer relevant or will be inconsistent with the Local Government Act 1993, as amended. [regs 235A-273 repealed] … Schedule 1 Amendment of Local Government (General) Regulation 2005 … [3] Part 10 Omit the Part. Insert instead: Part 10 Meetings 232 Model code of meeting practice For the purposes of section 360 of the Act, the document entitled Model Code of Meeting Practice for Local Councils in NSW published in the Gazette on 14 December 2018 is prescribed as the model code of meeting practice for the conduct of meetings of councils and committees of councils all the members of which are councillors. …
Regulation 232 commenced on 14 December 2018.

[9]

Affidavits

The Applicant affirmed an affidavit on 28 May 2020 attesting to her election to the Council in the elections held in September 2016. The Applicant said she was diagnosed in early February 2020 and informed councillors of this on 18 February 2020 by email. In that email the Applicant informed councillors of her diagnosis and expressed that she had no intention to resign from her duties at Council.
Shortly before ordinary Council meetings on 25 February 2020 and 24 March 2020 the Applicant telephoned Ms Delece Hartnett, personal assistant to the general manager and mayor of the Council, to request that she "please put in my apology" for each of those meetings. Despite intending to attend the ordinary Council meeting on 28 April 2020, the Applicant emailed Ms Hartnett in the early hours of that morning requesting her apology be tendered for that meeting as well.
The Applicant deposed to being unwell and in hospital during March and that she did not check her Council iPad in March or April, which is the only place she received Council emails. In early April 2020 the Applicant informed Ms Catherine Redding, mayor of the Council, in a telephone conversation of the fact that she had not been checking her emails. Later in April 2020 Ms Hartnett spoke to the Applicant again and asked her to fill in the leave of absence form that had been emailed to her. The Applicant said she did not see the email from Ms Hartnett.
The Applicant affirmed a second affidavit on 30 June 2020 attesting to the fact that she received a copy of the Council's Code of Meeting Practice Policy (1994) in September 2016 during her Councillor Induction on 27 September 2016.

[10]

Documentary evidence

The Applicant tendered: minutes of ordinary Council meetings dated 25 February 2020, 24 March 2020 and 28 April 2020 (evidence book tab 1) (Exhibit A); the Council's "councillor leave of absence" form (evidence book tab 3) (Exhibit B); and extracts of the Council Code as at September 2016 (evidence book tab 4) (Exhibit C).

[11]

Ordinary Council meeting minutes

The minutes of the ordinary Council meetings held on 25 February 2020, 24 March 2020 and 28 April 2020 (Exhibit A), under the heading "Apologies / Granting of Leave of Absences", contained a resolution "nil" against in words to the effect that the apology received from the Applicant be accepted.

[12]

Code of Meeting Practice Policy (1994)

The Code of Meeting Practice Policy (1994) "first adopted by Council on 5 July 1994 and as reviewed on 15 April 2014" (Exhibit C) relevantly provided at p 20: 45. Apologies/Leave of absences (a) For the purpose of Section 234 of the Local Government Act, the acceptance by the Council of an apology tendered by a Councillor for the non-attendance of the Councillor at a Council or Committee Meeting is deemed to be leave granted by the Council for the absence of the Councillor from that meeting provided that the apology is tendered prior to the meeting.

[13]

