Jarvis v Queanbeyan City Council
[2001] NSWLEC 100
•05/31/2001
Land and Environment Court
of New South Wales
CITATION: Jarvis v Queanbeyan City Council [2001] NSWLEC 100 PARTIES: APPLICANT
Susan Denise Jarvis
RESPONDENT
Queanbeyan City CouncilFILE NUMBER(S): 40030 of 2001 CORAM: Sheahan J KEY ISSUES: Local Government :- confidentiality of council documents - disclosure - Code of Conduct - suspension of Councillor - expulsion from meetings LEGISLATION CITED: Local Government Act 1993
Local Government (Meetings) Regulation 1999 cl 29 to 31CASES CITED: Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190;
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24;
Ryde City Council v Echt & Anor [2000] NSWCA 108;
Schroders Australia Property Management Ltd v Shoalhaven City Council & Anor (1999) 110 LGERA 130;
Styles v Wollondilly Shire Council [2001] NSWLEC 18DATES OF HEARING: 21/05/2001-22/05/2001 DATE OF JUDGMENT:
05/31/2001LEGAL REPRESENTATIVES:
APPLICANT
Barrister
Mr D Wilson
Solicitors
Johnson & Sendall
RESPONDENT
Barristers
Mr P Hastings QC with
Mr J Robson
Solicitors
Baker Deanne & Nutt
JUDGMENT:
IN THE LAND AND Matter No: 40030 of 2001
ENVIRONMENT COURT Coram: Sheahan J
OF NEW SOUTH WALES 31 May 2001
Applicant
v
QUEANBEYAN CITY COUNCIL
Respondent
JUDGMENT
Introduction
1. The applicant (Jarvis) is a Councillor of the respondent Council, having been elected first in September 1995 and again in September 1999.
2. These class 4 proceedings were commenced by her on 1 March 2001, and concern, primarily, Council meetings on and between 17 January and 14 March 2001.
3. The expedited hearing proceeded on the basis of an amended class 4 application filed 21 May 2001, and Points of Claim and Defence filed during the hearing.
4. Jarvis seeks 4 declarations, but no specific consequential relief, other than such “further or other Order as the nature of the case requires”, and “Costs”.
5. Council meets twice monthly. The meetings are tape-recorded and those tapes are sometimes transcribed. Minutes of each meeting are prepared, put to the next meeting for adoption, and made public. Most of Council’s business is conducted in open meetings.
6. As is common in cases like this there is a lot of history, of varying degrees of relevance, not all of which, nor necessarily the most relevant of which, is made known to the court. On this occasion I have before me, from the applicant:
· two large folders of material (Exhibit A1 and Exhibit A2), exhibited to her affidavit;
· full sets of the minutes of Council meetings held on 1 November 2000 (Exhibit A3), 15 November 2000 (Exhibit A5), 17 January 2001 (Exhibit A4), and 7 February 2001 (Exhibit A6); and
· partial transcript of part of the meeting 15 November 2000 (Exhibit A7).
7. From the Respondent, I have a substantial affidavit from the Council’s in-house solicitor (Murphy), dated 16 May 2001, plus partial transcripts of Council meetings 17 January 2001 (Annexure ‘N’ to his other affidavit dated 15 May 2001) and 21 February 2001 (Annexure ‘T’ thereto).
8. Jarvis and Murphy also gave oral evidence at the hearing.
9. The proceedings turn upon a letter of 1 November 2000 from Murphy to Jarvis, in the following terms (Exhibit A1 fol 2.198):
I have received written instructions from the General Manager to carry out an investigation in relation to a complaint lodged by Cr Atkins by letter dated 17th February, 2000 alleging that an employee of the Council Mrs Lucy Hardgrave is the author of a handwritten note detailing certain matters allegedly relating to Cr Atkins. The letter to the General Manager calls for disciplinary action to be taken if Cr Atkins’ claims are proven through investigation.
