Barrak v City of Parramatta Council

[2019] NSWCA 213

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Barrak v City of Parramatta Council [2019] NSWCA 213
Hearing dates:	17 July 2019
Decision date:	03 September 2019
Before:	Payne JA at [1]; White JA at [4]; McCallum JA at [149]
Decision:	(1)   appeal allowed in part; (2)   set aside the orders of the Land and Environment Court made on 29 April 2019 and in lieu thereof make the declarations and orders in paras (3)-(8) below; (3)   declare that the appellant was not bound by the respondent’s resolution of 20 February 2019 that the appellant return documents; (4)   declare that at its meetings on 25 February, 6, 11 and 25 March, and 8 April 2019, the respondent was entitled to require that the appellant apologise unreservedly to the Chair and Councillors for insulting and making personal reflections on the Mayor on 20 February 2019, and was entitled to require the appellant to return confidential papers provided to him for the meeting on 20 February 2019 and notes made by him at that meeting; (5)   declare that the respondent was entitled to expel the appellant from its meetings of 25 February, 6, 11 and 25 March, and 8 April 2019 for not providing the apology referred to in declaration (4); (6)   declare that the respondent was not otherwise entitled to expel the appellant from meetings; (7)   order that the summons be otherwise dismissed; (8)   order each party bear his and its own costs of the proceedings in the Land and Environment Court and of the appeal.
Catchwords:	LOCAL GOVERNMENT — powers, functions and duties — power of mayor and council to expel councillor for “act of disorder” — whether describing mayor as “clown” during meeting an “act of disorder” — whether power of expulsion validly exercised — whether dispute suitable for adjudication by Land and Environment Court WORDS AND PHRASES — “act of disorder” — Local Government (General) Regulation 2005, r 256
Legislation Cited:	City of Sydney Act 1988 (NSW), ss 23, 23A Land and Environment Court Act 1979 (NSW), s 20 Local Government Act 1993 (NSW), ch 9 Pt 2 Div 6, ch 14, ss 10, 347, 360 Royal Commissions Act 1902 (Cth), s 6O
Cases Cited:	Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v Peter John O’Dea (1983) 10 A Crim R 240 Stapleton v City of Parramatta Council [2019] NSWSC 123 Styles v Wollondilly Shire Council [2001] NSWLEC 18 Styles v Wollondilly Shire Council [2002] NSWCA 67; (2002) 120 LGERA 172 Thurley v Hayes (1920) 27 CLR 548
Texts Cited:	E S Magner, Joske’s Law and Procedure at Meetings in Australia (Lawbook Co, 11th ed, 2012)
Category:	Principal judgment
Parties:	Benjamin Barrak (Appellant) City of Parramatta Council (Respondent)
Representation:	Counsel: M Green SC with D Thomas (Appellant) M Hall SC with S Nash   Solicitors: Cambridge Law & Advisory (Appellant) Sparke Helmore Lawyers (Respondent)
File Number(s):	2019/165604
Decision under appeal	Court or tribunal: Land and Environment Court New South Wales Jurisdiction: Class 4 Citation: [2019] NSWLEC 59 Date of Decision: 29 April 2019 Before: Moore J File Number(s): 2019/96463

HEADNOTE

[This headnote is not to be read as part of the decision]

On 20 February 2019, Mr Benjamin Barrak (“Mr Barrak”), a councillor of the City of Parramatta Council (“the Council”), was expelled from a meeting of the Council by its Lord Mayor (“the mayor”). That expulsion, and the many expulsions to follow (on 25 February, 6, 11 and 25 March, and 8 April), related to tensions caused by allegations against the Council’s then-CEO, a Mr Mark Stapleton, and a proposal for his dismissal.

During the 20 February meeting, Mr Barrak called the mayor a “clown” and alleged that the Council had misled the Supreme Court in proceedings brought by Mr Stapleton to restrain the Council from dismissing him. The mayor threatened to expel Mr Barrak from the meeting, at which point Mr Barrak absented himself. As he was doing so, the mayor directed that Mr Barrak leave at the chamber and return certain confidential papers and handwritten notes (“the Confidential Papers”) taken at the meeting. A hurried motion was also moved requiring councillors present at the meeting to return the Confidential Papers. Mr Barrak left with them still in hand.

The next meeting took place on 25 February 2019. By Council’s resolution, Mr Barrak was called on to apologise for his “acts of disorder”, particularised as: (a)(i) not complying with a direction from the mayor to leave the Confidential Papers at the table in the room, (a)(ii) not complying with the resolution that the Confidential Papers be returned, (a)(iii) calling the mayor a “clown”, and (b), alleging that the solicitor acting for the Council (“Mr Gardner”) was misleading the Court. The resolution also separately required Mr Barrak to return the Confidential Papers. After he refused to abide by any part of the resolution, Mr Barrak was expelled by resolution from the meeting and stripped of his position on the Council’s committees.

Mr Barrak sought relief in respect of the expulsions in the Land and Environment Court (“the L&EC”). He relevantly argued that the resolution on 20 February 2019 that he return the Confidential Papers was unlawful, that his conduct at that meeting did not constitute an “act of disorder” within the meaning of r 256 of the Local Government General Regulation 2005 (NSW), and that his subsequent expulsions and removal from committees were also unlawful. The primary judge found that the mayor had no power to expel Mr Barrak on 20 February 2019 because the Council had not resolved to give the mayor that power, and that Mr Barrak had left the meeting before the resolution for the return of the Confidential Papers was passed. The primary judge found that the later expulsions were effective and he dismissed Mr Barrak’s summons with costs.

The principal issues on appeal were whether:

(1)   if there were other avenues for redress available to Mr Barrak, whether it was inappropriate for the L&EC to entertain Mr Barrak’s complaint;

(2)   the characterisation of an act as an “act of disorder” (a defined term and necessary precondition to the exercise of the power of expulsion) was a fact to be determined by a court, or whether it depended only on that opinion being formed, and if so whether that opinion had to be reasonably formed;

(3)   Mr Barrak’s description of the mayor as a “clown” and the accusations made against Mr Gardner constituted acts of disorder;

(4)   Mr Barrak’s removal from various committees of the Council was valid; and

(5)   if the Council could lawfully demand the return of the Confidential Papers in the 25 February 2019 meeting, whether a failure to abide by such a resolution was an “act of disorder”, and whether the Council was entitled to expel Mr Barrak for such a failure.

The Court of Appeal (Payne, White, McCallum JJA) allowed the appeal in part, and held:

As to Issue (i):

Per White JA, Payne and McCallum JJA agreeing (at [1] and [149(a)]):

1. Although it was possible for a Code of Conduct complaint to have been made, any resolution of that complaint through the Procedures for the Administration of the Model Code of Conduct would not resolve the question of the validity of Mr Barrak’s expulsion from council meetings. The primary judge was correct to entertain Mr Barrak’s complaint and L&EC’s jurisdiction was properly invoked: [77], [83].

Styles v Wollondilly Shire Council [2001] NSWLEC 18; Styles v Wollondilly Shire Council [2002] NSWCA 67; (2002) 120 LGERA 172, referred to.

