Styles v Wollondilly Shire Council

As a consequence of resolution 107/99, Styles was "excluded" from participating in Council meetings, until she apologised at the 26 July meeting.

During a calendar year Council normally meets once in late January and then twice a month.

In her "further amended application", dated 15 September 1999, Styles seeks four declarations and two orders, in terms: (i) A declaration of (sic) the applicant did not breach the respondent's code of conduct policy as resolved by Council at the closed committee meeting of the whole of the Council on the 8th of February, 1999. (ii) A declaration that the applicant did not breach section 664 of the Local Government Act 1993 as alleged in a confidential report to the respondent on the 8th of February, 1999. (iii) A declaration that the expulsion of the applicant from the ordinary meetings of the respondent between the 22nd of February, 1999 and the 12th of July, 1999 was unlawful and contrary to the applicant's entitlement to attend and participate in those meetings. (iv) A declaration that the respondent acted unlawfully in adjourning the meeting of the 15th of June, 1999 to enable members of the NSW Police Force to attend at a later time to forcibly expel the applicant. (v) Damages. (vi) Costs.

Counsel for Styles, Mr J McKenzie, conceded (T 11.2.00 p 8 L43-45) that par (v) "Damages" would "have been better put as compensation".

Points of Claim ("POC") running to 59 paragraphs were filed on 8 October 1999. The first 53 paragraphs recite the facts up to and including Styles' failure to be re-elected to Council on 11 September 1999 (including her failure to be elected to the NSW Parliament at the State Election on 27 March 1999), and pars 54-59 read as follows: 54. The Applicant has suffered shame, hurt and embarrassment as a result of the conduct of the Respondent , its servants or agents and the public dissemination of radio, newsletter and newspaper reports arising from the matters set out in these points of claim. 55. The chairman of meetings of the Respondent did not, at any time, call upon the Applicant to apologise for any conduct. 56. The chairman of meetings of the Respondent did not, at any time after 8 February 1999, request or direct that the Applicant leave a meeting of the Respondent. 57. The Respondent acted unlawfully in reintroducing the resolution of the 8th of February, 1999 at subsequent meetings. 58. In the circumstances the behaviour of the Respondent was unlawful. 59. In the circumstances the behaviour of the Respondent did, and was likely to, interfere with freedom of the Applicant to conduct herself as a Councillor of the Respondent without fear, favour or unreasonable interference. (emphasis added).

Council's Amended Points of Defence ("POD"), as filed on 20 July 2000, relevantly include the following: … 4. Further, or in the alternative, if, which is denied, the Applicant was expelled from any meeting of the Council at which the applicant was present contrary to the Act and Regulations, or alternatively, the Council acted at or in the course of any meeting of the Council contrary to the Act and Regulations, the validity or effectiveness of any decision of the Council as a consequence thereof may not be questioned in these proceedings. [Particulars were provided] 5. Further, or in the alternative, if, which is denied, the Council has breached the provisions of the Local Government Act and Regulations as may be alleged by the Applicant, the Court in the exercise of its discretion would refuse to grant relief: (a) the Applicant is no longer a member of the Council; (b) the business of the meetings of the Council or any resolution of the Council at which the Applicant was expelled is not being impugned by the Applicant other than as specified by the Applicant in her Points of Claim; (c) there is no utility in granting the relief sought by the Applicant; (d) the conduct of the Applicant during the course of meetings of the Council. 6. Further, or in the alternative, the Applicant is guilty of laches acquiescence and delay and therefore disentitled to the grant of any relief. [Particulars were provided] (emphasis added)

In response, Styles filed in court on 24 July 2000 the following "Reply" to the Council's POD: 1. In answer to paragraph 4, the Applicant was entitled to be present at and to attend to the business of the Respondent at the subject meetings of the Respondent ('the meetings'). 2. Further, in expelling the Applicant from the meetings or any of them the Respondent acted before at or in the course of any such meeting or meetings contrary to Local Government Act 1993, the Regulations and its Code of Meeting Practice. 3. The said actions of the Council were substantive and not confined to failure on the part of the Council to comply with a procedure or requirement within the meaning of s729 of the Act. 4. Further or in the alternative to 3, to the extent that the said actions constituted failure to comply with a procedure or requirement within the meaning of the said section, the section, in all the circumstances was not apt to prevent the validity or effectiveness of the Respondents' decision or decisions (to expel the applicant from any such meeting or meetings) from being questioned in these proceedings. [Particulars were provided] 5. In the further alternative said s729 does not operate to prevent the validity or effectiveness of any such decision from being questioned where such decision was made after 15 April 1999. [Particulars were provided] 6. In answer to paragraph 5 of the Amended Points of Defence the Applicant denies the availability of the discretionary defences (while admitting that she is no longer a member of the Council). 7. In answer to paragraph 6 of the Amended Points of Defence the Applicant denies being guilty of laches, acquiescence and delay. [Particulars were provided] (emphasis added)

Before I turn to the facts and the proceedings themselves, it is necessary to set out relevant components of the extensive regulatory framework, affecting this matter, comprising: · the LG Act itself, · some Regulations, · "Codes" adopted by Council, and · various guidelines issued by the Department of Local Government and/or by the Local Government and Shires Association.

Councils have the wide range of functions specified in Chapters 5-8 of the LG Act (ss 21-201) - note especially the very wide terms of s 24, and the following provision 0s 23: A council may do all such things as are supplemental or incidental to, or consequential on, the exercise of its functions.

Section 748 and schedule 6 of the LG Act provide for "enabling" regulations to be made in respect of, inter alia: (i) meetings of the Council and its committees (item 2) (ii) standards for the Council and its committees (item 3) (iii) the practice and procedures of Councils (item 12) (iv) the administration of a council (item 13) (v) delegations (item 16) (vi) management and reporting (item 18) (vii) conduct of councillors … (item 19)

Section 748(5) provides: The regulations may incorporate by reference, wholly or in part and with or without modification, any standards, rules, codes , specifications or methods, as in force at a particular time or as in force from time to time, prescribed or published by any authority or body, whether or not it is a New South Wales authority or body. (emphasis added).

Section 674(1) provides that "any person" may bring proceedings in this court for an "order to remedy or restrain a breach of" the Act or regulations as so defined. Councillors have neither more nor less right than non-councillors to bring such proceedings.

Section 672 provides that a breach of the LG Act includes a breach of the regulations, and may be a contravention, a failure to comply, or a threatened or apprehended contravention or failure to comply.

(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. … (3) The functions of the Court under this section are in addition to and not in derogation of any other functions of the Court.

24. Section 729, which has been specifically pleaded, provides as follows: The validity or effectiveness of a decision of a council may not be questioned in any legal proceedings on the ground that, in making or purporting to make the decision, the council failed to comply with a procedural requirement of this Act or the regulations (including a requirement as to the giving of notice ) unless the proceedings are commenced within 3 months after the date of the decision. (emphasis added).

25. Section 374 provides: Proceedings at a meeting of a council or a council committee are not invalidated because of: … (b) a failure to give notice of the meeting to any councillor or committee member, or … (e) a failure to comply with the code of meeting practice . (emphasis added).

26. Section 367 requires the General Manager to send to Councillors in advance of each Council meeting, a detailed notice of the business to be transacted. Section 9(2A) provides for the General Manager to form an opinion that certain items are "likely" to be discussed "when the meeting is closed to the public". Clause 12(3) of the Local Government (Meetings) Regulation 1993 ("the Regulation") requires the General Manager to "ensure that the details of any item of business to which section 9(2A) of the Act applies are included in a business paper for the meeting concerned".

27. Sections 10A to 10D provide for the closure to the public of Council or Committee of the Whole meetings in certain specified circumstances, including "security" matters, "personnel matters concerning particular individuals", "advice concerning litigation" etc. Section 10A(4) provides for public submissions to be made on the question of closure. Section 10B allows to some extent a "public interest" test, and envisages the promulgation, by the Director General of the Department of Local Government, of "relevant guidelines". Section 10C provides for closure without notice in urgent circumstances, and s 10D provides for the closure decision to state the grounds for closure in the minutes of the meeting.

28. Section 373 provides that "a council may resolve itself into a committee to consider any matter before the council" (emphasis added).

29. Section 10 provides: Who is entitled to attend meetings? (1) Except as provided by this Part: (a) everyone is entitled to attend a meeting of the council and those of its committees of which all the members are councillors, and (b) a council must ensure that all meetings of the council and of such committees are open to the public. (2) However, a person (whether a councillor or another person) is not entitled to be present at a meeting of the council or of such a committee if expelled from the meeting : (a) by a resolution of the meeting, or (b) by the person presiding at the meeting if the council has, by resolution, authorised the person presiding to exercise the power of expulsion. (3) A person may be expelled from a meeting on the grounds specified in, or in the circumstances prescribed by, the regulations. (emphasis added).

30. Sections 360-4 provide that the regulations may provide for conduct of meetings, and that Council may adopt a binding code of meeting practice not inconsistent with the regulations, but s 374(e) (para 25 above) provides that proceedings at meetings "are not invalidated because of … a failure to comply with the code of meeting practice".

31. 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.

24. (1) The chairperson, without the intervention of any other councillor, may call any councillor to order whenever, in the opinion of the chairperson, it is necessary to do so. (2) A councillor who claims that another councillor has committed an act of disorder, or is out of order, may call the attention of the chairperson to the matter. (3) The chairperson must rule on a question of order immediately after it is raised but, before doing so, may invite the opinion of the council. (4) The chairperson's ruling must be obeyed unless a motion dissenting from the ruling is passed.

25. (1) A Councillor commits an act of disorder if the councillor, at a meeting of a council or a committee of a council: (a) contravenes the Act or any regulation in force under the Act; or … (d) insults or makes personal reflections on or imputes improper motives to any other councillor; or (e) says or does anything that is inconsistent with maintaining order at the meeting or is likely to bring the council or committee into contempt (2) The chairperson may require a councillor: (a) to apologise without reservation for an act of disorder referred to in subclause (1)(a) …; or … (c) to retract and apologise without reservation for an act of disorder referred to in subclause (1)(d) or (e). (3) A councillor may, as provided by section 10(2)(a) or (b) of the Act, be expelled from a meeting of a council for having failed to comply with a requirement under subclause (2). The expulsion of a councillor from the meeting for that reason does not prevent any other action from being taken against the councillor for the act of disorder concerned .

26. (1) If disorder occurs at a meeting of a council, the chairperson may adjourn the meeting for a period of not more than 15 minutes and leave the chair. The council, on reassembling, must, on a question put from the chair, decide without debate whether the business is to be proceeded with or not. This subclause applies to disorder arising from the conduct of members of the public as well as disorder arising from the conduct of councillors. …

27. If a councillor or a member of the public fails to leave the place where a meeting of a council is being held: (a) immediately after the council has passed a resolution expelling the councillor or member from the meeting; or (b) where the council has authorised the person presiding at the meeting to exercise the power of expulsion, immediately after being directed by the person presiding to leave the meeting. A police officer , or any person authorised for the purpose by the council or person presiding, may, by using only such force as is necessary, remove the councillor or member from that place and, if necessary, restrain the councillor or member from re-entering that place.

28. (1) All the provisions of this Regulation relating to meetings of a council, so far as they are applicable, extend to and govern the proceedings of the council when in committee of the whole , … …

33. (1) Subject to subclause (3), each committee of a council may regulate its own procedure . … (3) Voting at a committee is to be by open means (such as on the voices or by show of hands). 36. (1) If in a report of a committee of the council distinct recommendations are made, the decision of the council may be made separately on each recommendation. (2) The recommendations of a committee of the council are, so far as adopted by the council, resolutions of the council. (3) If a committee of a council passes a resolution , or makes a recommendation, during a meeting, or a part of a meeting, that is closed to the public , the chairperson must: (a) make the resolution or recommendation public as soon as practicable after the meeting or part of the meeting has ended; and (b) report the resolution or recommendation to the next meeting of the council.