The General Manager has provided me with copies of numerous documents including a letter from the Ombudsman addressed to Cr Carol Atkins and dated 13th October, 2000. In that letter the Ombudsman states inter alia ‘Finally, I regard the review of your complaint about Mrs Hardgrave by Mr Murphy as an opportunity to investigate your concerns in this matter once and for all. I encourage you to fully participate and cooperate with the review of your complaint in a final effort to resolve your concerns in relation to Mrs Hardgrave’s alleged involvement in the generation of the original anonymous letter’.
I have had a telephone conversation with an Officer of the Ombudsman’s Office and I have been advised that, in addition to Cr Atkins, you should be consulted in relation to a report prepared by the handwriting expert Dr Stephen Strach .
In accordance with the Council’s Code of Conduct I now formally give you an opportunity to submit any information or documents you have which might be relevant to my investigation of the matter and request that you put in writing any submissions you wish to make in relation to the allegations against Mrs Hardgrave. In addition, I specifically request that you advise as to whether you have any objection to me making available to Dr Stephen Strach the original of the document which is referred to as ‘the handwritten document’. (emphasis added).
10. It is to be noted that the letter was not regarded by Murphy as “confidential”, nor was it so marked, and the central Council allegation against Jarvis is that she gave a copy of it to at least one person outside the Council (a Mr John McCready), and, in so doing, breached Council’s Code of Conduct.
Background
11. The “handwritten note” referred to in the letter contained an anonymous allegation, in about May 1999, about Atkins’ entitlement to benefits from Centrelink by way of a child care rebate (see Exhibit A1 fol 2.104). Atkins was at that time a “Council watcher” (Exhibit A1 fol 2.002). Hardgrave was a Council employee and the spouse of a serving councillor.
12. Council General Manager (Percy) referred the allegation to Centrelink, and Atkins made a complaint about his doing so. In response to the complaint, the Mayor (Pangallo) conducted an investigation. Percy gave the Mayor a statement about the complainant (Exhibit A1 fol 2.053).
13. Atkins was subsequently elected to the Council in September 1999. She and Jarvis then pursued the matter jointly (Exhibit A1, fol 2.084), including engaging Strach, and having an extraordinary Council meeting called on 11 February 2000 (Exhibit A1 fol 2.095-7).
14. On 17 February 2000 Atkins made a formal complaint to Percy against Hardgrave (Exhibit A1 fol 2.105). She followed it up on 3 March 2000 (fols 2.114-115). The ICAC, the Ombudsman and the Privacy Commission were all involved in the complaint at some stage. Percy advised Atkins on 11 July 2000 that the Ombudsman regarded the matter as one “for Council to resolve in accordance with its own Code of Conduct”, and that the result of Council’s investigation would be reported back to the Ombudsman. Percy invited Atkins to submit further information etc (Exhibit A1 fol 2.182). She thought it “inappropriate” for Percy to pursue the investigation himself (fol 2.183), and Percy, after consulting the Ombudsman, decided to delegate/appoint Murphy to do so. The appointment/delegation was by letter dated 19 October 2000 (Annexure ‘C’ to Murphy’s affidavit 16 May 2001).
15. On 13 October 2000 (Exhibit A1 fol 2.191), the Ombudsman had written to at least one member of the Queanbeyan public (Mrs Reid) in the following terms:
I refer to your letter of 23 July 2000 in which you complained that it would be inappropriate for Mr Hugh Percy, General Manager of Queanbeyan City Council, to involve himself in an investigation of Councillor Carol Atkins’ allegation that Mrs Lucy Hardgrave was the author of an anonymous letter alleging that Councillor Atkins was fraudulently claiming childcare assistance she was not entitled to.