As to Issue (ii):

Per White JA, Payne and McCallum JJA agreeing (at [1] and [149(c)]):

2. The question under r 256 of whether a councillor has committed an “act of disorder” at a meeting is a matter of fact to be determined by the Court where necessary: [94].

As to Issue (iii):

Per White JA, Payne JA agreeing (at [1]):

3. Mr Barrak’s use of the word “clown” was an insult and hence an act of disorder. It is not necessary that defined acts of disorder in r 256(1)(a)-(d) lead to disorder. It is irrelevant whether the insult was true or was provoked: [99], [100]-[102], [104], [108]-[110].

Thurley v Hayes (1920) 27 CLR 548; R v Peter John O’Dea (1983) 10 A Crim R 240, referred to.

Per McCallum JA contra:

4. Whether an insult is an act of disorder is informed by the inquiry as to whether that act is inconsistent with maintaining order at the meeting or is calculated to disrupt it. The import of the term “clown” was that the mayor was reducing the debate to the atmosphere of a circus. In context, the use of the word would not have been taken by an objective observer to amount to an act calculated to bring disorder: [151], [159], [163]-[164].

Per White JA, Payne and McCallum JJA agreeing (at [1] and [150(a)]):

5. As to the allegations against Mr Gardner, a better construction of the words used by Mr Barrak was that they were an allegation that the Council, rather than Mr Gardner, was misleading the Court. In any event, no comment disparaging of Mr Gardner could be an act of disorder within the meaning of r 256(1)(d) as he was not a councillor, nor was there any evidence that the other paragraphs in r 256 were satisfied: [113], [114].

As to Issue (iv):

Per White JA, Payne JA agreeing; McCallum JA not deciding (at [1] and [149]):

6. Whether or not Mr Barrak was entitled to be heard before his removal from committees, he was not denied procedural fairness. He had notice before the meeting of 25 February of the mayor’s proposal that he be removed from committees and had the opportunity to address that issue: [135]-[137].

As to Issue (v):

Per White JA, Payne and McCallum JJA agreeing (at [1] and [150(b)]):

7.   As the primary judge found, the 20 February resolution was not made before Mr Barrak left the meeting. There was no basis for requiring him to apologise for not complying with it: [116]

8.   Mr Barrak’s refusal to abide by the 25 February resolution that he return the Confidential Papers was an act of disorder because it was inconsistent with the maintenance of order at meetings. However, the power of expulsion is preconditioned on a councillor’s failure to apologise for or retract an act of disorder. The Council had not required Mr Barrak to apologise for this act of disorder and thus could not expel Mr Barrak because of it: [120]-[121], [122]-[124].

Judgment

1. PAYNE JA: I have read the judgment of White JA in draft. I agree with the orders his Honour proposes and, save in the limited respects addressed below, with his Honour’s reasons.

2. This case provides a disheartening insight into the recent activities of the elected representatives of Parramatta City Council. As White JA explains, this case essentially involved a dispute between personalities that should never have led to litigation. Discretionary factors tending against the grant of relief will loom large in cases such as this. The intransigence of parties about matters of no demonstrated public interest will often provide a powerful reason to decline relief. In this case, however, the orders proposed by White JA provide a framework for the Council to move on. I join in those orders, including the orders as to costs, in the expectation that the belligerent and uncompromising stance of the parties about what took place at meetings in February and March 2019 will now be resolved.

3. Mr Barrak’s conduct at the meeting on 20 February 2019 in describing the Mayor as a “clown” was clearly insulting. His failure to apologise warranted expulsion from Council meetings on 25 February, 6, 11 and 25 March and 8 April. I agree with White JA that an insult offered, even if the insult is given as a result of provocation, is nevertheless an insult. For that reason I do not agree that the Court should conclude that Mr Barrack’s insult was provoked by the language and behaviour of the Mayor. It is true that the Council and the Mayor did not engage in an exchange of affidavit evidence challenging Mr Barrack’s version of events at the 20 February 2019 meeting. The issue raised by Mr Barrack, however, was an irrelevant one. I would not draw any inference adverse to the Council or the Mayor by reason of their failure to lead evidence about an irrelevant issue.

4. WHITE JA:   This is an appeal from orders of the Land and Environment Court (Moore J) dismissing the appellant’s summons with costs.

5. In September 2017 the appellant, Mr Benjamin Barrak, was elected as a councillor of the City of Parramatta Council (“the Council”) representing the Dundas ward. In late 2018 and early 2019 an issue arose before the Council concerning the possible termination of employment of its Chief Executive Officer, a Mr Mark Stapleton.

6. On 4 February 2019, the Council met in closed session to consider a report of a barrister, Ms Jane Seymour, into allegations that had been made against Mr Stapleton. Reports of Ms Seymour were provided to councillors at the meeting. The Council passed a resolution that notes taken by councillors during the closed session were to be retained by the Council at the conclusion of the meeting. Mr Adam Dansie, a solicitor from “Local Government New South Wales”, was present as a consultant to advise on any employment issues that might arise.

7. The issue was further dealt with in a closed session of the Council on 11 February 2019, which was adjourned to 20 February 2019. The minutes of the meeting of 20 February 2019 record, and the primary judge found (Judgment [162]), that on that day Mr Barrak was expelled from the chamber by the Mayor for refusing to apologise for making derogatory and offensive comments. The minutes also record that he refused to return confidential papers provided to him during the closed session.

8. The primary judge found (Judgment [163]) that the Mayor, as distinct from the Council by resolution, did not have the power to expel Mr Barrak from the meeting and that finding is not challenged. This was because the Council had not passed a resolution authorising the Mayor to expel a councillor for acts of disorder as required by s 10(2)(b) of the Local Government Act 1993 (NSW).

9. On 25 February 2019, the Mayor tabled a proposed minute of resolution whose purpose was to call on Mr Barrak to apologise unreservedly for what were called his acts of disorder at the meeting on 20 February 2019. The resolution recommended by the Mayor was:

“(a)   That Clr Barrak be called upon to apologise unreservedly to the Chair and Councillors for:

i.   Not complying with a direction from the Chair at the Council meeting of 20 February 2019, to leave confidential papers at the table in the room;

ii.   Not complying with a Council resolution of 20 February 2019, to return the confidential papers including written notes to the Acting CEO, for Council’s records prior to leaving the Chamber;

iii.   Making derogatory comments and insulting the Lord Mayor who was Chairing the meeting.

(b)   That, Councillor [Barrak] be also called upon to apologise unreservedly to Mr Darren Gardner, solicitor representing Council in a current Supreme Court action, for making inappropriate comments including that Mr Gardner and the legal team had [been] misleading the Court.

(c)   Further, that in the event that Councillor [Barrak] does not apologise unreservedly for each item noted in (a) and (b) above, he be expelled from this meeting.”

10. A further minute was tabled by the Mayor recommending that Mr Barrak be removed from his positions on Council committees.

