Barrak v City of Parramatta Council

[2019] NSWLEC 59

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Barrak v City of Parramatta Council [2019] NSWLEC 59
Hearing dates:	17 and 18 April 2019
Date of orders:	29 April 2019
Decision date:	29 April 2019
Jurisdiction:	Class 4
Before:	Moore J
Decision:	(1)   The summons is dismissed; (2)   Redacted versions (omitting confidential material) of the affidavits read in these proceedings are to be retained on the Court file to be available if the Registrar grants access to the file; (3)   The unredacted versions of the affidavits read in these proceedings are to be retained in a sealed envelope on the Court file and no access is permitted to those affidavits without further order of the Court; (4)   The exhibits are returned; and (5)   The Applicant is to pay the Respondent's costs as agreed or assessed.
Catchwords:	LOCAL GOVERNMENT - closed council meeting - councillor expelled by Lord Mayor - expulsion was for committing act of disorder (for calling the Lord Mayor a “clown”) - was conduct disorderly - conduct disorderly - was expulsion by Lord Mayor without resolution of council valid - expulsion invalid - no utility in bare declaration - no relief granted LOCAL GOVERNMENT - closed council meeting - councillor makes comments about external legal advisers - were comments an act of disorder - comments a breach of cl 256(1)(e) of the Local Government (General) Regulation 2005 and thus an act of disorder LOCAL GOVERNMENT - closed council meeting - meeting dealing with personnel matter - resolution that councillors return confidential papers and notes - was resolution valid - resolution valid LOCAL GOVERNMENT - council meeting - resolution that councillor apologise for words said at previous meeting and for failure to return confidential papers and notes – were elements concerning failure to return confidential papers and notes acts of disorder - - those elements not acts of disorder – three valid elements in resolution were acts of disorder - councillor declines to apologise or return confidential papers and notes - councillor expelled for not doing so - was expulsion valid - expulsion valid LOCAL GOVERNMENT - council meeting - resolution that councillor be removed from committees - resolution adopted after councillor had been expelled from meeting - was councillor required to be afforded procedural fairness and natural justice before removal - removal part of political process of council and no procedural unfairness or denial of natural justice before removal - removal also sanctioned by s 47 of Interpretation Act 1987 - removal from committees valid LOCAL GOVERNMENT - council meetings - councillor expelled by resolutions of council for ongoing failure to apologise for original act of disorder - power to reactivate requirement for apology remains ongoing - expulsions from subsequent meetings valid COSTS - limited success by Applicant not sufficient to depart from presumption that costs follow the event - Applicant to pay Respondent’s costs on ordinary basis
Legislation Cited:	Bill of Rights 1688 (Chapter 2 1 Will and Mar Sess 2) Civil Procedure Act 2005, s 98(1) Environmental Planning and Assessment Act 1979 Evidence Act 1995, s 69 Interpretation Act 1987, s 47 Local Government Act 1993, ss 10, 10A, 23, 360, 375,490A, 674 and 676 Local Government Amendment (Governance and Planning) Act 2016 Local Government (City of Parramatta and Cumberland) Proclamation 2016 Local Government (General) Regulation 2005, cll 182, 233, 256 and 422 Local Government (Meetings) Regulation 1999 Uniform Civil Procedure Rules 2005, r 42.1
Cases Cited:	Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 DeBattista v Minister for Planning and Environment [2018] NSWLEC 202 Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 James v Surf Road Nominees (No 2) [2005] NSWCA 296 Latoudis v Casey (1990) 170 CLR 534 Lynette Mary Styles v Wollondilly Shire Council (2002) 120 LGERA 172; [2002] NSWCA 67 McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63 Porter v Hornsby Shire Council (1989) 69 LGRA 101 Ryde City Council v Echt & Anor (2000) 107 LGERA 317; [2000] NSWCA 108 Stapleton v City of Parramatta Council [2019] NSWSC 123 Styles v Wollondilly Shire Council [2001] NSWLEC 18 Sze Tu v Lowe (No 2) [2015] NSWCA 91 Truth about Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591; [2000] HCA 11
Category:	Principal judgment
Parties:	Benjamin Barrak (Applicant) City of Parramatta Council (Respondent)
Representation:	Counsel: Mr M Green SC/Mr D Thomas, barrister (Applicant) Mr M Hall SC/Mr S Nash, barrister (Respondent   Solicitors: Cambridge Law & Advisory (Applicant) Sparke Helmore (Respondent)
File Number(s):	96463 of 2019
Publication restriction:	No

TABLE OF CONTENTS

Introduction

The controversy over Mr Stapleton

The relevant council meetings

Commencement of proceedings

The legal representatives at the hearing

The evidence

The affidavits

The confidential material

The video material

The minutes of the Council meeting of 9 October 2017

Councils’ bifurcated decision-making roles

The political composition of the Council

The relevant legislative and other provisions

Introduction

The Local Government Act 1993

The Local Government (General) Regulation 2005

Confidential information

Conduct at meetings

The Council’s Code of Meeting Practice

The Interpretation Act 1987

Contextual background concerning relevant Council meetings

The meeting of 4 February 2019

The meeting of 11 February 2019 and its adjourned resumption

The meeting of 25 February 2019

The Council meetings of 6, 11 and 25 March 2019 and 8 April 2019

Jurisdiction

Councillor Barrak’s expulsions from Council meetings - an introduction

The Council meeting of 11 February 2019 with continuation on 20 February 2019

Introduction

Councillor Barrak’s calling the Lord Mayor a “clown”

On 20 February 2019, did the Lord Mayor have power to expel Councillor Barrak?

Introduction

The request to the parties for further submissions

The Council’s response

Councillor Barrak's response

Consideration

The requirement to return the notes at the meeting of 20 February 2019

Introduction

The submissions on behalf of Councillor Barrak

The Council's submissions

The validity of the resolution

This resolution and Councillor Barrak

The remarks to Mr Gardner at the 20 February 2019 meeting

Introduction

Councillor Barrak’s expulsion from the meeting on 25 February 2019

Introduction

Consideration

The resolution removing Councillor Barrak from Council committees

Introduction

The submissions on behalf of Councillor Barrak

The written submissions on behalf of the Council

Consideration

Councillor Barrak’s expulsion at subsequent meetings

Introduction

The meetings of 6, 11 and 25 March 2019 and 8 April 2019

Relief

Costs

Conclusion

The future

Orders

JUDGMENT

Introduction

1. On 12 May 2016, the boundaries of the City of Parramatta local government area were reconstituted as a consequence of the Local Government (City of Parramatta and Cumberland) Proclamation 2016. The reconstituted City of Parramatta local government area was placed under the control of an administrator until the holding of local government elections for councillors to comprise the representative body for this new local government area - the Council of the City of Parramatta (the Council).

2. In September 2017, an election was held for councillors to serve a three-year term on the Council. For the purposes of this election, the Council was divided into five wards, each to be represented by three councillors. At the 2017 election for the Council, Councillor Benjamin Barrak was elected as a councillor for the Dundas Ward whilst Councillor Andrew Wilson was elected as a councillor for the Rosehill Ward.

3. A Lord Mayor and Deputy Lord Mayor were subsequently elected, on 25 September 2017. Councillor Wilson was elected Lord Mayor of the new Council with Councillor Michelle Garrard elected as Deputy Lord Mayor.

The controversy over Mr Stapleton

4. Over a period prior to September 2018, there had been controversy within the Council concerning the employment of its (now terminated) Chief Executive Officer, Mr Mark Stapleton. It is unnecessary for me to undertake any detailed description of the nature of that controversy, but there are two matters which require to be noted.

5. First, as questions had arisen concerning Mr Stapleton's curriculum vitae (particularly as to its accuracy), the Council resolved on 7 September 2018 to appoint an independent counsel, Ms Jane Seymour, to investigate the matter.

6. The second matter requiring to be noted is that, on 11 February 2019, Mr Stapleton was granted leave to file, in the Supreme Court, a summons seeking both interlocutory and final relief concerning his (then) employment with the Council. On that day, Kunc J granted an interim injunction for a period of one week restraining the Council from terminating Mr Stapleton's employment.

7. The matter came back before his Honour on 18 February 2019. At the hearing before Kunc J on 18 February 2019, the Council was represented by senior counsel instructed by Bartier Perry.

8. On that day, his Honour dismissed the application for interlocutory relief with indemnity costs payable forthwith to the Council (Stapleton v City of Parramatta Council [2019] NSWSC 123). Aspects of what was described in his Honour's decision also form part of the controversy in these proceedings.

The relevant council meetings

9. Seven meetings of the Council in 2019 require to be addressed, at least to some extent, in this decision. With respect to a number of them, little detail will need to be set out whilst, for others, greater explanation of what occurred will be required. The dates of the meetings were:

• 4 February 2019

• 11 February 2019 and its adjourned resumption on 20 February 2019

• 25 February 2019

• 6 March 2019

• 11 March 2019

• 25 March 2019

• 8 April 2019

10. For present purposes, it is sufficient to note that that, at the resumed meeting on 20 February 2019, Councillor Barrak was expelled by the Lord Mayor from the meeting for disorder and that, at the meeting on 25 February 2019, a resolution was carried calling on him to apologise for various events at the meeting of 20 February 2019. The Council’s resolution of 25 February 2019 itemising matters of complaint against Councillor Barrak is later set out and requires further, detailed consideration.

11. Councillor Barrak declined to apologise on 25 February 2019 as required by the resolution and he was then expelled by resolution of that meeting.

12. At each of the subsequent meetings, Councillor Barrak also declined to apologise in accordance with the resolution of 25 February 2019 and was expelled from each of those meetings by resolution of each meeting.

Commencement of proceedings

13. On 27 March 2019, Councillor Barrak commenced Class 4 proceedings seeking judicial review of the various aspects of the matters set out in the resolution of 25 February 2019 that he considered adversely impacted on his ability to discharge his functions and responsibilities as a councillor elected to the Council, and where there was no proper legal basis, in his view, for those steps to have been taken.

14. Although, when the matter came before me on 1 and 2 April 2019 as the Duty Judge, Councillor Barrak sought expedition of hearing of the matter, it was unnecessary to consider that application because the Court was able to allocate early hearing dates to consideration of the substantive issues raised by Councillor Barrak in the summons filed on 27 March 2019.

15. The substantive relief sought in the summons was in the following terms:

1.   A declaration that the resolution passed on 4 February 2019 requiring councillors of the Defendant to return and/or surrender all notes taken during the closed session of the Council meeting to the Defendant is unlawful and of no effect.

