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Branch-Allen v Easther

Branch-Allen v Easther

Case [2016] TASSC 29 10 June 2016

Prerogative Writs and Orders

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[2016] TASSC 29

COURT: SUPREME COURT OF TASMANIA

CITATION: Branch-Allen v Easther [2016] TASSC 29

PARTIES:  BRANCH-ALLEN, Jennifer
  v
  EASTHER, Barry Maxwell
  MASON, Norma Lynn

FILE NO:  507/2016
DELIVERED ON:  10 June 2016
DELIVERED AT:  Hobart
HEARING DATES:  23, 24 March, 11 April, 24, 25 May 2016
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Administrative Law – Prerogative writs and orders – Prohibition – Generally – Relief in the nature of prohibition quousque – Order restraining board from exercising power until natural justice obligations complied with.

R v Australian Stevedoring Industry Board; ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, referred to.
Aust Dig Administrative Law [1228].

Local Government – Removal of all members of council, interim administrative and inquiry into matter arising in administration – Inquiry into matter arising in administration – Tasmania – Board of Inquiry – Whether power to require written responses to allegations
Local Government Act 1993 (Tas), ss 216(2), 222(1)(c).

Aust Dig Local Government [44]

Local Government – Meetings – Generally – Part of meeting closed to public – Status of members of Board of Inquiry – Whether members of the public.
Local Government (Meeting Procedures) Regulations 2015 (Tas), reg 15.

Re a Barrister and Solicitor (1980) 40 FLR 316; R (on the application of the Secretary of State for the Home Department) v Assistant Deputy Coroner for Inner West London [2011] 3 All ER 1001, referred to.
Aust Dig Local Government [61]

REPRESENTATION:

Counsel:
             Applicant:  C Gunson
             Respondents:  No appearance
             Ald Pearce:  A Walker
             Ald Lucas:  C Graves
             Ald King:  In person
             Ald Slade:  In person
             Minister for Planning
             and Local Government:  M E O'Farrell SC, P Turner
Solicitors:
             Applicant:  Tremayne Fay & Rheinberger
             Respondents:  Solicitor-General
             Ald Pearce:  FitzGerald & Browne
             Minister for Planning
             and Local Government:  Solicitor-General

Judgment Number: [2016] TASSC 29
Number of paragraphs: 134

Serial No 29/2016
File No 507/2016

JENNIFER BRANCH-ALLEN v BARRY MAXWELL EASTHER
and NORMA LYNN MASON

REASONS FOR JUDGMENT BLOW CJ

10 June 2016

This application concerns a Board of Inquiry that has been appointed to investigate the Glenorchy City Council. The respondents to the application, Mr Easther and Ms Mason, are the members of the Board. The applicant, Ald Jennifer Branch-Allen, is a member of the council. She is seeking an order in the nature of a writ of prohibition, prohibiting the Board from continuing its investigation, and also from submitting a report of its findings and recommendations to the Minister for Planning and Local Government.
The members of the Board of Inquiry were not represented by counsel at the hearing. They have a duty to maintain impartiality and, as one would expect, have indicated that they will submit to any order that the Court may make upon the hearing of the application. In addition to the applicant, four other members of the council participated in the hearing of the application. Two of them, Ald…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Branch-Allen v Easther

Details

AGLC: Branch-Allen v Easther [2016] TASSC 29
Case: [2016] TASSC 29
Decision Date: 10 June 2016

CaseChat Overview and Summary

The case of Branch-Allen v Easther involved a dispute concerning the administration and governance of a local council in Tasmania. The plaintiff, Branch-Allen, challenged the actions of the respondent, Easther, who was a member of a Board of Inquiry established under the Local Government Act 1993 (Tas). The primary issue was whether the Board of Inquiry had the authority to require written responses to allegations against council members and whether the Board could lawfully close part of a meeting to the public. The case was heard and determined in the Supreme Court of Tasmania.

The legal issues before the court encompassed two primary areas. First, the court had to determine the extent of the Board of Inquiry's authority to demand written responses to allegations made against council members. The plaintiff argued that the Board lacked such authority and that its actions amounted to a breach of natural justice. Second, the court needed to examine whether the Board members, who were not part of the council, could be considered members of the public for the purposes of closing part of a meeting to the public. This issue raised questions about the transparency and openness of the administrative process.

In its judgment, the court found that the Board of Inquiry did not possess the power to require written responses to allegations. The court held that such a requirement was not authorised by the statute and would have amounted to a denial of natural justice. Additionally, the court concluded that the members of the Board were not members of the public, and therefore, their presence during a closed session of the meeting did not contravene the principles of open justice. The court granted the relief sought by the plaintiff, issuing a prohibition quousque to restrain the Board from exercising its power until it complied with its natural justice obligations.

The final orders of the court included a prohibition quousque to prevent the Board from requiring written responses to allegations until it complied with natural justice principles. The court also clarified the status of the Board members and their ability to participate in closed sessions of meetings. This decision underscored the importance of procedural fairness and transparency in administrative processes.

Orders