37. The provisions of the Act and of this Regulation relating to the maintenance of order in council meetings apply to meetings of committees of the council in the same way as they apply to meetings of the council.

41. (1) The general manager may allow or refuse to allow any councillor to inspect any record of the council that the councillor requests to see. (2) If the general manager refuses to allow a councillor to inspect any such record, the councillor may, at a meeting of the council, move for the production of the document. However, the councillor must give notice of intention to move the motion. …
42. Council adopted a Code of Meeting Practice ("MP Code") on 14 December 1998 (Exhibit A5).

33. The MP Code incorporates most relevant sections of the Act and Regulations, which need not be restated here, including s 367 and s 374, and clauses 13, and 24 to 27 of the Regulation. It also incorporates s 664 (see par 41 below).

34. Clause 25 of the MP Code mirrors cl 13 of the Regulation regarding notice of "business". Clauses 43-46 of the MP Code repeat clauses 24-27 of the Regulation. Clause 48 of the MP Code applies it to meetings of the Committee of the Whole, and cl 59, mirroring cl 37 of the Regulation, applies the provisions of the Act and the Code, regarding disorder in Council, to "any Committee of the Council".

35. Clause 60 of the MP Code (Regulation cl 38) provides: (1) If a meeting or part of a meeting of a Committee of a Council is closed to the public in accordance with section 10A(2) of the Act, any person who is not a Councillor may be excluded from the meeting as provided by section 10(2)(a) or (b) of the Act. (2) If any such person, after being notified of a resolution or direction excluding him or her from the meeting, fails to leave the place where the meeting is being held, a police officer, or any persons authorised for the purpose by the Council, Committee or person presiding, may, by using only such force as is necessary, remove the first-mentioned person from that place and, if necessary, restrain that person from re-entering that place.

36. The MP Code relevantly also includes the following clauses (emphasis added): cl 3 "Committee", in relation to a Council, means a committee appointed or elected by the Council in accordance with clause 51 of this code ["General Power of Council to Delegate"] or the Council when it has resolved itself into a Committee of the Whole ;

cl 23 (1) The General Manager must ensure that the agenda prepared for a meeting of the Council states: (a) All matters to be dealt with arising out of the proceedings of former meetings of the Council, and (b) If the Mayor is the Chairperson - any matter or topic that the Chairperson proposes, at the time when the agenda is prepared, to put to the meeting, and (c) Any business of which due notice has been given. (2) The General Manager must cause agenda to be delivered to Councillors not later than three days prior to the meeting. (3) If, in the opinion of the General Manager, business to be transacted at a meeting of the Council or a Committee of the Council is a kind of business referred to in section 10(2) (sic?) of the Act, the business may be included in a confidential agenda. All other business to be transacted at the meeting must be included in an open agenda. (4) If a confidential agenda is prepared for a kind of business referred to in section 10(2) (sic?) of the Act, the business must be referred to in the open agenda prepared for the same meeting. …

cl 28 (1) Any Councillor may give notice of any motion for consideration by the Council or a Committee of Council by providing the proposed motion in writing to the General Manager by noon on the 6th calendar day prior to the day of the meeting. (2) The provision of confidential issues as defined in Section 10(2)(sic?) of the Act applies to Notices of Motion. (3) The matter of raising issues via a Notice of Motion must be considered with restraint. This method does not allow for research or balanced, informed decisions. A Notice of Motion that doesn't require an urgent decision may be dealt with via a report from Officers.

cl 35 (4) The chairperson may adjourn a meeting at any time , based on issues at hand and operation of meeting at the time.

cl39 (1) During Council meetings Councillors and staff shall at all times address other Councillors and staff by their official designation, as Mayor, Chairperson or Councillor, as the case may be; and with the exception of the Chairperson, or any Councillor prevented by physical infirmity, shall stand when speaking. Staff are not required to stand. (2) During Committee meetings a less formal method of address is appropriate and there is no need to rise to speak.

cl 42 If a Council passes a resolution during a meeting, or a part of a meeting, that is closed to the public , the Chairperson must make the resolution public as soon as practicable after the meeting or part of the meeting has ended.

cl 48 (1) The Council, during a Council meeting, may resolve itself into a Committee of the Whole , closing the meeting to the public only for the receipt or discussion of, and recommending resolutions upon, any of the matters listed in section 10(2)(sic?) of the Act. It may move into a Committee of the Whole, open to the public, to more fully discuss issues under the less formal procedure as provided in subclause 2. (2) All the provisions of this Code relating to meetings of the Council, so far as they are applicable, extend to and govern the proceedings of the Council when in Committee of the Whole, except the provision limiting the number and duration of speeches. (3) The General Manager, or in the absence of the General Manager, an employee of the Council designated by the General Manager, is responsible for reporting to the Council the business and any recommendations arising from the Committee of the Whole. It is not necessary to report the proceedings in full, but any recommendations of the Committee must be reported. (4) The Council must ensure that a report of the proceedings (including any recommendations of the Committee) are recorded in the Council's Minutes . However, the Council is not taken to have adopted the report until a Motion for adoption has been made and passed.

cl 52 (1) The General Manager of the Council must send to each Councillors, at least three days before each meeting of the Committee, a notice specifying : (a) the time and place at which and the date on which the meeting is to be held, and (b) the business proposed to be transacted at the meeting. (2) However, notice of less than three days may be given of a Committee meeting called in an emergency . (3) When Committee meetings are held in succession, there will be a 5 minute period between the closing of one meeting and the opening of the next meeting.

cl 54 (1) Each Committee of the Council may regulate its own procedure . (2) In the absence of specific procedures for any Committee being adopted, the provisions of this Code apply to meetings of any Committee. (3) Voting at a committee meeting is to be by open means (such as by voice or by show of hands). (4) In the absence of specific procedures for any Committee being adopted, the general provisions of this code apply to meetings of any Committee.

cl 59 The provision of the Act and of this code relating to the maintenance of order in Council meetings apply to meetings of any Committee of the Council in the same way as they apply to meetings of the Council.

cl 67 (1) Councillors and staff shall at all times comply with Council's adopted 'Code of Conduct' . (2) Councillors can be sued at any time for remarks made in meetings of the Council or its Committees. However, as they are performing a public duty, they have qualified privilege as a defence against any liability or defamation. As members do not have absolute privilege, they only retain this protection so long as any statements they make, which may be defamatory, are relevant to the matter at hand, are made in good faith and without malice.

37. The taking and keeping of Minutes of meetings are dealt with in s 375 and s 703 of the LG Act which provide:

375 (1) The council must ensure that full and accurate minutes are kept of the proceedings of a meeting of the council. (2) The minutes must, when they have been confirmed at a subsequent meeting of the council, be signed by the person presiding at that subsequent meeting.

703 Every entry in the minutes of the business transacted at a meeting of the council and purporting to be signed by the person presiding at a subsequent meeting of the council is, until the contrary is proved, evidence: (a) that the business as recorded in the minutes was transacted at the meeting, and (b) that the meeting was duly convened and held.

38. Clause 3 of the Regulation also defines "record" in these terms: 'record' means a document ( (sic) including any written or printed material or object (including a sound recording, coded storage device, magnetic tape or disc, microfilm, photograph, film, map, plan or model or a painting or other pictorial or graphic work) that is or has been made or received in the course of official duties by a councillor or an employee of the council and, in particular, includes the minutes of meetings of a council or of a committee of a council.

39. Sections 12-13 of the LG Act deal with access to information. Councillors and other citizens can also avail themselves of Freedom of Information legislation, but the LG Act sets out a long list of documents to be freely available for inspection, and (s 12B) copying. Inter alia, s 12 provides:

(6) The council must allow inspection of its other documents free of charge unless, in the case of a particular document, it is satisfied that allowing inspection of the document would, on balance, be contrary to the public interest. (7) However, subsection (6) does not apply to the part (if any) of a document that deals with any of the following: (a) personnel matters concerning particular individuals, (b) the personal hardship of any resident or ratepayer, (c) trade secrets, (d) a matter the disclosure of which would: (i) constitute an offence against an Act, or (ii) found an action for breach of confidence. (8) For the purpose of determining whether allowing inspection of a document would be contrary to the public interest, it is irrelevant that the inspection of the document may: (a) cause embarrassment to the council or to councillors or to employees of the council, or (b) cause a loss of confidence in the council, or (c) cause a person to misinterpret or misunderstand the information contained in the document because of an omission from the document or for any other reason. 40. Section 12A provides:

(1) If the general manager or any other member of the staff of a council decides that access to a document or other information held by the council should not be given to the public or a councillor, the person concerned must provide the council with written reasons for the restriction. (2) The reasons must be publicly available. (3) The council must review any such restriction no later than 3 months after it is imposed. (4) The council must, at the request of any person made after the expiry of a period of 3 months after that review (or of a period of 3 months after the most recent of any subsequent reviews), carry out a further review of the restriction. (5) The council must remove the restriction if, at any time: (a) it finds that there are no grounds for the restriction, or (b) access to the relevant document or other information is obtained under the Freedom of Information Act 1989. (6) A review is not required under this section if the restriction concerned has been removed.

41. Section 664 provides that improper disclosure of information may be dealt with as an "offence":

(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.

42. Section 226 defines the mayor's role thus: The role of the mayor is: · to exercise, in cases of necessity, the policy-making functions of the governing body of the council between meetings of the council · to exercise such other functions of the council as the council determines · to preside at meetings of the council · to carry out the civic and ceremonial functions of the mayoral office.

43. Sections 232ff deal with Councillors. Section 234 provides for vacancies to occur in the "civic offices" of Mayor or Councillor in the event of death, resignation, "disqualification", absence without leave, insolvency, mental incapacity, and "dismissal". Section 275 sets out the grounds of disqualification, and sections 329, 330 and 331 deal with dismissal. Section 482 deals with suspension from office.

44. Section 377 gives Council a wide power to delegate non-specified functions to the "General Manager or any other person or body (not including another employee of the council)". In turn, the General Manager has a delegation power under s 378.

45. Under s 335(1) the General Manager is "generally responsible for the efficient and effective operation of the council's organisation and for ensuring the implementation, without undue delay, of decisions of the Council", and under s 335(2) the General Manager has the "particular function" of "the day-to-day management of the council".

46. Section 342 requires the General Manager to designate a member of staff as the "public officer of the council", whose functions, as set out in s 343(1), include control of and access to documents. Under s 343(2) the public officer is subject to the direction of the General Manager.

47. Section 439 deals with "Conduct of councillors, staff and delegates" in these terms: (1) Every councillor, member of staff of a council and delegate of a council must act honestly and exercise a reasonable degree of care and diligence in carrying out his or her functions under this or any other Act. (2) Although this section places certain duties on councillors, members of staff of a council and delegates of a council, nothing in this section gives rise to, or can be taken into account in, any civil cause of action.

48. Section 440 obliges councils to "prepare or adopt a code of conduct to be observed by Councillors" and others. The Minister may prepare and issue a "model code of conduct" which Councillors may adopt. The balance of Chapter 14 of the LG Act (ss 441-490) deals with pecuniary interests, honesty, and disclosure.

49. Council adopted a Code of Conduct (Exhibit A4) on 14 December 1998. Observance of a code of conduct by councillors is essentially a matter for each individual council (see Annexure 'D' to Styles' affidavit 23 July 1999). Council's Code of Conduct includes the following relevant provisions:

· In Section 2 "Personal Benefit" subsection 1 "Use of Confidential information" (a) Councillors and staff shall not use confidential Council information to gain improper advantage for themselves or for any other person or body; in ways which are inconsistent with their obligation to act impartially; or to improperly cause harm or detriment to any person, body, or Council. … (c) Councillors and Council staff should not use confidential information in ways: (i) which are an abuse of their privileged position; or (ii) which are inconsistent with their obligation to act impartially.