11. The minutes of the meeting of 25 February 2019 record that an expanded resolution was proposed by the Mayor at the meeting of 25 February as follows:

“a)   That Councillor Barrak be called upon to apologise unreservedly to the Chair and Councillors for:

i.   Not complying with a direction from the Chair at the Council meeting of 20 February 2019, to leave the confidential papers at the table in the room

ii.   Not complying with the Council resolution of the 20 Feb 2019 to return the confidential papers including written notes to the Acting CEO, for Council record prior to leaving the chamber

iii.   Making derogatory comments and insulting the Lord Mayor who was chairing the meeting

b)   That Councillor Barrak be also called upon to apologise unreservedly to Mr Darren Gardner, solicitor representing Council in a current Supreme Court action, for making inappropriate comments including that Mr Gardner and the legal team had [been] misleading the Court.

c)   That, Councillor Barrak return the confidential papers including written notes to the Acting CEO.

d)   Further that, in the event that Councillor Barrak does not apologise unreservedly for each item noted in (a) and (b) above, and return the confidential documents, as noted in (c) he be expelled from this meeting.”

12. Mr Barrak did not offer the apologies sought. The resolution was passed. He was expelled from the meeting. On the resumption of the meeting the Council resolved that he be removed from his position on three council committees.

13. At the next meeting on 6 March 2019 Mr Barrak was expelled for refusing to apologise unreservedly for:

“making offensice [sic] and derogatory comments and insulting the Lord Mayor at the Council meeting of 20 February 2019 and subsequently making offensive and defamatory comments to the media.”

14. At subsequent meetings held on 11 and 25 March 2019 and 8 April 2019 Mr Barrak was expelled from meetings of the Council for failing to apologise for what were described as the acts of disorder set out in the Council’s resolution of 25 February 2019.

15. Mr Barrak contended that he was not required to tender the apologies sought and that the resolutions of the Council at its meeting of 25 February 2019 and subsequent meetings expelling him from each meeting and requiring him to return documents were invalid. He also challenged the resolution of 25 February 2019 removing him from council committees.

16. On 27 March 2019 Mr Barrak commenced proceedings in the Land and Environment Court seeking, amongst other relief, the following declarations:

“3.   A declaration that the resolution passed on 20 February 2019 requiring councillors of the Defendant to return and/or surrender all papers, including personal notes, received or prepared during the closed-session of the Council meeting to the Defendant’s Acting Chief Executive Officer is unlawful and of no effect.

4.   A declaration that the Plaintiff’s conduct at the Council meeting on 20 February 2019 did not constitute an act or acts of disorder within the meaning of cl 31(5) of the Parramatta City Council Code of Meeting Practice, reg 182[1] of the Local Government General Regulation 2005 and s 490A of the Local Government Act 1993 (NSW) properly construed.

5.   An order permanently restraining the Defendant from requiring the Plaintiff to unreservedly apologise for his conduct at the 20 February 2019 meeting.

6.   A declaration that the resolutions to expel the Plaintiff from the Council meetings held on 20 February 2019, 25 February 2019, 6 March 2019, 11 March 2019 and/or 25 March 2019 is/are unlawful and of no effect.

7.   A declaration that the resolution passed on 25 February 2019 that the Plaintiff be removed from his positions on all internal and external Council Committees is unlawful and of no effect.”

1. The reference to r 182 is a reference to a regulation which only applied after the conclusion of a phasing-in period. It did not at the relevant times apply to the Council or Mr Barrak. The correct provision is former r 256. Nothing of present relevance turns on this distinction.

17. The matter was heard expeditiously in the Land and Environment Court. The hearing commenced on 17 April 2019. On 29 April 2019 the primary judge dismissed the summons with costs (Barrak v Parramatta City Council [2019] NSWLEC 59).

Background to the dispute

18. At the invitation of the Council the primary judge made an order on 18 April 2019 under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) prohibiting the publication or disclosure of the contents of affidavits sworn by Mr Barrak and Mr Ian Woodward which concerned Mr Stapleton or which recounted the events of closed sessions of Council. Whatever justification there might have been for that order when it was made, the Council accepted that there was no justification for its continuance by the time the appeal was heard. This Court dissolved the order without opposition from either party. Accordingly, this judgment describes the evidence as to what passed at closed sessions of the Council in greater detail than the primary judge thought he could disclose.

18. On 11 February 2019 Mr Stapleton obtained an ex parte injunction from a judge of the Equity Division (Kunc J) restraining the Council from terminating his employment until seven days after the determination of proceedings he had commenced or until further order of the Court.

19. At a meeting of the Council on 11 February 2019 councillors were provided with an oral report of Mr Stapleton’s application for an interim injunction and the meeting was adjourned to Wednesday, 20 February 2019. Mr Dansie was again present at the meeting on 11 February 2019.

20. On 18 February 2019 the interim injunction restraining the Council from terminating Mr Stapleton’s employment was dissolved (Stapleton v City of Parramatta Council [2019] NSWSC 123). The duty judge, Kunc J, gave four reasons for dissolving the injunction. First, his Honour found that the evidence did not disclose any imminent threat to terminate Mr Stapleton’s employment and that whatever process was currently being engaged in between the parties consequent upon Ms Seymour’s report appeared to be continuing. His Honour found that there was no proven basis on which he could find that there was a risk of imminent termination (at [17]).

21. A second and related reason was that there was no evidence before his Honour that would enable him to find that the Council had departed from its stated intention to negotiate with Mr Stapleton (at [18]).

22. The third reason was that there was no evidence that Mr Stapleton’s contract of employment would be terminated wrongfully. The contract could be terminated by the Council’s giving 38 weeks’ written notice or making a termination payment equivalent to 38 weeks’ remuneration (at [19]).

23. The fourth reason was that in any event the Court would not grant specific performance of a contract of employment and if Mr Stapleton’s contract of employment were terminated wrongfully, damages would be an adequate remedy (at [23]).

24. The Council was represented at the hearing before Kunc J on 18 February 2019 by senior and junior counsel retained by Bartier Perry, solicitors acting for the Council.

25. The meeting of 20 February 2019 was also held in closed session. There was vigorous debate. A Mr Darren Gardner, solicitor with Bartier Perry, was present. Mr Barrak asserted that the Supreme Court had been misled into the belief that there was no imminent threat to terminate Mr Stapleton’s employment. In the course of that debate, Mr Barrak, on his evidence under provocation, called the Mayor a “clown”. Mr Barrak deposed that there was discussion to the following effect:

“72.   Present at the meeting was a new solicitor, Mr Darren Gardner from Bartier Perry solicitors. There was an exchange to the following effect:

Lord Mayor:

Do you have any comments about the email received from Mr Stapleton today?

Mr Gardner:

Mr Dansie has updated me. Last Monday there was a hearing concerning the extension of the injunction. That failed and the court made a costs order in Council’s favour. The Court said at paragraph 24 of the judgement that Council can terminate Mr Stapleton’s employment without reason under clause 10.3.5 of the contract. So you can sack him today. The email that was sent today was selective. It didn’t tell you that the judge said that you can terminate.

73.   I heard an exchange to the following effect with Councillor Garrard:

Cr Garrard:	Mr Stapleton said in his email today that the injunction wasn’t given because our intention was to negotiate and not to terminate.
Mr Gardner:	The proceedings were ex parte. That means Mr Stapleton had to prove on his own evidence because there was no evidence from Council. To answer the question of the Deputy Lord Mayor, the judgement says that there was no evidence of any imminent threat of termination because the last resolution was simply to negotiate. I wasn’t present on the 11th. Mr Dansie was.”

