Susan Denise Jarvis v Queanbeyan City Council

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40399/01 STEIN JA HEYDON JA MATHEWS AJA

Friday, 8 February 2002 Susan Denise JARVIS v QUEANBEYAN CITY COUNCIL

Judgment 1 STEIN JA: Before the court is an appeal from a decision given by Sheahan J in the Land and Environment Court on 31 May 2001. His Honour was hearing an application for declaratory relief by the appellant, Susan Denise Jarvis, against the respondent, Queanbeyan City Council.

2 The declarations which were sought before his Honour related to certain resolutions of the respondent Council concerning the appellant who is a Councillor of the respondent. Essentially there were two sets of resolutions involving the appellant. The first was whether or not she had breached certain clauses of the Council's Code of Conduct. The second concerned the Council's resolution to reprimand Councillor Jarvis in respect of her conduct and required from her a formal written apology in lieu of which she would be dealt with for a breach of the Council's Code of Conduct. 3 The written apology was not forthcoming from Councillor Jarvis and in response a subsequent Council meeting resolved to expel her from the meeting. There were subsequent similar resolutions passed at further Council meetings.

4 The appellant failed before the Land and Environment Court to obtain any of the declaratory relief for which she sought. The result of those proceedings was that her application was dismissed and an order for costs of the trial was made against her.

5 The appellant promptly appealed to this Court setting forth lengthy grounds of appeal. Thereafter, there apparently occurred exchanges of correspondence between the respective legal representatives of the parties and between the Mayor and the appellant. Some of these have been tendered to the court.

6 At various points of time it seems that the respondent wished to maintain its position in relation to the appellant's expulsion from Council meetings, unless the apology was forthcoming. At other points of time, the correspondence indicates a softened position by the Council and a willingness to sit down and see whether the parties could meet and come to a reasonable resolution of this sad and sorry saga.

7 However, no resolution was arrived at by the parties in the period of time leading up to the end of August, during which time the appellant applied for a stay pending the appeal. On 27 August 2001 Hodgson JA made certain orders which included the restraining of the respondent Council from taking any steps to remove or expel the appellant from any ordinary or committee meeting of the Council on the basis of the Council's original resolution of 17 January 2001.

8 Thereafter it appears that the Council moved reasonably rapidly to a situation which culminated in its unanimous resolution of 19 September 2001. That resolution, moved by the Mayor and adopted, included the following: That whilst Queanbeyan City Council continues to be of the opinion that Councillor Jarvis should make the apologies referred to in its resolution of 17 January 2001, it no longer seeks to expel Councillor Jarvis from any council or committee meetings for the original breach. 9 It is this resolution of the Council, passed four and half months ago, that led to submissions being made to the Court this morning as to the utility of the appeal.

10 It is axiomatic that a court should not consider matters and grant declarations where the subject matter is spent and there is no longer any live dispute. The principles are enunciated in many authorities, however, a useful authority to consider is one cited by the parties of Young J in the Equity Division of Hacienda Apartments Pty Limited v Vago (Unreported, Supreme Court of New South Wales, Young J, 19 May 1988).

11 One of the aspects Young J referred to was that when a dispute concerns purely private rights, it would be rare indeed that a court would consider that a declaration was of any utility. In relation to the matter before the court today, the arguments on the issue of utility can be shortly and simply stated. On the appellant's side, Mr Craig QC, whilst accepting that the resolution of 19 September 2001 enabled Councillor Jarvis to resume her public duties with the Council, attend all meetings, and not be required to tender the apology earlier demanded, the substance of Council's resolution of 19 September was such that it maintained the correctness of the Council's earlier decision with respect to her. In a way, I suppose Mr Craig is saying that it was a 'without prejudice' resolution, but also one that was probably engendered by the interlocutory proceedings before Hodgson JA to which I have referred to earlier.

12 In addition, the appellant submits that, notwithstanding Council's resolution, there is a public interest in the proceedings continuing, and that there are important issues at stake for the proper administration of local government. The appellant has also pointed to local publicity in relation to the matter in the Queanbeyan area.

13 On the other hand, Mr Menzies QC, representing the respondent Council, has submitted that there is no utility in the court hearing and determining the appeal on its merits for a number of reasons some of which include what occurred prior to the Council resolution of 19 September. He also relies on the Council's attempts, prior to that date, to bring about a resolution of the question of the attendance of Councillor Jarvis at all Council and Committee meetings, and the question of not pressing for the apology that the earlier resolution had required from her.

14 It seems to me that in the circumstances that have occurred, there is no utility in the court embarking on a hearing of the issues raised by the appellant, which were dealt with by the trial Court. I have trouble discerning wide matters of public interest in relation to the matter. The interests involved can, in one way, be more seen as the private interests of the appellant, understandable as they are in all of the circumstances which have occurred over this unfortunate matter since its inception. However, it is hard for me to see that the appeal raises important legal or practical issues relating to the proper administration of local government. Most of the legal points involved in the appeal include construction of the Queanbeyan Council's Code of Conduct, which it is difficult to see would have any general application for local government throughout the State. For my part I can see no utility in the remedies that are sought in the Notice of Appeal given the situation that has now been reached. I would therefore dismiss the appeal on that basis.

15 At our invitation, the parties have addressed the court extensively on the question of what should occur in relation to the costs of the proceedings, including the proceedings at first instance. On the appellant's side, the primary submission is that the appellant had to come to Court, that the resolution of 19 September 2001 of the Council vindicates the appellant, and that she should get her costs of the appeal. As a fall back position, it is submitted that she should certainly get her costs of the appeal up to the time of the Council resolution of 19 September 2001.

16 Mr Craig further submits that the order for costs, made by Sheahan J against the appellant, should be set aside and should be substituted with an order that each party pay its and her own costs.

17 The Council's position on costs is that the costs in the Land and Environment Court should be left as they are. The Council submits that the proceedings in the Land and Environment Court were commenced by the appellant, the issues raised were heard and determined by Sheahan J and the appellant was unsuccessful. The order of costs following the event was appropriate and in the circumstances should not be interfered with and certainly not because of the subsequent resolution of the Council, which, as has been made clear from its wording, was, as it were, without prejudice to what had occurred beforehand and the legality of its earlier resolutions.

18 When Mr Menzies rose to address on costs his first position was to say that if the appeal is dismissed on the basis of its lacking in utility the ordinary costs order ought follow, that is, that the appellant pay the respondent's costs of the appeal. However, as the submissions were developed, Mr Menzies received instructions to withdraw that submission and substitute it for one which put to the court that the appropriate costs order for the court to make in all of the circumstances was that each party should pay its and her own costs of the appeal.

19 So far as the costs at first instance are concerned, I do not think it would be appropriate for this court in the circumstances which have been described to intervene and set aside the costs orders. I see no reason why the order made by Sheahan J should not stand.

20 As to the costs of the appeal, it seems to me that when one takes into account all of the circumstances, the fact that the court will dismiss the appeal on the ground that it lacks utility, the history of the litigation in the Court of Appeal, the correspondence between the parties, the content of the Council resolution of 19 September 2001 and all other relevant matters, the most appropriate order for the Court to make on the appeal is that each party bear its and her own costs.

21 I would therefore propose the following orders: (1) The appeal be dismissed.

24 STEIN JA: The orders of the Court will be as I have just announced. oOo

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