Affidavits

The Council read the affidavit of Ms Hartnett affirmed 12 June 2020. Ms Hartnett described the following events inter alia between February and April 2020.
On or around 12 February 2020 Ms Hartnett attended the business operated by the Applicant in Narrabri to hand deliver a document. At that time Ms Hartnett and the Applicant had a conversation in which the Applicant informed Ms Hartnett of her diagnosis. On 18 February 2020 the Applicant sent an email to all councillors, Ms Hartnett and Mr Stewart Todd, general manager of the Council, informing them of her diagnosis (summarised above in [27]).
At around 9:15am on 24 February 2020 Ms Hartnett received a telephone call from the Applicant during which the Applicant informed her that due to a medical procedure she may not be feeling well enough to attend the Council meeting scheduled for the next day. Ms Hartnett subsequently sent an email to Mr Todd informing him of the conversation she had had with the Applicant.
At around 4:00pm on 24 February 2020 Ms Hartnett received a telephone call from the Applicant during which the Applicant said words to the effect of asking Ms Hartnett to "pass on my apology for the February ordinary Council meeting tomorrow". Following this conversation Ms Hartnett sent an email to Mr Todd and Ms Redding informing them of the Applicant's apologies for the February ordinary Council meeting stating, "I said that the Mayor would submit your official apology at the meeting".
On 27 February 2020 Ms Hartnett received a telephone call from the Applicant during which the Applicant said words to the effect that "I will be having surgery next Tuesday, 3 March 2020… I will have to be on sick leave for a period of about two weeks after my surgery… for any functions, events, meetings I will have to be an apology". Ms Hartnett sent an email to Mr Todd and Ms Redding informing them of this conversation stating, "she will be on 'sick leave' for a period of approximately 2 weeks after this period" and informing them that the Applicant would be a "formal apology" for any functions, events and meetings in that time.
Mr Todd replied to this email and said, "it may pay for her to submit a leave of absence request". Ms Hartnett said she emailed a copy of the Council's request for a leave of absence form to the Applicant that afternoon.

[14]

Documentary evidence

The Council tendered (i) extracts from versions of the "Councillor Handbook" issued by the OLG in October 2016 and October 2017 (evidence book tab 5) (Exhibit 1); (ii) former Pt 10 Div 2 of the LG Regulation as at 1 July 2018 - 13 December 2018 (evidence book tab 6) (Exhibit 2); (iii) extracts from the OLG Model Code (evidence book tab 7) (Exhibit 3); (iv) extracts from the 2019 Council Code (evidence book tab 8) (Exhibit 4); (v) "Respondent's bundle of documents" (evidence book tab 11) (Exhibit 5); and (vi) "Respondent's schedule of legislative provisions (court book tab 8, pp 38-68) (Exhibit 6), already referred to above in [9]-[17].

[15]

Office of Local Government Model Code of Meeting Practice for Local Councils in NSW (2018)

The OLG Model Code (Exhibit 3) relevantly provides at 19: 5.4 Where a councillor is unable to attend one or more ordinary meetings of the council, the councillor should request that the council grant them a leave of absence from those meetings. This clause does not prevent a councillor from making an apology if they are unable to attend a meeting. However the acceptance of such an apology does not constitute the granting of a leave of absence for the purposes of this code and the Act. 5.5 A councillor's request for leave of absence from council meetings should, if practicable, identify (by date) the meetings from which the councillor intends to be absent and the grounds upon which the leave of absence is being sought. 5.6 The council must act reasonably when considering whether to grant a councillor's request for a leave of absence. 5.7 A councillor's civic office will become vacant if the councillor is absent from three (3) consecutive ordinary meetings of the council without prior leave of the council, or leave granted by the council at any of the meetings concerned, unless the holder is absent because they have been suspended from office under the Act, or because the council has been suspended under the Act, or as a consequence of a compliance order under section 438HA. Note: Clause 5.7 reflects section 234(1) (d) of the Act.

[16]

Code of Meeting Practice 2019

The 2019 Council Code (Exhibit 4) relevantly provides at pp 9-10: 5.3 Where a councillor is unable to attend one or more ordinary meetings of the council, the councillor should request that the council grant them a leave of absence from those meetings. This clause does not prevent a councillor from making an apology if they are unable to attend a meeting. However, the acceptance of such an apology does not constitute the granting of a leave of absence for the purposes of this code and the Act. 5.4 A councillor's request for leave of absence from council meetings should, if practicable, identify (by date) the meetings from which the councillor intends to be absent and the grounds upon which the leave of absence is being sought. 5.5 The council must act reasonably when considering whether to grant a councillor's request for a leave of absence. 5.6 A councillor's civic office will become vacant if the councillor is absent from three (3) consecutive ordinary meetings of the council without prior leave of the council, or leave granted by the council at any of the meetings concerned, unless the holder is absent because they have been suspended from office under the Act, or because the council has been suspended under the Act, or as a consequence of a compliance order under section 438HA.
But for a change in paragraph numbers, these paragraphs of the 2019 Council Code are the same as those extracted from the OLG Model Code in [51] above.

