Charlton v Moore (No 2) - [2009] NSWLEC 47

Land and Environment Court

of New South Wales

CITATION: Charlton v Moore (No 2) [2009] NSWLEC 47

PARTIES:
APPLICANT:
Belinda Lee Charlton
FIRST RESPONDENT:
Susan Rosalie Moore
SECOND RESPONDENT:
Alison Gay Howlett
THIRD RESPONDENT:
Singleton Council
FOURTH RESPONDENT:
Gary Woodman

FILE NUMBER(S): 40130 of 2009

CORAM: Biscoe J

KEY ISSUES: JUDICIAL REVIEW :- Practice and procedure - whether council should be ordered to furnish a written statement setting out the reaons for its challenged decision purusant to Land and Environment Court Rules 2007 r 4.3.

LEGISLATION CITED: Administrative Appeals Tribunal Act 1975 (Cth), s 28(1)
Administrative Decisions (Judicial Review) Act 1975 (Cth), s 13
Land and Environment Court Rules 2007, r 4.3
National Health Act 1953 (Cth), s 98BD

CASES CITED: Australian Institute of Marine and Power Engineers v Secretary, Department of Transport (1986) 13 FCR 124
Charlton v Moore [2009] NSWLEC 25
Commissioner of Taxation v Coombes [1999] FCA 842
Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65
McGovern v Ku-ring-gai Council [2008] NSWCA 209, (2008) 161 LGERA 170
Osmond v Public Service (NSW) [1984] 3 NSWLR 447
Parker v Auburn Council [2000] NSWLEC 127

DATES OF HEARING: 17 March 2009

EX TEMPORE JUDGMENT DATE: 17 March 2009

LEGAL REPRESENTATIVES:
APPLICANT:
Mr P Larkin
SOLICITORS
Thompson Norrie
1ST-4TH RESPONDENTS:
Ms C Adamson SC and Ms M Nagy
SOLICITORS
Sparke Helmore

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

17 March 2009

40130 of 2009

BELINDA LEE CHARLTON v SUSAN ROSALIE MOORE & ORS
EX TEMPORE JUDGMENT

1 HIS HONOUR: The issue before the Court is whether orders should be made against the respondent council, pursuant to r 4.3 of the Land and Environment Court Rules 2007, including an order that it provide the applicant with a statement setting out its reasons for a decision which the applicant challenges. Rule 4.3 provides as follows:

“ 4.3 Proceedings for the review of public authority’s decision

In any proceedings in which a public authority’s decision is challenged or called into question, the Court may make one or more of the following orders:

(a) an order directing the public authority to make available to any other party any document that records matters relevant to the decision,

(i) the public authority’s findings on any material questions of fact, and

(ii) the evidence on which any such findings were based, and

(iii) the public authority’s understanding of the applicable law, and

Background

2 The applicant, Belinda Lee Charlton, is an applicant for the vacant position of general manager of Singleton Council. She is a senior council officer and has been the acting general manager of the council at various times since that position became vacant in July 2008. By a…

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.

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Details

Case: [2009] NSWLEC 47
Decision Date: 17 March 2009

CaseChat Overview and Summary

The Land and Environment Court of New South Wales heard an application in Charlton v Moore (No 2) [2009] NSWLEC 47, where Belinda Lee Charlton challenged the Singleton Council's decision to alter her acting general manager appointment. The case raised questions about whether the council should be compelled to provide a written statement outlining the reasons for its decision, as per rule 4.3 of the Land and Environment Court Rules 2007. The applicant argued that the reasons were relevant to her claim of procedural unfairness and potential bias. The council, however, contended that such a requirement was inappropriate due to the collegiate nature of its decision-making process and the potential difficulty in identifying the specific reasons for the decision.

The court considered the importance of providing reasons for decisions made by public authorities, particularly in the context of judicial review proceedings. It noted that rule 4.3, which allows the court to order reasons, should not be viewed with reluctance simply because the decision-maker is a collegiate body. The court also highlighted the significance of reasons in promoting transparency, accountability, and fairness in decision-making processes. It found that the reasons for the decision were relevant to the applicant's claims and that the potential difficulties in providing reasons did not outweigh the benefits of doing so.

The court ultimately decided to order the council to provide a written statement of reasons for its decision. It also determined that the council should identify the persons who gave instructions for the preparation of the report that formed the basis for the decision. The court acknowledged that the identity of these individuals was relevant to the applicant's claims and that it was arguable that the information would be productive for the proceedings. The court then directed the parties to prepare short minutes of orders reflecting its reasons for judgment and set a deadline for the applicant to serve any proposed further amended summons and amended points of claim.

Orders