Bush v Minister for Local Government and Anor.

[2002] NSWLEC 203

Reported Decision: 124 LGERA 256

Land and Environment Court

of New South Wales

CITATION:	Bush and Anor v Minister for Local Government and Anor. [2002] NSWLEC 203
PARTIES:	APPLICANTS Bush and Anor RESPONDENTS: Minister for Local Government and Anor.
FILE NUMBER(S):	0480 of 2002
CORAM:	Bignold J
KEY ISSUES:	Interlocutory Relief :- Interlocutory injunction-alleged breaches of LG Act-case based upon misconstruction of Act-case accordingly is a weak one-delay in bringing proceedings is a significant bar to relief.
LEGISLATION CITED:	Local Government Act 1993, s 263
CASES CITED:
DATES OF HEARING:	29/08/2002
EX TEMPORE JUDGMENT DATE :	08/29/2002
LEGAL REPRESENTATIVES:	APPLICANTS: Mr T Hale, SC with Mr M Lee, Barrister SOLICITORS Aubrey F Crawley RESPONDENTS: Mr N Perram, Barrister SOLICITORS Crown Solicitors Office

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT OF
NEW SOUTH WALES

Matter No . (04) 0480 of 2002

Coram : Bignold J.

29 August 2002

J BUSH AND ANOR

Applicants

v

MINISTER FOR LOCAL GOVERNMENT AND ANOR

Respondents

JUDGMENT

1. By a second further amended application the Applicants seek interlocutory injunctive relief restraining the Minister for Local Government from making any recommendation to the Governor in connection with the boundary alteration proposals with respect to the boundaries of South Sydney Council until further order of the Court.

2. That claim arises in proceedings which were commenced in the Court very recently, (namely 20 August 2002) and in those proceedings the Applicant claims the following permanent relief.

Firstly as against the first Respondent, the Minister for Local Government, a declaration that the orders he made on 20 November 2001 referring a boundary alteration proposal with respect to the boundaries of South Sydney Council to the second Respondent, the Local Government Boundaries Commission, were not referrals to the second Respondent within the meaning of the Local Government Act , s 218F;

Secondly, a declaration against the second Respondent, the Boundaries Commission, that the examination by it and the report of the examination by it delivered to the Minister in or about March 2002 was (a) an examination report in breach of s 263 and (b) was not an examination and report within the meaning of s 263(1) and s 218F(7).

Thirdly, a declaration against the second Respondent that its determination that it would not seek the approval of the Minister to hold an inquiry pursuant to s 263(2)(a) was contrary to law.

Finally, by way of final relief an injunction against the Minister restraining him from making the aforesaid recommendation to the Governor with respect to the making of any proclamation the alteration to those boundaries.

3. The further amended Class 4 application has been supported by further amended points of claim which indicate that the foundational basis for the claims to declaratory and injunctive relief against the Minister and the declaratory relief against the Boundaries Commission are founded upon what is said to be duties or discretions conferred upon each of the Respondents by of the Local Government Act, s 263.

4. It is common ground that the Minister referred to the Boundaries Commission his proposal for alterations to the boundaries of South Sydney Council and Sydney City Council by orders dated 20 November 2001, published in the Government Gazette of 30 November 2001. It is common ground that the Minister was under the duty imposed by the Local Government Act, s 218F to refer the boundary proposal that the Minister had proposed to the Boundaries Commission for examination and report. I should say that the section gives the Minister the alternative of referring the proposal to the Director General of the Department. But in this case, the Minister made the reference to the Boundaries Commission.

5. The only complaint made by the Applicants in the present case is that in the order encapsulating the reference the Minister included the following sentence:

Local Government Boundaries Commission may not hold an inquiry on this proposal.

6. It is common ground that although bound to make a reference either to the Boundaries Commission or the Director General, the Minister was not required to make the reference in any particular form, for example in writing, and there was certainly no obligation that the reference be encapsulated in an order published in the Government Gazette. However, that is the mode in which the reference was made and except for the sentence that I have quoted from the order (namely that the Boundaries Commission may not hold an inquiry on this proposal) I do not understand the Applicants to have any complaint about the reference or its mode.