[17]

Council's bundle of documents

The Council tendered a bundle of documents (Exhibit 5) consisting of: (i) an extract of the Department of Local Government "Councillor Guide" (2008) (Councillor Guide 2008); (ii) extract from the Department of Local Government Meetings Practice Note (No 16) (August 2009) (Meetings Practice Note No 16 2009); (iii) minutes of an ordinary Council meeting dated 27 February 2018 in which the Council resolved "nil" against to provide a submission to the OLG on the draft OLG Model Code, including addressing the issue of "leave of absence vs. apology"; (iv) consultation draft of the OLG Model Code dated December 2017; and (v) minutes of an ordinary Council meeting dated 29 April 2019 in which the Council resolved "nil" against to adopt the 2019 Council Code. The Applicant was recorded as an attendee at the ordinary Council meetings held on 27 February 2018 and 29 April 2019.
The Councillor Guide 2008 provides at p 47: 4.3 Different types of council meetings There are three main types of formal council meetings which must be conducted in accordance with the Local Government Act and Regulation, and the Code of Meeting Practice, if a council has one: Ordinary council meetings These meetings are the forum where the governing body conducts its core business. The general manager is responsible for giving each councillor and the public at least three days notice of the time and place of each meeting as well as the agenda and business papers for that meeting. It should be noted that if a councillor is absent from three or more consecutive ordinary meetings without leave their office automatically becomes vacant. If a councillor is going to be absent form an ordinary meeting of council that councillor must apply for a leave of absence. Merely offering or accepting an apology is not enough. [emphasis added]
The Meetings Practice Note No 16 2009 provides at p 28: 4.1.4 Is tendering an apology the same as applying for a leave of absence? No. The tendering of an apology is an accepted convention by which those present at a meeting are notified that the person tendering the apology will not be attending the meeting. It is a form of courtesy to those attending the meeting. Its purpose is also to aid the efficient conduct of meetings by informing the chairperson as to who will not be attending. This avoids delaying the opening of a meeting pending the arrival of such persons. The acceptance of an apology is a positive acknowledgement of the courtesy of the person who tendered it. It does not amount to a grant of a leave of absence. Although the practice of tendering of apologies is recognised as a component of good meeting practice, it has no recognition in either the Act or the Regulations. By contrast, a leave of absence is a formal permission granted by way of council resolution to a councillor excusing that councillor's attendance at a particular meeting. It is sought by way of application to the council. It is recognised in both the Act and in the Regulation.

[18]

Statement of agreed facts

The parties provided the following statement of agreed facts (SOAF): 1. The Applicant was a councillor elected to Narrabri Shire Council. 2. The Applicant attended a Councillor Briefing on 27 September 2016. 3. The Applicant had available to her on the Council issued iPad various document [sic] including the updated Councillor Handbook as issued in October 2017. 4. The Applicant did not attend three consecutive ordinary meetings of Council held on 25 February, 24 March and 28 April 2020 (the three consecutive meetings). 5. The Applicant tendered her apology for non-attendance ahead of each of the three consecutive meetings. 6. At the Ordinary Meeting on 25 February 2020 the Council resolved: "That Council accept the apology received from Cr Loder" 7. At the Ordinary Meeting on 24 March 2020 the Council resolved: "That the apology received from Cr Loder be accepted." 8. At the Ordinary Meeting on 28 April 2020 the Council resolved: That the apologies received from Cr Loder and Cr Finlay be accepted. 9. The Respondent has:- a. Withdrawn the listing of the Applicant as a councillor on its website. b. Withdrawn the listing of the Applicant as a councillor on electronic Business Papers. c. Failed to acknowledge the Applicant in the Councillor Lists for Council Meetings. d. Caused to be published in the local media statements to the effect that the Applicant's position on Council has been vacated by her. e. Not given notice of or sent Business Papers for Council's Extraordinary Meeting held on 19 May 2020. f. Not sent Business Papers or given notice of the Extraordinary Meeting held on 22 May 2020. g. Not paid to the Applicant the monthly payment of the councillor remuneration (in the sum of $1,100 per month) in May 2020 or subsequently. 10. The Applicant advised the Respondent of her cancer diagnosis verbally on 4 February 2020. 11. The Applicant advised the Respondent of her cancer diagnosis in writing on 18 February 2020.

