TEEDE -v- SHIRE OF MENZIES [2025] WASC 323 (12 August 2025)

(a) the Shire file and serve an affidavit or affidavits setting out in detail the deliberations of the Shire's council at the 14 and 17 October 2024 meetings, including what questions were asked (if any) and by whom, the responses to those questions (if any) and by whom they were made, the matters that were taken into account by the council, and how the decision was reached; and

(b) alternatively, that Ms Teede have leave to cause subpoenas to be issued to members of the Shire's council who were in attendance at the 14 and 17 October 2024 meetings to give evidence at the final hearing in these proceedings.

1. The Shire opposes the making of an order in terms of the first order and neither consents to, nor opposes, an order that subpoenas be issued.

When an affidavit will be ordered in judicial review proceedings

1. Order 52 r 5(2)(c) of the Rules of the Supreme Court (Rules) provides that on an application for judicial review the Court may order the applicant or any other person to file an affidavit as to the facts material to the application, the challenged decision, or the challenged conduct.
2. In Brewer v O'Sullivan [2016] WASC 275, Pritchard J made an order for the preparation of such an affidavit in an application for the review of a decision made by a State government Minister under the Mining Act 1978 (WA). The Minister had not given written reasons for his decision. The applicant submitted that while the Minister's process of reasoning could be inferred from publicly available information, an affidavit would remove any uncertainty.
3. The Minister did not oppose the making of the order sought. One of the other parties to the proceeding did, however, on the basis that the affidavit was unnecessary (because the process of reasoning could be inferred) and ordering the affidavit might contravene the principle in R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13.
4. Pritchard J ordered the affidavit sought. In doing so, she observed that it is clearly desirable that the court proceed on the basis of accurate information as to the basis for a decision the subject of an application for review. Pritchard J did not consider that making the order sought would contravene the Hardiman principle.
5. In Papamihail v Legal Profession Complaints Committee [No 2] [2021] WASC 346, however, Allanson J refused to order the preparation of an affidavit. Those proceedings concerned an application for judicial review of two decisions of the Legal Professional Complaints Committee (LPCC) to refer Mr Papamihail to the State Administrative Tribunal (SAT).
6. Allanson J observed that there was no question that the court had the power to make the order sought and the question was whether as a matter of discretion it should do so. He observed that having regard to O 1 r 4A and r 4B of the Rules, the first question is whether the affidavit is as to facts which are material to the application. He considered that the court must also ask whether the order is essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial.
7. Allanson J observed that the provision of the legislation pursuant to which the LPCC decided to refer Mr Papamihail to the SAT did not require it to give reasons and did not prescribe any criteria which must be satisfied, or any matter to which the LPCC must have regard when referring a matter to the SAT. In that context, he decided that it was not reasonably necessary for the fair and just determination of the issues in the judicial review application, to make the order sought.

Why Ms Teede says that an affidavit should be ordered

1. Ms Teede argued that what the Shire council considered in making the challenged decisions and how it went about making those decisions was central to her review application. She submitted that those matters were relevant to whether she was accorded procedural fairness, the identification of the relevant legal standard applicable to the council's decision making process and whether the council complied with what she alleges were mandatory considerations.
2. Ms Teede argued that in the absence of this evidence, the court would be left to decide this matter based on the inferences to be drawn from the limited available material. She contended that such an outcome was undesirable because competing inferences were available from that material.
3. Ms Teede argued that either of the orders sought would assist to achieve clarity in this matter. She referred to an observation made by Corboy J in Eclipse Resources Pty Ltd v McNamara, Chief Executive Officer, Department of Environment and Conservation [No 2] [2012] WASC 264 [82] where he observed that a decision-maker has a duty of candour to the Court and, in some circumstances, must reveal why a challenged decision was made. Corboy J's comments were referred to by Prichard J in Brewer v O'Sullivan [19].
4. Ms Teede submitted that there was no need to extract what was subjectively in the minds of individual councillors. It was argued that the meetings in question were attended by participant witnesses, who can provide an objective account of what material was put before the Shire council and the process by which the challenged decisions were made.