(Blue 13)

27. Mr Barrak deposed that after words were spoken by another councillor that were generally supportive of Mr Stapleton, there were the following exchanges:

“75.   I then said words to the following effect:

[Barrak]:

Lord Mayor I would like to pick up from where Councillor Prociv left off. I’m very troubled by what I’ve heard tonight and by this whole scenario since September of last year. Paragraph 17 of the judgment states:

‘The evidence does not in fact disclose any imminent threat to terminate Mr Stapleton’s employment. Whatever process is currently being engaged in between the parties consequent upon Ms Seymour’s report appears to be continuing. There is no proven basis on which I could find that there is a risk of imminent termination.’

Now everyone in this chamber knows that the intent of the resolution of the 4th of February was to terminate his employment, and Councillor Prociv just reminded everyone.

We all knew that his termination was imminent, yet we told the court that his termination was not imminent.

Lord Mayor the lawyer is shaking his head. I am sorry I don’t know his name. With respect, he wasn’t present on the 11th. I am talking about when Mr Dansie was present on the 11th. The judge states that there is no imminent threat to terminate Mr Stapleton’s employment. You all know that this is not the case. I am concerned that this is a misrepresentation to the Court.

Lord Mayor:

Well you’d know all about that Councillor.

(Mayor chuckling).

[Barrak]:

I do Lord Mayor, and I don’t want to be guilty of it. It’s very serious to mislead the Court. Lord Mayor are you making fun of me?

Lord Mayor:

No I don’t have to Councillor. Have you finished?

(Mayor continued to chuckle).

[Barrak]:

No I haven’t finished Lord Mayor but I don’t appreciate the insult. I’m offended by it.

Lord Mayor our actions have consequences. We misled the court and I am very concerned about that. That’s why I sent my email today to all councillors, to the CEO and to the Lord Mayor.

Lord Mayor, I have a question to the lawyer. Does paragraph 17 show that, in refusing to extend the injunction, the judge was acting on the basis of the termination of employment not being imminent?

Lord Mayor:

Councillor Barrak is being emotional.

[Barrak]:

I don’t appreciate the insult Lord Mayor.

Lord Mayor:

He’s under a lot of pressure.

[Barrak]:

I don’t appreciate the insult Lord Mayor.

Mr Gardner:

I was not in Court on the 11th. Mr Dansie appeared. The party misleading the court was Mr Stapleton because he was the only party to put on evidence.

[Barrak]:

Lord Mayor is there any reason why Council and Mr Stapleton can’t meet to hopefully resolve the matter on mutually acceptable terms?

Lord Mayor:

Oh yes. The reason is that we’re going to sack him today.

[Barrak]:

Lord Mayor, the chamber was going to sack him last week.

Lord Mayor:

Exactly. I would have sacked him last week if it wasn’t for the injunction.

[Barrak]:

And that’s exactly my point Lord Mayor. That is why I am saying that we may have lied to the Court by representing that the termination of Mr Stapleton’s employment was not imminent. Of course it was imminent and you have just confirmed it. Lord Mayor I am noting this for the record. I’m, writing it down. And I will repeat what you have just said to me – ‘I would have sacked him last time if it wasn’t for the injunction’. I will be quoting you Lord Mayor. And you have just confirmed my greatest concern is that this Council has misled the Supreme Court.

Lord Mayor:

Well Councillor, you’d know all about that? [Everybody chuckling].

[Barrak]:

Lord Mayor, you are a clown.

Lord Mayor:

This is a warning Councillor, I will throw you out.

[Barrak]:

Thank you Lord Mayor. Happy to leave.

I don’t want to be part of this Kangaroo Court. This whole process is contrived and illicit. I don’t want to be a party to it.

76.   I packed up my bag and I walked towards the rear door. As I was walking, I heard Councillor Wearne move a motion in words to the following effect:

Cr Wearne:	Lord Mayor all notes and everything to be left in the room.
Lord Mayor:	All those in favour raise your hands, all those against.... Councillor Barrak you have to leave all your notes and papers.

77.   I observed Councillor Garrard call security and a security guard followed me all the way from the back of the room, near the exit door, to the carpark. The security guard and I entered into an exchange in words to the following effect:

Security:	You have to give me all your notes and papers.
[Appellant]:	Please leave me alone. I’m not giving you anything.
Security:	I will call the police.
[Appellant]:	Please go ahead.”

28. On Mr Barrak’s evidence the Mayor did not expel him from the meeting, but he threatened expulsion and Mr Barrak then left. However, the minutes recorded that:

“The Lord Mayor asked Councillor Barrak to refrain from making derogatory comments and warned that if he continued to make insulting remarks, that he would be expelled from the chamber.

Councillor Barrak made further offensive comments and refused to apologise.

Councillor Barrak was then expelled from the chamber at 7.58pm by the Lord Mayor and refused to return the Confidential papers provided to him during the Closed Session.”

29. As discussed at [8] above, the primary judge found that Mr Barrak had been expelled from the meeting of 20 February 2019 by order of the Mayor, rather than by resolution of the Council (Judgment [111]). The primary judge found that the Mayor, as distinct from the Council, did not have the power to expel Mr Barrak from the meeting (Judgment [136], [153], [158]-[159], [161]-[164]).

30. The Council does not contest the primary judge’s finding that the Mayor, as distinct from the Council by resolution, did not have power to expel a councillor. Nor does it contest that Mr Barrak was expelled by the Mayor. It does say, by its notice of contention, that as the appellant was in the process of voluntarily absenting himself from the meeting in any event, that was a reason not to grant relief.

31. The minutes of the meeting of 20 February 2019 recorded that Mr Barrak had refused to return confidential papers provided to him during the closed session.

32. The primary judge found that the resolution to surrender notes was not passed before Mr Barrak’s expulsion, but was adopted after his expulsion (Judgment [87]. The primary judge noted that Mr Barrak acknowledged that he was requested to leave his notes and papers at the time he was walking out after having been expelled from the meeting (Judgment [88]).

33. The Mayor, Mr Wilson did not make an affidavit. In a letter to Mr Barrak dated 11 March 2019 he gave his version of what took place as follows:

“1.   During a debate of the Lord Mayor Minute concerning the employment of Mark Stapleton, you insulted me, including repeatedly calling me a ‘clown’, and refused to comply with my direction to stop making the derogatory comments and name calling, and for you to resume your seat. You did neither. The derogatory comments were made in front of Councillors; staff; and Mr Darren Gardner, an external solicitor from Bartier Perry, instructed by Council to defend the Supreme Court injunction proceedings brought by Mr Stapleton. Mr Gardner had been invited to attend the meeting to brief Councillors on the outcome of the judgement handed down two days before, and the status of the proceedings.

2.   The comments you made to the chamber about Mr Gardner, accused him of misrepresenting Council’s position and misleading the Court, by reference to paragraph 17 of the judgement.

3.   I took the view that your comments made about Mr Gardner were of a derogatory nature. I also took the view that you were disrespectful to Mr Gardner by not allowing him to brief Council, including the context of paragraph 17, without interruption.

4.   I attempted to call you to order and asked that you refrain from making insulting and derogatory comments. I warned that if you continued and refused to apologise, I would expel you from the meeting. You made further offensive comments, did not detract those you had already made, and refused to apologise.

