Briscoe-Hough v Minister for Local Government (No 3)

[2025] NSWLEC 78

Land and Environment Court

New South Wales

Medium Neutral Citation:

Briscoe-Hough v Minister for Local Government (No 3) [2025] NSWLEC 78

Hearing dates:

21 July 2025

Date of orders:

28 July 2025

Decision date:

28 July 2025

Jurisdiction:

Class 4

Before:

Beasley J

Decision:

(1) The Applicant’s Summons is dismissed.

(2) Costs are reserved.

(3) The parties have 14 days from the date of this judgment to notify my Associate of any agreement as to costs. Failing agreement, the parties may have a further 7 days to exchange, and provide to my Associate, written submissions (limited to 5 pages) on what costs order I should make.

Catchwords:

JUDICIAL REVIEW — Challenge to Notice of Intention to issue a Performance Improvement Order under s 438 of the Local Government Act 1993 — Seeking an order to declare the Notice and subsequent Order invalid — Requirement to attach evidence to Notice of Intention — Summons dismissed

Legislation Cited:

Local Government Act 1993 (NSW), ss 438A, 438B, 438C, 438F, 438G, 438I, 438K, 438ZA, 674

Local Government Amendment (Early Intervention) Bill 2013 (NSW)

Local Government Amendment (Councillor Misconduct and Poor Performance) Bill 2015 (NSW)

Cases Cited:

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34

Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Category:

Principal judgment

Parties:

Gregory Briscoe-Hough (Applicant)
Minister for Local Government (First Respondent)
Edward River Council (Second Respondent)

Representation:

Counsel:
Self-represented (Applicant)
M Keene (First Respondent)
Submitting Appearance (Second Respondent)

Solicitors:
Self-represented (Applicant)
Corrs Chambers Westgarth (First Respondent)
Kell Moore Lawyers (Second Respondent)

File Number(s):

2024/00391391

Publication restriction:

Nil

JUDGMENT

1. This Class 4 Judicial Review proceeding involves a challenge by Mr Gregory Briscoe-Hough (the Applicant) to the validity of a Performance Improvement Order (PIO) issued by the Minister for Local Government (the Minister, the First Respondent) to the Edward River Council (the Council, the Second Respondent).

2. At the heart of the Applicant’s claim is an alleged defect in the Minister’s “Notice of Intention to issue a Performance Improvement Order” dated 17 June 2024 (Notice of Intention), which the Applicant says failed to comply with the requirements of s 438C(2)(b) of the Local Government Act 1993 (NSW) (LGA).

3. The Notice of Intention is said by the Applicant not to comply with s 438C(2)(b) of the LGA because it did “not provide the required evidence that the Minister relied on for his reasons” that improvement was necessary. This alleged non-compliance with the statutory provision is said to amount to a jurisdictional error that the Applicant contends renders the subsequently issued PIO invalid.

4. For the reasons that follow, the Applicant’s Summons should be dismissed.

Hearing and Evidence

5. The Applicant is a self-represented litigant. He has standing to bring this case by reason of s 674(1) of the LGA, which provides that “any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of” the LGA. The Minister was represented at the hearing by Mr M Keene of Counsel. The Council had previously filed a submitting appearance.

6. The Applicant and the Minister provided the Court with written submissions to assist me in the resolution of this matter, supplemented by oral submissions.

7. The Applicant read an affidavit sworn by him on 20 July 2025 (Briscoe-Hough Affidavit). That affidavit contained some statements more in the nature of submission than relevant evidence, but no objection was taken to those parts of the affidavit on the basis that I treated them that way. There were four “attachments” to the Briscoe-Hough Affidavit, as follows:

1. “Attachment A” is an extract of a Council document titled “Register of Delegations – Part 1 – Delegation to the Mayor, Committees, Other Bodies and General Manager”. I admitted this attachment subject to relevance being demonstrated. Ultimately, this document proved to be of no relevance to the determination of the central issue, namely whether the Notice of Intention complied with s 438C(2)(b) of the LGA (and any consequences of non-compliance).