This office has received more than one complaint in this matter. Since receiving your complaint I have had an opportunity to consider your concerns. In the course of my preliminary inquiries in connection with the other complaints we received in this matter, I have considered the question of whether it would be appropriate for Mr Percy to be involved in an investigation of Councillor Atkins’ allegation concerning Mrs Hardgrave in light of his friendship with Mrs Hardgrave. I also spoke with Mr Percy to ascertain whether the claim that he is ‘friends’ with Mrs Hardgraves is correct. After speaking with Mr Percy I concluded that it be appropriate for him to step back from the investigation and I wrote to Mr Percy outlining my views in this regard on 13 October. Mr Percy accepted my suggestion and I understand that the investigation of Councillor Atkins’ allegation about Mrs Hardgrave will be investigated by Mr Michael Murphy, Council’s in-house solicitor. In my view, this is appropriate in the circumstances and on this basis I do not intend to take any further action in response to your complaint or the other complaints we received in this matter.
I will now proceed to close this file.Thank you for bringing your concerns to the attention of the Ombudsman.
16. On the same date the Ombudsman wrote at length to Percy (see Exhibit A1 fols 2.193-6) regarding the various matters referred to him, including the “appropriateness” of Percy’s involvement in the “further consideration” of the Hardgrave allegation. The letter includes the following paragraph (fol 2.194):
I note that during our telephone discussion this morning you advised that you will not involve yourself in the investigation of Councillor Atkins’ complaint. You also advised you will make arrangements for Mr Michael Murphy, Council’s in-house solicitor to review Councillor Atkins’ complaint about Mrs Hardgrave. This appears to be appropriate in the circumstances.
17. The Ombudsman’s letter was not marked “confidential”, and it was circulated to Councillors with a notation to similar effect (Exhibit A1 fol 2.192). That letter clearly distinguishes two complaints - that concerning the so-called “Centrelink issue” (Percy’s referral of the allegation), and that concerning the alleged authorship of the “handwritten note”.
18. It appears that Jarvis received Murphy’s letter of 1 November 2000 (see par 9 above) when she attended the Council chambers for a meeting on that date, but she says that she did not read it until the next day.
19. However, at the Council meeting on 1 November 2000, a member of the public (McCready) asked Murphy whether he had “started his investigation into the Centrelink issue”. Murphy is minuted as having “advised there is no investigation going on in relation to the Centrelink issue” (see Council minute at Exhibit A1 fol 2.197, and Exhibit A3 p 16).
20. Also at that meeting, Council adopted a revised Code of Conduct (see Exhibit A2 fol 191ff), in accordance with s 440 of the Local Government Act 1993 (“the LGA”).
21. Jarvis says that, on opening Murphy’s letter, on 2 November, she “became concerned” that Murphy’s response to McCready “was incorrect”, and she “later” gave McCready a copy of the letter (par 41 of her affidavit 7 May 2001). Murphy says that Jarvis also complained to the Ombudsman that Murphy had misled the Council, but that the Ombudsman dismissed the allegation, and maintained his position that Murphy was the appropriate investigator (transcript ‘N’ p6).
22. Jarvis’ affidavit asserts that McCready referred again, at the Council meeting on 15 November 2000, to his questions at the 1 November meeting (Exhibit A5 p 17 and Exhibit A7 pp1-2, cf Exhibit A1 fol 2.199). She says that the Mayor “refused to allow the question and described it as unintelligent” (par 43 of her affidavit). (See Exhibit A1 fol 2.215-216 for reference to a transcript of this incident and its aftermath). The transcript of that meeting (Exhibit A7) clearly records McCready quoting from the letter of 1 November 2000 and saying that he got it from “the person who received” it.
23. Murphy’s position was, and remains, that the matter he was to investigate was not “the Centrelink issue”, but the allegation that Mrs Hardgrave was the author of the “handwritten note”. He gave evidence that he has had no involvement with “the Centrelink issue”.