2.   An order requiring the Defendant to return to the Plaintiff all personal notes made during, and confiscated from him, at the 4 February 2019 Council meeting and requiring the Defendant to destroy any copies of such documents made or retained by it.

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 of 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 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, 25 March 2019 and/or 8 April 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.

16. It is to be observed that, toward the end of the hearing on 18 April 2019, it was indicated that the relief claimed in prayers (1) and (2) set out above were no longer pressed by Councillor Barrak.

17. It is also to be observed that, during the hearing, by agreement between the parties, item (6) of the prayers for relief was amended to add the Council meeting of 8 April 2019 as that meeting had been held since the proceedings were commenced and Councillor Barrak had again been expelled in similar circumstances.

18. Finally, it is to be observed that, although (6) above refers to “resolutions to expel the Plaintiff from the Council meetings held on 20 February 2019, 25 February 2019, 6 March 2019, 11 March 2019, 25 March 2019 and/or 8 April 2019”, on 20 February 2019 Councillor Barrak was expelled by direction of the Lord Mayor and not by resolution of the Council. As a consequence, Councillor Barrak’s expulsion on 20 February 2019 requires separate consideration for reasons later set out.

The legal representatives at the hearing

19. Councillor Barrak was represented by Mr Green SC and Mr Thomas, barrister whilst the Council was represented by Mr Hall SC and Mr Nash, barrister.

The evidence

The affidavits

20. The evidence in the proceedings comprised:

• two affidavits from Councillor Barrak - dated 27 March 2019 (first affidavit) and 16 April 2019 (second affidavit); and

• two affidavits from Ms Katie Mullens (dated 27 March 2019 and 18 April 2019),

on behalf of Councillor Barrak.

21. Bundles of documents were exhibited to each of Councillor Barrak's affidavits with these bundles becoming Exhibits A and B respectively.

22. For the Council, affidavit evidence was given by Mr Ian Woodward, Group Manager, Legal Services - the head of the Council’s internal legal team.

23. None of the deponents were required for cross-examination.

The confidential material

24. A deal of the material contained in Exhibits A and B and a number of the paragraphs in the affidavit evidence were agreed by the legal representatives of the parties to contain or refer to confidential material. Orders had been made by me, during a pre-trial interlocutory hearing on 10 April 2019 preventing disclosure of material accepted as confidential. That pre-trial order was made to continue until a subsequent order was made.

25. At the conclusion of the hearing before me on 18 April 2019, the parties agreed that I should make an ongoing order concerning material that the parties agreed should remain restricted. The terms of that order were provided to me on the afternoon of 18 April 2019 and those orders were made in the agreed terms.

26. As a consequence of the order made at the conclusion of this decision returning the exhibits, I have also made a further order concerning the unredacted versions of the affidavits so that they will remain on the Court’s file in a sealed envelope with no access to them without further order of the Court. Redacted versions omitting confidential material will be placed on the file to permit release of the unrestricted material if any application is made for public access to it and such access is approved by the Registrar.

The video material

27. Video or audio material of Council meetings was included on a USB thumb drive which became Exhibit 1. This material comprised:

• Video material from the Council meeting held on 25 February 2019;

• Audio material from the Council meeting held on 6 March 2019;

• Video material from the Council meeting held on 11 March 2019;

• Video material from the Council meeting held on 25 March 2019; and

• Video material from the Council meeting held on 8 April 2019.

28. During the course of the first day of the hearing, significant elements of the various video recordings were played with this material comprising, primarily, those portions of the relevant meetings where there was an interaction between the Lord Mayor and Councillor Barrak giving rise to the various Council resolutions about which Councillor Barrak makes complaint.

29. The material that was played in Court, however, was not confined to those elements of the various meetings but, also included some video elements antecedent to, and following on from, those interactions where that additional material was appropriately relevant for contextual purposes.

30. I have earlier noted that Ms Mullens provided two affidavits. Annexed to each of them were transcripts which she had prepared as depicting what was said during the course of the relevant elements of a number of the various Council meetings that require my consideration.

31. I was able to follow that transcribed material during the course of the viewing of the various video elements of the Council meetings requiring consideration. There are several observations to be made concerning these transcripts. The observations are not intended to be seen as a criticism of Ms Mullens’ endeavours, quite to the contrary. Indeed, she has been able to produce an almost entirely accurate transcript of those matters which are of relevance, to my observation, despite that, which at times can be heard when the video was played, there was a deal of extraneous hubbub and chatter happening amongst the elected councillors.

32. During the course of my following of Ms Mullens’ transcripts whilst watching the video, there were three occasions where there were sufficiently potentially significant (albeit small) departures in the transcript from what could be heard whilst watching the video. Although I drew these to the attention of the advocates, on reflection, I am satisfied that only one of the necessary corrections is material in the matters I need to consider and determine. That correction is to the transcript of the Council meeting of 8 April 2019.

33. I should note that elements of the transcripts attached to Ms Mullens’ affidavit of 18 April 2019 were not as extensive as the relevant portions of the video material played in Court. However, on the second day of the hearing, a revised affidavit from Ms Mullens with the extended transcripts was substituted for that which had been originally filed. This substitution was permitted on the basis that the position of the Council with respect to the additional material was reserved so that if there was any subsequent matter arising concerning the accuracy of the additional material, that could be canvassed for by notification to my associate. No such notification was subsequently made by the Council and, as a result, I have paid regard to the totality of that additional transcript material.

28. For the purposes of my addressing the various matters requiring consideration, it will be necessary for me to refer to elements of the transcript without quoting directly from it.

The minutes of the Council meeting of 9 October 2017

35. In addition to this affidavit material and its associated documents, either in Exhibit A and B or annexed to the affidavits of Ms Mullens and Mr Woodward, Mr Hall also tendered the minutes of a meeting of the Council held on 9 October 2017. These minutes became Exhibit 2. At this meeting, the Council had adopted a resolution (after rejecting an attempt to amend that resolution to exclude Councillor Barrak’s proposed appointments to two external bodies) which appointed representatives of the Council on various internal and external bodies.

Councils’ bifurcated decision-making roles

36. Councils are political bodies created by statute. They have no independent constitutional existence. Councils are invested with a wide range of administrative decision-making functions under legislation such as the Environmental Planning and Assessment Act 1979 or their founding legislation itself, the Local Government Act 1993 (the Local Government Act) - for example, pursuant to s 68 of that Act. Councils are, however, also established as elected and, therefore, political bodies. As political bodies, they have a separate and distinct role in policy and other matters compared to their administrative decision-making functions. I discussed the distinct difference between these two roles and how that gives rise to differing legal considerations, depending on the role being carried out in a particular instance, in DeBattista v Minister for Planning and Environment [2018] NSWLEC 202.

37. In these proceedings, what is sought to be called into question by Councillor Barrak is, essentially, aspects of the political and quasi‑parliamentary role performed by Council. He is not seeking to call into question any of the exercises of statutory administrative decision-making power of which the Council is made a repository by statute.

38. This distinction is of fundamental importance in these proceedings. It is put on behalf of Councillor Barrak that a wide range of procedural obligations, such as the prohibition on pre-judgement discussed in McGovern v Ku‑ring‑gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209, are applicable in these proceedings. However, they are, in fact, irrelevant to the political processes undertaken by the Council, whilst, undoubtedly, being applicable to statutory administrative decision making functions carried out by the Council.

39. It is with respect to the much less constrained political role to which I must turn in these proceedings. In doing so, I need to consider whether certain decisions on the facts were manifestly unreasonable or not and whether decisions consequent on such findings of fact were within power or not.

The political composition of the Council

40. Although I have been provided with details of the political affiliation (whether party or otherwise) of the various members of the Council, and the position was described by both Mr Green and Mr Hall as being finely divided between the two major political blocks on the Council, I observed during my watching of the videos of the Council meetings that such political divide was not evident from the behaviour or apparent voting patterns seen during the various meetings.

41. Indeed, for the resolutions that are subject to challenge in these proceedings at the various meetings, on virtually all occasions (but not absolutely all occasions), the minutes do not record any councillor wishing to have dissent recorded. The video material, itself, makes it clear that this was the position (noting that, although one councillor remarked, on several occasions, that the resolutions were carried unanimously, the more correct description would be that they were carried without dissent as it was not clear that all councillors present voted in favour).

The relevant legislative and other provisions

Introduction

42. A number of provisions of the Local Government Act require consideration in these proceedings. Many of those set out in the following section of this judgment require consideration in the context of Councillor Barrak's expulsion from various meetings of the Council, whilst a more limited number are also engaged with respect to the complaint that Councillor Barrak used inappropriate language concerning Mr Gardner and, separately, concerning Councillor Barrak's removal from the three Council committees to which he had been appointed.

43. The terms of s 47 of the Interpretation Act 1987 (the Interpretation Act) also require consideration in the context of Councillor Barrak's removal from those committees.

44. It is also relevant that elements of the Local Government (General) Regulation 2005 (the Regulation) also require consideration in the context of Councillor Barrak's expulsions from Council meetings.

45. Finally, the Council has had a Code of Meeting Practice in place for many years, the most recent version of which was adopted by the Council after the 2017 Council elections and therefore operates for the purposes of the relevant meetings from which Councillor Barrak has been expelled.

The Local Government Act 1993

46. The first provision of the Local Government Act is that which excludes persons (including councillors) who are expelled from a Council meeting from attending that meeting after that expulsion. The Local Government Act provides, in s 10(2) for two methods by which, here, relevantly, a councillor may be expelled from a council meeting. In addition, s 10(3) limits the bases upon which a person may be expelled to matters set out in the Regulation. The relevant provisions of the Regulation are also later set out. The terms of s 10 are:

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.

47. The meetings on 4 and 11 February 2019 (and its continuation on 20 February 2019) were closed meetings as the Council was considering Mr Stapleton’s continued employment, a topic falling within s 10A(2)(a) of the Local Government Act. The power to close a meeting is given in the following terms:

10A   Which parts of a meeting can be closed to the public?

(1)   A council, or a committee of the council of which all the members are councillors, may close to the public so much of its meeting as comprises:

(a)   the discussion of any of the matters listed in subclause (2), or

(b)   the receipt or discussion of any of the information so listed.

(2)   The matters and information are the following:

(a)   personnel matters concerning particular individuals (other than councillors),

48. A limited portion of s 10B is relevant. It is in the following terms:

10B   Further limitations relating to closure of parts of meetings to public

(1)   ….

(2)   ….

(3)   ….

(4)   ….

(5)   In deciding whether part of a meeting is to be closed to the public, the council or committee concerned must have regard to any relevant guidelines issued by the Departmental Chief Executive.