2. “Attachment B” is purportedly a “transcript (extract) meeting of Edward River Council 25 June 2024” setting out the text of what is said to be an exchange between Councillor Burge and Mayor Betts whereby they both indicate that in their opinion the Notice of Intention was “non-specific”. I ruled this attachment to be inadmissible on the basis that any view Cr Burge or the Mayor might have had concerning the Notice of Intention is not relevant to the determination of this matter.

3. “Attachment C” is an extract of Hansard from the Legislative Council Budget Estimates – NSW Parliament of 5 December 2024. This was also admitted subject to relevance, but again ultimately proved to be of no relevance to the central issue for determination.

4. “Attachment D” contains an exchange of correspondence between the solicitors for the Minister and the Applicant concerning a possible application by Mr Briscoe-Hough to amend his Summons. No such application was made, so there was no need to consider this correspondence or admit it into evidence.

8. For the Minister, Mr Keene read an affidavit of Lucinda Morphett, affirmed on 22 November 2024, and an affidavit of Ivan Josip Brcic affirmed on 18 July 2025, to which no objection was taken. These affidavits contained evidence establishing the following facts:

1. The Minister issued the Council with the Notice of Intention on 17 June 2024, relevantly in the form set out below, and which contains six reasons (the Minister’s Reasons) why the Minister proposed to issue the PIO.

“NOTICE OF INTENTION TO ISSUE A PERFORMANCE IMPROVEMENT ORDER TO THE EDWARD RIVER COUNCIL UNDER SECTION 438A OF THE LOCAL GOVERNMENT ACT 1993

Dear Cr Betts,

In accordance with section 438C of the Local Government Act 1993 (the Act) I hereby give notice of my intention to issue a Performance Improvement Order (PIO) under section 438A of the Act, for actions to be taken, as identified in the attached proposed Performance Improvement Order, to improve the performance of Edward River Council (ERC).

Before I issue a PIO, I am required by section 438B(2) of the Act to consider the criteria prescribed by clause 413D of the Local Government (General) Regulation 2021 (the Regulation).

…

I have considered these mandatory criteria in the context of the factual findings listed below. On balance, I have formed the preliminary view that action must be taken to improve ERC’s performance.

The reasons why I, as Minister, propose to issue a Performance Improvement Order (section 438A(3)(a) of the Act) are:

1. There is evidence that ERC’s meeting procedures are not complying with the Meeting Code of Practice and there is a lack of appropriate respect and formality.

2. There is evidence to suggest that ERC is not complying with its work health and safety obligations as a result of the behaviours of some councillors.

3. There is evidence of hostility and acrimony between councillors that, if unaddressed, is likely to lead to dysfunction and reputational damage.

4. There are behaviours that indicate that some councillors may not understand their obligations under the code of conduct when dealing with the staff of council.

5. There are behaviours that indicate that some councillors may not understand their obligations under the code of conduct when dealing with each other.

6. There are behaviours that indicate that some councillors may not understand their obligations under the code of meeting practice.

The attached proposed Performance Improvement Order is intended to form part of this notice. As required by section 438C(2)(a) of the Act, the terms of the proposed PIO and period for compliance are specified in the proposed order. As required by section 438A(3)(b) of the Act, the actions required to be taken to improve the performance of ERC are specified in the proposed PIO.

…

I invite ERC to make submissions to me regarding the proposed Performance Improvement Order...” [1]

1. Court Book, Tab 6.

2. The Council discussed the Notice of Intention at an Extraordinary Council Meeting on 25 June 2024.

3. At that meeting, the Council passed the following resolution:

"That Council:

1. Acknowledges the Minister for Local Government's correspondence dated 17 June 2024 notifying Council of the Minister's intention to issue a Performance Improvement Order on Council under Section 438A of the Local Government Act 1993,

2. Advises the Minister that it accepts the "Reasons for the Order" as detailed in Schedule 1, accepts the "Action required to improve performance" in Schedule 2, and accepts the proposal for "Appointment of temporary adviser" in Schedule 3 as proposed in the draft Order.