7. As I say, the claim to relief against both Respondents is founded upon the Applicants’ contentions that the Local Government Act, s 263 imposed an implied duty on the part of the Boundaries Commission to consider whether to hold an inquiry for the purpose of exercising its functions upon the Minister’s reference, and a discretion or implied duty on the part of the Minister to approve or disapprove a request by the Boundaries Commission that an inquiry be held, together with a power on the Minister’s part to direct that such an inquiry be held.

8. The Applicants’ contended meaning of s 263(2) giving rise to the express or implied discretions and/or duties that I have mentioned in my view involves an unsustainable, and unacceptable, construction of the section. Subsection (2) appears in a section headed “The Functions of the Boundaries Commission”. Subs (1) is in these terms:

The Boundaries Commission is required to examine and report on any matter with respect of the boundaries of areas and the areas of operation of county councils which may be referred to it by the Minister.

9. Accordingly the Boundaries Commission upon receipt of the Minister’s reference dated 20 November 2001 came under that statutory duty to examine and report on the matter concerning the boundaries of the two local government areas concerned. Subs (2) which is critical in this case provides as follows:

For the purpose of exercising its functions the Boundaries Commission:

(a) may hold an inquiry if the Minister so approves and

(b) must hold an inquiry if the Minister so directs but may not hold an inquiry otherwise than is referred to in paragraph (a) or (b).”

10. Subs (2A) is interesting although it is not directly relevant to the present case, because it provides—

Despite subs (2) the Boundaries Commission must hold an inquiry for the purpose of exercising its functions in relation to a proposal for the amalgamation of two or more areas that has been referred to it in accordance with s 218F.

11. The present proposal is not of course a proposal for the amalgamation of two or more areas but it is significant by subs (2A) the legislature has decreed that there must be an inquiry conducted by the Commission in exercising its functions in relation to a proposal for amalgamation. Subs (2A) stands in stark contrast to subs (2).

12. In my view, the meaning of subs (2) is tolerably clear on its face. The Applicants advanced a subtle and sophisticated argument that would seek to imply into the subsection especially paragraph (a) of subs (2), the notion that the Minister could only approve or not approve a proposal by the Boundaries Commission to hold an inquiry after he received a request or application by the Boundaries Commission to hold such an inquiry. In my view, this argument, subtle though it is, implies or seeks to imply far too much into the subsection than the clear words and clear intent of the subsection convey. There is, in my view, no legitimacy in implying the necessity of a prior application by the Boundaries Commission to the Minister before the Minister can decide whether or not to approve of the holding of an inquiry.

13. In the present case the reference contains the sentence that I have earlier cited, “The Boundaries Commission may not hold an inquiry on this proposal”. Senior Counsel for the Applicants points out that this was a direction, and that in terms, subs (2) does not so empower the Minister. Reference is made in support of the argument to the difference of language between paragraphs (a) and (b) of subs (2). Paragraph (a) permits the holding of an inquiry if the Minister so approves and paragraph (b) requires the holding of an inquiry if the Minister so directs.

14. Senior Counsel for the Applicants properly conceded that upon a reference pursuant to s 218F the Minister could direct in that reference the holding of an inquiry but his argument denied the capacity or competence of the Minister in so referring a matter to indicate his decision as to whether or not he would approve of the holding of an inquiry.

15. As I say, the argument is founded essentially upon an understanding of the expression, “if the Minister so approves” as to require as it were, an application or request for the Minister’s consideration, before the subs (2)(a) becomes effective. In my view, it is clear beyond any doubt from the Minister’s inclusion of the sentence that I have read from the order containing the reference to the Boundaries Commission that the Minister was not approving of the holding of an inquiry.

