Ku-ring-gai Council v Garry West as delegate of the Acting Director-General, Office of Local Government

The appeal concerned a judicial review application brought by Ku-ring-gai Council against Garry West, as delegate of the Acting Director-General of the Office of Local Government, and the Minister for Local Government. The dispute arose from a proposal to merge part of the Ku-ring-gai local government area with another local government area. The delegate had been tasked with examining and reporting on this merger proposal. The proceedings were heard in the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the delegate had properly understood and performed his statutory functions under the *Local Government Act 1993* (NSW), specifically concerning the examination of the advantages and disadvantages of the merger proposal, including the excision of a part of Ku-ring-gai LGA. Relatedly, the court considered whether the delegate's task was rendered futile due to his alleged lack of access to certain documents over which the Department claimed public interest immunity, and whether this, along with the refusal to grant the Council access to these documents, constituted a denial of procedural fairness. The court also had to determine if the delegate had carried out the statutory task of examination and report, and whether reasonable public notice of the inquiry had been given.

The Court of Appeal found that the delegate had misapprehended his functions and had failed to carry out the statutory task of examination and report in relation to the merger proposal. The court held that the delegate's report was vitiated by these errors. Furthermore, the court determined that the primary judge had erred in upholding the claim of public interest immunity for the documents in question, finding that the public interest in their production outweighed the public interest in their secrecy. Consequently, the appeal was allowed, the orders of the Land and Environment Court were set aside, and the delegate's examination and report, along with the subsequent review by the Boundaries Commission, were also set aside. The respondents were ordered to pay the appellant's costs.