[19]

Applicant's submissions

The Applicant was elected to the Council in September 2016. In early February 2020 she was diagnosed with a serious disease. On 18 February 2020 she emailed her fellow councillors advising them of her diagnosis. Due to ill health the Applicant did not attend the ordinary Council meetings on 25 February 2020, 24 March 2020, or 28 April 2020 in circumstances known to all the councillors. It is an admitted fact that the Applicant tendered her apologies which were accepted by the Council by way of resolution at each of those three meetings. The Applicant submitted that the resolutions passed by the Council at each of the three ordinary Council meetings accepting the Applicant's apologies constituted leave granted by the Council on each occasion. The apologies tendered and accepted by resolution at each of the three ordinary Council meetings constituted a decision of the Council within the meaning of s 371 of the LG Act. The information provided by the Applicant was the same as requested on the leave of absence application form the Council provided. It is irrelevant to the Applicant's status that she did not fill out the form and return it.
According to s 234(1)(d) of the LG Act, a vacancy in a civic office occurs if a councillor is absent from three consecutive ordinary council meetings without either (i) prior leave of the council or (ii) leave granted by the council at any of the meetings concerned. Whilst it is plain that the requisite leave can be granted at an ordinary Council meeting, the section is silent as to how leave is granted either prior to or at a meeting. Subsection (2) makes it plain that a councillor does not need to apply in person at the meeting for a leave of absence and a council may grant leave in the absence of a councillor.
Statutory construction is concerned with giving a statutory provision the meaning that the legislature is taken to have intended it to have: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (Project Blue Sky) at [78] (per McHugh, Gummow, Kirby and Hayne JJ). The task begins with the construction of the text itself: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41 (Alcan) at [47] (per Hayne, Heydon, Crennan and Kiefel JJ). The starting point in considering the construction is the "ordinary and grammatical sense of the statutory words to be interpreted having regard to their context and legislative purpose" per French CJ in Alcan at [4]. The object, in this regard, is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute: Project Blue Sky at [69]. As to context, the "modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in the widest sense to include such things as the existing state of the law and the mischief which, by legitimate means… one may discern the statute was intended to remedy": CIC Insurance Ltd v Bankstown Football Club (1997) 187 CLR 384; [1997] HCA 2 (CIC Insurance) at 408; see also Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14 at [57]. However, historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text: Alcan at [47].

[20]

Council's submissions

The Council submitted that the Applicant was aware from very early in her tenure of the Council's requirement for an application for a leave of absence to be made formally and in writing, as she was informed during the Councillor induction program she attended in September 2016. In October 2017 the Applicant was provided with a Councillor Handbook which also highlighted the need for an application for a leave of absence.
The Council submitted that the Applicant informed the councillors of her diagnosis on 18 February 2020. On 24 February 2020 the Applicant requested by telephone call that her apology for the ordinary Council meeting to be held the following day be passed on. The apology was noted in the minutes of that meeting. On 24 March 2020 the Applicant again notified by telephone that she would be "an apology" for the ordinary Council meeting that day, as noted in the minutes of that meeting. On 28 April 2020 the Applicant requested by telephone to be "an apology" for the ordinary Council meeting that day, which was again recorded in the minutes of that meeting. The Applicant was first provided with a request for a leave of absence form on 27 February 2020 and promised to complete and return it on multiple occasions.
The failure of the Applicant to attend the meeting of 28 April 2020 triggered the operation of s 234(1)(d) of the LG Act. Mr Todd contacted the OLG on 4 May 2020 and received verbal advice that the Applicant's civic office had been automatically vacated, confirmed in writing on 6 May 2020. This was because of the operation of s 234(1)(d) of the LG Act and cl 5.4 of the OLG Model Code above in [51] (adopted in the Council's 2019 Council Code at cl 5.3 above in [52]). The Council then took steps consistent with the Applicant's civic office being vacated including removing access to the Council iPad and not paying her annual fee inter alia.
The proper construction of s 234(1)(d) is that the process of obtaining a leave of absence is a formal one, requiring an application. This is further emphasised by s 377(1)(r) of the LG Act. The legislation expressly contemplates that there must be a formal decision to grant a leave of absence to the holder of a civic office, which is a function which may not be delegated. Unless there is a formal decision of the Council granting a leave of absence either prior to or at any of the relevant meetings, a civic office becomes vacant if the holder is absent from three consecutive ordinary meetings of the Council. That result is produced by operation of law, without any action required on the part of the Council. Indeed, as the OLG made clear, there are no extenuating circumstances, and the Council in fact has no discretion in the matter. If any of the statutory requirements under s 234(1) are satisfied, then the civic office becomes vacant.