3. Provide all necessary assistance to the proposed "temporary adviser" when appointed, including access to all relevant documents, video files and electronic correspondence; and

4. Makes a submission to the Minister for Local Government regarding the Notice of Intention to issue Council with a Performance Improvement Order noting that it accepts all items detailed in Schedules 1,2 and 3 of the draft Order.” [2]

2. Affidavit of Ivan Josip Brcic affirmed 18 July 2025, p 6; see also Affidavit of Lucinda Morphett affirmed 22 November 2024, Annexure K2.

4. On 25 June 2024, the Council wrote to the Minister, and informed him of the resolution referred to above, and provided the following “draft response” to each of the Minister's Reasons:

“1. There is evidence that ERC’s meeting procedures are not complying with the Meeting Code and there is a lack of appropriate respect and formality.

Council adopted the latest version of its Code of Meeting Practice, based on the moral code, in January 2022. At meetings since this date the Code of Meeting Practice has been referenced on many occasions to assist councillors with adhering to the requirements of the Code, including acting with appropriate respect and formality.

Council agrees that, despite the best intentions of all involved at meetings, the referenced behaviours may not have met expected standards in this regard. Council will address matters pertaining to compliance with its Code of Meeting Practice as part of induction and training following the September elections.

2. There is evidence to suggest that ERC is not complying with its work health and safety obligations as a result of the behaviours of some councillors.

Council acknowledges its role as a Person Conducting a Business or Undertaking (PCBU) under the Work Health and Safety Act. This includes the behaviours and actions of councillors.

Council agrees that behaviour before, during and after meetings, briefing, including electronic correspondence, may not have met expected community standards or standards as required under the Work Health and Safety Act. Requirements and expectations relating to the Work Health and Safety Act and Code of Conduct have been discussed with councillors, including relevant training in this matter.

Council agrees that further training and support is required so that it can meet its obligations under the Work Health and Safety Act and shall work towards planning and implementing this training and support.

3. There is evidence of hostility and acrimony between councillors that, if unaddressed, is likely to lead to dysfunction and reputational damage.

Throughout this term of Council, councillors have had to consider many items that have been complex in nature. This has led to various points of view being raised and debated at briefings and meetings, sometimes robustly.

Council has continued to act on behalf of the community and has fulfilled its role under the Local Government Act throughout the current term. This has culminated in the adoption of the 2024-25 Operational Plan and Budget, including the Long Term Financial Plan, at its June 2024 ordinary meeting.

Council agrees that, at times, the behaviour of councillors may give the perception of hostility and acrimony within the councillor group. Acknowledgment and training in this regard will be addressed as part of discussions with currents councillors as training and induction following the September elections.

4. There are behaviours that indicate that some councillors may not understand their obligations under the code of conduct when dealing with the staff of council.

Councillors have undertaken Code of Conduct training during this term of council as well as adoption of the latest version of the Councillor and Staff Interaction Policy

Council agrees that further work and support would be beneficial for current councillors regarding the Councillor and Staff Interaction policy, as well as making this a focus area as part of induction and training following the September elections.

5. There are behaviours that indicate that some councillors may not understand their obligations under the code of conduct when dealing with each other.

Council adopted the latest version of its Code of Conduct in May 2022. Refresher training was held regarding the Code of Conduct in November 2022.

Council agrees that further work and support would be beneficial to current councillors regarding the Code of Conduct, as well as making this a focus area as part of induction and training following the September elections.

6. There are behaviours that indicate that some councillors may not understand their obligations under the code of meeting practice.

Council adopted the latest version of its Code of Meeting Practice in January 2022. Refresher training was held regarding the Code of Meeting Practice in November 2022.

