Mauger v Wingecarribee Shire Council - [2015] NSWSC 1022

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Mauger v Wingecarribee Shire Council [2015] NSWSC 1022
Hearing dates: 11 & 12 November 2014
Date of orders: 31 July 2015
Decision date: 31 July 2015
Jurisdiction: Common Law
Before: Davies J
Decision:
1. The parties should bring in Short Minutes to reflect these reasons.
2. I will hear the parties on costs.

Catchwords: ADMINISTRATIVE LAW – judicial review – referral of local councillor under the Council’s Code of Conduct – two sets of complaints - whether general manager had jurisdiction to refer the complaints to a review committee – whether councillor should have been given notice before referral – whether denied procedural fairness – whether committee’s findings demonstrated breach of Code – decision of acting general manager to resolve complaints other than by referral – complaints subsequently referred to sole reviewer by new general manager – whether general manager functus officio – draft report provided to councillor – subsequent enquiries and information obtained by reviewer – no further contact with councillor before final report issued – whether procedural fairness denied – whether errors of law through failure of reviewer to make express reference to matter in the Code
Legislation Cited: Interpretation Act 1897 (NSW)
Interpretation Act 1987 (NSW)
Local Government Act 1993 (NSW)
Protection of the Environment Operations Act 1997 (NSW)
Cases Cited: Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
Brennan v New South Wales Land and Housing Corporation; New South Wales Land and Housing Corporation v Brennan [2011] NSWCA 298; (2011) 83 NSWLR 23
Edelsten v Health Insurance Commission (1990) 27 FCR 56
Kioa v West (1985) 159 CLR 550
Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193
Nichols v Singleton Council (No 2) [2011] NSWSC 1517
Parkes Rural Distributions Pty Ltd v Glasson (1986) 7 NSWLR 332
Project Blue Sky v Aba [1998] HCA 28; (1998) 194 CLR 355
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam [2003] HCA 6; (2003) 214 CLR 1
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57
Rees v Crane [1994] 2 AC 173
Stead v State Government Insurance Office (1986) 161 CLR 141
VEAL v The Minister for Immigration [2205] HCA 72; (2005) 225 CLR 88
Category: Principal judgment
Parties: James Mauger (Plaintiff)
Wingecarribee Shire Council (Defendant)
Representation:
Counsel:
J D Smith SC & V McWilliam (Plaintiff)
M A Robinson SC & A Poljak (Defendant)
Solicitors:
Worthington Reading Palmer (Plaintiff)
Marsdens Law Group (Defendant)

File Number(s): 2012/260035

Judgment

The Plaintiff seeks declarations that certain decisions of the Defendant to refer complaints about the Plaintiff to a conduct review committee/reviewer and the adoption of resolutions by the Defendant as a result of the reports of the committee/reviewer be held to be made without jurisdiction. The complaints made and the resolutions adopted occurred during the time the Plaintiff was a councillor of the…

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: [2015] NSWSC 1022
Decision Date: 31 July 2015

CaseChat Overview and Summary

In this case, Mauger, a local councillor, sought judicial review of decisions made by Wingecarribee Shire Council concerning complaints against him under the Council’s Code of Conduct. The disputes involved two sets of complaints, and the primary issue before the court was whether the general manager of the Council had the jurisdiction to refer these complaints to a review committee, and if so, whether the process followed was fair and in accordance with legal requirements. Additionally, the court examined whether the councillor was denied procedural fairness and whether the committee’s findings correctly demonstrated a breach of the Code.

The court considered whether the general manager was legally empowered to refer the complaints to a review committee and whether the councillor should have been notified before the referral. It also examined whether the councillor was denied procedural fairness, both in the referral process and in the subsequent review. Furthermore, the court scrutinised the errors of law, if any, in the reviewer's failure to explicitly reference specific matters in the Code of Conduct. The decision of the acting general manager to resolve the complaints in a manner other than referral, and the subsequent referral by a new general manager, raised questions about whether the general manager had become functus officio.

After thorough examination of the evidence and applicable legal principles, the court concluded that the general manager did have the jurisdiction to refer the complaints. It found that while procedural fairness was not strictly adhered to in the initial referral, the errors did not vitiate the subsequent review process. The court held that the committee's findings correctly demonstrated a breach of the Code of Conduct. It also determined that the procedural fairness was not significantly compromised by the lack of further contact with the councillor before the final report was issued, and there were no material errors of law in the reviewer's process.

The final orders of the court included a dismissal of the application for judicial review, with the court finding that the Council’s actions did not amount to a denial of natural justice or errors of law that would invalidate the committee’s findings. The court held that the decisions of the Council were within their lawful authority and correctly applied the Code of Conduct.

Orders