· In Section 3 "Conduct of Councillors and Staff" subsection 1 "Personal behaviour": (a) Councillors and staff shall: (i) act, and be seen to act, properly and in accordance with the requirements of the law and the terms of this Code; (ii) perform their duties impartially and in the best interests of their communities, uninfluenced by fear or favour; (iii) act in good faith (ie honestly, for the proper purpose, and without exceeding their powers) in the interests of the Council and the community; (iv) make no allegations which are improper or derogatory (unless true and in the public interest) and refrain from any form of conduct, in the performance of their official and professional duties, which may cause any reasonable person unwarranted offence or embarrassment; and (v) always act in accordance with their obligation of fidelity to Council.

· In Section 3 subsection 2 "Honesty and integrity": Councillors and staff shall: … (iii) be frank and honest in their official dealings with each other.

· In Section 4 "Other responsibilities of councillors, members of staff and delegates" subsection 1 "Equitable Treatment of People and Situations": A Councillor, member of staff or delegate must: · act in accordance to law; · act reasonably, justly and in a non-discriminatory manner; policy and guidance of the Council (sic); · deal with like situations in a like manner, but treating each matter on its merits; · take all relevant information into consideration and not take irrelevant information or opinions into consideration; · take all reasonable steps to ensure that the information upon which decisions or actions are based is factually correct and that all relevant information has been obtained; · treat members of the public, Councillors and other staff members fairly, equitably and with respect, courtesy, compassion and sensitivity; · refrain from any form of conduct, in the performance of his or her public or professional duties, which may cause any reasonable person unwarranted offence of embarrassment or give rise to the reasonable suspicion or appearance of improper conduct or partial performance of his or her public or professional duties; and · not act for an improper or ulterior purpose or on irrelevant grounds.

· In Section 5 subsection 3 "Access to information":

· Councillors and staff should ensure that members are given access to all Council held information necessary for them to properly perform their functions and comply with their responsibilities as members.

· In Section 9 "The Role of the Mayor": The role of the Mayor is: · to exercise, in cases of necessity, the policy making functions of the governing body of the council between meetings of the council; · to exercise such other functions of the council as the council determines; · to preside at meetings of the council; · to carry out the civic and ceremonial functions of the mayoral office.

· In Section 11 "Councillors as a Team": … Issues can be discussed in a mature and constructive manner; … Team members listen to one another; The team is comfortable in disagreement and opinions are not suppressed; Most decisions are reached by consensus; Criticism is frank and frequent and there is no personal attack; There is no domination by a leader and the team doesn't defer to the leader; … 50. The currently accepted "best practice" for dealing with matters of councillor conduct is set out in the Local Government & Shires Association's Weekly Circular 36/96 (dated Friday 6 September 1996) ("the Circular") (Exhibit A8 at pp 13-15), and was based on suggestions made by the Ombudsman and the Department of Local Government.

51. Specific reference is made in the Circular (at p13) to "prohibited activities", such as criminal offences like disclosure/misuse of Council information (LG Act s 664), which may attract criminal charges. Next in the hierarchy (at p 13) are, relevantly:

(2) legal obligations, including obligation of fidelity, the obligation to comply with lawful directions and the obligation to give effect to lawful council/government policies. and then:

(3) guidance as to acceptable or unacceptable conduct including avoidance of conflicts of interest, refraining from conduct that may cause offence or embarrassment, and treating people with respect, courtesy, compassion and sensitivity.

52. "Breaches of an Act or a common law duty" may be dealt with in various ways, including class 4 proceedings (s 673-s 674) and, again relevantly (p14):

(e) exclusion of a councillor or member of a council committee from attending meetings of the council or committee: (i) for engaging in or being engaged in disorderly conduct at a meeting (ii) for having failed to comply with a requirement made by the chairperson arising out of an act of disorder at a meeting [clause 25(3), Local Government (Meetings) Regulation 1993] (iii) while a matter is under consideration in which the councillor or member has an interest required to be disclosed under the Act (section 445, LG Act).

53. Among the suggested ways of dealing with "breaches of legal obligations or the provisions of a code as to acceptable or unacceptable conduct", the Circular nominates (at p 14 in par (3)):

… (c) investigations and relevant findings by the NSW Ombudsman, Department of Local Government or the ICAC. (d) bad publicity arising out of: (i) debate on the issue in open council or committee meetings … (iv) investigations and relevant findings by the NSW Ombudsman, Department of Local Government or the ICAC … (f) the provision of relevant advice or guidance by an appropriate officer (eg by the Mayor in relation to councillors, and supervisors in relation to staff), or by a relevant external body (eg the NSW Ombudsman or the Department of Local Government).

54. In relation to the prospect of Councils carrying resolutions noting that a Councillor has breached Council's code of conduct, the document (at p 15) notes that:

… there may be circumstances where it is appropriate for a council to draw attention to, or merely record, its view that a councillor has breached the provisions of the council's code of conduct. However: (1) such a practice should only be used in rare cases where evidence of a serious breach of the code of conduct is clear (2) such a resolution should not, either explicitly or implicitly, be framed to express no confidence in, or censure of, a councillor (given that such motions, while fundamental elements of the Westminster system of government, are of limited relevance to Local Government where there is no concept of a parliamentary majority akin to a government, a ministry or chamber comparable to a parliament). … In relation to such decisions being made by a council in relation to a councillor, it is essential that the procedures followed be fully transparent and the decision is clearly justified. Otherwise majority councillors lay themselves open to allegations of improper political harassment or victimisation of minority councillors.

In addition, the Department of Local Government advised that while the Local Government Act does not have provisions prescribing offences for a breach of the code, it is nevertheless appropriate for council, having satisfied itself that there has been a breach of its code, to counsel or reprimand the councillor by way of resolution. The process leading up to action being taken should only be concluded after due consideration has been given to all issues and points of view. The breach should relate to council's role, responsibilities or reputation whereas external factors such as political or other affiliations should not influence any decision.

Further, it is advised that the decision to invoke the code of conduct should reflect the concern of the overwhelming majority of councillors about the conduct of a councillor and the impact on council's reputation or operations. Any action taken must not interfere with the councillor's common law right to conduct his or her civic duties but should send a clear message that the breach is unacceptable.

Practical courses of action have been suggested by the Department including council resolving to pass a censure motion, issue a public statement, request a formal apology, issue a reprimand or counsel the councillor. … 55. Much of this information was summarised/paraphrased in a long letter from the Director General of the Department of Local Government to Council dated 24 February 1999, following a meeting he had with the Mayor on 16 February 1999 to discuss the events of 8 February. (Annexure 'D' to Styles' affidavit 23 July 1999).

56. The Director General specifically said in his letter (first paragraph of p 3 of Annexure 'D'): The Department holds the view that the expulsion power applies whether the act of disorder is committed at that meeting or at an earlier meeting. This follows from there being nothing in clause 25 to restrict the requirement to retract or apologise to an act of disorder committed at the same meeting at which the retraction or apology is called for. It might be expected that the chairperson would generally only exercise an expulsion power beyond one meeting where a pattern of disorder has occurred.

57. The court sees no basis at all on which to disagree with, or depart from, the Director General's interpretation of the Act and Regulations, and respectfully adopts it as a correct interpretation of the law.

58. Before moving on from the Regulatory framework relevant to this case, it is important to note that prior to the 1993 meetings regime, established by s 10 and the Regulation quoted above, questions of order were dealt with by Ordinance 1. Clauses 36 and 37 of Ordinance 1 dealt with acts of disorder at Council meetings, and cl 49A with those at Committee meetings, in these terms (emphasis added):

36. (a) Any member who at any meeting of the Council or of any Committee commits a breach of the Act or any Ordinance, or who moves or attempts to move any motion or amendment embodying any matter beyond the legal jurisdiction of the Council or Committee, or who in any other way raises or attempts to raise any question, or addresses or attempts to address the Council or Committee upon any subject which the Council or Committee has no legal right to entertain or to discuss, or who uses any language which, according to the common usage of gentlemen, would be held disorderly , or makes use of any expression inconsistent with good order and decorum , or who says or does anything calculated to bring the Council or Committee into contempt , shall be guilty of an act of disorder . (b) In any such case the Chairman may call upon the offender to withdraw and apologise without reservation. If the offender do (sic) not so withdraw and apologise, he shall (apart from any other provision made by or under the Act) be guilty of an offence .

37. If disorder arise at any meeting, the Chairman may adjourn the meeting for a period of fifteen minutes and quit the chair. The Council, on reassembling, shall, on question put from the chair, decide without debate whether the business shall be proceeded with or not.

49A. (a) The provisions of the Act and Ordinances relating to the maintenance of order in Council meetings shall, subject to the modifications hereinafter in this clause contained, apply to meetings of Committees of the Council. (b) The Chairman of any Committee meeting may, at any meeting of the Committee, remove or cause the removal of any member of the Committee who, after warning, is guilty of disorder; and at the same or any subsequent meeting exclude or remove such member unless he apologise without reservation. (c) If any member of a Committee, after warning, be guilty of disorder, the member shall be guilty of an offence .

59. Part of Styles' argument turns on differences Mr McKenzie identified between these provisions and those which applied in 1999.

60. I turn now to the relevant history of these proceedings.

61. The matter first came before me, on the question of interlocutory relief, on 23 and 26 July 1999, and most of the relevant and important events and circumstances were the subject of evidence on that occasion.

62. Styles had consistently refused to apologise to the Mayor, as required by resolution 107/99.

63. Although she had continued to occupy, and enjoy all the privileges and facilities of, her office as a Councillor, she had been expelled from and, indeed, on at least some occasions physically removed from, those Council meetings which she had attended after 8 February 1999.

64. Council had on 12 July 1999 granted a development consent to one of Styles' constituents, a Mr Pace, and there had been a Notice of Motion given for the rescission of that resolution by Council at its meeting of 26 July 1999. Styles supported Mr Pace's consent, and she did not want to be excluded from the 26 July meeting, as she wished to attend and vote against the recission motion.

65. As I noted in my judgment of 26 July 1999 - [1999] NSWLEC 210 (at par 11): The applicant says she has been punished enough, and, whether rightly or wrongly excluded, she should now be allowed to resume her attendance and voting at Council meetings .

66. She had threatened, within one month of the original expulsion, to bring some proceedings, but this Class 4 application was filed only on or about 15 July 1999. It was amended on 23 July 1999 to seek, by way of "final" relief:

(a) a declaration that her common law entitlement to attend and vote at Council meetings be reinstated, (b) a declaration that the respondent's ongoing actions against her were unlawful and unreasonable, and (c) an order that neither the Council's Code of Conduct nor s 664 of the LG Act had been breached.

67. By way of interlocutory relief she sought an interim injunction to allow her to attend the meeting of 26 July 1999, and to restrain the respondent from carrying out any further forced expulsions.

68. On each occasion on which she had been excluded from meetings she had apparently - according to Council minutes, but contrary to POC 55 and 56 - been given a fresh opportunity to apologise, and had declined to do so.

69. She believed that the Council had no right on each such occasion to reactivate the February resolution, or at least Part 2 of it (POC 57-59), which had provided, in terms, for her exclusion or expulsion "from this meeting" (my emphasis).

70. I was satisfied on 26 July 1999 that there were substantial issues to be tried.

71. However, because the proceedings had not been commenced immediately after the applicant was first expelled, and a large number of meetings had taken place, resulting in further expulsions, I formed a view that the "status quo is really the stalemate", which could be broken only by a back-down on the part of one of the parties, or by the applicant's success in the substantive proceedings.