49. The next relevant provision of the Local Government Act is s 23. Those things which a council can do in reliance on this provision have wide compass. Amongst other things enabled by this provision is the appointment of Council committees, a function not expressly set out in terms elsewhere in the Local Government Act. This is the provision that is the legislative foundation for the Council’s resolution of 9 October 2017 appointing a wide range of Council representatives on various bodies, including the appointment of Councillor Barrak to the three bodies subject to the Council resolution on 25 February 2019 for his removal from those bodies. The section is in the following terms:

23   Supplementary, incidental and consequential functions

A council may do all such things as are supplemental or incidental to, or consequential on, the exercise of its functions.

50. The Local Government Act requires, by s 360, that a council must adopt a Code of Meeting Practice that incorporates the mandatory provisions of the model code prescribed by the Regulation. A council must adopt such a code within 12 months of a general election of new councillors. As earlier noted, the Council has adopted such a Code of Meeting Practice after the 2017 Council election. The relevant provision of that code is later reproduced. As later also noted, the Council has adopted a local variation to its code to add an additional basis upon which a councillor can be held to commit an act of disorder. It is presumed that, to arrive at that local variation (one which, nonetheless, is irrelevant in these proceedings) the Council went through the processes mandated by s 361 and 362 to adopt the now operative version of the Council's Code of Meeting Practice. This provision is in the following terms:

360   Conduct of meetings of councils and committees

(1)   The regulations may prescribe a model code of meeting practice for the conduct of meetings of councils and committees of councils of which all the members are councillors.

(2)   The model code may contain both mandatory and non-mandatory provisions.

(3)   A council must, not later than 12 months after an ordinary election of councillors, adopt a code of meeting practice that incorporates the mandatory provisions of the model code prescribed by the regulations. The adopted code may also incorporate the non-mandatory provisions and other provisions.

(4)   A code adopted or amended by the council must not contain provisions that are inconsistent with the mandatory provisions.

(5)   A council and a committee of the council of which all the members are councillors must conduct its meetings in accordance with the code of meeting practice adopted by it.

51. The Local Government Act contains a specific provision concerning the recording of minutes and their subsequent confirmation by a later council meeting. This provision plays a role of some significance in assessing what is to be taken as occurring at the meeting of the Council on 20 February 2019. The provision is in the following terms:

375   Minutes

(1)   The council must ensure that full and accurate minutes are kept of the proceedings of a meeting of the council.

(2)   The minutes must, when they have been confirmed at a subsequent meeting of the council, be signed by the person presiding at that subsequent meeting.

52. The Local Government Act provides, in s 490A, a statutory basis to enable a finding that a councillor has committed an act of disorder. To provide a basis for such a finding, the Regulation sets out, in cl 256(1) - the reason why this now repealed regulation applies is later explained, what constitute acts of disorder for the purposes of this section. The section is in the following terms:

490A   Acts of disorder

For the purposes of this Chapter and the code of conduct, a councillor commits an act of disorder if the councillor, at a meeting of the council or a committee of the council, does anything that is prescribed by the regulations as an act of disorder for the purposes of this Chapter and the code of conduct.

53. The Local Government Act contains what is known as an open standing provision which permits any person to approach this Court to seek to remedy or restrain any breach of the Local Government Act. This provision is s 674. It is this provision to which Councillor Barrak has turned to bring these proceedings concerning his various grievances about matters which occurred at the Council meeting on 20 February 2019 and, consequently, at following Council meetings. The section is in the following terms:

674   Remedy or restraint of breaches of this Act—other persons

(1)   Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act.

…

(5) Subsection (1) does not apply in relation to anything done or omitted to be done under Division 3 of Part 1 of Chapter 14.

54. When, as Councillor Barrak has done, a person invokes the jurisdiction of the Court to address breaches of the Local Government Act, the Court is given wide discretionary power to remedy or restrain actual or anticipated breaches if so found and remedy or restraint is considered appropriate. Those powers given by s 676, a provision which reads:

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.

The Local Government (General) Regulation 2005

Confidential information

55. In December 2018, the provisions of the Regulation concerning a code of conduct for councils were also significantly amended as a consequence of the passage, and coming into effect, of the Local Government Amendment (Governance and Planning) Act 2016. The December 2018 amendments, with respect to codes of conduct, have a phasing-in period which extends until 14 June 2019 (relevant to this Council as the Council has not adopted a new code of meeting practice). This is provided for in cl 420, a provision in the following terms:

420   Phasing in of model code of conduct

(1)   In this clause:

existing code of conduct means a code of conduct duly adopted by a council under section 440 of the Act and clause 193 (1) of this Regulation, and in force immediately before 14 December 2018.

phasing-in period, for a council, means the period:

(a)   commencing on 14 December 2018, and

(b)   ending on 14 June 2019 or on the date on which the council adopts a code of conduct under section 440 of the Act that incorporates the provisions of the model code of conduct prescribed by clause 180, whichever occurs first.

(2)   During the phasing-in period for a council, an existing code of conduct is taken to have been adopted under, and to comply with, section 440 of the Act, despite any inconsistency with the model code prescribed by clause 180.

(3)   Until a council adopts a code of conduct under section 440 of the Act that incorporates the provisions of the model code of conduct prescribed by clause 180, Part 8 of this Regulation (as in force immediately before it was substituted on 14 December 2018) continues to apply to the council as if that Part had not been substituted.

56. In April 2013, guidelines were issued pursuant to s 10B(5) of the Local Government Act to assist councils understand matters relating to the closure of council meetings to the public. Item 14 of the guidelines is headed, What obligations to Council officials have in relation to information about matters that were considered in a part of the meeting was closed to the public? It is to be observed that, in the context of this element, the expression “council officials” must encompass councillors, as the document separately refers to “council employees” and “council staff”. This section of the guidelines reads:

Under the Model Code of Conduct for Local Councils in NSW, all Council officials have an obligation to maintain the integrity and security of confidential documents or information in their possession, including confidential business papers. In particular, all Council officials must:

•   Protect confidential information

•   Only release confidential information if they have authority to do so

•   Only use confidential information for the purpose. It is intended to be used

•   Not use confidential information for the purpose of securing a private benefit for themselves or for any other person

•   Not use confidential information with the intention to cause harm or detriment to the Council or any other person or body

•   Not disclose any information discussed during a confidential session of a Council meeting.

It is also an offence under section 664(1A) of the act to disclose information about a matter that was considered in a meeting that was closed to the public under section 10A.

57. The Council has adopted a Code of Conduct, one which continues to have effect as a consequence of cl 420(3) set out above. The relevant provisions of the Council’s Code of Conduct are contained, under the heading “Use and security of confidential information”, in cll 7.9 and 7.10. The first of these reads:

You must maintain the integrity and security of confidential documents or information in your possession, or for which you are responsible.

58. The second adopts, in their entirety, the six dot-points set out above in the published guidelines.

Conduct at meetings

59. In December 2018, the provisions of the Regulation concerning conduct of Council meetings were also significantly amended as a consequence of the passage and coming into effect of the Local Government Amendment (Governance and Planning) Act 2016. The December 2018 amendments, with respect to codes of meeting practice, have a phasing in period which extends until 14 June 2019 (relevant to this Council as the Council has not adopted a new code of meeting practice). This is provided for in cl 422, a provision in the following terms:

422   Model code of meeting practice

(1)   In this clause:

phasing-in period, for a council, means the period:

(a)   commencing on 14 December 2018, and

(b) ending on 14 June 2019 or on the date on which the council adopts a code of meeting practice under section 360 of the Act (as substituted by the Local Government Amendment (Governance and Planning) Act 2016), whichever occurs first.

(2)   During the phasing-in period for a council:

(a) Part 10 of this Regulation (as in force immediately before 14 December 2018) continues to apply to meetings of the council as if that Part had not been substituted, and

(b)   clause 117 (2) of Schedule 8 to the Act does not apply to the council, and

(c)   any code of meeting practice duly adopted by the council under section 360 (2) of the Act, and in force immediately before the substitution of that subsection on 14 December 2018:

(i)   continues to apply to the conduct of meetings of that council, and

(ii)   is taken to have been adopted under section 360 of the Act (as substituted).

60. It is to be noted that cl 422(2)(a) expressly continues the application of the otherwise (now) repealed Pt 10 of the Regulation to meetings of the Council. As a consequence, the new provision in the Regulation concerning expulsion for acts of disorder (cl 233) does not apply to the events with which I am currently concerned. The provision which applies during this transition period is that contained in the otherwise repealed cl 256 Acts of disorder. This regulation is an omnibus one containing (in general terms) what has now been split into cll 182 and 233 - neither of these require consideration in these proceedings.

61. Clause 256, applying to the various meetings of the Council requiring consideration in these proceedings, is in the following terms:

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.

62. It is important to note that there is a relevant and important difference between cl 233, one prospectively applying to the Council, and the now repealed (but preserved for these purposes) cl 256. In cl 256(2)(c), the chairperson of a meeting may require a councillor:

To retract and apologise without reservation for an act of disorder referred to in subclause (1)(d) or (e).

63. This provision reflects what is now contained in cl 182(d) and (e).

64. It is to be observed that cl 233(1)(c), the provision that will apply in the future, specifically provides the power for a chairperson to require a councillor:

(c)   to retract and apologise without reservation for any statement that constitutes an act of disorder referred to in clause 182 (d) or (e).

65. As can be seen, this provision only relates to statements constituting acts of disorder in cl 182(d). It is a lacuna in the Regulation that a Councillor who does anything that is inconsistent with maintaining order at the meeting or is likely to bring the Council committee into contempt is not caught by cl 233(1)(c) and, therefore, is unable to be the subject of an expulsion motion pursuant to s 10(2) of the Local Government Act because an action constituting a breach of cl 182(d) cannot be made subject to any requirement to retract and apologise without reservation for that action.

66. However, importantly for my consideration of Councillor Barrak’s refusal to hand over the confidential material, cl 256(2)(c) relates to an act of disorder and is not confined to statements - that is, it encompasses things that are done (or, as is here relevant, not done) as well as things that are said.

The Council’s Code of Meeting Practice

67. The Council has adopted a Code of Meeting Practice. The most recent revision was adopted by the present Council. A copy was provided in the Respondent’s bundle of materials.

68. This code, in Part 4 Procedural, cl 31 ORDER AND DISORDER, sets out, in (5), the six circumstances under which a councillor commits an act of disorder. These provisions, referencing the (then) cl 256 of the Regulation, adopt the five elements of the then cl 256(1) of the Regulation and add, as is permitted, a sixth local variation act of disorder (one not relevant in these proceedings).