24. Following the incident with McCready on 15 November 2000, Murphy lodged with Percy a complaint regarding Jarvis (Annexure ‘J’, dated 23 November 2000, to Murphy’s affidavit of 16 May 2001). The letter of complaint contains the following paragraphs:
It is clear from my letter to Cr Jarvis that I am not investigating the Centreline (sic) issue but that I am undertaking an investigation which is confined to the issue of whether an employee of the Council is the author of what has been referred to as the handwritten note.
Instead of attempting to resolve what might have appeared to be conflicting advice in a proper and reasonable manner Cr Jarvis has conducted herself in a way which not only caused unwarranted offence and embarrassment at a Council meeting but also resulted in the matter becoming an issue in the local press.
At the last meeting of the Council a member of the public Mr John McCready was in possession of a copy of the letter which I had issued to Cr Jarvis on 1st November, 2000 and used it in an inflammatory manner from which members of the Council and the public may have drawn an incorrect inference that I had not truthfully answered the question asked by Mr McCready at the meeting held on 1st November, 2000.
25. Percy provided Jarvis with particulars of Murphy’s complaint in a letter dated 1 December 2000 (Exhibit A1 fol 2.210), but Murphy continued to conduct his investigation, and, in so doing, corresponded with Jarvis and engaged Strach, with her consent (see fols 2.204ff). Percy gave Jarvis until 4 December 2000 to respond to Murphy’s complaint. She sought an extension of time to 11 December 2000, but failed to meet that deadline. She explained to the court that her mother suffered a stroke while she was assembling material for her lawyers to consider.
26. Jarvis did not attend the Council’s meeting on 20 December 2000, nor those on and between 17 January and 14 February 2001, being absent on the death of her mother, and later on sick leave. See Exhibit A1 fol 2.214, her letter and medical certificate at Exhibit A1 fol 2.229-230, and the relevant General Manager’s letter granting leave of absence at fol 2.240. She promised a response to Murphy’s complaint by 17 January 2001, but again failed to provide one before that date.
27. At the meeting on 17 January 2001, Percy submitted a report on Murphy’s complaint about Jarvis (see Exhibit A1 fols 2.231-237). That report relevantly included the following (at 234-5):
The Ombudsman has also advised Cr Atkins in writing that the Office regards the review of her complaint about the staff member by Mr Murphy as an opportunity to investigate her concerns in this matter once and for all. She was encouraged to fully participate and co-operate with the review of her complaint in a final effort to resolve her concerns.
Since Cr Atkins left for overseas both Cr Atkins and Cr Jarvis have both approached the Ombudsman’s Office on a number of occasions with a view to Council taking a different direction with the investigation involved. On all occasions the Ombudsman has rejected their complaints on the basis that the Ombudsman’s Office considers that the action taken by the General Manager in delegating the authority for the investigation is most appropriate.
It is a requirement of the Council’s Code of Conduct (Clause 16.3) that where a report relates to the conduct of staff, the General Manager shall deal with the matter according to the terms of employment of the staff member. The terms of employment of the employee concerned are set out in the Local Government (State) Award 2000. Ordinarily, details of such a complaint against a staff member would not be reported to the Council but the complainant would be advised of the outcome of the investigation of the complaint. Circulating a letter, naming the employee being investigated is a breach of the rights of the employee and may be in breach of the Privacy and Personal Information Protection Act.
…
In the absence of a proper explanation from Cr Jarvis it appears that the complainant’s letter to her was deliberately referred to a member of the public for the purpose of causing embarrassment. Referral of the subject letter by Cr Jarvis to a member of the public has been confirmed by statements made by the member of the public at a Council meeting and by the member of the public attaching a copy of the subject letter to a complaint lodged by the same member of the public. Releasing the letter is considered by the complainant to be a blatant contravention of the requirement ‘to refrain from any form of conduct in the performance of official or professional duties which may cause any reasonable person unwarranted offence or embarrassment’.