[21]

Consideration

The importance of resolving this case is made clear by the fact that if the Applicant's civic office is vacant, a by-election must be held under s 292 of the LG Act. The important role of a councillor is identified in s 232 of the LG Act and includes making informed and considered decisions as a member of the governing body. How a council is to exercise its functions is identified in s 355. Section 360 provides for the regulations to prescribe a model code of meeting practice. A council must hold 10 meetings a year under s 365. The voting entitlements of councillors are identified in s 370 and a decision of a council is constituted by a majority of votes at a meeting of the council according to s 371. These provisions underline the importance of a councillor being present to participate in the affairs of a council acting in the interests of a community at an ordinary or extraordinary council meeting. Similar observations were made by Young J in Ryan v Heiler at 310, asking whether s 35(e) in the LG Act 1919 should be strictly construed, his Honour also identifying that a strict application of the section may mean that the people's duly elected representatives would be denied the ability to sit on a council and represent them. Similar considerations arise in the current provisions of the LG Act.
There is no disagreement about the relevant facts in evidence. Core facts are in the SOAF pars 5 to 8 at [57] above whereby the Applicant tendered an apology ahead of three separate Council meetings held on 25 February 2020, 24 March 2020 and 28 April 2020 and the Council resolved at each meeting to accept the apology. That councillors and senior staff were aware of the Applicant's reasons for tendering an apology on each occasion is clear on the evidence of the Applicant at [27]-[30] above and of Ms Hartnett council officer, Mr Todd general manager and Ms Redding mayor as summarised at [34]-[49] above.
The Applicant advised the councillors of her diagnosis on 18 February 2020 by email. She telephoned Ms Hartnett to say she was unwell on 24 February 2020 and that she may not be able to attend the Council meeting on 25 February 2020. The Applicant telephoned again later that day to give her apologies for the Council meeting the next day. On 27 February 2020 the Applicant emailed to say she would be having surgery on 3 March 2020 and would be absent on sick leave for two weeks. The Council submitted that this two-week period did not include the ordinary Council meeting on 24 March 2020. On 24 March 2020 the Applicant telephoned Ms Hartnett to say she was giving an apology for the Council meeting that day. On 28 April 2020 the Applicant rang Ms Hartnett to give her apology for the Council meeting that day. At each of the three Council meetings the councillors resolved to accept the Applicant's apology.

[22]

Section 360 / LG Regulation / OLG Model Code

The remaining section of the LG Act to consider is s 360 which the Council relied on. It is important to read different sections of an Act harmoniously wherever possible, as stated by the Council citing Thiering v Daly at [50(g)] referring to Project Blue Sky, Ross v The Queen (1979) 141 CLR 432; [1979] HCA 29 at 440 and Wilson v State Rail Authority of New South Wales (2010) 78 NSWLR 704; [2010] NSWCA 198 at [13]. Section 360 as currently in effect provides that the regulations may prescribe a model code of meeting practice for the conduct of council meetings inter alia. The Council relies on s 360(1) providing that the regulations may make both mandatory and non-mandatory provisions for a model code of meeting practice in subs (2). Subsection (3) requires a council to adopt a code incorporating the mandatory provisions of the model code as specified in the regulations within a specified timeframe. Also importantly, under subs (5) a council must conduct its meetings in accordance with the code of meeting practice adopted by it.
In 2006 the LG Regulation was amended with the addition of reg 235A providing that an application (form or manner unspecified) for a leave of absence should identify the dates for which absence is sought inter alia. Regulation 235A was repealed in 2018 and replaced by reg 232 specifying the OLG Model Code for the conduct of council meetings. I note that s 360 in its current form and reg 232 each commenced on 14 December 2018, the same date the OLG Model Code was gazetted. These legislative changes coming into effect at the same time suggest a deliberate statutory scheme directing how council meetings are to be managed in many aspects.
No issue of possible inconsistency of drafting as between s 234(1)(d) and s 360 arises from the text of s 360 or vice versa. In that sense there is no inconsistency between the two sections. The Council relies on the OLG Model Code, which is delegated legislation, as specifying that a leave of absence under s 234(1)(d) must be sought and acceptance of an apology is not sufficient. The Introduction states at p 5 that the provisions of the OLG Model Code that are not mandatory are indicated in red font. The OLG Model Code is largely identified as mandatory including cll 5.4-5.7 dealing with a leave of absence. These clauses are not coloured red. These clauses are mirrored in cll 5.3-5.6 of the 2019 Council Code. The OLG Model Code adopted by the Council in the 2019 Council Code provides expressly for the circumstances presently under consideration to the effect that accepting an apology does not amount to the giving of a leave of absence, at cl 5.3 extracted at [52] above. Clauses 5.4, 5.5 and 5.6 also deal with the giving of leave, cl 5.6 essentially setting out s 234(1)(d) of the LG Act.