You also refused to leave behind notes you took in relation to the confidential personnel matter being considered in closed session, upon my request and in compliance with Council’s resolution.”

34. A solicitor employed by the Council who was present at the meeting on 20 February 2019, Mr Ian Woodward, deposed:

“36   On 20 February 2019, I attended the continuation of the ordinary Council meeting held on 11 February 2019. Annexed to my affidavit and marked ‘B’ is a letter dated 11 March 2019 from the Lord Mayor to Councillor Barrak. I assisted in the preparation of that letter. I heard Councillor Barrak say each of the things, and on the dates attributed to him in the letter in paragraphs 1, 2, 4, 8, 9, 15 and 27 (including hearing him use the word ‘clown’ four times). I heard the Lord Mayor make each of the comments and saw him do each of the things attributed to him at the meetings described. Based on my own observations I also believe it to be a true and accurate account of the matters that occurred.”

35. Neither Mr Barrak nor Mr Woodward was cross-examined. The primary judge did not find it necessary to find whose evidence should be preferred. Mr Woodward did not corroborate the Mayor’s assertion that Mr Barrak had showed disrespect to Mr Gardner by not allowing him to brief the Council without interruption. Otherwise the points of difference are:

1. whether Mr Barrak called the Mayor a clown once or four times; and

2. whether he accused Mr Gardner of misrepresenting the Council’s position and misleading the Court or whether Mr Barrak was accusing those from the Council who instructed Bartier Perry of giving misleading instructions.

36. The Council did not adduce evidence to contradict Mr Barrak’s evidence that the Mayor made the statements about Mr Barrak and conducted himself in the way Mr Barrak deposed.

37. Because the meeting was held in closed session no video recording or transcript was taken.

38. The next Council meeting was held on 25 February 2019. The resolutions proposed and passed at that meeting are set out at [9] to [12] above.

39. Before the resolutions were passed Mr Barrak addressed the meeting at some length. Relevantly, he denied that on 20 February he had not complied with a direction from the Chair to leave confidential papers on the table because he had walked out and was halfway towards the back door when a resolution was proposed. He objected to the legality of such a resolution. Mr Barrak said that he drew a distinction between the Chair and its occupant, the Lord Mayor, Mr Wilson. He said he would be prepared to apologise wholeheartedly to the former (whatever that might mean), but not the latter. He said that he called the Mayor a clown because he had been badgered and interrupted and sought to expand on that. He said that he had lodged a code of conduct complaint against the Mayor, and repeated that his apology denoted respect for the Chair and not the Mayor. Although he had not finished what he wished to say, he was advised by the Mayor that his time for speaking had run out. The resolution put to the meeting quoted at [11] above was put and overwhelmingly passed.

40. The next Council meeting was held on 6 March 2019.

41. The minutes record that after the meeting was moved into closed session the Mayor asked Mr Barrak to apologise unreservedly for making offensive and derogatory comments and insulting the Mayor at the council meeting of 20 February 2019 and subsequently making offensive and defamatory comments to the media. The minutes record that Mr Barrak refused to apologise unreservedly as requested by the Mayor. The Council resolved that he be expelled from the meeting. The minutes record that Mr Barrak requested that it be noted that he wished to make a statement to the Chamber, but was not allowed to do so and that he was advised that he may be asked to apologise unreservedly at each subsequent Council meeting and if he refused to do so, might be expelled from that meeting. He was expelled from the Chamber.

42. Mr Barrak deposed that at the meeting on 6 March 2019 there were the following exchanges:

“Lord Mayor:   Councillor Barrak will you now apologise unreservedly.

[Barrak]:   Lord Mayor, I have a statement to make.

Lord Mayor:   No you can’t.

[Barrak]:   Lord Mayor, can the minutes please reflect that you are refusing to allow me to make a statement?

Lord Mayor:   This will be your third absence.

[Barrak]:   Lord Mayor, you’re misconceived. When I’m expelled from a meeting by a motion, it can only mean that I am present. It is not an absence.

Cr Garrard:   Lord Mayor the agenda has Lord Mayoral Minutes. And you can move this as a Lord Mayor’s Minute.

Lord Mayor:   You can’t make any statements. I have heard what you’ve had to say previously.

[Barrak]:   So Lord Mayor, you’re maintaining the kangaroo court over which you prevail. You deny me procedural fairness.

Lord Mayor:   I’ll move it as a motion. All those in favour of evicting Councillor Barrak please raise your right hand. Declare it carried. Goodbye.

[Barrak]:   So Lord Mayor just for my understanding, what you are saying is that every time I come to a meeting you are going to move that I apologise unreservedly in a manner your [sic] deem fit, and if I don’t, you will expel me.

Lord Mayor:   Absolutely. I will expel you every time you fail to apologise unreservedly.

[Barrak]:   Thank you Lord Mayor. Can the minutes please reflect that so that we all understand what you’re moving on.

Lord Mayor:   You’re wasting your time Councillor Barrak. You can’t win an argument with me.

[Barrak]:   No Lord Mayor. Not in this forum.”

43. Mr Barrak deposed that when he arrived at the Council meeting on 25 March 2019 and whilst the meeting was in open session he was provided with a document entitled “Running Sheet for the Lord Mayor Council Meeting 25 March 2019”. That document (which repeated the words of an earlier running sheet provided in like circumstances at an earlier meeting on 11 March) stated:

“ACT OF DISORDER

Councillor Barrak, at the ordinary council meeting held on 25 February 2019, council resolved that you would be expelled from that meeting based on your refusal to apologise for acts of disorder from the previous meeting, held 20 February 2019.

In accordance with Section 31(6) and of Council’s Code of Meeting Practice, as Chair of the meeting, I have the capacity to require you to apologise, without reservation, for the acts of disorder which were individually itemised in the Council resolution of 25 February 2019.

In the event you choose not to apologise, you may also be expelled from this meeting.

Councillor Barrak, do you wish to apologise without reservation for causing disorder at the meeting held 20 February 2019?

It should be noted that each time you refuse to apologise, another act of disorder is committed.

If yes:

Thank you Councillor Barrak.

If no:

I’ll now ask for a motion from the floor for Councillor Barrak’s expulsion from the meeting for failing to apologise for the acts of disorder set out in the Council resolution of 25 February 2019.”

44. Mr Barrak deposed that following the Mayor’s recital of that section an exchange to the following effect took place:

“Lord Mayor:   Councillor Barrak, you’ve already given a reserved apology. Will you now unreservedly apologise?

[Barrak]:   Lord Mayor I have a statement to make.

Lord Mayor:   You’ve already made a statement before and I gave you two extensions. You are in a state of disorder and you must apologise if you want to stay at this meeting.

[Barrak]:   My statement contains an apology Lord Mayor.

Lord Mayor:   Well why don’t you do us all a favour and just read out only the apology part of your statement.

[Barrak]:   No Lord Mayor. I want to read my statement which does contain an apology.

Lord Mayor:   I can’t allow that councillor. Are your apologising – yes or no.

[Barrak]:   Lord Mayor it’s not a yes or no answer. We are at a new meeting with a new motion and I’m entitled to be heard. And again I stress Lord Mayor that there is an apology.

Lord Mayor:   Well why don’t you just give the apology. Say sorry. And just sit down. We can then get on with the meeting.