28. Murphy made a detailed statement to the meeting of 17 January 2001 (see transcript ‘N’ at pp 5-7), and its minutes (Exhibit A4) clearly identify him as “the complainant”, relevantly referred to in the papers. Inter alia, he said that he carried out his Hardgrave investigation “with unsurpassed attention to detail”, but had “nothing but obstruction” from “the people who are seeking the answer to this question”. He then withdrew from the meeting.
29. Percy’s report recommended that Council “resolve that Councillor Jarvis had breached Council’s Code of Conduct”, and that “Council consider applying the strongest possible sanctions for” those breaches (Exhibit A1, fol 2.237).
30. Council decided to deal with the matter in Jarvis’ absence (see transcript ‘N’, and Exhibit A4 pp 7-8), and, eventually, resolved unanimously to accept the first recommendation, and then that (Exhibit A1 fol 2.239):
Council reprimand Cr Jarvis and require from her formal written apologies by the next meeting after Cr Jarvis’ leave expires to each of the complainants and the staff member named in the letter circulated by Cr Jarvis and that the lack of a formal apology in writing be dealt with as a breach of the Council’s Code of Conduct.
31. The evidence and cross-examination suggested that Jarvis was evading her Council duties and meetings, but the court accepts completely her oral evidence regarding family bereavements and associated concerns about her own health.
32. The Council decision was reported on the front page of a local newspaper dated 19 January 2001 (Exhibit A1 fol 2.242).
33. The General Manager wrote to her on the same date (19 January 2001) in these terms (Exhibit A1 p 2.241):
At its recent meeting Council considered the General Manager’s Report in connection with the complaint lodged about you by a staff member. This matter has been the subject of correspondence with you and (as requested by you) was reported on a deferred basis to the meeting of 17 January 2001. Your letters of 18 December 2000, 9 January 2001 and 16 January 2001 were all considered in conjunction with this report.
It would be appreciated if you would let me have copies of your formal written apologies as requested so that the Council can be informed that you have complied with the resolution.You are advised that the Council has resolved that:
(a) You have breached clauses 5.1, 7 and 16.3 of the Council’s Code of Conduct.
(b) You be reprimanded for your breach of the Council’s Code of Conduct.
(c) You be required to provide formal written apologies to the complainant and the staff member named in the letter circulated by you to a member of the public, and that these apologies be provided no later than the first Ordinary Meeting of the Council after your leave of absence from Council expires.
(d) That should you fail to provide the formal apology in writing that the Council will deal with the matter as a breach of its Code of Conduct.
34. The minutes of the 17 January 2001 meeting were adopted with only minor amendments (Exhibit A6 p 2 Resolution 41).
35. Jarvis seeks, firstly, a declaration that Council’s said resolution(s) of 17 January 2001 “are invalid and no effect”.
36. On 13 February 2001 Murphy wrote to Jarvis in the following terms (Exhibit A1 fol 2.267):
It is advised that my investigation of Cr Atkins’ complaint against Mrs Lucy Hardgrave has been completed. After considering answers given to me by Mrs Hardgrave at interview and the conclusion of the reports of two forensic scientists I am satisfied that Cr Atkins’ allegations against Mrs Hardgrave are incorrect and that Mrs Hardgrave was not the author of the handwritten note.
In the circumstances I have determined that Cr Atkins’ complaint should be dismissed.
A full report of my investigation into Cr Atkins’ complaint will be submitted on a confidential basis to the meeting of the Council to be held on 21st February 2001.
37. The Murphy report is in evidence (Exhibit A2 fols 3.101ff) and 184 pages of it are stamped “Confidential”. Suffice to say that Murphy concluded that “Lucy Hardgrave was not the author of the handwritten note”. He dismissed Atkins’ complaint, and recommended Hardgrave receive “a humble apology” from Atkins and Jarvis (Exhibit A2 fols 3.114-115).
38. The minutes of the “closed” meeting of 21 February 2001 are also before the court (Exhibit A1 fol 2.268-270). Jarvis is not listed as attending, but the Council (in committee) resolved as follows:
1. that Mr Michael Murphy’s report of the investigation of a complaint lodged by Cr Carol Atkins against employee Lucy Hardgrave be received, noted and that Council concur with Mr Murphy’s findings.