Council agrees that further work and support would be beneficial for current councillors regarding the Code of Meeting Practice, as well as making this a focus area as part of induction and training following the September elections.” [3]

3. Affidavit of Lucinda Morphett affirmed 22 November 2024, Annexure L.

5. On 22 July 2024, the PIO (which is undated) was emailed to the Council by the Office of Local Government. The PIO, given under s 438A of the LGA (and which is attached to this judgment as Annexure A), sets out as the reasons for issuing it the same six Minister’s Reasons as set out in the Notice of Intention. It then identifies seven “actions” to be taken by the Council to improve its performance. It also required the Council to prepare three compliance reports as follows:

1. a report (Compliance Report 1) on the status of the Council, “including observed conduct of councillors within the council chambers and report on any matters referred under the Code of Conduct or Code of Meeting Practice by 27 August 2024”;

2. a report (Compliance Report 2) on the status of the Council, “including observations of the conduct of councillors and staff as well as preparation for councillor induction by 24 September 2024” (extended to 24 October 2024 with the Minister’s approval); and

3. a final report (Compliance Report 3) on the status of the Council “including observations of behaviours and conduct of councillors, including the observations and outcomes from councillor induction”, and “making recommendations as to the ongoing improvement and functions” of the Council by 28 February 2025.

6. The PIO also notes the appointment, pursuant to s 438G of the LGA, of Mr Mark Ferguson as a “temporary advisor” to the Council with respect to the PIO.

7. By 18 February 2025, all three compliance reports had been completed by the Council, and submitted to the Minister.

Statutory Framework

9. The Minister’s power to issue a Council with a PIO is contained in s 438A of the LGA, the relevant provisions of which are set out below:

438A   Performance improvement order

(1) The Minister may issue an order in respect of a council if the Minister reasonably considers that action must be taken to improve the performance of the council.

(2)  An order issued under this section is a performance improvement order.

(3)  A performance improvement order is to specify—

(a)  the reasons why the Minister has decided to issue the order, and

(b)  the actions that the Minister requires to be taken to improve the performance of the council.

(4)  Actions to improve the performance of a council include any actions the Minister considers necessary to improve or restore the proper or effective functioning of the council.

…

(6A) The Minister may vary a performance improvement order (and, if an order is varied, a reference in this Act to the order is a reference to the order as varied).

(7)  A copy of the performance improvement order, or the variation of a performance improvement order, is to be served on the council.

…

10. Prior to issuing a PIO, the Minister “is to give” a council a written Notice of Intention under s 438C of the LGA, which is relevantly in the following terms:

438C Minister to give notice of intention to issue or vary performance improvement order

(1) The Minister is to give a council notice in writing of his or her intention to issue or vary a performance improvement order in respect of the council.

(2) If it is proposed to issue a performance improvement order, the notice is to specify the following—

(a) the terms of the proposed performance improvement order, including the period for compliance with the order and any proposed appointment of a financial controller,

(b) the reasons why it is proposed to issue the performance improvement order (including any evidence supporting the Minister’s opinion that improvement is required),

(c) the actions that may be taken by the Minister if the performance improvement order is not complied with.

(2A) If it is proposed to vary a performance improvement order, the notice is to specify the following—

(a) the terms of the proposed variation,

(b) the reasons why it is proposed to vary the order.

(3) The notice must invite the council to make submissions in respect of the proposed performance improvement order or variation within a consultation period specified in the notice.

(4) The notice is to specify a consultation period of not less than 7 days from the date the notice is served on the council.

(5) The Minister is to have regard to any submissions made by the council during the consultation period in deciding—

(a) whether to issue the proposed performance improvement order or proposed variation, and

(b) whether any changes should be made to the terms of the proposed performance improvement order or proposed variation.

…

Issues to be Determined

11. While the principal issue to be determined is whether the Notice of Intention complied with s 438C(2)(b) of the LGA, it is convenient to set out the four orders sought by the Applicant in his Summons, and the four “Grounds” he relies on. The orders sought are as follows:

“1. The undated Performance Improvement Order issued to Edward River Council be declared null and void due to jurisdictional error associated with breach of Section 438C(2)(b) in the notice of intention of 17 June 2024;

2. In the event that the Court does not order the above, declarations be sought in respect of breaches of the Local Government Act (s438F) associated with the failure to meet the PIO requirements in respect of compliance reports one and two, and failure of Minister to vary order as necessary in respect of compliance report two;

3. To remedy the breaches noted in order 2, the undated Performance Improvement Order issued be declared null and void ;

4. Or, if none of the above orders are made, the Court order the Minister to vary the undated Performance Improvement Order as required by statute s438A(6) & (7), s438C(2A),(3),(4) and (5) to remedy the breaches of the Local Government Act and afford procedural fairness to the new Councillors.” [4]

4. Summons, pp 1-2.

12. The Grounds relied upon are:

“1. Before issuing a Performance Improvement Order under the Local Government Act 1993 to a Council or Councillors, the Minister needs to provide a notice of intention to a Council (or individual Councillors) that complies with section 438C.

