Armidale Regional Council v O'Connor (No 2)

[2020] NSWLEC 54

Land and Environment Court

New South Wales

Medium Neutral Citation:	Armidale Regional Council v O’Connor (No 2) [2020] NSWLEC 54
Hearing dates:	12 May 2020
Date of orders:	12 May 2020
Decision date:	12 May 2020
Jurisdiction:	Class 4
Before:	Robson J
Decision:	See orders at [10]-[11]
Catchwords:	CIVIL PROCEDURE — Injunction — Urgent injunction sought to restrain councillors from voting on Council motion — Removal of Chief Executive Officer —Extension of interlocutory relief
Cases Cited:	Armidale Regional Council v O’Connor [2020] NSWLEC 53
Category:	Principal judgment
Parties:	Armidale Regional Council (First Applicant) Susan Law (Second Applicant) Margaret O’Connor (First Respondent) Debra O’Brien (Second Respondent) Jonathan Galletly (Third Respondent) Dorothy Robinson (Fourth Respondent) Ian Tiley (Fifth Respondent)
Representation:	Counsel: M Allars SC (First Applicant) R Hassall, solicitor (Second Applicant) S Prince SC (Respondents)   Solicitors: Lindsay Taylor Lawyers (First Applicant) Sparke Helmore (Second Applicant) Centennial Lawyers (Respondents)
File Number(s):	2020/00140210
Publication restriction:	Nil

EX TEMPORE Judgment (Revised)

1. This matter came before me as an urgent interlocutory hearing yesterday afternoon when Armidale Regional Council and Susan Law (‘applicants’) sought urgent interlocutory relief restraining the five respondents, who are councillors (‘respondents’), from participating in, or voting on, Item 7 of an Extraordinary General Meeting of Armidale Regional Council (‘Council’) scheduled to commence at 4.00pm that day. I briefly outlined the background facts and made orders granting limited interlocutory relief which were electronically served on the respondents’ solicitor at the time, Mr M Ball, at 4.00pm yesterday in relation to the conduct of that meeting: Armidale Regional Council v O’Connor [2020] NSWLEC 53.

2. The matter came back before the Court this morning at 10.00am, at which time Ms M Allars of senior counsel continued to appear for Council, and Ms Law was represented by Mr B Gottlieb of Sparke Helmore. The first, third, fourth and fifth respondents were again represented by Mr M Ball, and the second respondent was represented by Mr S Prince of senior counsel, instructed by Mr G Newhouse of Centennial Lawyers. Shortly prior to commencement of the hearing, the applicants provided a draft “Amended Summons (Judicial Review)” and suggested “Short Minutes of Orders”. The ongoing conduct of the matter was briefly discussed in Court and the matter stood down to 4.00pm this afternoon to allow the parties additional time to consider and agree as to the further conduct of the matter.

3. The Court has now re-convened at 4.36pm, however, despite further discussions between the parties, no agreement has been reached in relation to further interlocutory orders and the applicants continue to seek interlocutory relief.

4. Ms M Allars continues to appear this afternoon for Council, with Mr R Hassall of Sparke Helmore representing Ms Law. All five respondents are now represented by Mr S Prince of senior counsel, instructed by Mr G Newhouse.

5. The applicants seek a continuation of the relief granted yesterday and, in addition, seek leave to rely upon the amended summons and provide further suggested “Directions”, which I am informed arise as a result of matters that have occurred since the orders I made yesterday.

6. I have indicated to the parties that I consider that it is appropriate in the circumstances that the matter should be allocated a relatively expedited hearing date given the nature of the relief sought and the obvious public interest in relation to the proper conduct of Council’s affairs. Prior to the short adjournment, I further indicated to the parties that the Court could accommodate a hearing (conducted by audio visual link) on 10 and 11 June 2020 and requested that the parties consider appropriate directions.

7. I note that the parties have attempted to reach some resolution in relation to orders which would be appropriate in the interim (including possible undertakings by the respondents and directions in relation to the preparation of the matter for hearing), but the parties have not been able to do so.