2. that in view of Mr Murphy’s findings in relation to the matter that the Council is of the opinion that an apology in writing be forwarded to Mrs Lucy Hardgrave by both Cr Atkins and Cr Jarvis for making allegations in relation to this matter.
3. that in accordance with the Ombudsman’s request of 25th May, 2000 the report of the investigation and the supporting documentation as circulated to Councillors be forwarded to the NSW Ombudsman including the original of the handwritten note and samples of handwriting taken by retired magistrate.
4. that this Council is of the opinion that it is not in the public interest that any further complaints relating to this matter and the ‘Centrelink Issue’ be investigated.
5. that any further complaints relating to this matter and the ‘Centrelink Issue’ be placed on file with acknowledgment and without any further action being taken.
39. At each of the Council meetings held on 21 February, 7 March and 14 March, 2001, after her leave of absence expired, Jarvis was asked about compliance with the 17 January 2001 resolution, and, when she indicated she would not comply, she was excluded from the meetings, by resolution of the Council (Resolution 63 on 21 February at Exhibit A1 fol 2.250, and Resolution 100 on 7 March at Exhibit A1 fol 2.263), or by ruling of the Mayor (on 14 March at Exhibit A1 fol 2.265).
40. Jarvis seeks declarations, that secondly, those resolutions or rulings “are invalid and no effect”, and, thirdly, those expulsions are “unlawful or alternatively contrary to the Applicant’s entitlement to attend and participate in those said meetings”.
41. She fourthly seeks a declaration that any disclosure by her of the letter of 1 November 2000 from Murphy was not in breach of Council’s code of conduct.
The regulatory framework
42. The most relevant provisions of Council’s Code of Conduct, which I find was adopted on 1 November 2000, to apply on and from 2 November 2000 (see Exhibit A3 p9 Resolution 2756), and allegedly breached by Jarvis, are as follows (see Exhibit A2 fol 3.200-3.219) (emphasis added):
5.1 EQUITABLE TREATMENT OF PEOPLE AND SITUATIONS
As a Councillor, staff member or delegate it is important that at all times you act in a manner that enhances community confidence in the Council.
Councillors, staff and delegates should always:
…
- …
7. USE OF INFORMATION…
A Councillor, member of staff or delegate must:
…
16.3 Complaint Procedure
- …
- …
· The Council must decide whether a Complaint reveals a breach of this Code.
· The Council may take any steps provided for in this Code that it considers reasonable in the circumstances.
43. The Code of Conduct relevantly also contains the following clause:
Council, having resolved that a Councillor has failed to comply with this policy, may, by resolution:
· require the Councillor to apologise to the person concerned;
· request a formal apology;
· counsel the Councillor;
· reprimand the Councillor;
· resolve to make its decision on the matter public;
· pass a censure motion at a Council meeting;
· make public disclosures of inappropriate conduct;
· suspend a Councillor from Councillor’s duties for a period nominated by resolution of the Council;
· reduce the Councillor’s annual fee proportionately for any period during which the Councillor is suspended from carrying out Councillor’s duties;
· refer the matter to an appropriate investigative body if the matter is serious; make a complaint to the Director-General, or the Director-General may make a complaint that a person may have contravened Part 2 of the Act;
· prosecute any breach of the law.
is relevantly “called up” by clause 7 of the Code, and lists the following “matters and information”:
(a) personnel matters concerning particular individuals,
(b) the personal hardship of any resident or ratepayer,
(c) information that would, if disclosed, confer a commercial advantage on a person with whom the council is conducting (or proposes to conduct) business,
(d) commercial information of a confidential nature that would, if disclosed:
(i) prejudice the commercial position of the person who supplied it, or
(ii) confer a commercial advantage on a competitor of the council, or
(iii) reveal a trade secret,
(e) information that would, if disclosed, prejudice the maintenance of law,
(f) matters affecting the security of the council, councillors, council staff or council property,
(g) advice concerning litigation, or advice that would otherwise be privileged from production in legal proceedings on the ground of legal professional privilege.