2. Section 438C(2)(b) requires that a Notice of Intention served on a Council includes the evidence the Minister relies on for his reasons.

3. The Notice of Intention served on Council by the Minister dated 17 June 2024, (Attachment A) does not provide the required evidence that the Minister relied on for his reasons and renders the subsequent undated Performance Improvement Order (Attachment B) invalid due to jurisdictional error.

4. The reasons relied on by the Minister do not (and cannot) apply to the Council elected on 14 September 2024, and the undated PIO cannot survive once a new Council has met for the first time after an ordinary election. (cf. Sections 438C(6)(a) & 438ZA(b) LG Act).” [5]

5. Summons, p 2.

13. It is clear enough that Order 1, in which a declaration is sought that the PIO is “null and void”, relates to Grounds 1 to 3. The basis for Orders 2 to 4 is less clear. Section 438F of the LGA that is referred to in Order 2 is relevantly in the following terms:

438F Compliance report

(1) A council must provide the Minister with written reports on its compliance with a performance improvement order as required by the order.

(2) Such a report is referred to in this Part as a compliance report.

(3) A compliance report must specify any actions taken that demonstrate compliance with the performance improvement order.

(4) A compliance report must comply with any requirements specified in the performance improvement order.

14. The “compliance reports one and two” referred to in Order 2 were not tendered in evidence at the hearing, nor was there any evidence of a “failure to meet PIO requirements”. There was thus no evidence of the alleged “breaches” referred to in Order 3. Neither of these proposed Orders relate to the Grounds set out in the Summons. In my view then, Orders 2 and 3 do not relate to any issue to be determined that was before the Court at the hearing. Further, s 438F imposes obligations on the Council, not the Minister. I cannot see how non-compliance by the Council with any obligations it has pursuant to s 438F could lead to invalidity of a PIO.

15. As to Order 4 and Ground 4, these seem to relate to a submission made that the PIO, which was issued to the Council on 22 July 2024, is of no effect once there were new councillors elected at the Council elections held on 14 September 2024. I think this is first confusing the Council with its governing body. The Notice of Intention, and the subsequently issued PIO, refer to “actions” to be taken by the Council, not by individually named councillors. Secondly, it ignores the reality that the Council complied with the PIO, and submitted three compliance reports to the Minister as part of that compliance. The Applicant seemed to recognise during argument that the ship had therefore sailed on any part of his case where he sought an order to “vary” a PIO that the Council had already complied with. [6]

    6. See Transcript: T40.5-14.

16. This then leaves the following issues for determination:

1. Prior to issuing a council with a PIO under s 438A of the LGA, must the Minister issue a Notice of Intention under s 438C? (An issue raised in Ground 1a of the Minister’s Points of Defence).

2. What is the proper construction of s 438C(2)(b), and was the Notice of Intention in compliance with this provision?

3. If the Notice of Intention was not in compliance with s 438C(2)(b), does such non-compliance render the subsequently issued PIO invalid?