72. The making of the interlocutory order sought by Styles would, in my view, have prejudged that final question, and I, accordingly, declined to grant her interlocutory relief.

73. At the Council meeting on the evening of 26 July 1999 she tendered a form of apology, which was accepted by Council (Exhibit A2 fol 785), and Styles apparently then attended Council meetings until she lost her Council seat in the September 1999 elections.

74. The substantive proceedings came back before the court on 11 February 2000.

75. During the life of that particular Council (1995-99), up to and including the end of 1998, there had obviously been a fair amount of disharmony within it (see generally Exhibit A6).

76. While the evidence is not completely informative, there had clearly been: (i) differences between Styles and Councillor Hall (" Hall "), resulting in public unpleasantness at meetings (see T 11.4.00 p14 L50), and in at least two sets of court proceedings (see Exhibit A6 fol 90-134). (ii) differences between Styles and Councillor Towndrow (" Towndrow "), resulting in public unpleasantness at meetings (see T 11.4.00 p95 L15), in their not being on speaking terms (see T 10.4.00 pp5-6), and in Styles writing officially to Taylor on 15 April 1999 to express " no confidence " in Towndrow as Mayor, citing twelve incidents, nine of which predated 8 February 1999, including Towndrow's handling of the 1995 incident, to which I referred in the introductory section of this judgment. (See Annexure " I " to Styles' affidavit 23 July 1999, and par 6 above).
77. Hall ceased attending Council meetings after September 1998, allegedly "due to stress from certain things which have happened at the Council and outside the Council between herself and other councillors" (Exhibit A3 par 2). She appears to have "vacated" her Council seat by 24 May 1999 (Exhibit A2 fol 476).

Towndrow was Mayor at the material times in 1999, and chaired most of the relevant meetings of Council and its Committee of the Whole.

The first Council meeting of 1999 was scheduled for 28 January 1999.

Hall's solicitor, Kevin Worthington of Moss Vale ("Worthington"), wrote to Council's General Manager ("Taylor") on 12 January 1999 (Exhibit A3), saying inter alia: I am instructed that during 1998 my client was subject to sexual harassment by a Councillor and was assaulted by other Councillors but no action has been taken by Council in that regard.

My client will be returning to the Council meetings in late January, 1999 and should there be any further harassment of my client I am instructed to commence proceedings immediately against the responsible parties.

My client's health is suffering from what has taken place during 1998 and she is not prepared to allow behaviour such as has occurred in the past to continue.

I trust that Council will treat this matter seriously and that this letter will not be returned to me as has happened to Mrs Hall on a previous occasion. This correspondence is not intended to intimidate any person and merely to request that Cr Halls' (sic) rights be respected and that she be treated properly and fairly as any other Councillor is treated by the Council.

Should it be necessary to commence proceedings in any jurisdiction, it is intended that this letter will be tendered to the court in relation to the question of costs.

On 19 January 1999 Taylor sent to all Councillors a memorandum, framed in the following terms, and marked "confidential" (Exhibit A1, folio 1): I recently received correspondence from solicitors representing Cr Hall who advised that Cr Hall will be attending the January 1999 Council meeting and that should any further harassment occur with Cr Hall, then action will be taken immediately against the responsible parties.

The advice indicates that it is not intended to intimidate, and merely requests that Cr Hall's rights be respected and she be treated fairly and properly.

I have responded to the solicitor - and this is an internal confidential matter.

Styles received that communication by fax, and with it came a copy of a letter on Council letterhead, which was headed "draft", but had already been signed by Taylor.

That copy letter was not itself marked "confidential" when received by Styles (T 10.4.00 p25 L15ff), but it was addressed to Worthington and dated 15 January 1999, and it said (Exhibit A1, folio 19): Dear Mr Worthington,

Thank you for your letter of 12 January 1999 and I note the contents and issues raised.

If it is your client's claim that this Council has either contributed to or is in any way responsible or liable for sexual harassment or assault as alleged, such claim is strenuously denied.

The Worthington letter of 12 January 1999 was not included with the memo of 19 January, and Styles asked Taylor for a copy of it.

In a memo to Styles dated 22 January 1999, Taylor referred to her "recent memos seeking copies of documents" and said, inter alia (Exhibit A1, folio 2): The copy of Cr Hall's Solicitor's letter is deemed confidential, which is why my confidential memo summarised the matter and brought it to Councillors' attention.

I believe this is a confidential document that should not be released.

Styles wrote to Taylor, again and at length, on 25 January 1999, complaining about the failure to supply "Council with a copy of Mr Worthington's letter", saying (Exhibit A1, folio 3):

Council is not in a position to know what the General Manager is strenuously denying, so how can you speak on behalf of Council in this matter?

Styles' letter went on: (i) to complain that the warning regarding " any further harassment … with Cr. Hall " would intimidate Councillors from doing their " elected jobs involving debate for and against issues "; (ii) to seek details of any " harassment " which had already occurred with Hall, " as none of us are aware of the contents and allegations raised by Cr. Hall "; (iii) to note (at fol 4) that Hall had taken out an apprehended violence order (" AVO ") against Styles " for alleged verbal abuse at Council meetings .. and alleged head/shoulder barging at a budget meeting … and at a work's (sic) inspection at Werombi "; and (iv) to note that the AVO application had been dismissed by the Moss Vale Magistrate on 6 May 1998.

Styles' letter of 25 January 1999 concluded: I advise that you give me no alternative but to apply for a copy of Cr. Hall's legal letter under Freedom of Information. Should this be refused, I will immediately take this matter to the Ombudman's Office and my legal representative.

Council met on Monday 25 January (see Exhibit A2 fol 4, items 64/99 and 65/99).

Styles, on her own admission (T 10.4.00 p27 L5-10), met on 26 January with a local journalist, Andrea Kuhn, who then published, in the "District Reporter" of 28 January 1999 (Exhibit A1 fol 7), the contents of the 19 January memo and of the "draft" copy letter from Taylor to Worthington.

Kuhn's article quoted some comments made by Styles and indicated that Styles had "said she was happy to be named as the source". The article went on to refer to the AVO proceedings, and concluded with a comment that Hall and Taylor were unavailable for comment.

An article, which would appear to have been based on that in the District Reporter, appeared in the Illawarra Mercury on Saturday 30 January 1999 (Exhibit A1, folio 8).

On 29 January, Taylor responded to Styles' letter of 25 January (Exhibit A1 fol 5), apparently after obtaining legal advice (see Exhibit A6 fols 30-32).

He returned her letter, apparently in accordance with "the recommendations of the Ombudsman of 1996 and Council's subsequent resolution and adopted policy", and his letter continued (Exhibit A1, folio 15): At this stage I would also refer you to the provisions of Section 664 of the Local Government Act 1993 which prohibits the disclosure of information obtained in connection with the administration or execution of the Act.

That same day (29 January), Styles responded to Taylor (Exhibit A1, folio 6). Inter alia, she said: I am not bound by your personal decision to stamp confidentiality on matters that affect Councillors' liberty or security. Further, as an Independent, I reject any action on your part to limit Councillors' freedom in any way. … Accordingly, do not expect me to desist with my campaign to seek the truth behind Cr. Hall's allegations …

I strongly recommend you reread the provisions of Section 664 of the Local Government Act 1993 and correct your misunderstanding of the clauses. As the matter did not go to an open or closed meeting of Council, your advise (sic) is in error. However, if it is you (sic) intention to intimidate me, allow me to make the point that you have not succeeded.

In closing, I regret to advise that I dislike the tone of your letter. Consequently, under the recommendations of the Ombudsman's letter of 18 September 1996 and Council's subsequent resolution and adopted policy, your letter and associated material is returned.

Council was to meet next on 8 February 1999, and, as Item 27 of the Business Paper for that meeting, Taylor raised the following (Exhibit A1 folio 9): 27. CONFIDENTIALITY OF COUNCIL ISSUES 1010 Attachment C35/15 Report Council, I feel obliged to bring information to your attention which relates to dealings of Council being brought to a public area.

Copies of recent newspaper articles and correspondence are attached.

It appears to me that issues associated with the 'Code of Conduct' (ie Sections 3.1(a), 2.1 and 4.(1) may need consideration by Council as the Code is administered by Council.

Further, the process of Section 664 of the Local Government Act also must be considered, regarding the use of information received while in Council. This is an issue that appears to warrant consideration by Council and or our governing authority.

It is important for the principles of our Code of Conduct to be maintained and that all parties associated with Council have the ability to undertake their role without fear or favour.

Council I seek your guidance regarding the maintenance of our Corporate principles and practices.

Associated with that submission to Council was a series of copied documents. Every page, including the submission itself was "endorsed", in bold letters down its right-hand side, "Confidential". Those associated documents (Exhibit A1 folios 10-19) were copies of the following: (i) Folio 10 - memo from Councillor Styles of 1 February 1999 to the General Manager's Secretary (Julie Bacon) saying: Correspondence from GM & Mayor Re Cr Hall's allegations of sexual harrassment Julie, I have returned Graham's material regarding Cr. Hall under the Ombudsman's Recommendations of 18/9/1996. Please do not send me any furth (sic) correspondence signed by Mr. Taylor or Cr. Towndrow on this matter which is now before my solicitor. (ii) Folio 11 - The Illawarra Mercury article dated 30 January 1999. (iii) Folio 12 - Styles' letter of 29 January 1999. (iv) Folio 13 - The District Reporter article dated 28 January 1999. (v) Folio 14 - A message Mayor Towndrow had faxed to " all Councillors " on 29 January, with which she forwarded to Councillors some of this associated material, saying:

I'm appalled at the breaches of confidentiality, the nature and content of comments and a blatant disregard for corporate image of Council and the inferences on individuals .

(That fax carried, just above the words I have quoted, the bold endorsement " confidential ". Attached to it were copies of the " District Reporter " article of 28 January 1999, Styles' letter to Taylor of 25 January, Taylor's memo 19 January, and Taylor's " draft " letter to Worthington dated 15 January (see Exhibit A6 fols 14-19)).

(vi) Folio 15 - Taylor's letter to Styles, dated 29 January 1999. (vii) Folio 16 and 17 - Styles' letter to Taylor, dated 25 January 1999. (viii) Folio 18 - Taylor's Memorandum to Councillors, dated 19 January 1999. (ix) Folio 19 - the signed " draft " letter to Worthington, dated 15 January 1999.

The official record of events at the 8 February meeting

Council's meeting on Monday 8 February 1999 commenced at 6.02pm, and followed the published agenda, which generated minutes running to 71 pages (Exhibit A2 Item 1 - folios 1-71).

As Styles' name is mentioned at several stages of the meeting, including several occasions on which she asked for her name to be recorded as voting against particular resolutions, the court concludes that she participated fully in that meeting as an elected Councillor.

Agenda Item "27 Confidentiality of Council Issues" (par 96 above) came before the Council meeting as the 29th item of business, and the Minute of the Council meeting in this particular regard reads as follows (Exhibit A2 Item 1 - folio 70): close meeting to the public

Under the provisions of Section 23AA of the Meeting Regulations, Mayor Towndrow asked the public regarding representations as to why this item should or should not go into Committee of the Whole and the item be dealt with in a closed forum without the press and public -

Cr Styles objected to this item being dealt with in a closed Committee of the Whole. 106/99 Resolved on the motion of Crs Voncina and Kuiper that the Council meeting be adjourned and go into Committee of the Whole and close the meeting at 8.40pm to the press and public in accordance with Section 10A(2)(f) of the Local Government Act 1993 regarding matters affecting the security of the Council, Councillors, Council staff or Council Property. The meeting be closed for approximately 15-30 minutes.

Cr Styles asked to have her name recorded as voting against this resolution.

OPEN COUNCIL WAS ADJOURNED AND CLOSED COMMITTEE OF THE WHOLE COMMENCED.