45. The LGA also deals with public access to correspondence and reports (s 11) and restriction of access to information (s 12A).
46. Section 374 of the LGA provides that:
Proceedings at a meeting of a council or a council committee are not invalidated because of:
…
(e) a failure to comply with the code of meeting practice.
47. Other potentially relevant sections of the LGA are set out and discussed in my judgment in Styles v Wollondilly Council [2001] NSWLEC 18 (see pars 17-57).
48. Clauses 29 to 31 of the Local Government (Meetings) Regulation 1999 (“the Meetings Regulation”), which commenced on 1 September 1999, provide:
29 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:
…
(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:
…
(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.
31 Power to remove persons from meeting after expulsion30 How disorder at a meeting may be dealt with
(1) If disorder occurs at a meeting of a council, the chairperson may adjourn the meeting for a period of not more than 15 minutes and leave the chair. The council, on reassembling, must, on a question put from the chair, decide without debate whether the business is to be proceeded with or not. This subclause applies to disorder arising from the conduct of members of the public as well as disorder arising from the conduct of councillors.
(2) A member of the public may, as provided by section 10(2)(a) or (b) of the Act, be expelled from a meeting of a council for engaging in or having engaged in disorderly conduct at the meeting.
If a councillor or a member of the public fails to leave the place where a meeting of a council is being held:
(a) immediately after the council has passed a resolution expelling the councillor or member from the meeting, or
(b) where the council has authorised the person presiding at the meeting to exercise the power of expulsion immediately after being directed by the person presiding to leave the meeting,
a police officer, or any person authorised for the purpose by the council or person presiding, may, by using only such force as is necessary, remove the councillor or member from that place and, if necessary, restrain the councillor or member from re-entering that place.
49. Council has adopted a Code of Meeting Practice (the relevant version is at Exhibit A2 fols 3.231-256). Part 4 (clauses 28-31) deals with questions of order, acts of disorder, and power to remove (see Exhibit A2 fol 3.244-5). It allows for the police to be called to remove persons, as occurred on the relevant occasions in this matter.
50. I am satisfied that Council, in procedural terms, conducted its business, in regard to the subject matter of these proceedings, in accordance with the LGA, the relevant regulations, and Council’s Codes of Conduct and Meeting Practice.
51. Therefore, I turn now to consider the appropriateness and legality of its actions. Ryde City Council v Echt & Anor [2000] NSWCA 108 (at par 17) per Spigelman CJ.
The parties’ contentions
52. The parties agree that the word “disclose” must be given its normal meaning namely “open up to the knowledge of others” (see the Shorter Oxford English Dictionary, Third Ed., Vol I, p560), and that the relevant disclosure is the dissemination by Jarvis, to at least McCready, of her letter of 1 November 2000 from Murphy.
53. The applicant admits disclosing the contents of the letter of 1 November 2000, but contends that, as the subject matter (including the fact that Murphy would conduct some investigation) was all in the public domain, the disclosure was not in breach of the Code of Conduct. Mr Wilson cites the Ombudsman’s open letters to Reid and the Council on 13 October, and the publicity given in the local newspapers and the “Queen Bee Anne” newsletters (alleged circulation 15,000) to some of the earlier relevant events (See Exhibit A1, e.g., fols 2.002ff, 098ff, 107ff, 178ff, and 184ff).
54. The respondent concedes that Atkins’ allegation that Hardgrave authored the handwritten note had received some publicity, but contends that the contents of the 1 November 2000 letter, dealing with the nature and scope of Murphy’s investigation, and the engagement, by Council, of the handwriting expert (Strach) were not publicly known. Even if the provision of information to one member of the public (Reid) were to be regarded as putting matters into the “public domain”, Reid was not given all the information Murphy provided to Jarvis.