[Barrak]:   Lord Mayor I am happy to read my apology first but I need to complete my statement in full.

Lord Mayor:   No, I will not allow that. You have already given a reserved apology and you have admitted that there has been an act of disorder.

[Barrak]   My apology was an act of courtesy to you Lord Mayor. Again I’m telling you that my statement contains an apology. Lord Mayor you would be acting against natural justice if you don’t allow me to be heard. I’m entitled to be heard. I am an elected councillor.

Lord Mayor:   I will not allow it. I’m sorry councillor.

Lord Mayor:   Can I have a motion for the exclusion of Councillor Barrak from the chamber for failing to apologise as required on 25 February.

Cr Garrard:   So moved.

Cr Wearne   Seconded.

Lord Mayor:   Declare that carried.”

45. The minutes of the council meeting of 25 March 2019 record:

“That Councillor Barrak be expelled from the meeting for failure to apologise for the acts of disorder set out in the Council resolution of 25 February 2019.”

46. The events of 25 March 2019 were repeated on 8 April 2019.

Relevant legislation

47. Section 10 of the Local Government Act provides:

“10   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 only on the grounds specified in, or in the circumstances prescribed by, the regulations.”

48. Division 4 of former Pt 10 of the Local Government (General) Regulation 2005 (“the Regulations”) included the following:

“255   Questions of order

(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.

256   Acts of disorder

(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

(b)     assaults or threatens to assault another councillor or person present at the meeting, or

(c)     moves or attempts to move a motion or an amendment that has an unlawful purpose or that deals with a matter that is outside the jurisdiction of the council or committee, or addresses or attempts to address the council or committee on such a motion, amendment or matter, 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 (b), or

(b)     to withdraw a motion or an amendment referred to in subclause (1) (c) and, where appropriate, to apologise without reservation, 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.

257   How disorder at a meeting may be dealt with

(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.

(2) A member of the public may, as provided by section 10 (2) (a) or (b) of the Act, be expelled from a meeting of a council for engaging in or having engaged in disorderly conduct at the meeting.

258   Power to remove persons from meeting after expulsion

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.”

49. These clauses were repealed on 14 December 2018. The primary judge found that they continued to apply to the relevant meetings of the Council by reason of r 422 during a phasing-in period until 14 June 2019 (Judgment [59]-[60]. This was common ground.

50. Division 1 of Pt 2 of Ch 12 of the Local Government Act provides for a council’s adoption of a code of meeting practice. The Council adopted the January 2018 City of Parramatta Code of Meeting Practice (“the Code of Meeting Practice”), apparently on 11 December 2017. Clause 31 of the Code of Meeting Practice provided:

“31.   ORDER AND DISORDER

(Clause 255, Local Government (General) Regulation)

Questions of order

(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.

Acts of disorder

(Clause 256, Local Government (General) Regulation)

(5)   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

b   assaults or threatens to assault another Councillor or person present at the meeting, or

c   moves or attempts to move a motion or an amendment that has an unlawful purpose or that deals with a matter that is outside the jurisdiction of the council or committee, or addresses or attempts to address the council or committee on such a motion, amendment or matter, 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 (disrespect).

f   Uses Indecent language (local rule)

(6)   The chairperson may require a Councillor to apologize without reservation for an act of disorder referred to in section 5(a)-(b) above, or

(7)   to withdraw a motion or an amendment referred to in subsection 5(c) above and, where appropriate, to apologize without reservation, or

(8)   to retract and apologize without reservation for an act of disorder referred to in subsections 5(d), (e) or (f).

(9) A Councillor may, as provided Clause of the Local Government (General) Regulation Section 10(2) (a) or (b) of the Local Government Act (see section 14 of this code, Who is Entitled to attend meetings), be expelled from a meeting of a council for having failed to comply with a requirement under subsections 6-8 above. 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.

(10) From the Code of Conduct (Section 11 Councillor Misbehaviour), a Councillor who misbehaves at a meeting may be sanctioned under the terms of Section 440 of the Local Government Act (refer to annexure I)

(11) In addition to the terms of section 440, such an action may result from constant interjection whilst another Councillor is addressing the chair.

How disorder at a meeting may be dealt with

(Clause 257, Local Government (General) Regulation)

(12)    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 sub clause applies to disorder arising from the conduct of members of the public as well as disorder arising from the conduct of Councillors.

(13) A member of the public may, as provided by section 10(2)(a) or (b) of the Local Government Act 1993 (see section 14 of this code), be expelled from a meeting of a council for engaging in or having engaged in disorderly conduct at the meeting. Disorderly conduct may include uninvited commenting, shouting or being disruptive.

Power to remove persons from meeting after expulsion

(Clause 258, Local Government (General) Regulation)

(14)   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 member from the meeting, or

b   where the council has authorized the person presiding at the meeting to exercise the power of expulsion – immediately after being directed by the person presiding to leave the meeting,

c   a police officer, or any person authorized 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.”

51. Clause 31(5)(e) is arguably wider than regulation 256(1)(e) by substituting disrespect for contempt. On the hearing of the appeal Mr Hall SC who appeared with Mr Nash for the Council accepted that by reason of s 10(3) of the Local Government Act it was only the regulations to which regard could be had for determining whether grounds for expulsion existed.

52. The Council relied upon the Code of Meeting Practice in support of its argument that the primary judge was wrong to have entertained Mr Barrak’s complaint and should have decided that the decision taken by the Chair of the meeting should not be the subject of scrutiny by the Land and Environment Court at all. This was because Parliament had provided alternative means by which a person could seek to prevent the abuse by the Chair of the powers given to the Chair of the meeting, rather than by seeking administrative review.

Conclusions of the primary judge

53. The primary judge rejected the Council’s submission that the Court did not have jurisdiction to entertain Mr Barrak’s complaints (Judgment [100]-[110]). In so deciding, the primary judge followed the decision of this Court in Styles v Wollondilly Shire Council [2002] NSWCA 67; (2002) 120 LGERA 172.

54. The primary judge concluded that the Mayor was entitled to conclude that Mr Barrak’s description of him as a “clown” was an act of disorder (Judgment [127]-[134]). He concluded, consistently with the minutes of the meeting of 20 February (and the Mayor’s letter of 11 March 2019 428.C) that Mr Barrak was purportedly expelled from the meeting of 20 February by the Mayor and not by resolution of the Council. He rejected the Council’s reliance on Mr Barrak’s affidavit evidence as demonstrating that he left the chamber without being expelled (Judgment [161]). The primary judge held that in the absence of a resolution of the Council authorising him to do so, the Mayor did not have the power to expel Mr Barrak and that his purported expulsion was invalid (Judgment [164]).

55. The minutes state that it was resolved at the 20 February meeting:

“That all Confidential papers relating to the Lord Mayoral Minute 1 (Personnel Matter – Chief Executive Officer) of Closed Session, including written notes be returned by Councillors to the Acting CEO, for Council’s records prior to leaving the Chamber.”

56. The primary judge found that this resolution was not passed until after Mr Barrak had been expelled from the meeting. He held that it was open to the Council to pass the resolution (Judgment [179]).