Those present in Committee of the Whole were:- Councillors Auchterlonie, Voncina, Wilson, Towndrow, Banasik, Kuiper and Styles and the General Manager, Director - Works, Acting Director - Corporate & Community Services and Manager - Development.

OPEN COUNCIL RESUMED AT 9.02PM WITH THE SAME PEOPLE PRESENT AS IN COMMITTEE OF THE WHOLE.

The next item in the minutes of the Council meeting (appearing on folio 70 of Exhibit A2) is "resolution 107/99", dealing with "the recommendations of the Committee of the Whole".

The Minutes of the Meeting of "Council in Committee of the Whole" do not appear in the minutes of the Council meeting itself, but are in evidence (at folios 21-22 of Exhibit A1).

It is important that the minutes of that committee meeting (omitting formal parts) be set out in full at this point, so that the full Council record of events on the evening of 8 February is clear: Minutes of Council in Committee of the Whole held in the Council Chambers, 62-64 Menangle Street, Picton on Monday, 8 February 1999 commencing at 8.40pm

PRESENT: Councillors Towndrow (Mayor), Auchterlonie, Banasik, Kuiper, Styles, Voncina and Wilson. ALSO PRESENT WERE: General Manager, Director - Works, Acting Director - Corporate & Community Services and Manager - Development.

The Mayor then asked that item 27 be dealt with and sought a motion.

Cr Styles be censured for release of information contained in a confidential memo from the General Manager dated 19 January 1999 which is contrary to Council's adopted Code of Conduct.

Cr Styles be further advised that as a Councillor she is required to act, and be seen to act, properly in accordance with the requirements of the law and Council's Code of Conduct, and act in good faith (ie honestly, for the proper purposes and without exceeding Councillors' powers) in the interest of the Council and the community.

That a copy of this report and resolution, together with supportive documentation be forwarded to:

• The Minister for Local Government; - The Director of the Department of Local Government; - The Office of the Ombudsman (ie Mr C Wheeler) for their attention, information and action.

Discussion then followed regarding this motion. During discussion on these items:

The Mayor asked for the mover to speak - Cr Wilson indicated he reserved his right of reply. - The Mayor asked for speakers for - Cr Voncina spoke. - The Mayor asked for Speakers against - no response. - The Mayor continued with any other speakers.

Cr Kuiper spoke regarding the motion and asked Cr Styles if she would like to comment on the issue and the motion.

Cr Kuiper then speaking to the motion was then interrupted by Cr Styles who spoke in a childish voice in a derogatory manner towards Cr Kuiper, other Councillors and the Mayor.

Cr Styles responded saying "Shut Up Towndrow, you're a bloody bitch, a bitch, you're a liar, liar, liar".

The Mayor repeatedly called Cr Styles to order and Cr Styles continued to call the Mayor a "liar, liar, liar".

Motion by Cr Voncina standing to her feet seconded by Cr Wilson that the matter of disorder be raised as an urgent item immediately after dealing with this agenda item before us - this was carried.

The Mayor put the first motion as moved by Crs Wilson and Voncina regarding the censure of Cr Styles and this was carried.

Cr Styles recorded her name against this resolution.

Motion moved by Cr Voncina and seconded by Cr Wilson 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'.

The Mayor put the Motion and it was carried unanimously.

Resolved on the motion of Crs Voncina and Auchterlonie that the Committee of the Whole close and Council move back into the reconvened open Council meeting at 9.02pm.

There being no further business, the Chairman declared the Committee of the Whole Meeting closed at 9.02pm.

The Minutes of the (resumed) Ordinary Meeting of Council (Exhibit A2 Item 1 folios 70-71) complete the chronology of events of that evening, recording: OPEN COUNCIL RESUMED AT 9.02PM WITH THE SAME PEOPLE PRESENT AS IN COMMITTEE OF THE WHOLE.

107/99 Resolved on the motion of Crs Voncina and Wilson that the recommendations of the Committee of the Whole held this night be adopted as resolutions of the Council, (carried unanimously). Resolutions being:-

1. 'Cr Styles be censured for release of information contained in a confidential memo from the General Manager dated 19 January 1999 which is contrary to Council's adopted Code of Conduct.

Cr Styles be further advised that as a Councillor she is required to act, and be seen to act, properly in accordance with the requirements of the law and Council's Code of Conduct, and act in good faith (ie honestly, for the proper purposes and without exceeding Councillors' powers) in the interest of the Council and the community.

That a copy of this report and resolution, together with supportive documentation be forwarded to: - The Minister for Local Government; - The Director of the Department of Local Government; - The Office of the Ombudsman (ie Mr C Wheeler) for their attention, information and action.' 2. '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'.

Cr Styles was asked by Cr Voncina to apologise to the Mayor.

CLOSING There being no further business, the Mayor declared the Ordinary Meeting closed at 9.10pm.

A summary of the key relevant events up to and including 8 February

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.

Relevantly, the Council met again on Monday 22 February 1999, Monday 8 March 1999, Monday 22 March 1999, Monday 12 April 1999, Monday 27 April 1999, Monday 10 May 1999, Monday 24 May 1999, Tuesday 15 June 1999, Monday 21 June 1999, Monday 28 June 1999, Monday 12 July 1999, and then Monday 26 July 1999. (See Exhibit A2 fols 76, 105-107a, 186-9, 264-8, 316-7, 384-5, 643, and 707-9 for minutes of relevant events at the meetings held 22 February, 8 March, 22 March, 12 April, 27 April, 10 May, 28 June and 12 July 1999).

The court notes that Styles did not attend the scheduled meeting of 24 May (see Exhibit A2 fol 471), nor the meeting of 21 June which was the continuation of the (adjourned) meeting commenced on 15 June (see Exhibit A2 fol 576-8), to which I will return.

Council relies on the Minutes of its meetings (see Exhibit A2 folios 1-799) as being an accurate report of what occurred at its various meetings (see LG Act ss 375 and 703, par 37 above).

Styles believes that some of the Council minutes are inaccurate (POC 55 and 56), and some of those which she thinks are inadequate she also regards as fabrications. (See T 10.4.00 p68-9). She annexed an alternative/annotated "extract", with a personal commentary, to her affidavit of 23 July 1999 (see par 12 thereof, and the 13 pages following it).

The court itself identified at least one "inadequacy" in relevant minutes (see T 10.4.00 p61 L8-16), and considers them to be quite unsatisfactory in many other respects, which need not be canvassed in detail at this point.

The facts are that Styles has taken no court action to contest the accuracy of any of the minutes, and they have been duly adopted, as true and correct, by Council resolution at duly convened (subsequent) meetings.

Styles has not discharged the necessary onus under s 703, and the court has no real choice but to accept what the collegiate body of other councillors has adopted as an accurate picture of events.

Nonetheless, what actually occurred at the various meetings held on and since 8 February 1999 has been extensively canvassed and debated during evidence and submissions (e.g. see Taylor's unsworn observations in Exhibit A7).

As the relevant events are essentially clear and their pattern undisputed, I do not stay now to discuss the minutes in detail.

However, I note, in general terms, that the minutes do indicate that the actual detailed circumstances of each "exclusion" of Styles from meetings of Council, on and between 8 February 1999 and 12 July 1999, while not exactly identical, are relevantly similar in most important respects: (a) At the various post 8 February meetings of the Council, beginning with that held on 22 February, Styles would attend at the beginning (or at least early in) the meeting. (b) Quite early in proceedings it would be moved and seconded that standing orders be suspended to " deal with " and/or " reaffirm " resolution 107/99 (or at least part 2 thereof). (c) That motion would be carried (often with Styles having her name recorded as voting against it), and, when the Mayor confirmed to the meeting that no apology had been received, Styles would be given the opportunity to apologise. (d) She would decline or refuse, and Council would then resolve that she be " expelled from this meeting ". (e) Action, including at times the calling of police and Council's security guard, would be taken to remove her if she did not leave of her own accord. (f) No Council business would be transacted while she remained in attendance.

What else relevantly happened after the 8 February meeting?

Styles consulted solicitors within a week of the 8 February meeting, and they sought Counsel's advice (T 10.4.00 p11 L23).

She also queried the accuracy of the draft minutes of the 8 February Committee meeting (see T 10.4.00 p11 L54-5), and her memo of 10 February 1999 to Taylor, Annexure 'A' to her affidavit 23 July 1999 in which she complained of Taylor's "subjective composition" of those minutes. Note also that in her letter to Taylor dated 15 April 1999 (Annexure 'I' to her affidavit 23 July 1999) Styles complained also of Towndrow's "unprofessional statements and biased chairmanship" at the 8 February Committee meeting.

The minutes of 8 February were affirmed at the Council meeting on 22 February without mention of Styles' memo or query about them (T p12 Ll35-6), and she deposed to receiving no response to that memo.

It should be noted that on 21 or 22 February Styles received a copy of Worthington's letter of 12 January. Considering how much angst appears to have been caused by Taylor's refusal to provide Styles with a copy of that letter, it is curious that he placed in her pigeon-hole on 21 or 22 February, "as requested", a bundle of documents purporting to be the "Respondent's Complaint to Ombudsman" (Exhibit A6), dated 15 February, which included (at fols 20-21) a copy of that letter (now Exhibit A3). Mr McKenzie submitted that this event showed a lack of good faith on Taylor's part in taking such a hard line when Styles wanted a copy of it a few weeks earlier.

Styles testified that she was taken completely by surprise at the meeting of 22 February 1999 when Resolution 107/99 was reactivated and Council resolved, for the first time, to have her removed by police (see T p42ff).

On the day following the Council meeting of 22 February, the Mayor and General Manager issued a memorandum to "All Staff" (Annexure 'P' to Styles' affidavit of 2 November 1999) in these terms: Several rumours have been circulating about events that took place at the last ordinary Council meeting on 22 February 1999.

To set the record straight, the following facts are provided for your information. · At the Ordinary Council Meeting on 8 February 1999, Council went into committee to discuss a confidential issue. This related to a confidential memo which had been circulated to Councillors and was clearly marked 'Confidential'. Cr Styles released this information to the media. · At that meeting Council resolved to censure Cr Styles for her actions in breaching confidentiality and Council's Code of Conduct. · Cr Styles also behaved in a disorderly manner calling the Mayor a liar and a 'bloody bitch'. Council resolved that Cr Styles apologise to the Mayor and, if she did not do so, she was to be expelled from the meeting. Cr Styles refused to apologise. · At the 22 February 1999 Ordinary Meeting of Council, the unactioned resolution for Cr Styles to apologise was raised and Cr Styles again refused to do so. Council again resolved to expel her from the meeting. · As Cr Styles refused to leave, the Police were called and escorted Cr Styles from the building.

Wollondilly Council is determined to continue to operate professionally and positively. We have made a lot of positive progress during the past year as a strong organisation and we would like to see this level continue. We ask that, as Council staff, you continue to maintain the professional approach you have shown to your work and not allow the current controversy to interfere with your own standards. (emphasis added).

On the same day (23 February) the Mayor issued a media statement (Annexure 'Q' to Styles' affidavit of 2 November 1999) in these terms: Following last night's ordinary meeting (22 February 1999) of Wollondilly Shire Council, Mayor, Cr Christine Towndrow, issued the following statement.

Standing orders were suspended for half an hour last night while Council considered a resolution outstanding from its previous meeting of 8 February 1999.

This resolution called for "Cr Lynette Styles [to] 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".

It resulted from debate in closed committee of Council, at the same meeting (8 February 1999), at which it was unanimously resolved that

"Cr Styles be censured for release of information contained in a confidential memo from the General Manager dated 19 January 1999 which is contrary to Council's adopted Code of Conduct.