4. In the circumstances here, should any relief be granted in any event?

Issue 1: A Notice of Intention pursuant to section 438C(2)(b) must be issued prior to issuing a PIO

17. Prior to issuing a PIO, the Minister in my view must provide a council with a Notice of Intention pursuant to s 438C of the LGA. While (as stated above) the Minister pleads in his Points of Defence that prior to issuing a PIO he has a “discretion” whether or not to give a council a Notice of Intention under s 438C(1) of the LGA, that contention was only faintly pressed by Mr Keene in his submissions. In my view, both the statutory language used, and the regime set out in s 438C, are strong indications that the Minister must issue a Notice of Intention to a council under s 438C(1) prior to this. If the Minister had a discretion whether or not to issue a Notice of Intention to a council under s 438C prior to issuing a PIO under s 438A, it would defeat the procedures set out in s 438C that give a council an opportunity to make submissions as to whether a PIO should be issued, and if so in what form (s 438C(3)). It would also render nugatory the “consultation period” of “not less than 7 days” concerning a Notice of Intention and a proposed PIO (s 438C(4)). Further, under the regime set out in s 438C, the Minister “is to have regard” to any submission made by a council as to whether to issue a PIO, or what the terms of any PIO should be (s 438C(5)). I note there is a similar regime for providing a Notice of Intention with a submission and consultation period prior to the Minister exercising the power to suspend a council (see s 438I and K). These consultation and submission regimes lead me to the view that prior to issuing a PIO under s 438A, the Minister must (as was done here) issue a Notice of Intention pursuant to s 438C.

Issue 2: The Notice of Intention was in compliance with s 438C(2)(b)

18. As stated above, where the contest really lies in this proceeding is in respect to the Applicant’s contention that “section 438C(2)(b) requires that a Notice of Intention served on a Council includes the evidence the Minister relies on for his reasons”, [7] and that the Notice of Intention “does not provide the required evidence that the Minister relied on for his reasons”, which renders the PIO “invalid due to jurisdictional error”. [8]

    7. Summons, Ground 2.

    8. Summons, Ground 3.

19. The Minister’s response to the Applicant’s claim concerning the defective nature of the Notice of Intention, and the alleged invalidity of the PIO, is fourfold.

20. First, the Minister contends that the requirements of s 438C(2)(b) of the LGA concerning the contents of a Notice of Intention are “procedural and illustrative, not a jurisdictional fact or condition precedent to the Minister’s power to issue a notice of intention or the subsequent PIO”. [9]

    9. Minister’s Written Submissions (MWS) at [4(a)].

21. Secondly, it was submitted that the Minister’s Notice of Intention is in compliance with s 438C(2)(b) as that section “does not mandate the physical attachment of source documents”. [10] The Minister contends he complied with s 438C(2)(b) by “referring to the nature of the evidence relied upon within the body of the reasons provided in the notice”.

    10. MWS at [4(b)].

22. Thirdly, the Minister contends that the specifications for the Notice of Intention set out in s 438C(2)(b) are “directory, not mandatory”, and “non-compliance with the illustrative element regarding evidence (which is denied) was not intended by Parliament to invalidate the notice or the PIO”. [11]

    11. MWS at [4(c)].

23. Fourthly, even if the Notice of Intention was not in accordance with s 438C(2)(b) of the LGA, that non-compliance is said to be “immaterial” on the basis the Council has complied with the PIO.

24. In my view, s 438C(2)(b) of the LGA does not require any evidence supporting a Minister’s opinion on any improvement required to be physically attached to that notice. The subparagraph in full states as follows:

438C…

(2) If it is proposed to issue a performance improvement order, the notice is to specify the following—

…

(b) the reasons why it is proposed to issue the performance improvement order (including any evidence supporting the Minister's opinion that improvement is required)…

25. The text of s 438C(2)(b) is clearly against the construction the Applicant contends for. It states that the Notice of Intention “is to specify” certain things, including the “reasons” why it is proposed to issue a PIO, and “any evidence supporting the Minister’s opinion that improvement is required”. There is no textual support for a requirement to attach particular documents or evidence, or provide something akin to discovery or a brief of supporting materials. It requires only a form of specification to identify the “reasons” and “evidence”. A requirement to specify what “evidence” is relied upon does not require the provision of that evidence.

26. The primary requirement of s 438C(2)(b) is for the Minister to specify “reasons” why he proposes to issue a PIO. That requirement is satisfied if those reasons are sufficiently outlined, as they are in the Notice of Intention here (see the Notice of Intention at [8(a)] above). “Evidence” is not defined in the LGA. It could include things beyond documentary evidence (such as what the Minister has been told or advised of) that cannot be attached to a Notice of Intention. I would take it to be then (at least) a reference to any material, circumstances, data, information, or events that form the basis for the Minister to reasonably consider that a PIO should be issued.