57. The primary judge appears to have accepted that at the meeting on 20 February Mr Barrak accused Mr Gardner or other of the Council’s legal representatives of having misled Kunc J at the hearing on 18 February (Judgment [202], [205] and [206]). Mr Barrak submits that that finding was not open as Mr Barrak’s comments were directed at the instructions given by the Council to its legal representatives and were not a personal attack on the lawyers. He also submits that in any event such an attack could not constitute an act of disorder as defined in r 256 of the Regulations.

58. The primary judge held that the Council could not lawfully require Mr Barrak to apologise to the Chair and councillors for not complying with the direction from the Chair at the meeting of 20 February to leave confidential papers at the table in the room or for not complying with Council’s resolution of 20 February 2019 to return confidential papers, including written notes to the Acting CEO, for the Council’s records prior to leaving the Chamber (Mayoral Minute (a)(i) and (ii) of 25 February) (Judgment [217]). The Council does not challenge these findings.

59. The primary judge held that Mr Barrak could be required to apologise unreservedly for insulting the Mayor at the meeting on 20 February and to apologise to Mr Gardner, for making inappropriate comments including that Mr Gardner and the legal team had misled the Court. He held that the Council could also, by subsequent resolution, lawfully require Mr Barrak to return the confidential papers, including written notes of the meeting of 20 February 2019 to the Acting CEO (Item (c)) (Judgment [218]). The primary judge found that Mr Barrak’s failure to comply with such a resolution constituted a fresh act of disorder on 25 February (Judgment [224]).

60. The primary judge found that there was a proper basis for expelling Mr Barrak from the meeting of 25 February for failure to apologise for the acts of disorder falling within (a)(iii) and (b) of the Lord Mayoral Minute (Judgment [223]).

61. The primary judge found that there was no basis to set aside the Council’s resolution that Mr Barrak be removed from Council committees. The constitution of committees of the Council was a matter entirely for it (Judgment [235], [236] and [241]).

62. The primary judge held that the expulsion from the meetings of 6, 11 and 25 March, and 8 April 2019 were all justified for Mr Barrak’s failure to apologise in respect of the matter in (a)(iii) and (b) of the minute of 25 February and for Mr Barrak’s failing to return the papers as required by the resolution of 25 February (Judgment [248]-[250]).

63. The primary judge declined to make a declaration.

64. There were 21 grounds of appeal. The Council filed a notice of contention. In substance the issues raised by the notice of appeal and the notice of contention are:

1. whether as a matter of implied legislative intent or judicial discretion, the Land and Environment Court could not or should not have entertained Mr Barrak’s application. The Council did not press its contention that the Land and Environment Court could not entertain the application;

2. whether any relief should be withheld because Mr Barrak was in the process of voluntarily removing himself from the meeting on 20 February 2019;

3. whether the validity of Mr Barrak’s expulsion on 20 February 2019 and the subsequent demands for an apology depended upon a jurisdictional fact (to be determined by the court) that his conduct was an act of disorder within the meaning of r 256, or whether it depended upon the Mayor’s opinion;

4. if the former, whether either or both of the words used by Mr Barrak to and about the Mayor and the words used by him to or about Mr Gardner constituted an act of disorder within the meaning of r 256(1)(d) or (e);

5. if the latter, whether the opinion had to be reasonably reached, and if so, whether it was reasonably reached;

6. whether the Council could lawfully demand the return of documents the subject of the resolution of 25 February 2019;

7. whether refusal to comply with that demand at each meeting was an act of disorder within the meaning of r 256(1)(e) or, if relevant, was reasonably considered by the Mayor or the other councillors to be such;

8. whether the Mayor’s decision to require apologies and the Council’s resolution to expel Mr Barrak from meetings were legally unreasonable;

9. whether the Council denied Mr Barrak natural justice when passing the 25 February resolution removing him from the Council committees;

10. whether the primary judge erred in not granting any declaratory or other relief, notwithstanding his conclusions that Mr Barrak was wrongly expelled from the meeting of 20 February 2019 by the Mayor because the Mayor lacked the necessary authority to expel him and that the demand for return of documents on 20 February 2019 was ineffective because Mr Barrak had already been expelled from the meeting;

11. whether the primary judge erred in ordering Mr Barrak to pay the Council’s costs; and

12. what relief should this Court grant.

Justiciability

65. Section 374(e) of the Local Government Act provides that proceedings of a meeting of a council or a council committee are not invalidated because of a failure to comply with a code of meeting practice.

66. Section 20(1)(d) of the Land and Environment Court Act 1979 (NSW) confers on the Land and Environment Court Class 4 jurisdiction to hear and dispose of proceedings under ss 673 and 674 of the Local Government Act.

67. Section 674(1) of the Local Government Act provides that any person may bring proceedings in the Land and Environment Court for an order for remedy or restrain a breach of the Act. Section 676(1) provides:

“676   Functions of the Land and Environment Court

(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.”

68. On appeal, the Council contended that whilst it accepted that the Land and Environment Court had jurisdiction to deal with Mr Barrak’s application, the Court was not required to do so and ought not to have done so. It submitted that it was not Parliament’s intention that any breach of the Act of the type complained of in the present case would attract any supervisory jurisdiction of the Land and Environment Court such that an act done in breach of the Local Government Act, Regulations or Code of Meeting Practice would lead to invalidity.

1. as to the failure or refusal to return the confidential papers, I agree with White JA’s conclusions:

1. that there was no act of disorder based on the alleged failure on 20 February 2019 to comply with the Chair’s direction to leave the papers at the table or the Council’s resolution requiring return of the papers because Mr Barrak had already been expelled from the meeting when those requirements were made;

2. that Mr Barrak’s failure or refusal to comply with the resolution of 25 February 2019 (requiring him to return the confidential papers including written notes to the Acting CEO) was, however, an act of disorder within the meaning of r 256(1)(e);

3. that the Council was entitled to require Mr Barrak to retract and apologise for that conduct but did not do so and accordingly, for a technical or procedural reason, the power to expel did not arise.

151. The matter on which I respectfully disagree with White and Payne JJA is the alleged insult to the Mayor. I do not agree that the Council was entitled to require Mr Barrak to apologise unreservedly for “making derogatory comments and insulting the Lord Mayor who was chairing the meeting” on 20 February 2019.

152. It follows that I do not agree that the Council could validly resolve on 25 February 2019 to expel Mr Barrak if he did not apologise unreservedly for the matters specified in the resolution (concerning the Mayor and Mr Gardner) and return the confidential papers. In light of the importance of determining this appeal promptly, and as the limited point on which I differ is by way of dissent, it is appropriate to state my reasons for reaching a different conclusion as to the alleged insult to the Mayor as briefly as the circumstances permit.

153. As a preliminary observation, it may be noted that the proposed resolution put a gloss on the language of r 256 in that part of the conduct for which Mr Barrak was required to apologise was “making derogatory comments” (presumably about the Mayor – the resolution was imprecise in that respect). The act of disorder specified in r 256(1)(d) is confined to conduct that “insults or makes personal reflections on or imputes improper motives to any other councillor”. The difference between a derogatory comment and an insult or a personal reflection may be minimal but it is important, where a power of this kind is invoked, to adhere to the language of the relevant instrument.