8. I have heard detailed submissions this afternoon from both Ms Allars and Mr Prince which I do not presently summarise and, with the exception of one further letter dated 8 May 2020, have not been directed to any further evidence.

9. In the circumstances, for reasons that I will later publish, which will be similar to my reasons for granting the urgent interlocutory relief yesterday, and noting that Ms Law gives the usual undertaking as to damages, as I intend to set the matter down for final hearing, I consider it appropriate that the relief granted yesterday be extended. I remain of the view that there is a serious question to be tried and the balance of convenience favours the continuation of the relief earlier granted. As such, I make the following orders in effect extending the interlocutory relief granted on 11 May 2020 and give directions for the preparation of the matter for hearing.

Orders

10. The interlocutory orders of the Court are:

1. Upon the second applicant by her solicitor giving to the Court the usual undertaking as to damages, the respondents be restrained until further order from:

1. attending the part of the meeting of the Council at which the notice of motion dated 28 April 2020 that seeks the termination of the contract of employment of the second applicant, the Chief Executive Officer of the first applicant, Armidale Regional Council, or any motion having the same effect, is considered, or

2. voting upon that notice of motion or any motion having the same effect, or

3. attending and voting on any notice of motion revoking the second applicant's instrument of delegation dated 23 July 2018 from the first applicant.

2. Costs are reserved.

11. The further orders of the Court are:

1. The applicants are to file an amended summons by 13 May 2020.

2. The respondents are to serve their response to the amended summons by 15 May 2020.

3. The applicants are to serve their affidavits and an outline of submissions in chief and bundle of tender documents by 19 May 2020.

4. The respondents are to serve their affidavits and an outline of submissions in chief and bundle of any additional documents by 3 June 2020.

5. The applicants are to serve any affidavits in reply and bundle of any additional documents in reply by 12 noon on 9 June 2020.

6. The proceedings are listed for hearing on 10 and 11 June 2020 to proceed by audio visual link.

7. The proceedings are listed for pre-trial directions on 3 June 2020 to proceed by audio visual link.

8. If any witness is required for cross-examination, notice is to be given at least seven days before the hearing.

9. A party who proposes to object to any part of an affidavit is to file and serve notice of its objections, including the grounds in support, at least three days before the hearing.

10. The parties are to confer and prepare a paginated Court Book with a table of contents in a white folder (or folders) containing the following sections with dividers between them:

1. a copy of the summons, each respondent’s response to the summons;

2. an agreed list (or competing lists) of the real issues for determination;

3. a summary of each applicant’s argument (not exceeding 10 pages);

4. the decision under review and the statement of reasons (if any) of the decision-maker;

5. any statement of facts able to be agreed between the parties;

6. an agreed chronology or, failing agreement, the parties’ respective chronologies;

7. an agreed schedule of any relevant legislative provisions or, failing agreement, the parties’ respective schedules of any relevant legislative provisions;

8. each party’s list of objections (if any) to evidence;

9. spaces for the summary of the respondents’ argument and any summary of the applicants’ argument in reply (if not already filed).

11. The parties are to confer and prepare a paginated Evidence Book in a non-white folder (or folders) with a table of contents containing the following copy documents with dividers between them:

1. documents the parties jointly or separately propose to tender, with a table of contents indicating any objections to admissibility and the grounds;

2. affidavits of the applicants’ lay witnesses;

3. affidavits of the respondents’ lay witnesses;

12. The applicants are to file and serve the Court Book and the Evidence Book by 12 noon on 9 June 2020.

13. The applicants, at least one working day before the hearing, are to file and serve a summary of the applicants’ argument in reply if the applicants consider a reply is needed (not exceeding five pages).

14. Parties are to notify the Court promptly if there is any material slippage in the timetable.

15. The parties have liberty to restore on 72 hours’ notice.

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Decision last updated: 15 May 2020