The Interpretation Act 1987

69. Also relevant is s 47 of the Interpretation Act, a provision in the following terms:

47   Powers of appointment imply certain incidental powers

(1)   If an Act or instrument confers a power on any person or body to appoint a person to an office:

(a)   the power may be exercised from time to time, as occasion requires, and

(b)   the power includes:

(i)   power to remove or suspend, at any time, a person so appointed,

(ii)   …, and

(iii)   …, and

(iv)   ….

(2)   The power to remove or suspend a person under subsection (1) (b) may be exercised even if the Act or instrument under which the person was appointed provides that a holder of the office to which the person was appointed shall hold office for a specified period of time.

(3)   ….

Contextual background concerning relevant Council meetings

The meeting of 4 February 2019

70. Ms Seymour provided a report for consideration by the elected Council – a report considered in a closed meeting of the Council on 4 February 2019.

71. A resolution was carried at this meeting requiring that notes taken by councillors during the closed session were to be surrendered for retention on the Council's file. This resolution was in the following terms:

That notes can be taken by Councillors during debate and consideration of this matter; however, all notes will be retained by Council at the conclusion of the meeting.

72. Councillor Barrak handed in his notes made at this meeting, consistent with the requirement of this resolution.

73. The process which was followed was described in Mr Woodward’s affidavit, at (32) and (33) as follows:

32.   At the conclusion of the meeting, the Mayor asked the Councillors to hand in their copy of the report, together with any notes made during the meeting relating to the report and the employment matter. I observed each Councillor to put their copy of the report and any notes they had taken during the meeting, into their personally addressed envelope (documents). Tim Butler (COO), and the solicitors from Holding Redlich, collected the documents from the Councillors. Each Councillor signed the register confirming they had handed in their documents.

33.   Tim Butler and I returned to the Council and secured the documents, in a locked cabinet in the area occupied by the legal services unit. To the best of my knowledge, the documents have remained in the locked cabinet and have not been accessed. I have not received any request from Councillor Barrak to access his notes, if any notes of his are in the envelope with his name on it.

74. However, as a consequence of the fact that prayers (1) and (2) in Councillor Barrak's summons (as earlier set out) are no longer pressed, further matters concerning this meeting do not require consideration.

The meeting of 11 February 2019 and its adjourned resumption

75. A further meeting of the Council was held on 11 February 2019. At 11.44 pm that night, the meeting was adjourned and scheduled to resume on 20 February 2019 at 6pm (Exhibit A, Tab 21, folio 196). It resumed as scheduled. At that resumed meeting, matters relating to Mr Stapleton's employment were considered in closed session.

76. With respect to matters requiring to be addressed in these proceedings, the minutes record, first (but see later for the correct position on timing), that a procedural motion, moved by the Lord Mayor and seconded by Councillor Wearne was carried (Exhibit A, Tab 21, folio 199). That resolution was in the following terms:

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.

77. The Council then proceeded to consider the Lord Mayoral Minute concerning Mr Stapleton’s employment and, subsequently, adopted a resolution moved by the Deputy Lord Mayor and seconded by Councillor Garrard. That resolution was in the following terms (also at folio 199):

That in accordance with subclause 10.3.5 of the Standard Contract of Employment for General Managers of Local Councils in New South Wales, Council terminate the employment of its Chief Executive Officer, Mark Stapleton.

78. The minutes of the meeting then incorporate seven notes (at folios 199 and 200). The fifth to seventh of these notes are relevant to these proceedings. They are in the following terms:

During consideration of this matter 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.

79. The epithet triggering Councillor Barrak's expulsion was his description of the Lord Mayor as being a “clown”. Although it was Mr Woodward's evidence that this epithet was directed at the Lord Mayor four times and Councillor Barrak’s first affidavit describes only one, nothing turns on this.

80. The resolution sequence recorded above at [76] and [77] does not accord with Councillor Barrak's recollection of what occurred as recounted in his first affidavit at the conclusion of (75) and in (76) and (77). In these elements, Councillor Barrak's expulsion from the meeting occurs prior to the carriage of the resolution concerning the return of notes and papers. In addition, it was Councillor Barrak's recollection that the resolution concerning notes and papers was moved by Councillor Wearne rather than by the Lord Mayor. It is not necessary to reproduce the element of (75) of Councillor Barrak's affidavit setting out his direct speech recollection of the exchange with the Lord Mayor leading to his expulsion from the meeting.

81. The relevant elements of his affidavit describing what he recollected after his expulsion (after the conclusion of (75)) are in the following terms:

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 thosei n favour raise your hands, all those against ... Councillor Barrak, you will 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 car park. 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.
Me:	Please leave me alone. I'm not giving you anything.
Security:	I will call the police.
Me:	Please go ahead.

82. The minutes of this meeting are of potential importance in my consideration of the resolution concerning the requirement to surrender notes made during the course of that meeting.

83. Councillor Barrak, in his first affidavit sets out why he did not accept the accuracy of the minutes of the 20 February 2019 portion of the 11 February 2019 meeting. At (79), he says:

79.   I say that resolutions 1919 and 1920, recorded in the minutes of 20 February 2019 are not an accurate record of what occurred at that meeting. For example:

a)   The order of the minutes appears to indicate that resolution 1919 concerning the surrendering of our notes was passed at the beginning of the meeting. This is not correct. The subject matter of minute 1919 was dealt with at a point in time when I was walking towards the exit door of the chamber, and not at the beginning of the meeting as minuted.

b)   The wording of resolution 1919, as it appears in the minutes, is not accurate. The motion was moved by Council Wearne in words to the following effect: “Lord Mayor all notes and everything to be left in the room.” The wording which appears the minutes is completely different. The motion was not properly put or seconded. I heard Council Wearne move the motion and the Lord Mayor immediately putting it to the vote.

c)   The minutes state as a fact that I made “derogatory remarks” and “insulting remarks”. I deny this. Further, the minutes make no reference to the remarks of the Lord Mayor which I consider to be offensive.

d)   The minutes state that:

“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.”

I say that the above is not accurate in that some of the confidential papers were emailed to me and the other councillors prior to the meeting.

84. With respect to the first of Councillor Barrak's above complaints, Mr Woodward said in his affidavit, at (38) and 39):

38.   I refer to paragraph 79(a) of the 27 March affidavit [of Councillor Barrak] and I agree that the resolution I describe next was passed not at the beginning, but as Councillor Barrak was leaving.

39.   The Lord Mayor moved the motion and Councillor Wearne seconded the motion (in accordance with clause 246 the Local Government Regulation).

RESOLVED (Wilson/Wearne)

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.

At the end of the debate the Chairperson put the motion to the meeting for a vote. The Chairperson declared the result of the vote which was passed by the majority and therefore the motion became a formal resolution of the Council. That decision was final because it was not challenged by two or more councillors who may have demanded a division on the Motion (clause 251(3) of the Local Government Regulation).

85. On the other hand, the accuracy of the formal minutes was not challenged by Councillor Barrak when they were adopted at the 25 February 2019 meeting (Exhibit A, Tab 28, folio 254) as accurately reflecting the formal record of that meeting.

86. Because this meeting was a closed one, there is no video recording of it.

87. However, it is sufficient, at the present time, to note that I accept that the resolution to surrender notes was not passed prior to Councillor Barrak's expulsion but was adopted after it as he deposed in his affidavit and as confirmed by Mr Woodward’s evidence. This is a matter of timing rather than of substantive outcome.

88. However, it is also clear that Councillor Barrak acknowledges that he was requested to leave his notes and papers at the time he was walking out having been expelled from the meeting.

89. It is not necessary, at this time, to address other complaints made by Councillor Barrak concerning the minutes.

The meeting of 25 February 2019

90. The next meeting of the Council was held on 25 February 2019. At this meeting, the Lord Mayor presented two Lord Mayoral Minutes concerning Councillor Barrak. The first of them was in the following terms (Exhibit A, Tab 22, folio 203):

PURPOSE:

The purpose of this Lord Mayoral Minute is to call on Councillor Barrak to unreservedly apologise for his acts of disorder at the meeting of the 20 February 2019.

RECOMMENDATION:

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

(i)   Not complying with the 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 the 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 misleading (sic) 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.

91. The second Lord Mayoral Minute (at folio 204) was in the following terms:

PURPOSE:

The purpose of this Lord Mayoral Minute is to call on Council to remove Councillor Barrak from all positions he holds on Council committees.

RECOMMENDATION:

That Councillor Barrak be removed from his positions on Council committees.

That a report be brought before Council to facilitate identifying a replacement committee member for each committee.

92. The minutes of the meeting of 25 February 2019 (Exhibit A, Tab 28) record (at folio 255) that the recommendation contained in the first of the Lord Mayoral Minutes to which reference is made above, was put as a resolution and carried.

93. However, the actual resolution carried by the Council, as recorded in the minutes of the meeting, included a new paragraph inserted between (b) and (c) of that reproduced above. The new paragraph (which became (c) with the former (c) becoming (d)) is in the following terms:

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

94. It is appropriate to infer that the document at Exhibit A, Tab 22, folio 203, although indexed in Exhibit A as the Lord Mayoral Minute, was an earlier draft.

95. It is to be observed that Councillor Barrak was present when this element of the resolution was adopted. This, it is further to be observed (as it is a matter of some consequence), constitutes a fresh resolution of the Council on this point.

96. Two notes appear in the minutes of the Council meeting following the recording of the carriage of this resolution. The first of them is relevant in these proceedings. It is in the following terms:

Councillor Barrak was expelled from the meeting at 7.02pm for failure to comply with a Council resolution.

97. The meeting then had a short adjournment, following which the recommendation in the second of the Lord Mayoral Minutes referred to above concerning membership of Council committees was put to the meeting as a resolution and carried. The resolution that was adopted was in the following terms (Exhibit A, Tab 27, folio 234):

1.   That Councillor Barrak be removed from his positions on Council committees.

2.   Further, that a report be brought before Council to facilitate identifying a replacement committee member for each committee.

98. However, it is to be observed that Councillor Barrak, in his first affidavit at (87) set out why he did not accept the accuracy of the minutes of this meeting. He said:

87.   I consider that the minutes are inaccurate. As the minutes include the totality of the Lord mayoral minute which refers to my conduct on the meeting of 20 February 2019 but is not reflective of what occurred on 20 February in the following respects:

a)   The minutes do not record that the motion on 20 February, requesting me to return confidential papers and my notes was not appropriately moved and seconded. The minutes do not record that the motion moved by Council Wearne was with words to the following effect: Lord Mayor all notes and everything to be left in the room. The wording which appears in the minutes is completely different.

b)   The minutes assert that on 20 February 2019 I made derogatory remarks and insulting remarks. I deny this. The minutes are filtered in that they fail to detail the conduct of the Lord Mayor which was insulting and derogatory towards me.

c)   The minutes are not accurate insofar as they assert that on 20 February 2019, I made inappropriate comments to Mr Gardner. I deny this.