[23]

Form of application for a leave of absence

The Applicant's case implicitly relies on there being no prescribed manner for making an application for a leave of absence, as indeed there is not. This underpins her submission that tendering an apology, if accepted, is sufficient as an application for and determination of a leave of absence. The Council submitted above in [75] that a leave of absence is a formal process that requires an application and a decision to grant leave pursuant to that application, as borne out by the plain text of s 234(1)(d), (2), (3), and (4). That can be accepted up to a point. A formal application is not necessarily required as no manner of application is specified in these subsections or elsewhere. For example, no express mandatory requirement exists that an application for a leave of absence be in writing as the Applicant identified. It is unnecessary to determine if such a requirement arises by inference. That circumstance does not alter my conclusions above about the operation of the statutory scheme. Section 234(1)(d) requires a communication that a leave of absence is sought to enable a council to comprehend that is what it is being asked to determine. Proffering an apology to a council meeting which is accepted by resolution without more to alert a council that what is being sought is a leave of absence is not compliant with s 234(1)(d). Fatal to the Applicant's case is that the councillors did not appreciate that they were being asked to grant a leave of absence at each of the three meetings in February, March and April 2020.
It is unnecessary to consider when the Applicant was informed about the Council's view through Mr Todd / Ms Hartnett of the need to lodge a signed leave of absence form with the Council and why none was provided by the Applicant to the Council before the Council meeting on 28 April 2020.

[24]

Second reading speeches

Second reading speeches have been referred to to identify the purpose of a provision, see Pearce at [3.9]-[3.10] citing CIC Insurance, Unions NSW v New South Wales (2019) 264 CLR 595; [2019] HCA 1 inter alia. As identified in Thiering v Daly at [50(c)] by Garling J, a statement of what legislation is intended to address does not prevail over the words of a statute citing Re Bolton; Ex parte Beane (1987) 162 CLR 514; [1987] HCA 12 at 518, Harrison v Melhem (2008) 72 NSWLR 380; [2008] NSWCA 67 at [14], [162]. The Applicant cited Alcan at [47] to similar effect. Kingston v Keprose is also cited in Thiering v Daly to the effect that the appropriate use of a second reading speech can be to identify the mischief to be addressed by a provision. I note for completeness that s 34(2)(f) of the Interpretation Act also identifies circumstances where such speeches can be considered.
Given my conclusions above it is strictly unnecessary to consider the Council's reliance on the second reading speeches of 2002 and 2006, extracted above at [15] and [17]. The Council relied on the 2006 Second Reading Speech in the extract above at [17] to identify the mischief being addressed, which does identify the issue arising squarely in this case. That second reading speech does highlight the reason for the amendments of ss 234 and 360 identified earlier at [90]-[91] and [98]-[99] respectively.
The advice from the OLG in the letter dated 6 May 2020 to Mr Todd is irrelevant to the statutory construction task under the usual principles of statutory construction, although my conclusion has the same effect as that advice.
I emphasise that the Court's role is limited to the statutory construction task before it and much of the background circumstances did not need to be considered to perform that task.
The Applicant's summons should be dismissed. I have not heard argument on costs. Costs will be reserved.

[25]

Orders

The Court orders: 1. The summons dated 25 May 2020 is dismissed. 2. Costs are reserved.

[26]

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: 11 August 2020

At a glance

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