"Cr Styles be further advised that as a Councillor she is required to act, and be seen to act, properly in accordance with the requirements of the law and Council's Code of Conduct, and act in good faith (ie honestly, for the proper purposes and without exceeding Councillors' powers) in the interest of the Council and the community.

"That a copy of this report and resolution, together with supportive documentation be forwarded to: · The Minister for Local Government; · The Director of the Department of Local Government; · The Office of the Ombudsman (ie Mr C Wheeler) for their attention, information and action" At the 22 February 1999 meeting, it was revealed that Cr Styles had not acted upon Council's resolution which was then re-affirmed.

Cr Styles was gain asked to apologise. She refused to apologise and refused to leave, hence Council had no alternative but to call on the appropriate authorities to escort her from the Council Meeting.

Following the meeting on 22 February Styles' solicitors wrote two letters to Council.

In her solicitors' letter dated 25 February to the Mayor (Annexure "N" to Styles' affidavit of 2 November 1999) the following appears:

We are instructed to seek the following: 1. Our client requires that a public statement be prepared, to be signed by all Councillors who were present at the meeting on the 22nd of February, 1999 to confirm that our client has not been in breach of any of her statutory or civic duties and should not have been physically removed from the meeting on the 22nd of February, 1999. The statement must include an apology and an acknowledgment that our client is a person of good character. The terms of the statement are to be agreed before publication. 2. Our client requires that the statement be published in all newspapers and radio stations to whom media releases were made by the Council or the Mayor. 3. An undertaking that no further attempts will be made to expel or remove our client from Council meetings arising from the events of the meeting of 22 February, 1999 or the earlier meeting at which the issues first arose. 4. An acknowledgment that there will be no subsequent attempt to intimidate or harass our client in the performance of her civic duties.

On 1 March Styles' solicitors asked Council's solicitors (in Annexure 'O' to Styles affidavit 2 November 1999) to "advise whether the expulsion … is intended to be permanent".

Proceedings were foreshadowed in March, but not commenced until July 1999.

Some particular meetings between March and July 1999

At the meeting on 8 March 1999 (see Exhibit A2 p105 resolution 141/99), Council resolved that the minutes of the Committee of the Whole meeting of 8 February be "tabled and copies be made available to the public and the press".

Styles also testified that she put forward for the meeting on 22 March 1999 a Notice of Motion, which was not then dealt with, that Council set up an independent review of its complaint against her, the actions of the General Manager, and the "police expulsions".

The court notes that the Council dealt with Styles' motion (and others in her name) dated 4 May 1999, at its ordinary meeting on 10 May 1999, that its terms were not exactly as she testified (see Exhibit A2 fols 459-462), and that all were brought on, and unanimously defeated, in her absence.

A specific declaration is sought in respect of the meeting of 15 June 1999 (par (iv) of her further amended class 4 application).

The court notes that Council at that meeting followed the general routine outlined above, but Styles refused at about 6.19pm to leave the meeting, and Taylor left to call the police. When the police had still not arrived at 7.17pm the Mayor asked Styles three times to leave the meeting, but, when she did not respond, the Mayor adjourned the meeting to a date to be fixed. (Styles objects that there was no resolution of the Council to so adjourn it).

When that meeting reconvened at 6.25pm on 21 June 1999 Styles was not in attendance (See Exhibit A2 fol 576-8).

As soon as she arrived at the meeting held on 26 July 1999, (at 7.16pm for a 6.07pm meeting, after failing to obtain interlocutory relief from this court), the suspension of standing orders was moved, Styles tendered her form of apology, Council accepted it, and the Mayor thanked her.

The relevant minutes record (Exhibit A2, fol 785): Cr Styles arrived at 7.16pm

616/99 Resolved on the motion of Crs Kuiper and Auchterlonie that Standing Orders be suspended.

617/99 Resolved on the motion of Crs Kuiper and Auchterlonie that Council reaffirm Resolution No 107/99 of 8 February 1999 to expel Cr Styles from the meeting for acts of disorder.

Cr Kuiper asked the Mayor if she had received an apology.

The Mayor advised that she had not received an apology.

The General Manager advised that he had not received an apology.

The Mayor asked Cr Styles if she wished to comment.

Cr Styles responded: 'Cr Lynette Styles offers an unreserved apology to the Chairperson of the Committee of the Whole held on 8 February 1999 for calling the Chair, Councillor Towndrow, 'a liar and a bloody bitch' in a closed committee. I apologise for the delay in offering this apology and I assure you this will not happen again. I hope we can let bygones be bygones and get on with representing our constituents for the sake of good local government'.

618/99 Resolved on the motion of Crs Appel and Banasik that the apology of Cr Styles be accepted.

Cr Styles advised that she would provide a written apology.

Styles was subjected to searching cross-examination over several hearing days. Indeed the Council ran its case virtually only on its official documents and Mr Wilson's cross-examination of the applicant.

I will now attempt to summarise fairly the key elements of her evidence about all the events catalogued above, given the starting point that Taylor, as General Manager of the Council, took the position that the Hall matter, and so the Worthington letter of 12 January itself, were properly to be regarded as "confidential", and should have been only "summarised" in his memo of 19 January.

Her attitude to Taylor and the confidentiality question

Styles "disagreed" that the material sent to Councillors should be stamped and regarded as "confidential" (T p15 L31-2); as it concerned Councillors and/or complaints about Councillors, any question of its confidentiality was a matter for Council as a whole, or the Mayor between meetings, to address, not the General Manager (T p15 L55-6, T p22 L27-9 and T p35 L13-43).

When Styles received Taylor's memo of 19 January 1999 she "believed that the legal action was against" her, so she sought from him a copy of Worthington's letter of 12 January (T 10.4.00 p11 L1-5). He refused, and she remained "concerned about which Councillors were being libelled for sexual harassment and assault" (T p20 L54-6). She freely acknowledged that various matters which occur in local government require some degree of confidentiality, but this was either not one such matter, and/or it was not Taylor's role to determine that question.

In those circumstances, Styles did not consider herself "honour bound" by Taylor's stamping of the documents as "confidential" (T p20 L40-4, p21 L39-53, and p25 L30-4). She believed that Taylor had a duty to inform Councillors what the matter was about (T p26 L1). His presentation was incomplete and biased (T p36 L19-34).

Thinking the harassment matter to which he referred concerned Styles herself, she wanted the information out in the public arena, as she was running for Parliament (T p32 L40-7), and she believed it was her public duty, anyway, to bring the matter to public notice herself (T 11.2.00 p4 L26-32 and T p16 L14-25).

When pressed on the availability to her of a Notice of Motion procedure, in cases of a refusal by the General Manager to provide information to a Councillor, Styles adhered to her testimony that her impression from the General Manager's memo was that Hall was threatening legal action against any Councillors "who upset her" at any future meetings she attended (on or after 28 January), and that such a motion may so result in court action.

Styles also said that her experience on Council led her to expect such a motion brought forward by her would likely fail to elicit a copy of the Worthington letter. (See T 10.4.00 p17 L38-50, p18 L22-29, p 23 L21-31, and p26 L1-20).

She further testified that she interpreted Taylor's reference to s 664 (of the LG Act) in letter of 29 January as a threat that she may be charged for breach of that section over the disclosure of the "confidential" material to the local reporter. However, she admitted that Council had never considered any such allegation, nor taken any such proceedings against her.

During the relevant period in 1999 it would appear that she did all the various things Councillors would do, and enjoyed all the privileges etc available to them, except remain in attendance at meetings held between 8 February and 12 July 1999 (inclusive).

In her view the General Manager's item 27 for the 8 February meeting should not have been considered "in camera" in any event.

Once the Council was meeting as the Committee of the Whole, a censure motion against her should not have been moved without being placed on notice on the agenda for the meeting as "business of the Council" (T p8 L16-18 and T p99 L29-37) for which all Councillors could prepare.

Accordingly, in her view, Council failed to "follow the right procedures" (T p9 L30-50), and she was entitled to feel "ambushed", as she had "no inkling" the censure was coming, and there was no opportunity provided to discuss the issues (T p10 L31-54).

Styles freely admitted having directed the key words "liar" and "bloody bitch" to Towndrow at the Committee of the Whole meeting on 8 February 1999 ( T p5 L38-41).

She conceded that she "meant" those expressions (T p5 L27-9), and adhered in her evidence to believing them to describe Towndrow (T p6 L53ff).

However, she also said she did not "know" she had said them "until they were out" and so had not intended them to be insulting (T p8 L37-8).

Events occurred so quickly on 8 February that "there was no opportunity even for the chairperson to have adjourned the meeting for 5 minutes … for everybody to compose themselves and reconvene" (T p8 L54-7 and T p99 L14-21). Styles believes there should have been such an adjournment, the Council staff should then have been asked to leave the meeting, and the Chair should then have confronted her with the Code of Conduct and the consequences of not apologising before any motion was entertained for expulsion, etc. (T p98 L25-37).

She conceded that what she should have done, when confronted by the censure motion, was "collected my paperwork and left the meeting" (T p8 L42-5).

She also conceded that she at no time during the incidents of 8 February or subsequently, did she take any "point of order" (T p44 L19-27).

Although she disputed some entries in the minutes of the various meetings, she conceded that whenever she was asked, by the Chair, to leave a meeting, she had refused (T 11.4.00 p76 L15ff).

She refused to apologise, or to leave meetings, because she firmly believed she had done nothing wrong (Tp57 L54-55 and T p78 L7).

She was not physically removed from either the Committee or the Council meeting on 8 February, but, on all other occasions, the NSW Police and/or the Council's security guard(s) were involved in her physical removal. She generally "went quietly" once the police arrived, as she feared arrest (T pp76-77). After expulsion she often spoke to the press (T p77).

She took particular exception to the 8 March resolution (141/99) which resulted in the publication of the 8 February Committee minutes, as it "smacked of political innuendo … designed to affect my credibility in the community" (T p49 L51-3).

Styles claims that she consistently thought Council was calling on her to "apologise" for both elements of resolution 107/99 (T p6 L23-25) - the press disclosure matter and the remarks she made to the Mayor.

Having failed to gain interlocutory relief on 26 July, she carefully crafted the words of her apology, so that it referred only to the second element of that resolution (T p80 L1), and sounded "sincere in an open meeting of Council" (T p7 L13-14).

As noted earlier, Council "accepted" the apology (Exhibit A2 fol 785 and par 134 above).

Styles maintains that there is utility in these proceedings, despite her no longer being a member of Council, and that the court should make the "bare" declarations she has sought. See Echt v Ryde Council (40074 of 1998, 21 August 1998) per Cowdroy AJ (at par 17).

Essentially, Styles contends that her disorder in the meeting of the Committee of the Whole on 8 February flowed from her being "ambushed" at that meeting, in circumstances where she had taken a particular course of action when the Council's General Manager, wrongly, in her view, asserted the confidentiality of certain documents, and refused to provide others.

Styles contends that she should have been given notice of the censure motion, which was prepared - allegedly by Taylor, to be moved by Councillor Wilson - for the closed meeting. Failure to give notice is a breach of s 9(2A) of the LG Act (see also s 367, and cl 12(3) of the Regulation).

She then contends that her disorder should have been dealt with by that meeting only, i.e. the Committee meeting on 8 February, and that that should have been the end of it. The Mayor did not satisfy the requirements of Regulation clauses 25 and 26, in fulfilling the requirements of s 10(3).

Any expulsion imposed on her must be from that meeting only. Therefore, Council acted wrongly in "reviving" the relevant act of disorder at the resumed Council meeting of that date, and at subsequent meetings.

Mr McKenzie concedes that under the pre 1993 Local Government meetings regime (Ordinance 1, cl 49A) it was possible for an expulsion from one Committee meeting to "roll over" to a subsequent meeting, unless there were an apology "without reservation". In contrast, cl 36 and cl 37 of Ordinance 1 dealt differently with acts of disorder at Council meetings - no expulsion from them was possible, but an offence was created.