The Council meetings of 6, 11 and 25 March 2019 and 8 April 2019

99. At the commencement of each of these meetings, after exchanges of varying lengths between the Lord Mayor and Councillor Barrak, Councillor Barrak was expelled from each meeting.

Jurisdiction

100. Mr Hall submitted that the Court did not have jurisdiction to entertain Councillor Barrak’s complaints. The introduction to this element of the written submissions for the Council is sufficient to understand the general bases upon which the jurisdictional barrier is said to be founded. It is not necessary to go beyond this or to address Mr Hall’s oral expansion on these points. The submissions said:

14.   The High Court’s decision in Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 sets out the approach to determine whether a failure to comply with a statutory requirement affects the validity of an administrative decision. The Respondent submits that it was not Parliament’s intention, expressed in the Local Government Act 1993 or any Regulation made thereunder, or the Code of Meeting Practice, that any breach of that Act, Regulation or Code of the type complained of would attract any supervisory jurisdiction of the Land and Environment Court, such that an act done in breach of the Act, Regulations or Code, would lead to invalidity. This is because:

a.   It would require the Court to enter into the political arena, and essentially assume the role of the Council’s Chairperson (in this instance, the Lord Mayor) to adjudicate what is essentially a political dispute, and this would clearly be inappropriate;

b. Decisions made by elected bodies such as the Respondent, and the individual actions of elected Councillors, including the Mayor, are subject to oversight and supervision (Chapter 9 Part 2 Division 6 of the Local Government Act 1993; Chapter 14 of the Local Government Act 1993) by means other than Court challenge.

101. First, I observe that I do not intend to assess the merit of any of the matters called into contest in these proceedings. To do so, I accept, would be to engage with the political dynamics of the Council in an entirely inappropriate fashion. However, what it is appropriate for me to consider is whether or not the various decisions about which Councillor Barrak complains were decisions that were made within power. As can be seen from this decision, I have confined myself to those matters without assessing the merit of any of the decisions under challenge except to consider whether or not any decision was manifestly unreasonable.

102. Second, although there are other methods by which Councillor Barrak could seek to raise matters with respect to what has occurred, that fact does not oust the jurisdiction that I have, as a result of it being expressly conferred on this Court by the Local Government Act, as discussed below.

103. Unlike the protection afforded by the Bill of Rights 1688 (Chapter 2 1 Will and Mar Sess 2) still applicable to debates in the NSW Parliament (That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament), debates, and procedural decisions arising during them, in councils established under the Local Government Act have no such protection.

104. I have earlier set out the terms of s 674(1) and (5) of the Local Government Act. The first of these provides a basis for Councillor Barrak commencing these proceedings and the second, providing an exception to matters which may be the subject of such proceedings, does not apply in the present circumstances.

105. As a consequence, the powers of the Court set out in s 676(1) of the Local Government Act are available to me, thus permitting (but not mandating) providing Councillor Barrak with the relief he seeks if he establishes the various breaches he alleges. The granting of such relief, of course, is discretionary and not automatic.

106. In Styles v Wollondilly Shire Council [2001] NSWLEC 18, Sheahan J dealt with complaints made by a councillor concerning her initial removal for disorder at a council meeting and her removal at a number of subsequent meetings for refusing to apologise for the language which had caused her initial expulsion. In his decision, his Honour referred to Ryde City Council v Echt & Anor (2000) 107 LGERA 317; [2000] NSWCA 108 (per Spigelman CJ at [17], Powell and Heydon JJA agreeing) as demonstrating why he had jurisdiction to deal with the matter.

107. A reading of that decision of the Court of Appeal makes it clear that the statutory provisions in the Local Government Act I have cited above provide the relevant statutory basis in these proceedings. It is to be observed that his Honour held that there was no breach by the Council in the initial or subsequent expulsions of Councillor Styles.

108. Councillor Styles unsuccessfully appealed his Honour's decision (Lynette Mary Styles v Wollondilly Shire Council (2002) 120 LGERA 172; [2002] NSWCA 67 (Styles)). It will, later, be necessary to address in more detail the terms of this decision of the Court of Appeal. It is sufficient for present purposes to note that there was no suggestion that there was any jurisdictional barrier to this Court and, subsequently, the Court of Appeal dealing with Councillor Styles' complaints.

109. I am satisfied that I have jurisdiction to deal with whether the Lord Mayor’s determination that the language used by Councillor Barrak on 20 February 2019 constituted an act of disorder was within power and whether initial expulsion of Councillor Barrak and/or the various subsequent expulsions from Council meetings flowing from it were also within power.

110. Separate issues of power (not merit) arise with respect to the other issues in contention - these will be dealt with in the context of each of them.

Councillor Barrak’s expulsions from Council meetings - an introduction

111. Councillor Barrak's expulsions from Council meetings fall into three distinct categories. The first, his expulsion from the continuation Council meeting on 20 February 2019 was an expulsion by direct order of the Lord Mayor rather than by resolution of the Council. This expulsion requires consideration not only of whether the language used by Councillor Barrak constituted an act of disorder giving rise to the potential for him to be expelled from that meeting but, separately, whether or not the Lord Mayor had the power to expel Councillor Barrak without carriage of a resolution of the Council triggering that expulsion.

112. For the Council meeting of 25 February 2019, the Lord Mayoral Minute contains a number of elements presenting a rolled up basis for proposing Councillor Barrak's expulsion if he failed to apologise in the various fashions called for in the Lord Mayoral Minute and if he failed to return the confidential papers and notes as required by the fresh call for this in (c). This involves consideration of questions of validity of the various elements contained in the minute as a basis for requiring an apology from Councillor Barrak. If defect is found in any of them, questions of severability then arise for consideration.

113. Finally, with respect to the various meetings subsequent to the meeting on 25 February 2019 when Councillor Barrak has been expelled, the validity of each of those expulsions (they having occurred on a common basis) require to be assessed in light of my responses to the matters requiring consideration arising out of both the meeting of 20 February 2019 and that of 25 February 2019 and to the fresh resolution on 25 February 2019 requiring the return of the confidential papers and notes.

The Council meeting of 11 February 2019 with continuation on 20 February 2019

Introduction

114. The Council meeting continuation on 20 February 2019 was the first occasion on which Councillor Barrak was expelled for disorderly conduct. He challenges the basis for his expulsion by the Lord Mayor.

115. First, it is necessary to consider whether the Lord Mayor’s decision that Councillor Barrak had, by his use of language, committed an act of disorder was within power and not one infected by manifest unreasonableness.

116. Second, it is also necessary to consider whether Councillor Barrak was, as a matter of fact, expelled from the meeting of 20 February 2019 by direction of the Lord Mayor and, if so, was this expulsion within power.

Councillor Barrak’s calling the Lord Mayor a “clown”

117. I have earlier explained that the language which caused the Lord Mayor to rule that Councillor Barrak was in a state of disorder as a consequence of his breach of cl 256(1)(d) by addressing the Lord Mayor as a “clown”. It is to be observed that the question of whether this expression (whether used once, as Councillor Barrak acknowledges or four times as deposed by Mr Woodward being irrelevant, in my view) is quite separate from the question of the validity of the Lord Mayor expelling Councillor Barrak from the meeting for the use of this epithet. That distinction is of potential importance when considering what occurred at subsequent meetings.

118. The submissions made for Councillor Barrak concentrated on the proposition that, on a proper construction of the language, the word “clown” could not give rise to a finding that its use constituted an act of disorder.

119. I have carefully read the written submissions advanced on Councillor Barrak's behalf on this point and I paid careful attention to the oral submissions made by Mr Green on Councillor Barrak's behalf on this point.

120. All of those submissions are, in my view, significantly misplaced and are, effectively, irrelevant to the matter which I need to consider. It is not necessary to quote from them nor to go to the many authorities concerning language construction to which I was taken nor to the dictionary definitions to which I was taken. There are three reasons why this is so.

121. First, it is to be observed that how language is used depends not merely of on the word or words selected but on a number of other factors that enable a proper assessment of how the chosen word or words are to be regarded.

122. The first of these is the context in which the word or words are used. In this instance, it is clear from Councillor Barrak's own affidavit that his deployment of the word “clown” was done in circumstances in which he was having a vigorous exchange with the Lord Mayor. Whilst vigour in the cut and thrust of political debate at any level of government is to be expected, it is, in these circumstances, one of the factors to be taken into account in assessing whether or not the Lord Mayor was justified in holding that Councillor Barrak committed an act of disorder in this instance.

123. Second, despite the endeavours of Councillor Barrak's legal representatives to characterise the word “clown” as being one incapable of giving rise to an instance of disorder, it is to be observed that even otherwise entirely inoffensive words can be used in a highly pejorative and insulting fashion when viewed in the context of deployment.

124. Indeed, in my own experience, the use of the word “Mister” as a status descriptor, when said in an obviously dismissive tone to someone otherwise entitled to be addressed as “Reverend” can be seen to be (and, indeed, was intended to be) insulting and denying of the religious status of the person to whom it was addressed.

125. Mere consideration of dictionary meanings of the word “Mister” pay no heed to the context in which it was used in those circumstances. So it is with the dictionary meanings of the word “clown” as used by Councillor Barrak on 20 February 2019.

126. Third, the Lord Mayor was entitled to have regard to the way in which Councillor Barrak articulated the word “clown” in his deployment of it as a descriptor of the Lord Mayor. As with assessment of witness performance in court circumstances where appellate courts defer to the primary judicial officer in the assessment of a witness’s demeanour, a similar position arises in these circumstances as to how the Lord Mayor has assessed the totality of the circumstances in which Councillor Barrak called the Lord Mayor a “clown”. That assessment involves consideration not only of the word itself, but also of demeanour, body language, intonation and all the other factors only available to those who were present at that meeting.

127. In this specific instance, the Lord Mayor has clearly concluded that Councillor Barrak's use of the word “clown” was, as a matter of fact on that occasion, either an insult or an unfavourable personal remark made about the Lord Mayor.

128. Indeed, absent any of the interpretive evidence of the circumstances of Councillor Barrak's deployment of the word “clown”, I would be unable to do so even if it might have been appropriate.

129. In this context, all it is appropriate for me to do is accept that the Lord Mayor reached the conclusion that Councillor Barrak had committed an act of disorder. Indeed, this is entirely consistent with cl 31(1) of the Council’s Code of Meeting Practice (Exhibit A, Tab 1, folio 30) which provides that it is the opinion of the chairperson (here, relevantly the Lord Mayor) that is the foundation of the determination that an act of disorder has occurred.