1. The Shire accepted that if it can assist the court to discharge its function then it should do so. It submitted that the order sought regarding the affidavit was problematical for two reasons.
2. First, the Shire argued that if the Shire council's decision were amenable to review (which the council indicated that it proposed to dispute) the resolution of the grounds advanced are not assisted by the order sought. In this regard the Shire referred to the decision of Allanson J in Papamihail.
3. The Shire submitted that ground 1 of Ms Teede's application is that she was given inadequate notice of the decisions to be made by the Shire, and the Shire failed to disclose, at all, anything to her which would permit her to respond in a meaningful way. The Shire argued that on that case, and consistently with the limits imposed on judicial review, the precise content of what was said at the relevant meetings of the Shire council is irrelevant.
4. The Shire argued that grounds 3(a) and 5 were inconsistent.
5. The Shire submitted that the expressed reason for the decision to terminate Ms Teede's employment was a loss of trust and confidence in Ms Teede. The Shire submitted that it is prepared to agree that:

(a) that reason, and the Shire's decisions, 'related' to Ms Teede's performance;

(b) the council did not conduct a performance review with Ms Teede prior to terminating her employment; and

(c) the council lost trust and confidence in Ms Teede because she twice refused or failed to comply with a request by the Shire President to put the pen down on a staff review Ms Teede was conducting and to prepare an agenda on the relevant item to go to the council.

1. The Shire invited Ms Teede to propose other facts that might be agreed.
2. Secondly, the Shire submitted that there was difficulty with the form of the order sought.
3. The Shire argued that the form of the order sought went beyond an affidavit as to any facts material to the application and, in effect, sought to compel the Shire to identify a deponent who can and is willing to prepare and swear to the accuracy of a running transcript of two meetings held 10 months ago, and to prepare a statement of reasons for the decisions reached by the council at those meetings. It was contended that that is not what is contemplated by O 56 r 5(2)(c) and it has not been applied that way previously.
4. Further, the Shire submitted that the prescriptive form of the order raised practical difficulties. It argued that as a body corporate it must rely on its employees and agents and none were present. It contended that the only persons present were the Shire's councillors who are not the subject of direction by the Shire.
5. The Shire argued that it was neither fair nor appropriate to compel it by court order to prepare an affidavit in the manner proposed. It was submitted that given the broad form of the order sought, neither the Shire, nor the deponent could fairly know whether the order had been complied with.
6. The Shire submitted that it neither consented to, nor opposed, the making of orders for subpoenas but that the same observations might be made about such orders.

1. In my view, as in Brewer v O'Sullivan, in this case it is clearly desirable that the court proceed on the basis of accurate information about the decisions the subject of the review application.
2. The relevance of what the Shire council considered in making the challenged decisions, and how it went about making those decisions, to all of the grounds of review, might be debated. It is at least relevant to the grounds that there was no evidence to justify the decisions and that they were unreasonable, however. In my view this case is therefore different to Papamihail.
3. Although it is possible that some facts might be agreed and I would encourage the parties to agree facts, I am not confident that such a process will provide sufficient clarity about the council's decision making process. It may be difficult for Ms Teede to agree facts about what the Shire council considered in making the challenged decisions and how it went about making those decisions, given her lack of knowledge about those matters.
4. I accept that there are some difficulties with the current form of the orders sought. In my view, those difficulties might be addressed by reformulating the order to make it explicit that the deponent of any affidavit is only required to address the matters identified to the best of their recollection and ability. Any deponent could only be expected to do this much.
5. I do not consider that such a reformulated order would be the equivalent of requiring the preparation of a transcript or reasons. The result produced by such a reformulated order may have limitations and be imperfect, however. The frailties of human memory are such that there is a risk that the picture that might emerge from this process may be incomplete. In my view, however, there is still some merit in attempting to establish a clearer picture than is presently available.
6. The Shire has not filed any evidence that shows that it has made enquiries with possible deponents and no one is willing to swear an affidavit. The Shire's submissions about possible difficulties identifying willing deponents therefore seem to involve speculation.
7. I am minded to make the orders sought, reformulated as I have indicated. As I have discussed with counsel during the course of the hearing, the appropriate form of the order in my mind is that I order the Shire's council to either file an affidavit in terms of the order sought by Ms Teede as reformulated, or an affidavit of the steps that they have taken to obtain the necessary evidence.
8. If at that stage it appears that the Shire's council has been unable to obtain evidence from any deponent to comply with the order that has been made, I will consider whether or not it is appropriate to issue subpoenas to the various councillors.
9. I will hear from the parties as to the date by which any affidavits should be filed and in relation to the question of costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.