27. The reference to “evidence” in the parentheses of the subsection requires at most that the Notice of Intention make reference to what the general nature of the evidence is, as it does here. The Notice of Intention here links the “reasons” to the “evidence”, as can be seen in the six Minister’s Reasons outlined in the Notice of Intention set out above at [8(a)]. This satisfies all the requirements of s 438C(2)(b).

28. Considerations of the context of s 438C(2)(b) within the broader regime outlined by s 438C as a whole also tend strongly against the Applicant’s claims. The requirements in s 438C(2)(b) to “specify…the reasons” why the Minister proposes to issue a PIO, and to specify “any evidence supporting the Minister's opinion that improvement is required” are within a provision that provides for submission making by a council (s 438C(3)), a “consultation period of not less than 7 days” (s 438C(4)), and where the Minister must have regard to any submissions in deciding whether or not to issue a PIO, and in what form (s 438C(5)). There is therefore a regime in place whereby evidence could be provided subsequent to the issue of a Notice of Intention, and where a council could make submissions about the “reasons” given.

29. The purpose behind “Part 6 – Performance Management” of Chapter 13 of the LGA also tends against the Applicant’s submissions. Section 438C and like provisions within Part 6 of Chapter 13 of the LGA were introduced by the Local Government Amendment (Early Intervention) Bill 2013. The Second Reading Speech indicates that the PIO was introduced as a key part of an accountability framework, but was not intended to equal a public inquiry – which is otherwise captured in Part 5, Division 1 of the LGA. Rather, the PIO is a form of “early intervention with softer and more flexible options encouraging council-led improvement” [12] (emphasis added).

    12. Second Reading Speech dated 26 February 2012, Mr Donald Page, p 2.

30. Two years after s 438C was introduced, Part 6 was amended again by the Local Government Amendment (Councillor Misconduct and Poor Performance) Bill 2015 where, inter alia, the notice consultation period was shortened from 21 days to 7 days. The PIO process was characterised in the Second Reading Speech as a “rapid intervention mechanism” with a shorter notice period designed to “facilitate faster remedial action.” [13] It represented an intentional desire to afford the Minister “greater flexibility in managing non-compliance.” [14]

    13. Second Reading Speech dated 16 September 2015, Mr Paul Toole, pp 1-2 (SRS 2015).

    14. SRS 2015, p 2.

31. Chapter 13, Part 6 outlines the PIO obligations, including the criteria that must be considered before issuing the PIO (s 438B), notice requirements, the orders that can be made, and compliance provisions. It does not include the evidence-gathering powers of a public inquiry. The purpose of this flexible and rapid early intervention regime would be undermined if s 438C(2)(b) was interpreted to require the provision of all the evidence the Minister might have had regard to for his reasons for considering a PIO should be issued.

32. Section 438C(2)(b) then, properly construed, in my view requires the Minister to provide a council with a Notice of Intention that outlines “the reasons” why it is proposed and the general nature of any evidence “supporting the Minister’s opinion that improvement is required”. It does not require physical attachment to the Notice of Intention of all “the evidence” in support of the reasons why the Minister proposes to issue a PIO.

33. Nor is it necessary in my view for the Minister to provide “reasons” in the manner that might be done in a court pleading by way of particulars. In his oral submissions, and perhaps straying from and going (well) beyond the contents of his Summons, the Applicant alleged that the “reasons” given by the Minister in the Notice of Intention were in breach of s 438C(2)(b) because they were just “generalism[s]” [15] , and there was a “lack of specificity” [16] . While it may have been possible for the Minister to include greater detail in his Minister’s Reasons in the Notice of Intention, as stated above it is sufficient in my view, as the Minister has done here, to give notice to a council of the general nature of the reasons and evidence why the Minister considers improvement is necessary, such as “[non-compliance] with the Meeting Code of Practice” (Reason 1), and “evidence of hostility and acrimony between councillors” (Reason 3). If there is any uncertainty as to what, in more specific detail, the Minister is referring to, that can be explored in the consultation and submission period: s 438C(3) to (5). The purpose of s 438C of the LGA is to ensure a council is made aware of a Minister’s intention to issue a PIO, the reasons behind it, and for an expeditious response to this by a council. I would not construe s 438C(2)(b) as imposing a requirement on the Minister to provide a council with a form of discovery of all the “evidence” behind a Minister’s consideration. Such an interpretation would make the purposes of Part 6 of the LGA – which relate to swiftly managing the performance of council and seeking improvement of it – unwieldy, and overly burdensome in view of the overall purposes and objectives.