130. As a consequence, the sole issue I am left to assess is whether the Lord Mayor's taking of the use of “clown” to be a breach of cl 182(d) was unreasonable.

131. However, it is a very confined species of unreasonableness that must be demonstrated before I could contemplate whether to intervene - namely “manifest unreasonableness”.

132. In Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 at 229-30, Lord Greene MR (with whom Somervell LJ and Singleton LJ agreed) said:

[I]f a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, I think, is quite right; but to prove a case of that kind would require something overwhelming … it must be proved to be unreasonable in the sense that the court considers it to be a decision that no reasonable body could have come to. It is not what the court considers unreasonable, a different thing altogether.

133. The concept of Wednesbury unreasonableness is a valid approach in Australian law (Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63)

134. There is nothing inherently unreasonable, let alone unreasonable, in a Wednesbury sense, obviously able to be detected, from the limited material available to me, in the Lord Mayor’s determination that Councillor Barrak committed an act of disorder at the meeting on 20 February 2019.

135. It is also to be observed, as dealt with in the next section of this judgment, no councillor present on the evening of 20 February 2019 (other than Councillor Barrak in his first affidavit) questioned the accuracy of this element of the minutes of the meeting. No councillor asked that any correction be made to the minutes of that meeting with respect to any of the three notes in the Council minutes critical to my consideration of this issue.

On 20 February 2019, did the Lord Mayor have power to expel Councillor Barrak?

Introduction

136. I have earlier noted that, despite the way (6) in the prayers for relief sought on behalf of Councillor Barrak has been phrased, Councillor Barrak's expulsion from the meeting on 20 February 2019 was of different character when compared to his expulsion at each of the following meetings. This is because his first expulsion was by direction of the Lord Mayor, whereas all the subsequent expulsions were ones effected by resolution of the Council.

137. This causal distinction requires separate consideration because of the difference between the two limbs of s 10(2) of the Local Government Act. With respect to expulsions by resolution of the Council, there is no condition precedent requiring fulfilment. However, for expulsions such as that which took place on 20 February 2019 to be valid, s 10(2)(b) requires the Council to have adopted, at an earlier time, a specific resolution vesting power, here relevantly, in the Lord Mayor to have the power to order such expulsions. It is to be remembered that s 10(2)(b) permits such expulsions “by the person presiding at the meeting if the council has, by resolution, authorised the person presiding to exercise the power of expulsion”. Absent the carriage of such a general authorising resolution at some prior time, after the election of the present Council in 2017, the expulsion of Councillor Barrak on 20 February 2019 could not be valid.

138. No material concerning whether or not the Council had passed a resolution of the nature envisaged by s 10(2)(b) was in evidence. Knowing whether or not the Council had carried such a resolution and, if so, its terms, was critical to my consideration of whether or not Councillor Barrak's expulsion on 20 February 2019 was carried out in a fashion consistent with the requirements of the Local Government Act and, therefore, lawful.

The request to the parties for further submissions

139. As a result, I had my Associate communicate with the legal representatives of the parties in the following terms:

His Honour has asked me to advise you that, during the course of his consideration over Easter of the issues arising in these proceedings, it appears to him that he has no information as to whether or not and, if so, when the Council may have passed a resolution pursuant to s 10(2)(b) of the Local Government Act 1993 authorising the Lord Mayor to exercise the power of expulsion from a meeting of the Council without passage of a resolution of the Council.

Whilst cl 31(9) of the Council's Code of Meeting Practice of January 2019 refers to both the powers in s 10 to for the purposes of expulsion, his Honour is unable to find any material that would indicate that a resolution pursuant to s 10(2)(b) has been adopted by the Council.

Whether or not such a resolution has been adopted by the Council appears to His Honour to be a matter about which it is necessary for him to be informed in order to address the matters in dispute between the parties in these proceedings.

Given that His Honour is on leave this week and will not be able to call the parties before him to address this matter, in circumstances where his Honour has agreed that it would be appropriate to provide the parties at least with an outcome of the proceedings on Monday 29 April (although his Honour is endeavouring also to provide full reasons at that time), his Honour requests that the parties reach an agreed position as to whether and when such a resolution has been adopted and, if so, its terms - with that information being conveyed to me to be provided to his Honour by 4 pm tomorrow (24 April).

If the parties are unable to reach an agreed position by that time, the parties are to provide me with their competing positions and reasons for that position by 2 pm on Friday 26 April.

Unless his Honour receives this material (whether agreed or separate), he proposes to cancel the proposed provision of outcomes on Monday 29 April.

140. My Associate did receive material, as requested, on the afternoon of Wednesday 24 April 2019. I set out each of the responses in full.

The Council’s response

141. The response received from the Council's legal representatives was in the following terms:

By a note provided by Ms Peta Dixon on 23 April 2019 his Honour enquired whether the evidence led in this case addressed the question of the Council having passed a resolution pursuant to s10(2)(b) of the Local Government Act 1993 authorising the Lord Mayor to exercise the power of expulsion from a meeting of the Council without passage or a resolution of the Council.

This reply has been prepared on behalf of the Respondent and provided in draft to the Applicant before filing.

The Respondent replies as follows:

1. The evidence does not disclose the passing of a resolution under s10(2)(b).

2.   It was unnecessary to address that issue in evidence, because the Lord Mayor did not at any time exercise the power of expulsion from a meeting.

3.   On each occasion that Councillor Barrak was expelled, it was done by resolution of the Council. On one occasion (20 February 2019) he left the meeting before any expulsion resolution was put.

That the resolution in each case was a resolution of the Council is reflected in the evidence as follows:

•   Minutes of the meeting of 25 February 2019, pages 254 and 255 in Exhibit A at Tab 28. See also the videocast of the meeting of 25 February 2019 at 5.30-7.30, where Councillor Barrak is seen arriving and the Lord Mayor reads the Mayoral minute regarding his conduct, and at 27.35 where the Mayoral minute is put to the meeting and carried. The time between is taken up with Councillor Barrak addressing Council on the minute. In the transcript of that video cast annexed to the affidavit of Katie Mullens of 27 March 2019, the vote is recorded on page 12 at reference 99.

•   Minutes of the Council meeting of 6 March 2019 at page 277 of Exhibit A at Tab 29.

•   Minutes of the Council meeting of 11 March 2019 at page 303 of Exhibit A at Tab 38. See also the videocast of that meeting from about 7.10 to 7.35, which records the motion to expel Councillor Barrak being put to the Council and the Council resolving in favour of that motion. That passage is reflected in the transcript annexed to the affidavit of Katie Mullens of 18 April 2019 at page 3, reference 24.

210. However, it is not merely the adoption of the Lord Mayoral Minute requesting Councillor Barrak to apologise for the various matters contained in the minute, but the trigger being that Councillor Barrak refused to give such an apology when this was requested of him. The operative element expelling Councillor Barrak is contained in (d) of the resolution. The trigger is not the carriage of the resolution but the failure to apologise for (a)(iii) and (b) and to return the confidential papers and notes as required by (c).

211. Ms Mullens’ affidavit of 27 March 2019, at annexure A, contains the transcript to which reference was made in the Council's submissions noted above. Critically, at page 14, at reference at 117, Ms Mullens inserts the notation that:

[Councillor Barrak gets up, commences walking out of the room.]

212. It is to be noted that this does not assert that Councillor Barak had left the Council meeting at this time. Immediately following this, the Lord Mayor is recorded, in 118, as saying:

Do you wish to try to apologise unreservedly again?

213. No answer to this question is recorded as being given by Councillor Barrak.

214. The minutes of the meeting merely record (Exhibit A, Tab 28, folio 255) that, after the carriage of the resolution proposed in the Lord mayoral minute:

Councillor Barrak was expelled from the meeting at 7:02pmfor failure to comply with a Council resolution.

215. As earlier noted in my discussion of Councillor Barrak's expulsion from the meeting of 20 February 2019, the minutes of the meeting of 25 February 2019 were adopted without alteration at the council meeting on Monday 11 March 2019 (Exhibit A, Tab 38, folio 304).

Consideration

216. I now turn to consider whether Councillor Barrak's expulsion from the meeting on 25 February 2019 was one lawfully effected. Unlike the position at the meeting of 20 February 2019, this expulsion was effected by resolution of the Council. That resolution was within power.

217. First, there is no evidence to support that which is contained in (a)(i) of the resolution. Second, I have earlier explained why (a)(ii) of the resolution could not be valid as Councillor Barrak had been expelled and left the meeting chamber prior to the “return the papers and notes” resolution being carried. Therefore, he could not be sanctioned for not doing so.

218. However, the element of the Lord Mayoral Minute in (a)(iii) and the element in (b) were within power. In addition, the element in (c) was within power for the same reasons that the earlier resolution to this effect, adopted on 20 February 2019, was within power. Indeed, (c) constitutes a fresh, valid resolution requiring the return the papers and notes.

219. It is to be noted that, although the videocast does not record any response from Councillor Barrak to the request in (c) of the resolution, it is appropriate to infer that Councillor Barrak did not comply with that request at that meeting.

220. In Styles in the Court of Appeal, the judgment was given by Stein JA (Sheller JA and McClellan J agreeing). His Honour noted the foundation in the (then) relevant regulation, Local Government (Meetings) Regulation 1999 for Sheahan J’s finding:

4. His Honour found that the appellant’s words and actions at the meeting were clear breaches of cl 25 of the Local Government (Meetings) Regulation,as well as of certain provisions in the Code of Conduct.

221. Stein JA later set out the relevant operative provisions of the Regulation:

45. Clause 24 allows the chairperson to call any Councillor to order. Clause 25(1) relevantly provides that a Councillor commits an act of disorder at a meeting of a Council or a Committee of a Council if he or she:

(d)   insults or makes personal reflections on … any other Councillor; or

(e)   says or does anything that is inconsistent with maintaining order at the meeting …

46.   …

47. The chairperson may require a Councillor to apologise without reservation for such an act of disorder, cl 25(2)(c).

48.   Subsclause (3) provides:

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.

222. At [50] to [52], his Honour explained why the Council had been correct in regarding Councillor Styles’ disorderly conduct as continuing. His Honour said:

50.   However, the appellant submits that that is where the matter should have finished. It is submitted that it was not open to be reactivated at subsequent meetings. The act of disorder of the 8 February 1999 and the requirement of an apology were, so it is submitted, at an end. I can see no merit or substance in this submission. It finds no support in the legislation nor in logic or principles of good governance. In my opinion, it was open to the Council to reactivate the matter at any subsequent meeting and to seek compliance with the requirement of an apology by the appellant. Failing that, it is my opinion that the Council was entitled to expel her from that meeting and, in the absence of her compliance, to have the police called to escort her from the meeting.