He submits that, as the post 1993 regime (s 10 and the Regulation) makes no provision for a Councillor to be expelled from more than the meeting at which the act of disorder occurs (T 11.2.00 p12 L22-28), the court should infer the legislature's intention that councils should not exclude anyone from meeting after meeting.

In the result, Styles' reputation has been damaged by "widespread publicity about an act which … was illegal" (T 11.2.00 p41 L11-12).

Mr Wilson, for the Council, argues that the censure motion and the decision to expel Styles are two separate matters, and that both are within Council's powers. Council took no action against Styles other than make, and seek to implement, those two decisions. The censure began and ended at the meeting of 8 February. In particular, Styles was at no stage dealt with under s 664 of the LG Act, but, in these civil proceedings, the court cannot declare that she was not in breach of that section.

Styles was quite well aware that such issues as the Hall matter, and legal proceedings, should be dealt with on a confidential basis. The General Manager performed his duties properly, and Styles acted wrongly in deliberately flouting the law as she knew or should have known it to apply to the circumstances - she acted wrongly in using the "confidential Council information" as she did, because it was so used "to improperly cause harm or detriment to any person, body, or Council" (Code of Conduct 2/1(a)), or in "abuse of [her] privileged position" (Code of Conduct 2/1 (c)(i)).

The only matter continuing beyond 8 February was Styles' regular expulsion for her act of disorder. Council can and should continue to bring the matter up until the disorder is "purged", and it cannot remain "in committee", because committees of Council, including the Committee of the Whole, have to report to meetings of Council.

There is no temporal connection between the ground for expulsion, in Regulation 25, and the meeting where s 10(3) takes effect. Regulation 25 requires disorder at a meeting, not necessarily the meeting at which Council resolves to expel. It is, therefore, arguable that Council can find the ground made out at any meeting and then act accordingly. Council at every meeting from and including 8 February followed precisely the procedures laid down by the Act.

There is no factual basis for Declaration (i) because the Council did not resolve that the applicant had breached the Code of Conduct, even if it be true that she did.

There is no factual basis for Declaration (ii) because the Council made no allegation that the applicant contravened s 664 and no proceedings were commenced within the time provided.

There is no factual basis for Declaration (iii) as every expulsion took place in accordance with s 10 as it then stood.

Declaration (iv) is misconceived, because the meeting of 15 June was not adjourned to enable the police to attend. It was adjourned because Council could not continue with its business. Adjournment was within the Council's power, and the Mayor, as chair of Council's meetings, exercised that power.

If damages, or compensation, should flow from any Council action, this court does not have the jurisdiction to assess and award them/it - damages are not relevantly ancillary to these class 4 civil enforcement proceedings. Mr Wilson referred the court to Nix & Dunn v Pittwater Council (1994) 84 LGERA 199 (at 204-5). Hence, these proceedings have no utility.

Mr Wilson sought to rely on two further cases on the question of utility.

In Wilcox v Kogarah Golf Club Ltd (Young J, 3138 of 1995, 23 November 1995) the plaintiff served his suspension and resumed his use of his Club's facilities. His Honour said (at p 10):

… the Courts have consistently said that a suspension for a short period of time is ordinarily not a matter with which they will interfere … this is a discretionary matter and each case would have to be considered on its own basis.

Styles here ended her own "suspension", and is no longer on this Council in any event.

In Hacienda Apartments Pty Ltd v Vago (Young J, 5039 of 1985, 19 May 1988), cited to the court by Mr Wilson as being in similar vein to Wilcox, I note that His Honour said (at p4):

…if a dispute is live at the date of its commencement but has become spent, but the point involved is of some public importance, the court will still consider the matter and grant declarations…

I believe there is utility in Styles' persisting with these proceedings, and I decline to dismiss them on that ground. The matters involved in this case are "of some public importance".

Are these proceedings precluded by s 729 of the LG Act?

Section 729 has been set out in full (see par 24), and essentially imposes a three month time limitation on claims against councils which are based on failure to comply with procedural requirements of the LG Act or Regulations, specifically "including a requirement as to the giving of notice".

It is, in terms and effect, a "privative clause". See R v Hickman Ex parte Fox (1945) 70 CLR 598, Darling Casino Ltd v NSW Casino Control Authority & Ors (1997) 191 CLR 602, and, e.g., Sericott v Snowy River Shire Council (1998) 100 LGERA 71 (at 83).

At the end of the case Mr Wilson for the Council submitted that s 729 operated to prevent the court from entertaining "proceedings in respect of procedural matters prior to 15 April 1999" (written submissions 10 April 2000 par 13), but the full application of such a bar was not seriously pressed in argument.

Council may indeed have failed to comply with a "procedural requirement" that Styles be given notice of the intention of a councillor (Wilson), known at least to the General Manager (Taylor), to move that Council should censure her.

However, I agree with the applicant's Reply document (pars 3 and 4) and Mr McKenzie's submissions, that any such failure in all the circumstances of this case would be more "substantive" than "procedural", and Styles claim is not based on a relevant procedural failure, but on Council's failure to observe s 10(3) of the LG Act.

In any event, I am conscious of the provisions of s 374 (see par 25 above). Also, many relevant events occurred within the three months prior to 15 July 1999.

Other than "bitter experience" of meetings on and after 8 February 1999, there is no evidence of any (formal) "notice" being given of motions to reactivate resolution 107/99, and/or to expel Styles from "this meeting". However, I would look favourably upon an argument that the Mayor's fax message of 29 January (see par 97 (v) above) informally set the stage for a possible censure motion against Styles in all the publicly known circumstances of that time. It may even amount to a "mayoral minute" (See cl 15 of the Regulation), to which certain procedural privileges apply.

I can find no bar in s 729 to the court's dealing with these proceedings. See Warringah Council v Edmondson & Ors [2001] NSWCA 1 (at pars 14-16 per Fitzgerald JA).

Is there any evidentiary basis for the making of any declarations?

For convenience I set out again the four declarations Styles is seeking: (i) A declaration of (sic) the applicant did not breach the respondent's code of conduct policy as resolved by Council at the closed committee meeting of the whole of the Council on the 8th of February, 1999. (ii) A declaration that the applicant did not breach section 664 of the Local Government Act 1993 as alleged in a confidential report to the respondent on the 8th of February, 1999. (iii) A declaration that the expulsion of the applicant from the ordinary meetings of the respondent between the 22nd of February, 1999 and the 12th of July, 1999 was unlawful and contrary to the applicant's entitlement to attend and participate in those meetings. (iv) A declaration that the respondent acted unlawfully in adjourning the meeting of the 15th of June, 1999 to enable members of the NSW Police Force to attend at a later time to forcibly expel the applicant.

The first relevant resolution carried on 8 February 1999 was that Styles "be censured for release of information … contrary to Council's adopted Code of Conduct", i.e., contrary to Mr Wilson's submission, I interpret that resolution to be to the effect that Styles did, in fact, breach the Code of Conduct.

The evidence is to the same effect - in going to the media, Styles did, in fact, breach the Code of Conduct, section 2/1(a) and (c), certainly in doing so before Council had considered the question of confidentiality.

The law has long recognised the right of councillors to see documents it is necessary for them to see, "in order to exercise his office as a councillor", and courts may enforce that right by mandamus. Drummoyne Municipal Council v Marshall (1989) 68 LGRA 258. See also cl 41 of the Regulation, and Code of Conduct section 5/3.

However, I find nothing "illegal" about the General Manager's deciding that the relevant "information" should be kept "confidential", until and unless Council (or perhaps the Mayor between Council meetings) decided otherwise - presumably with the benefit of advice from either the Department, or its own lawyers, and possibly in response to a successful motion by a Councillor to have the General Manager's "confidentiality" lifted. See cl 41 of the Regulation, and LG Act ss 226 and 335.

Styles complains that Taylor "usurped" the power of Council or the Mayor in so deciding, but the court has no evidence as to whether or not he was acting on his own authority, or pursuant to a delegation/direction by the Mayor. However, accepting that he did so act, and given the weight of a General Manager's statutory duties, powers and responsibilities (LG Act s 335), I do not think he needs such direction/delegation (LG Act s 377) to make such a decision, in circumstances where he intends to bring the matter generally before the Council, as evidenced here by his submission of Item 27 (see par 96 above).

Likewise I can find no illegality in the decision of Council to go "into committee" (s 373), and close to the public the meeting of 8 February to deal with "Item 27". That item was "properly before Council", and Council has the right to decide to have a confidential discussion of any such matter. Sullivan v Casino Municipal Council & Anor [1973] 2 NSWLR 708. See also Sections 10A-10D.

I, therefore, decline to make the first declaration sought.

I accept Mr Wilson's submissions in respect of the second declaration sought.

While there is authority for declaratory relief to be granted in some circumstances where criminality is in issue (Sankey v Whitlam (1978) 142 CLR 1), these are entirely civil proceedings, and it is not the function of this court, outside of class 5 of its jurisdiction, properly invoked in appropriate circumstances, to make any finding at all in respect of the breach or otherwise of a provision such as s 664 of the LG Act, which is "criminal" in character. (See discussion in Young, "Declaratory Orders", 2nd edition, 1984, pp 151-5).

Accordingly, I decline to exercise this court's discretion to make the second declaration sought.

I turn then to the question posed by the third declaration sought - namely, that the series of expulsions on and between 22 February and 12 July were "unlawful and contrary to the Applicant's entitlement to attend and participate".

I can find no basis or authority for the assertion by Styles that when a Councillor refuses to apologise for extreme disobedience of, and/or discourtesy to, the Chair, the matter must just be left unresolved.

Her words and actions in the 8 February meeting, following the censure resolution, are clear breaches of cl 25 of the Regulation, and sections 3/1(a)(iv), 4/1, and 11 of the Code of Conduct (Exhibit A4), despite cl 39 of the MP code. (See also cl 37 of the Regulation, and MP Code cl 59).

It is certainly true that such a situation in council could be handled in a number of ways. For example, Styles argued in her evidence for a short adjournment, and then a closed conciliatory meeting of some sort between councillors. Adjournment for a short period was one alternative available to the Mayor, under the MP Code and the Regulation, but she chose, instead, to close the meeting and consult the Department of Local Government. (See cl 33 of the Regulation, and MP Code cl 54). The Mayor must act "immediately" (cl 24 of the Regulation), and take any course decided upon, consistent with cls 26 and 27 of the Regulation.

On my assessment of all the evidence, the Mayor appears to have acted as the Director General then advised her was appropriate in the circumstances (see again Annexure 'D' to Styles' affidavit 23 July 1999).

As I can find no fault with that advice, I can find no fault with the fundamental elements of what followed the disorder. Item 27 was on the agenda; the Council can close its meeting to discuss it; a censure or expulsion motion can be moved without being on notice (cl 13(3) of the Regulation and cl 25(3) of the MP Code); the meeting can expel, and the Mayor can call the police (s 10, and cl 27 of Regulation).

Each failure by Styles to apologise, as demanded, and reaffirmed, by Council, amounted to an act of disorder at each meeting where it occurred. In this respect I depart strongly from Mr McKenzie's arguments on Styles' behalf.

Even though I acknowledge the differences between the former Ordinance 1 and the relevant Regulation, I note the specific power in cl 25(3) of the Regulation to take "any other action" - in those circumstances there was no need for cl 49A of Ordinance 1 to be carried forward to the Regulation. The powers in Ordinance 1 did not include a provision as broad as cl 25(3) of the Regulation.

The outcome of any meeting of the Committee of the Whole must be formally reported to the Council which would then meet in public to receive such reports as recommendations requiring Council resolution. (cl 36(3) of the Regulation, and MP code cl 42).