Issue 3: No invalidity of PIO even if Notice of Intention did require evidence to be attached or greater specificity of “reasons”

15. T4.5-7; T27.15-18.

16. T 41.43-48.

34. Even if I considered that s 438C(2)(b) did require the attachment of evidence in support of the reasons for proposing to issue a PIO, or a greater level of particularisation of the Minister’s “reasons”, I would not find such an omission would lead to invalidity of the subsequent PIO. A failure to attach evidence of reasons, or a failure to particularise in full detail every aspect of the “reasons”, would fall into that category of breach for which, in my view, there should not be taken to be a legislative purpose to invalidate a subsequent PIO: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (Project Blue Sky) at [91] to [93]. The crucial aspect of a Notice of Intention is that the council has the broad thrust of the “reasons” why the Minister intends to issue a PIO. Failure to attach the “evidence” to the Notice of Intention, even if it was a breach of the provision, is not the kind of breach that would lead to invalidity of a PIO subsequently issued by the Minister. Nothing in the text of s 438C(2)(b), read in the context of the other provisions providing for a “consultation period” and a submissions process (s 438C(3) to (5)), supports such an interpretation: Project Blue Sky at [78].

Issue 4: No material error and no utility in granting relief

35. I agree with the Minister’s submission concerning materiality, and the lack of utility in granting relief. The Minister states in his written submissions:

“The Council received the notice, understood the reasons (addressing them substantively in response), made submissions, never requested the underlying documents, formally accepted the PIO, and commenced compliance.” [17]

17. MWS at [35] and see also [4(d)].

36. It is necessary to establish materiality to make good a claim of jurisdictional error leading to invalidity: Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34. An error is only material to a decision if there is a “realistic possibility” that the decision made – in this case the issuing of the PIO – could have been different had the error not occurred. That is, if the reasons were more specific or the evidence was attached to the Notice of Intention: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [48] (Bell, Gageler and Keane JJ).

37. As a matter of fact, the Council has had no difficulty in understanding and accepting the Notice of Intention. It passed a resolution accepting it, and agreed with a number of the Minister’s Reasons. There is no evidence or reason for inferring that further specification or attached evidence would have changed the outcome of the Minister issuing a PIO.

38. Furthermore, as a matter of utility, the Council prepared the three reports in compliance with the contents of the PIO, and that improvement process was completed by 25 February 2025. There would be no utility at all in granting any of the relief sought by the Applicant in circumstances where the Council has accepted the outcome, and fully complied with the PIO the Applicant seeks to have invalidated. Although the Applicant indirectly referenced the “rule of law” in his oral submissions as a justification for overturning the decision in principle, judicial review is a matter of practical justice, and it would be inappropriate to exercise discretion in this way: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 at pp 581-582.

Conclusion

39. The Applicant’s Summons must be dismissed. Ordinarily, in a Class 4 Judicial Review matter, costs follow the event. I have however reserved costs, and will allow the parties a period of time to agree a costs order, failing which I will consider written submissions.

Orders

1. The Applicant’s Summons is dismissed.

2. Costs are reserved.

3. The parties have 14 days from the date of this judgment to notify my Associate of any agreement as to costs. Failing agreement, the parties may have a further 7 days to exchange, and provide to my Associate, written submissions (limited to 5 pages) on what costs order I should make.

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Annexure A (274 KB, pdf)

Endnotes

Decision last updated: 28 July 2025