51. However, the appellant further submits that the resolution requiring her to apologise to the Mayor was unlawful since it was not moved by the chairperson (as required by the Code and cl 25(2)(a) of the Regulation) but by one of the other Councillors. A reading of the Regulation in question does not oblige the chairperson of the meeting to move the resolution requiring the apology. Sub-clause (2) says that the chairperson may require a Councillor to apologise for an act of disorder. It does not say that a resolution, such as moved by Councillor Voncina, can only be moved by the chairperson. In fact, at the reconvened Council meeting the chairperson did require the appellant to apologise. In any event, his Honour was correct to point to s 374(e) of the Local Government Act 1993 to the effect that a Council or Committee meeting is not invalidated by reason of a failure to comply with the code of meeting practice. In my view, if there was a non-compliance, which is by no means apparent, it did not invalidate the resolution. I note in passing that this particular argument did not appear to have been included in the extensive Notice of Grounds of Appeal.

52. Furthermore, I can see nothing unlawful in the action taken by the Council at each of the subsequent meetings after 8 February 1999 until 12 July 1999. At each relevant meeting the appellant was asked to apologise and she refused to do so. This was a breach of cl 25 on each occasion. It matters not that the original act of disorder happened at the meeting of the Committee of the Whole on 8 February 1999.

223. It is, therefore, clear that the resolution provides a proper basis for expelling Councillor Barrak for failure to apologise for the acts of disorder of 20 February 2019 falling within (a)(iii) and (b) of the Lord Mayoral Minute.

224. In addition, Councillor Barrak's failure to give effect to the requirement in (c) (that he return the confidential papers including written notes at that meeting) constitutes a fresh act of disorder by Councillor Barrak on that occasion.

225. However, in another context, during the course of the hearing I raised with Mr Green and Mr Hall the question of whether elements in (a) of the Lord Mayoral Minute concerning Councillor Barrak's conduct were severable if found to be without proper statutory foundation. They agreed that this was the position.

226. The circumstance now arises that I have found no proper foundation for that which was contained in recommendation (a)(i) and (ii) of the Lord Mayoral Minute. I have carefully considered whether I should regard these elements as severable or not, in the context of subsequent expulsions of Councillor Barrak from Council meetings for his failure to fulfil the requirements of this minute. I carefully read the transcript material in both of Ms Mullens' affidavits that set out the relevant exchanges in subsequent Council meetings concerning future expulsions of Councillor Barrak from those meetings.

227. This examination discloses that the apology sought by the Lord Mayor on each occasion was an omnibus one for all the elements in the above Lord Mayoral Minute for which Councillor Barrak was called upon to apologise.

228. Similarly, it can be seen that Councillor Barrak's rejections of the proposition that he should apologise for these matters are also omnibus ones.

229. As a consequence, I am satisfied that the removal of two bases of complaint proposing an act of disorder is irrelevant because, although potentially falling within cl 256(1)(e) of the Regulation, if established, their excision does not mean that the other elements (the language used to the Lord Mayor and that directed at Mr Gardiner, together with the failure to comply with the new resolution on 25 February 2019 binding Councillor Barrak to return the confidential papers and his notes) are otherwise impacted.

230. It is also to be noted that the expulsion triggered by the carriage of (d), and Councillor Barrak's failure to respond to the various valid elements itemised earlier in the Lord Mayoral Minute, is an expulsion resolution that complies with s 10(2)(a) of the Local Government Act.

231. It is therefore appropriate to conclude that Councillor Barrak was validly expelled from the meeting of 25 February 2019.

The resolution removing Councillor Barrak from Council committees

Introduction

232. It is to be noted that the resolution for appointments to committees in Exhibit 1 adopted by the Council on 9 October 2017 appointed Councillor Barrak to:

1. the Council’s Audit and Risk committee;

2. the Western Sydney Regional Organisation of Councils (WSROC); and

3. CivicRisk West and CivicRisk Mutual

233. These appointments are those to which the removal resolution carried by the Council on 25 February 2019 and set out at [208] were addressed. However, for the purposes of what I need to determine in these proceedings, it is sufficient for me to consider whether Councillor Barrak's challenge to the validity of the removal motion is successful or not.

The submissions on behalf of Councillor Barrak

234. The written submissions on behalf of Councillor Barrak on this matter were in the following terms:

Removal from committees

84.   The applicant contends that the resolution passed on 25 February 2019 removing him from all internal and external committees was made in circumstances which were procedurally unfair (for want of the opportunity to make submissions on the motion) as well as being legally unreasonable (there having been no debate prior to its passing and the only apparent reason for it being moved, seconded and passed being the arguably irrelevant consideration of his failing to apologise for the alleged acts of disorder at the Council meeting on 20 February 2019).

85.   Indeed, the Lord Mayor’s own reasoning in respect of the applicant’s removal from various committee positions was that he insulted Mr Gardner and could therefore not be trusted on a committee. As stated above, the applicant never intended, nor conceded to have inadvertently, directed an insult at Mr Gardner and his evidence, if accepted, entirely discounts such a contention.

86.   No allegation of misconduct or other deficiency in the course of his conduct as a committee member was referred to (or other reason other than his failure to apologise for non-committee related conduct - which the applicant maintains did not amount to any act of disorder) in the course of moving the motion for his removal.

87.   In such circumstances, it is respectfully submitted that the resolution was legally unreasonable in the sense that no relevant factors in relation to his performance on committees and/or behaviour in committees were ever taken into account by those moving and passing the resolution to expel him from same, and that the irrelevant consideration of his alleged acts of disorder at the Council meeting of 20 February 2019 were.

The written submissions on behalf of the Council

235. The written submissions on behalf of the Council on this matter were in the following terms:

38.   There is no identified or identifiable legal basis for the allegation that the resolution removing the Applicant from the Respondent’s internal and external Council Committees is unlawful or a denial of procedural fairness.

39.   Sub-clause 31(a) makes clear that expulsion from the meeting does not prevent other steps also being taken. But more fundamentally the Council by resolution has complete control of the constitution and membership of its own committees. It does not require any particular basis for a resolution to add or remove a member. There is no adopted policy or practice which gives rise to any particular obligation to accord procedural fairness (Porter v Hornsby Shire Council (1989) 69 LGRA 101 at p 105). Therefore even if the Court were satisfied that some other part of the Applicant’s complaint was made out, the 25 February Resolution would not be made invalid.

39A   The detailed regulations in constitution of council committees were repealed in December 2018, but applied when Council made appointments to committees in 2017. The minutes will be tendered. They show the political nature of the process. The Mayor nominated Councillor Barrak to one committee and two boards. A group of councillors moved an amendment to exclude and replace him. They lost that amendment and the mayor carried the day.

39B   What the Council gave, by means of a contested vote in ordinary meeting, it can take away by similar means.

Consideration

236. The Council’s submissions are to be preferred. The removal resolution was within power and there is no basis to set it aside.

237. The ancillary power to permit councils to carry out their functions is given by s 23 of the Local Government Act. The power is extraordinarily broad (subject to constraints imposed by the Act itself and the Regulation). Although the Regulation had made specific provision for council committees, these provisions were removed in the December 2018 overhaul of the Regulation - thus leaving s 23 of the Local Government Act as the power permitting their establishment.

238. One of the roles exercised by a council, including by this Council, in reliance on this power, is the appointment of council committees and the appointment by a council of representatives to serve on external organisations to which the council may appoint (here, relevantly) a councillor to serve on behalf of the council. It is this power which was exercised on 9 October 2017, when Councillor Barrak was appointed to the three bodies set out earlier.

239. I have earlier described, in broad terms, the distinction between a council's political decision-making processes and its statutorily based administrative decision-making functions. The appointment of Councillor Barrak to the committees here discussed is part of the Council's political processes.

240. When, on 25 February 2019, following Councillor Barrak's expulsion from that meeting, the Council resolved to remove him from those committees (that resolution being set out earlier), that removal decision was also a political one.

241. For the reasons earlier discussed in broad, such political decisions are not subject to the niceties of procedural fairness and natural justice or other necessary constraints to statutory administrative decision-making. They are certainly not applicable to political decision-making in a council and were not applicable to this decision of this Council to remove Councillor Barrak from the committees to which he had been appointed. The decision in Porter v Hornsby Shire Council (1989) 69 LGRA 101, at p 105, cited for the Council, makes it clear there must be some policy or practice of the Council to create an expectation such consideration would arise. There is no evidence of that in these proceedings.

242. This is sufficient to reject this complaint.

243. In addition, as pointed out by Mr Hall during the course of his oral submissions, s 47 of the Interpretation Act applies in these circumstances. Although earlier set out, it is appropriate to repeat it here. It is in the following terms:

47   Powers of appointment imply certain incidental powers

(1)   If an Act or instrument confers a power on any person or body to appoint a person to an office:

(a)   the power may be exercised from time to time, as occasion requires, and

(b)   the power includes:

(i)   power to remove or suspend, at any time, a person so appointed,

(ii)   …, and

(iii)   …, and

(iv)   ….

(2)   The power to remove or suspend a person under subsection (1) (b) may be exercised even if the Act or instrument under which the person was appointed provides that a holder of the office to which the person was appointed shall hold office for a specified period of time.

(3)   ….

244. If I am wrong in my conclusion that there is no fetter of the nature advanced on behalf of Councillor Barrak to the Council's political decision-making processes effecting his removal, it is clear that this statutory provision gives the Council an unconstrained power to effect such removal at any time and without the necessity for giving reasons or affording procedural fairness or the like.

245. Councillor Barrak’s complaint about his removal on 25 February 2019 from the committees to which he was appointed in October 2017 is without foundation.

Councillor Barrak’s expulsion at subsequent meetings

Introduction

246. On 27 February 2019, Ms Sue Coleman, the Acting CEO of the Council, wrote to Councillor Barrak formally advising him of the terms of the resolution arising from the Lord Mayoral Minute carried on 25 February 2019. In addition to conveying to Councillor Barrak the terms of the resolution, the letter continued, saying (Exhibit A, Tab 27, folio 229):

1.   The expulsions resolved by Council at the adjourned meeting of 11 February 2019 (held on 20 February 2019) and on 25 February 2019 only applied to these two meetings. You are permitted to attend any future meetings.

2.   The Lord Mayor/chair has authority under the legislation to again request at any future meeting you attend, that you comply with the matters previously requested in the Lord Mayoral Minute and resolution of 25 February 2019 (the request).