154. The notion of insult is peculiarly subjective and highly contextual. It is usually necessary to have regard not to the word used standing alone but to the context of the whole exchange. In the present case, that issue was addressed only in the evidence of Mr Barrak. As White JA has explained, he gave a sworn account in direct speech of the words said at the meeting of 20 February 2019 whereas the Mayor did not. Mr Woodward provided an affidavit confirming the account provided in the Mayor’s letter, relevantly confirming that, on 20 February 2019, he heard Mr Barrak say the things attributed to him in paragraphs 1, 2 and 4 of the letter in (including hearing him use the word “clown” four times). But that account provided no context. Paragraph 1 said “you insulted me, including repeatedly calling me a ‘clown’”. It referred to a direction to “stop making the derogatory comments and name-calling” but gave no specificity to that assertion. It is not clear whether it referred to anything beyond the use of the word “clown”. If it did, there is no evidence as to what was said.

155. Paragraph 2 related to Mr Gardner and is irrelevant for present purposes.

156. Paragraph 4 was similarly conclusory, and could in any event have referred to words said to Mr Gardner rather than to the Mayor:

“I attempted to call you to order and asked that you refrain from making insulting and derogatory comments. I warned that if you continued and refused to apologise, I would expel you from the meeting. You made further offensive comments, did not detract those you had already made, and refused to apologise.”

157. In the circumstances, the Court was left to assess the important question of context by reference to the account given by Mr Barrak, which has been set out in full by White JA.

158. Justice White has noted that sub-regulation 256(1)(e) is a “catch-all” provision the determinant of which is inconsistency with maintaining order at the meeting (the regulation also refers to a likelihood of bringing the relevant council or committee into contempt). His Honour holds on that basis that an act falling within any of the other sub-regulations in r 256 will be an act of disorder whether or not it is inconsistent with maintaining order at the meeting, so that insulting or making personal reflections on another councillor or imputing improper motives to him or her is an act of disorder under r 256(1)(d) without the need for any further inquiry as to whether that act is inconsistent with maintaining order at the meeting. I would not construe the regulation in that way. In my respectful opinion, the whole of the regulation is directed in one way or another to the object of maintaining order at council meetings. An insult directed to another councillor could not amount to an act of disorder (triggering the significant power to require an unreserved apology) unless it was such as to fall within the proper characterisation of “an act of disorder”, that is, unless it was apt to cause disorder.

159. I respectfully agree with White JA’s rejection of the submission put by Mr Barrak that, whether or not calling the Mayor a clown was an insult or a personal reflection on him, it was not an act of disorder unless it (in fact) led to disorder at the meeting. An insult that was apt to have that effect would be enough. However, that is not to say that the purpose of maintaining order at the meeting is foreign or irrelevant to the proper construction of r 256(1)(d). In my view, the assessment as to whether an insult or personal reflection on another councillor is an act of disorder within the meaning of that regulation must necessarily be informed by the inquiry as to whether that act is inconsistent with maintaining order at the meeting or is calculated to disrupt the orderly conduct of the meeting.

160. Accordingly, the assessment whether a particular remark amounts to an insult within the meaning of r 256(1)(d) cannot be made by considering the impugned words shorn of context. An aspect of the consideration of the context in which an impugned remark was made is to consider the proportionality of the degree of disorder posed by the remark and the nature of the power exercised in order to curtail it. Regulation 256 addresses a broad range of conduct, from criminal acts such as assaults to a councillor’s choice of language. While it is no small thing to confront the Chair with a remark capable of being taken as an insult, it is equally no small thing for the Chair to exercise the power to require an unreserved apology (and so potentially trigger the power of expulsion).

161. In my view, the proper exercise of those powers must be directed not to the sensibilities of the particular councillor at whom the perceived insult was directed but to the object of maintaining order at the meeting. Insult in the presence of others has a remedy in defamation, a cause of action not infrequently invoked by local councillors. It may be noted that, in the context of an action for defamation, there is no power to order an apology. The proper exercise of the power of the Chair to require an apology under r 256 is directed to the question of orderliness of the meeting and requires an assessment of context and proportionality to that end.

162. For that reason, I would regard the exchange preceding Mr Barrak’s resort to calling the Mayor a clown to be of critical importance. In my view, the issue Mr Barrak was attempting to raise (whether the Council had knowingly misled the Court), while perhaps irrelevant to the debate at hand, was an important one. His question was susceptible of a simple answer. It appears the Council had not made any representation to Kunҫ J on the matter of its intention; his Honour’s remark simply recorded an absence of evidence. However, rather than favouring Mr Barrak with that simple explanation with the assistance of the solicitor present, the Mayor took the discussion down a path of ridiculing Mr Barrak. On the strength of the only direct evidence before this Court, he did not take the issue seriously; he insulted Mr Barrak by attributing him with a tendency himself to mislead courts; he exposed him to personal ridicule (accusing him of being “emotional” and “under a lot of pressure”) and he made it clear that he did not propose to entertain any different course:

“Barrak:   Lord Mayor is there any reason why Council and Mr Stapleton can’t meet to hopefully resolve the matter on mutually acceptable terms?

Mayor:      Oh yes. The reason is that we’re going to sack him today.”

163. It was undoubtedly inappropriate of Mr Barrak to deploy the term “clown” but the burden of his remark was that, in not taking an important issue seriously, directing personal insults at Mr Barrak and inviting others to laugh at his expense, the Mayor was reducing the debate to the atmosphere of a circus.

164. In context, I do not think Mr Barrak’s words “Lord Mayor, you are a clown” would have been taken by an objective observer to amount to an insult calculated to bring disorder to an otherwise orderly meeting. If anything, Mr Barrak would have been understood by an objective observer to be pleading to have an important issue considered by the Council in an orderly way. I am not persuaded that the single incidence of calling the Mayor a clown addressed in Mr Barrak’s evidence amounted to an act of disorder within the meaning of r 256(1)(d). As White JA has explained, there was evidence to suggest that he used the word more than once but no context was given to that assertion and it is impossible to assess.

165. As to the issue of costs, although I have reached a different conclusion from White JA as to an important issue, and notwithstanding the fact that my conclusion would see a different outcome as to whether Council was entitled to expel Mr Barrak from the meetings, I nonetheless agree with the order as to costs proposed by White JA. As his Honour has observed, Mr Barrak has offered no explanation for refusing to return the confidential papers after having been validly required to do so. It will be clear from this judgment that I do not share the view of either other member of the Court that this unfortunate case was triggered by Mr Barrak’s use of insulting words towards the Mayor. But the fact that this Court must resort to a discussion as to who started it is enough to explain my decision to join in the conclusion that neither party should have an order for costs.

166. For those reasons, I would join in the orders and declarations proposed by White JA except as follows:

1. in declaration (4), I would omit the words “apologise unreservedly to the Chair and Councillors for insulting and making personal reflections on the Mayor on 20 February 2019 and”;

2. instead of declarations (5) and (6), I would declare that, absent any requirement from the chairperson that councillor Barrak retract and apologise without reservation for the act of disorder of failing or refusing to return the confidential papers after being required to do so on 25 February 2019, the respondent was not entitled to expel the appellant from its meetings of 25 February, 6, 11 and 25 March and 8 April 2019.

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Endnote

Decision last updated: 03 September 2019