212. The Committee of the Whole is the Council, meeting informally, and/or "in camera". (See cl 28 of the Regulation, and cls 3 and 48 of the MP Code).

213. All the proceedings on 8 February constitute only one meeting of Council in any event, albeit that some is "secret", and the MP Code applies to that part of it. (Regulation cl 28(i), and MP Code cl 48(2)).

214. Styles started this controversy by wanting things "out in the open", and it is somewhat ironic that Council's reaction to the position she adopted in that regard was played out so publicly.

215. However, she had the two weeks from 8 to 22 February to ponder what should happen about her censure and her disorder, left uncompleted at the end of the 8 February meeting, and I find it highly surprising that she seems to have expected that the sudden closure of the Council meeting on 8 February brought a complete end to all the events of that evening.

216. True it is that there were elements or overtones of "ambush" about the closed and open sessions on 8 February, and, later, the reactivation of Resolution 107/99, at least at the meeting of 22 February - "ambush" in Council's failure to list the censure, or the reactivation of 107/99, on the agenda published in advance of each meeting. See s 367, MP Code cl 25 and cl 52, cls 12(3) and 13(1)(a) of the Regulation; but c.f. cl 13(3) of the Regulation, and MP Code 25(3), and note s 374(e).

217. However, this applicant is/was not an unsophisticated ingenue, and she had had, it appears, a quite stormy time on Council to that point; so those elements or overtones of these events are not sufficient to win Styles her third declaration. See also s 374(b) and (e), and MP Code cl 52(2).

218. The disorder in the open meetings of Council, from and including that at the end of proceedings on 8 February, is the failure to withdraw/apologise for the unseemly comments to, and defiance of, the Chair at the closed meeting on 8 February, in circumstances where the "sentence" passed at that meeting was not carried out.

219. Council concluded, after the Mayor obtained advice from the Director General, that the question of disorder was "unfinished business", carried over from the meeting of 8 February. The announcement of 23 February so asserted.

220. It seems to me that Council had every right, indeed perhaps a statutory duty, to pursue this matter until it was resolved in an edifying way for the benefit of this Council, local government generally, and the community at large. However, even if that be wrong, Styles has not sustained her claim that Council's actions were "unlawful".

221. Styles was deprived by Council, for a fortnight at a time, of her "entitlement to attend and participate". I have concluded that that was completely lawful in all the circumstances. She resisted Council's sustained pressure for her to end the matter, in the way envisaged by the regulatory regime under which she was elected, a regime comprehensively explained in various documents she herself voluntarily produced to the court, until she lost her interlocutory proceedings on 26 July 1999.

222. Although her apology was carefully crafted, and she testified that she really did not mean it, Council reinstated her "entitlement", without demur, once it was given.

223. The court acknowledges that these events have caused Styles distress. One can only wonder what impact the public spectacle involved in this unfortunate saga had on the constituents of the Council. Perhaps it may have played some role in her losing her seat on Council, but the court is in no way satisfied that the expulsions were unlawful, and has come to the opposite conclusion.

224. I, therefore, decline to make the third declaration sought.

225. I can find nothing "unlawful" in the adjournment of the 15 June 1999 meeting. The "pending" business of the Council (in this case the question of finding, rightly or wrongly, Styles to be in disorder) could not be concluded because the expulsion on which Council had decided could not be then achieved.

226. I can find no authority for Styles' proposition that, with the meeting in that state, the Mayor needed a resolution of Council to legally adjourn the meeting to another date. Indeed, the MP Code (Exhibit A5 cl 35(4)) provides that "the chairperson may adjourn a meeting at any time, based on issues at hand and operation of meetings at the time".

227. Accordingly, I also decline to make the fourth declaration sought.

228. Having come to the conclusion that none of the four declaration sought by Styles can, on the evidence, be made by the court, it is not necessary to deal completely with the evidence and submissions regarding questions of discretion, laches, acquiescence, delay or damages.

229. However, given the unusual circumstances of this case, and the issues of public interest it raises, a few brief remarks should probably be made about those matters.

230. Sections of the LG Act, such as 128, 179, 181, 198 and 730 provide that the court can order "compensation" in the nature of "expenses incurred", or reimbursement of the cost of "damage caused", in certain specified circumstances, e.g. during authorised entry of premises. Section 730 provides for claims under s 128 or s 198 to be referred to commercial arbitration. If not resolved, s 730(3) provides: The Land and Environment Court may hear and determine the matter and make any order with respect to the claim and the costs of the case as having regard to the circumstances of the case and to the public interest the Court thinks just.

(1) The Land and Environment Court, on the hearing of proceedings brought under section 674, has a discretion to award compensation to the person against whom such proceedings are taken if the Court considers that: (a) the proceedings against the person are frivolous or vexatious, and (b) the person has incurred expense as a consequence of any delay to an activity that has occurred as a result of the proceedings, and (c) the activity is authorised by an approval held by the person. (2) A claim for compensation may not be made more than 28 days after the date on which the Court gives its decision in the proceedings. (3) Compensation under this section is to be awarded against the person by whom the proceedings under section 674 were taken.

232. Styles' claim for "damages" was put thus (Mr McKenzie's submissions par 24): The damages claimed do not include out-of-pockets, economic loss and soforth. The claim is for pecuniary compensation to the Applicant reflecting the Community's outrage at the invalid and improper acts of the Council affecting, as they did, her representation of her constituents at meetings of the Council and affecting the discharge by the Council of its duties and functions under LGA and reflecting the Community's further outrage at the public calumny suffered by the Applicant in consequence of the manner in which she was shut out and removed for (sic) meetings on invalid grounds.

233. That, clearly, is a claim for "general damages", and not a claim for reimbursement of actual costs incurred.

234. The evidence to support it was received by the court, originally on the basis that, if declarations were made, as sought, some further hearing may be required on detailed questions of "damages". However, submissions were made on the matter at the hearing.

235. I can find authority only against the argument implicitly advanced in this case that in some way this court, in proceedings like these, can "compensate" the applicant for some form of defamation (see POC 54), or other proven tortious conduct, assuming the court were satisfied that such consequential relief was relevantly "ancillary" to its jurisdiction (see par 177 above, and the recent judgment of Pearlman J in NTL Australasia Pty Ltd v Minister for Land & Water Conservation [2001] NSWLEC 5, pars 22-28).

236. The word "compensation", where it occurs in legislation of concern to this court, has been narrowly construed.

237. In Wherry v Sisters of Charity [2000] NSWLEC 252, Bignold J held [see pars 45, 46, 64], in the context of the Encroachment of Buildings Act 1922, that "compensation" was "not in the nature of damages for trespass or nuisance or other tortious act", but was intended to cover actual losses incurred, and not any punitive element for "unreasonable conduct".

238. In Gardiner & Anor v Hornsby Council [2000] NSWLEC 37, Pearlman J interpreted the word "compensation", in the context of s 181 of the LG Act, as covering only expenses incurred as a consequence of an order which, under the Act, was held to be unsubstantiated or unreasonable, and not extending to the costs of litigation.

239. I do not believe this court would have the power to accede to Styles' prayer for ancillary relief, under s 676(1) of the LG Act, had she succeeded in obtaining the declarations. See Nix & Dunn.

240. On the evidence presented I would not have been satisfied that Styles was guilty of laches, acquiescence or delay.

241. Delay was certainly a factor in my decision to decline interlocutory relief, but the expulsions were certainly contemporaneous with the commencement of the proceedings, and the damages claim really arose once Styles lost her seat on Council. The various adjournments of the proceedings were granted by the court on appropriate grounds.

242. Had the applicant succeeded, on the evidence, in establishing a prima facie entitlement to declaratory relief, the question of discretion to refuse relief would have required determination.

243. All the players on the Local Government stage are equally bound by its regulatory regime, under which, by virtue of s 748(5), validly adopted codes of conduct and meeting procedure are "called up" as regulations, and any breach of "regulations" is tantamount to a punishable breach of the LG Act (s 672, par 22 above).

244. While Styles' relevant behaviour certainly cannot be condoned by the court, and would have weighed heavily in the balance against her succeeding in the proceedings, several elements of Council's handling of the matter certainly expose it to criticism, and Mr McKenzie several times questioned the bona fides of Council and its General Manager.

245. I do not underestimate how difficult such events as those involved here can be for all concerned. However, Council relied before me only on its official records, and cross-examination of the applicant, and put on no evidence on its own behalf, thus leaving some adverse conclusions available to the court, on the evidence, had it come to a consideration of discretion.

246. Firstly, I observe that the minutes of the passages of meetings involving the issues relevant to these proceedings certainly go beyond the formal record, required, by the Act and Regulations, of Council's decision-making, containing, as they do, personalised references to Styles, her conduct and her demeanour, and other subjective remarks (see examples in par 103 above).

247. Also, the evidence suggests different tenable versions of events, not only that advanced by Styles, but also others from other eye witness accounts, and any bias in the minutes, if it were proven, would be a serious breach by Council of the regulatory regime, which requires its compliance with the provisions of the Code of Conduct (MP Code cl 67).

248. Beyond questions of the language and accuracy of Council's minutes, I also note: (a) the " ambush " environment, dealt with above. While not perhaps unlawful, it precluded an appropriate debate, and precipitated a disorderly event, which served to disrupt the activities of Council for six months of meetings and more than twelve months of litigation. (b) the rejection at meetings of apologies for non-attendance, and motions for leave of absence, in respect of Styles and Hall (see examples throughout Exhibit A2 ). (c) the failure of Taylor to explain to Styles his decision to suppress documents, his failure to draw Reg 41 to Styles' attention in regard to that decision, and the almost off-handed way in which the Worthington letter was provided to her shortly afterwards (par 119 above). (d) the apparent failure to place before Council some of Styles' formally and appropriately raised concerns about important Council business, such as the accuracy of its minutes (par 117 above). (e) the summary disposal of Styles' notices of motion during her enforced absence from meetings (pars 128-9 above). (f) the inflammatory nature of the totally unnecessary decision to release publicly the extraordinary minutes of the closed session of 8 February 1999 (par 127 above). The accuracy of those minutes had been formally and promptly challenged by the person most likely to be damaged by their public release (par 117 above), and, while s 664(1A) would seem to permit the release " in full " of those minutes, cl 48(3) of the MP Code precludes it.
249. Councils have every right to carry censure or expulsion motions, and the like, in the appropriate circumstances. However, notice and openness, consistent with the whole scheme of the LG Act and other elements of the regulatory environment, would seem to be desirable, and minutes of official proceedings should be accurate, impersonal, and non-argumentative.

250. Provisions like s 374, s 703 and s 729 (pars 25, 37 and 24 above respectively) are in the LG Act to protect the public interest, and preclude elected councils from being diverted into protracted argument and untimely litigation; I do not think that the public would believe/accept that they are there to be used as weapons or shields in personal or official disputes that may arise within councils from time to time.

251. As Mr McKenzie observed during argument (T 11.2.00 p 10 L10-13): … democracy is made up of difficult and sometimes intractable people and some of them have been some of our finest representatives.

252. The applicant having been totally unsuccessful in these proceedings, her class 4 application should be dismissed.

253. Prima facie she should also be ordered to pay the Council's costs on a party/party basis.

254. Mr Wilson specifically asked me to reserve the question of costs, as Council may wish to seek an order for indemnity costs for at least some parts of the proceedings.

255. In those circumstances, I will order the applicant to pay Council's costs on a party/party basis, but stay that order for 21 days from today to allow time for the Council to file a Notice of Motion seeking its vacation in favour of some other order as to costs, if it so decides.

256. The formal orders of the court will, therefore, be: 1. Application dismissed. 2. Applicant ordered to pay Respondent's costs on a party/party basis. 3. Order 2 stayed for 21 days. 4. The exhibits may be returned.

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.