55. The respondent complains that, as a citizen and as an employee, Hardgrave had an entitlement to privacy and the presumption of innocence; that publication of what was to be, appropriately, an in-house investigation, clothed the Atkins allegation with some standing; and that the disclosure to McCready was intended to cause embarrassment to Hardgrave, and resulted also in the embarrassment of Murphy, whose professional integrity was impugned by McCready’s use of the letter at the meeting of 15 November, and his letter to a local newspaper.
56. The applicant further contends that the resolution carried on 17 January 2001, and the subsequent resolutions to expel Jarvis from the various later Council meetings she attended, were not “open” to Council on the facts and were so unreasonable that no reasonable Council could come to them. The Meetings Regulation cl 29, properly construed, cannot make her failure to apologise an act of disorder. Further, the objective test of “offence” in clause 5.1 of the Code of Conduct cannot be met if the information disclosed was already public. Any “embarrassment” was cut short by the answer given by Murphy at the 1 November 2000 meeting, and the Mayor’s peremptory termination of McCready’s question at the 15 November 2000 meeting, and McCready was, in any event, not dealt with pursuant to clauses 30 and 31 of the Regulation.
Conclusions
57. Essentially, the court accepts the final submissions of Mr Hastings QC, on behalf of the Council.
58. I am satisfied that the disclosure, outside Council circles, of the contents of the 1 November 2000 letter was in breach of the Code of Conduct. I am satisfied that it was designed to damage the Murphy investigation, and hence the reputation and employment of Hardgrave, and it was, therefore, a breach of cl 5.1 of the Code.
59. The subject matter was a personnel matter concerning a particular individual (LGA
s 10A(2)(a)), and its disclosure, therefore, breached cl 7 of the Code as well.
60. The Council’s conclusions to those effects were indeed open to Council, and reasonably drawn.
61. Although Jarvis had a reasonable excuse for not fulfilling the requirements of the Complaint Procedure in cl 16.3, her excuse was not proffered to the Council in a timely fashion; nor was the response which she promised.
62. Therefore, as at 17 January 2001, Council’s conclusion that she was in breach of cl 16.3 was likewise open to Council and reasonably drawn.
63. Non-compliance by Jarvis with the resolutions of Council, based on the Code, can and does, in my view, constitute an act of disorder, being “inconsistent with maintaining order” and/or “likely to bring the council … into contempt” (Reg 29(1)(e)). See discussion of a similar issue in Styles (at pars 208ff).
64. The court notes that these decisions of Council had elements of unanimity and conscientiousness about them. The transcripts show a desire to uphold the Codes; even those sympathetic to Jarvis, and to her absence on 17 January 2001, voted for the ultimate Council resolution; and the sanction imposed was not unduly harsh, when considered against the scope of sanctions available in cl 16.6.1 of the Code.
65. The principles of “reasonableness”, as articulated by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 (at 39-42), and by the learned Chief Judge of this court in Hospital Action Group Association Inc v Hastings Municipal Council (1993) 80 LGERA 190 (at 195-7), and Schroders Australia Property Management Ltd v Shoalhaven City Council & Anor (1999) 110 LGERA 130 (at 133), have in no way been infringed by any relevant resolution(s) of the Council, or ruling by the Mayor, in this case. Only relevant matters were considered by the Council.
66. Jarvis’ expulsions from various meetings of the Council may well be seen as unfortunate, but I conclude from all the evidence available that they are tainted with no illegality.
67. The court, in all these circumstances, can find no basis upon which to make any of the four declarations she has sought, nor any other order in her favour.
Orders
68. The class 4 application is dismissed, and the applicant, having been completely unsuccessful, is ordered to pay the Council’s costs on a party-party basis.
69. The exhibits may be returned.
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