Styles v Wollondilly Shire Council

Styles v Wollondilly Shire Council - [2001] NSWLEC 18 - NSWLEC 1998 case summary — Zoe

[25]

The Regulation (par 26 above) applied to the relevant meetings in this case. (New regulations commenced only on 1 September 1999, after the relevant events). The Regulation contained the following relevant clauses (emphasis added): 13. (1) A council must not transact business at a meeting of the council: (a) unless a councillor has given notice of the business in writing within such time before the meeting as is fixed by the council's code of meeting practice or (if the council does not have a code of meeting practice or its code of meeting practice does not fix that time) as is fixed by resolution of the council, and (b) unless notice of the business has been sent to the councillors in accordance with section 367 of the Act. (2) Subclause (1) does not apply to the consideration of business at a meeting if the business: (a) is already before, or directly relates to a matter that is already before , the council; or (b) is the election of a chairperson to preside at the meeting as provided by clause 8(1); or (c) is a matter or topic put to the meeting by the chairperson in accordance with clause 15; or (d) is a motion for the adoption of recommendations of a committee of the council. (3) Despite subclause (1), business may be transacted at a meeting of a council even though due notice of the business has not been given to the councillors. However, this can happen only if: (a) a motion is passed to have the business transacted at the meeting; and (b) either: · all the councillors (disregarding any casual vacancies) are present at the meeting; or · the business proposed to be brought forward is ruled by the chairperson to be of great urgency. 15. (1) If the mayor is the chairperson at a meeting of a council, the chairperson is, by minute signed by the chairperson, entitled to put to the meeting without notice any matter or topic that is within the jurisdiction of the council or of which the council has official knowledge. (2) Such a minute, when put to the meeting, takes precedence over all business of the council's agenda for the meeting. The chairperson (but only if the chairperson is the mayor) may move the adoption of the minute without the motion being seconded. (3) A recommendation made in a minute of the chairperson (being the mayor) or in a report made by a council employee is, so far as adopted by the council, a resolution of the council.

[56]

(1) A person must not disclose any information obtained in connection with the administration or execution of this Act unless that disclosure is made: (a) with the consent of the person from whom the information was obtained, or (b) in connection with the administration or execution of this Act, or (c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or (d) in accordance with a requirement imposed under the Ombudsman Act 1974 or the Freedom of Information Act 1989, or (e) with other lawful excuse. (1A) In particular, if part of a meeting of a council or a committee of a council is closed to the public in accordance with section 10A(1), a person must not, without the authority of the council or the committee, disclose (otherwise than to the council or a councillor of the council) information with respect to the discussion at, or the business of, the meeting. (1B) Subsection (1A) does not apply to: (a) the report of a committee of a council after it has been presented to the council, or (b) disclosure made in any of the circumstances referred to in subsection (1)(a)-(e), or (c) disclosure made in circumstances prescribed by the regulations, or (d) any agenda, resolution or recommendation of a meeting that a person is entitled to inspect in accordance with section 12. (2) A person acting in the administration or execution of this Act must not use, either directly or indirectly, information acquired by the person in that capacity, being information that is not generally known but if generally known might reasonably be expected to affect materially the market value or price of any land, for the purpose of gaining either directly or indirectly an advantage for the person, the person's spouse or de facto partner or a relative of the person. (3) A person acting in the administration or execution of this Act, and being in a position to do so, must not, for the purpose of gaining either directly or indirectly an advantage for the person, the person's spouse or de facto partner or a relative of the person, influence: (a) the determination of an application for an approval, or (b) the giving of an order. Maximum penalty: 50 penalty units.

[191]