16. The Applicants’ argument to my mind did not come to terms with the concluding words of subs (2) which spell out the limitations on the operation of paras (a) and (b) by declaring that the Boundaries Commission may not hold an inquiry otherwise than as was referred to in para (a) or (b). These words in their context also in my view put paid to the Applicants’ submission that the subs (2) imposes an implied duty on the Boundaries Commission to decide whether or not it wishes to hold an inquiry for the purposes of exercising its statutory functions under s 263(1), that is examining and reporting on a proposal referred to it by the Minister.

17. As was pointed out in the course of argument the Boundaries Commission may only hold an inquiry if the Minister approves or where the Minister directs. Those conditions or qualifications on the ability or capacity for an inquiry to be held significantly reduce the element of any discretion available to the Boundaries Commission in relation to the holding of an inquiry.

18. As a matter of text and structure the section does not proceed upon the basis that the Boundaries Commission is under a duty to consider whether or not to hold an inquiry, the matter is far more circumspectly put by subs (2) and the circumspection of it is demonstrated by the contrasting obligation to hold an inquiry which the legislature has imposed in the case of a proposal for amalgamation contained in subs (2A).

19. If follows from the foregoing reasons that the Applicants’ claims both against the Minister and against the Boundaries Commission are founded upon a misconstruction and misunderstanding of s 263(2). Properly construed the sections do not support either claim made by the Applicants against the Minister or the Boundaries Commission. In the course of argument when it became clear that the claims are founded foursquare upon the Applicants’ contented construction of subs (2) of s 263. I invited the parties to permit me to decide the matter as on a final hearing, that is, the question of the proper construction of s 263. Although the Respondents invited me so to do the Applicants urge me not to and I am happy to adopt what I said I would do in the course of argument in response to the Applicants’ submission that I should not deal with the matter as on a final hearing and it was simply this that I would express a view as to the proper construction of s 263(2) which I have already done. That view would inevitably impact significantly, if not overwhelmingly, upon my assessment of the strength of the case. It follows from what I have said, that I regard the Applicants’ case as being not a strong case, in fact a weak case, and a case that would not of course be ultimately sustainable in the event of the construction that I have adopted being sustained on the final hearing.

20. My decision on this matter means that I do not need to consider in any great detail the other aspects of the case argued but I should say something in relation to the contention that the Boundaries Commission erred (inasmuch as it was suggested that having regard to the sentence in the Minister’s reference that an inquiry was not to be held) by giving effect to that sentence (and there is evidence to indicate that the Boundaries Commission obviously had regard to that statement in the Minister’s reference) the Boundaries Commission thereby erred in undertaking its statutory duties by taking into account irrelevant considerations. For the reasons that I have given, I do not regard the direction as being irrelevant. On the contrary I see it as going to the heart of the operation of subs 2 of s 263.

21. The other matters raised by the Respondents on the claim for interlocutory relief go to the question of the balance of convenience, the delay in the bringing of the proceedings and the bona fides or legitimacy of the proceedings insofar as one of the Applicants is a Councillor of the South Sydney Council which has brought two separate proceedings in this Court in relation to the Minister’s reference—the original case was settled and the second case which is the subject of a decision of Talbot J, the appeal to the Court of Appeal from which has been recently heard, and I was told the Court of Appeal proposes to give its judgment in that appeal tomorrow at 11.30 am.

22. In my view, had the matter required a consideration of these discretionary factors the delay in bringing the proceedings in my opinion is significant. Delay of any significance in a claim for interlocutory injunction is invariably held to carry very significant consequences for the exercise of discretion by the Court and although on one view of the matter as Senior Counsel for the Applicants said, the matter has only arisen since the judgment of Talbot J was taken on appeal by the Minister to the Court of Appeal, with great respect that submission fails to come to terms with the reality of the situation and that is the terms of the Minister’s reference now are as ancient as 20 November 2001.

23. On the question of delay alone the Applicants would not in my view be entitled to any interim relief. I do not propose to deal with the question of the bona fides or genuineness of the proceedings because the material before me is very skimpy and I am prepared to accept the bona fides of the application at face value.

24. For all of the foregoing reasons the claim for interlocutory injunction is refused.