3.   If the request is made at the next Council meeting you attend, and you comply, you will be permitted to remain and participate in the meeting.

4.   If a request is made at that meeting and you fail to comply, it will constitute a new act of disorder and you may be expelled from that meeting.

5.   You may be expelled from each meeting you attend if you refuse to comply with the request, as a new act of disorder will have been committed.

247. That which is set out in (4) and (5) above clearly reflect the decision of the Court of Appeal in Styles and provided an appropriate warning to Councillor Barrak.

The meetings of 6, 11 and 25 March 2019 and 8 April 2019

248. The submissions on behalf of the Council concerning the basis of Councillor Barrak’s expulsion on 20 February 2019 also included, as earlier noted, a helpful summary of the subsequent resolutions expelling Councillor Barrak at later meetings. The note concerning the meeting of 6 March 2019 is abbreviated, as that meeting was a closed one and no video is available of it. Although audio was available, as earlier noted playing of it was not requested during the hearing. The relevant extract from the submissions is in the following terms:

That the resolution in each case was a resolution of the Council is reflected in the evidence as follows:

…

•   Minutes of the Council meeting of 6 March 2019 at page 277 of Exhibit A at Tab 29.

•   Minutes of the Council meeting of 11 March 2019 at page 303 of Exhibit A at Tab 38. See also the videocast of that meeting from about 7.10 to 7.35, which records the motion to expel Councillor Barrak being put to the Council and the Council resolving in favour of that motion. That passage is reflected in the transcript annexed to the affidavit of Katie Mullens of 18 April 2019 at page 3, reference 24.

•   Minutes of the Council meeting of 25 March 2019 at page 2 and videocast of that meeting between 4.40 and 9.06. The motion put to the Council for the expulsion of Councillor Barrak from that meeting is recorded at the transcript at Annexure B to the affidavit of Katie Mullens of 18 April 2019, references 31 to 33.

•   Minutes of the Council meeting of 8 April 2019 are not in evidence. However on the videocast at 8.20 a motion is put to expel Councillor Barrak from the meeting. It is reflected in the transcript at Annexure C to the affidavit of Katie Mullens of 18 April 2019 at reference 13.

249. Each of these subsequent expulsions was entirely consistent with the reasoning in the Court of Appeal’s decision in Styles as earlier discussed.

250. Councillor Barrak’s complaint about his expulsions from the Council meetings held on 6, 11 and 25 March 2019 and 8 April 2019 is also without foundation.

Relief

251. Given the total findings I have made, the only successes had by Councillor Barrak are:

1. My finding of the invalidity of the Lord Mayor’s expulsion of him on 20 February 2019; and

2. Councillor Barrak did not commit an act of disorder by not returning the confidential papers and his notes on 20 February 2019 and the two elements of the first Lord Mayoral Minute of 25 February concerning this were without foundation and thus not requiring apology from Councillor Barrak.

252. It is therefore necessary to consider what relief (if any) should follow from these isolated successes.

253. It is settled that the making of a bare declaration is inappropriate when such a declaration would have no foreseeable consequences for the parties (Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 per Mason J at 188 and Aickin J at 189). The making of such a declaration in these proceedings would have no functional value of a prophylactic nature (contra the position in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 per the plurality at 582).

254. As Gaudron J observed, in Truth about Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591; [2000] HCA 11 at [52], there may be cases where a bare declaration that some legal requirement has been contravened will serve to redress some or all of the harm brought about by that contravention.

255. However, it seems to me that bare declarations concerning the invalidity of the Lord Mayor’s expulsion of Councillor Barrak on 20 February 2019; the invalidity of elements (a)(i) and (ii) of the resolution carried based on the first Lord Mayoral Minute of 25 February; and Councillor Barrak’s not returning the confidential papers and his notes on 20 February 2019 would have no utility in circumstances where there have been no other defects in the expulsion process undertaken at subsequent Council meetings. As a matter of discretion, therefore, I decline to make any declaration concerning Councillor Barrak’s expulsion on 20 February 2019.

Costs

256. In the ordinary course of civil litigation such as this, costs are expected to “follow the event” (Latoudis v Casey (1990) 170 CLR 534; r 42.1 of the Uniform Civil Procedure Rules 2005).

257. However, this is not an immutable position, as is made clear by the terms of s 98(1) of the Civil Procedure Act 2005 (the Civil Procedure Act), a provision in the following terms:

98   Courts powers as to costs

(1)   Subject to rules of court and to this or any other Act:

(a)   costs are in the discretion of the court, and

(b)   the court has full power to determine by whom, to whom and to what extent costs are to be paid, and

(c)   the court may order that costs are to be awarded on the ordinary basis or on an indemnity basis.

258. In Sze Tu v Lowe (No 2) [2015] NSWCA 91, Gleeson JA (Meagher and Barrett JJA concurring) said, at [39]:

How “the event” should be defined will depend upon the nature of the litigation. Generally the “event” refers to the event of the claim and may be understood as referring to the practical result of a particular claim.

259. Where there are a number of matters in dispute between the parties and differing litigation outcomes arise, so that a moving party may be successful on some matters in contention but unsuccessful on others, circumstances may arise where it is appropriate to undertake differential apportionment of costs to reflect the mixed nature of the outcomes achieved in particular proceedings (e.g. James v Surf Road Nominees (No 2) [2005] NSWCA 296).

260. In these proceedings, Councillor Barrak has been successful on only several small aspects of matters in contention and one of those successes was not on a basis raised by him during the course of the proceedings, but because of my exploration of the necessary statutory foundation (or lack thereof) of his expulsion from the meeting of 20 February 2019.

261. The consequence of this limited success means that there is not an unalloyed “event” of success for the Council on all the issues. The overall position, however, is that the Council has succeeded on virtually all the significant matters in contention in these proceedings.

262. On the other hand, Councillor Barrak's limited successes, and the basis upon which one was achieved, means that I am satisfied that there is no proper reason to exercise the discretion given by s 98(1) of the Civil Procedure Act and conclude that there should be any order other than that Councillor Barrak is to pay the Council's costs of these proceedings on an ordinary basis.

Conclusion

263. The conclusions I have reached in these proceedings can be summarised as follows:

1. The Lord Mayor's determination that Councillor Barrak committed an act of disorder, by describing the Lord Mayor as a “clown”, was within power and not manifestly unreasonable;

2. The Lord Mayor's conclusion that Councillor Barrak committed a separate act of disorder by his remarks about Mr Gardner concerning the proceedings before Kunc J was within power and not manifestly unreasonable;

3. The Lord Mayor's expulsion of Councillor Barrak from the Council meeting on 20 February 2019 was not within power because the Council had not passed the necessary prerequisite empowering resolution required by s 10(2)(b) of the Local Government Act;

4. The Council’s resolution on 20 February 2019 requiring the surrender of all confidential material (including notes made by councillors concerning that confidential material) was within power;

5. However, this resolution carried no consequences for Councillor Barrak as he had been expelled from the meeting prior to its carriage;

6. The matters in (a)(i) and (ii) of the Council's first relevant resolution on 25 February 2019 lacked proper foundation but are severable from the remainder of the resolution;

7. The Council's resolution on 25 February 2019 calling on Councillor Barrak to give an unreserved apology concerning the remaining matter set out in (a) and that in (b) of that resolution was within power;

8. The Council's resolution on 25 February 2019 expelling Councillor Barrak for failing to give an unreserved apology concerning the various matters noted in (7) set out in the resolution was, consequently, within power;

9. The element of Council's resolution on 25 February 2019 in (c) requiring “that “Councillor Barrak return the confidential papers including written notes to the Acting CEO” was also within power and binding on Councillor Barrak as he was present when it was adopted by the Council;

10. Councillor Barrak’s failure to return the confidential papers including written notes to the Acting CEO after the carriage of this element of the resolution was an act of disorder amenable to a resolution pursuant to s 10(2)(a) of the Local Government Act and the carriage of (d) constituted such a resolution;

11. To the extent that the Council's resolution on 25 February 2019 expelling Councillor Barrak was founded on (c) of that resolution, that was a valid basis for expulsion;

12. The second resolution of the Council on 25 February 2019 to remove Councillor Barrak from the committee positions to which he had been appointed on 9 October 2017, was within power and could not constitute a denial of procedural fairness or natural justice to Councillor Barrak in its carriage;

13. Each subsequent expulsion of Councillor Barrak from a Council meeting up to and including the Council meeting of 8 April 2019, was within power and, consistent with authority, appropriate;

14. As the only potential relief arising from the invalidity of Councillor Barrak's expulsion from the Council meeting on 20 February 2019, and the lack of foundation of the first two elements of (a) of the first resolution of 25 February 2019, would be the making of bare declarations, declarations that would have no practical effect, as a matter of discretion it is not appropriate to make such declarations; and

15. Although Councillor Barrak has had success in several small aspects of matters in contention, and one of those successes only arose as a consequence of my consideration of whether the necessary statutory prerequisites for his expulsion on 20 February 2019 had been met (a basis to challenge that expulsion not pressed on his behalf during the proceedings), this limited success does not provide a basis to depart from making an order that Councillor Barrak is to pay the Council's costs of these proceedings as agreed or assessed.

The future

264. As set out at [246] above, Councillor Barrak was warned by the Council’s Acting CEO that:

3.   If the request is made at the next Council meeting you attend, and you comply, you will be permitted to remain and participate in the meeting.

4.   If a request is made at that meeting and you fail to comply, it will constitute a new act of disorder and you may be expelled from that meeting.

5.   You may be expelled from each meeting you attend if you refuse to comply with the request, as a new act of disorder will have been committed.

265. That position continues to apply to the apology requests in (a)(iii) and (b) of the Lord Mayoral Minute-based resolution of 25 February 2019.

266. Similarly, if Councillor Barrak fails to return the confidential papers, including written notes, to the Acting CEO, as required by (c) of the Lord Mayoral Minute-based resolution of 25 February 2019, if requested at a future meeting, the warnings in (4) and (5) above are equally applicable.

Orders

267. For the reasons which I have set out, the orders of the Court are:

1. The summons is dismissed;

2. Redacted versions (omitting confidential material) of the affidavits read in these proceedings are to be retained on the Court file to be available if the Registrar grants access to the file;

3. The unredacted versions of the affidavits read in these proceedings are to be retained in a sealed envelope on the Court file and no access is permitted to those affidavits without further order of the Court;

4. The exhibits are returned; and

5. The Applicant is to pay the Respondent's costs as agreed or assessed.

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Amendments

30 April 2019 - A portion of the table in [143] has been redacted, at the request of the parties.

Decision last updated: 30 April 2019