Let me now abstract from what has been said above a more concise chronology of events up to and including the meeting of 8 February 1999: (1) For reasons, and in circumstances, not fully revealed by the evidence, the General Manager of the Council took it upon himself to " deem ", and/or " declare ", as " confidential ", an item of Council business regarding Councillor Hall. (2) Styles disagreed with such assertion of confidentiality and briefed the local media on 26 January 1999. (3) On 8 February 1999, when Council reached the item of business listed on the agenda as " Item 27 Confidentiality of Council issues ", (which came before the meeting as " No.29 "), the Council resolved itself, with Styles voting against the motion, into a " Committee of the Whole " to deal with it. (4) That item, in its terms (see par 96 above), made no recommendation, and there was no agenda item foreshadowing or suggesting any censure of any person. The item merely sought " guidance " from Council. (5) In opening the Committee's consideration of the notified item of business, the Mayor (Towndrow) did not call for any debate on the background circumstances (T p36 L19-34), she merely " sought a motion ". (6) Immediately, a pre-prepared motion of censure against Styles, " for release of information in a confidential memo … contrary to Council's adopted Code of Conduct ", was moved and seconded (see Exhibit A7 Item 6, and T p99 L35-37). (7) Some ensuing " disorder " resulted in the Mayor calling Styles to order, and Styles apparently directed her " liar " and " bitch " remarks to the Mayor at that point. (8) The Committee resolved to deal with " the matter of disorder " as an urgent item immediately after the Committee had disposed of " this agenda item before us ". (9) The censure motion was put and carried, with Styles having her name recorded as voting against it. (10) The Committee then proceeded to deal with the " matter of disorder ", and it was moved and seconded (see Exhibit A1 fol 22) that: Cr Styles apologise to the Mayor for her acts of disorder repeatedly calling the Mayor a liar, and a bloody bitch and if Cr Styles does not apologise then she be expelled from this meeting. (11) There being no debate, the motion was put and carried - the minutes say " unanimously ". (12) It was then immediately resolved that " open Council " reconvene. (13) The censure motion carried by the Committee of the Whole came to Council as a " recommendation " of the Committee. It became part 1 of Council's resolution 107/99, and the " apologise or be expelled " motion became part 2 of it (see par 104 above). (14) Styles was then asked, in open Council, to apologise, and she " refused ". (15) She was then asked to leave the meeting, and she " refused ". (16) The Council meeting was then closed.

Parties

Applicant/Plaintiff:

Styles

Respondent/Defendant:

Wollondilly Shire Council

Cases Cited (13)

CITATION : Styles v Wollondilly Shire Council [2001] NSWLEC 18 APPLICANT PARTIES : Lynette Mary Styles RESPONDENT Wollondilly Shire Council FILE NUMBER(S) : 40153 of 1999 CORAM: Sheahan J Local Government :- confidentiality of documents - access of councillors to information - closure of meetings to the public - questions of order at meetings - expulsion of councillors from meetings of Council and its committees - minutes of meetings KEY ISSUES: Injunctions and Declarations - privative clauses - discretion - power to award "general damages" if discretion exercised to grant declaratory relief LEGISLATION CITED: Local Government Act 1993 Local Government (Meetings) Regulation 1993 Darling Casino Ltd v NSW Casino Control Authority & Ors (1997) 191 CLR 602; Drummoyne Municipal Council v Marshall (1989) 68 LGRA 258; Gardiner & Anor v Hornsby Council [2000] NSWLEC 37; Hacienda Apartments Pty Ltd v Vago (Young J, 19 May 1998); Hickman v Snowy River Shire Council (1998) 100 LGERA 71; Nix & Dunn v Pittwater Council (1994) 84 LGERA 199; NTL Australasia Pty Ltd v Minister for Land & Water Conservation [2001] NSWLEC 5; CASES CITED: R v Hickman Ex parte Fox (1945) 70 CLR 595; Ryde City Council v Echt & Anor [2000] NSWCA 108; Sankey v Whitlam (1978) 142 CLR 1; Sericott v Snowy River Shire Council (1998) 100 LGERA 71; Styles v Wollondilly Shire Council [1999] NSWLEC 210; Sullivan v Casino Municipal Council & Anor [1973] 2 NSWLR 708 ; Warringah Council v Edmondson & Ors [2001] NSWCA 1; Wherry v Sisters of Charity [2000] NSWLEC 252; Wilcox v Kogarah Golf Club Ltd (Young J, 23 November 1995) DATES OF HEARING: 23/07/1999, 26/07/1999, 11/02/2000, 10-11/04/2000, 24-25/07/2000, DATE OF JUDGMENT: 03/01/2001

The LG Act has been held to be a "planning or environmental law", which attracts the jurisdiction of this court to legal error in the local government sector, and/or to the enforcement of any rights, duties or obligations arising under it. Ryde City Council v Echt & Anor [2000] NSWCA 108 (at par 17 per Spigelman CJ).

(1997) 191 CLR 602

(1998) 100 LGERA 71

(1994) 84 LGERA 199

(1945) 70 CLR 595

(1978) 142 CLR 1

(1945) 70 CLR 598