Minister for Local Government v South Sydney City Council - [2002] NSWCA 288

No judgment structure available for this case.

Reported Decision:
(2002) 55 NSWLR 381
(2003) 123 LGERA 367

New South Wales

Court of Appeal

CITATION: MINISTER FOR LOCAL GOVERNMENT & ANOR v SOUTH SYDNEY CITY COUNCIL [2002] NSWCA 288

FILE NUMBER(S): CA CA 40444/02

HEARING DATE(S): 18/07/02
19/07/02

JUDGMENT DATE:
30 August 2002

PARTIES :

Minister for Local Government (Appellant)
Local Government Boundaries Commission (Second Appellant)
South Sydney City Council (Respondent)

JUDGMENT OF: Spigelman CJ at 1; Mason P at 51; Ipp AJA at 296

LOWER COURT JURISDICTION : Land & Environment Court

LOWER COURT
FILE NUMBER(S) : 40060/02

LOWER COURT
JUDICIAL OFFICER : Talbot J

COUNSEL: B Walker SC / N Hutley SC / N Perram (Appellant and Second Appellant)
S Rares SC / M B Lee (Respondent)

SOLICITORS: I V Knight (Appellant and Second Appellant)
Marsdens Law Group (Respondent)

CATCHWORDS: JURISDICTION - Land and Environment Court - whether issue of procedural fairness within jurisdiction - whether breach of the Act - s672 Local Government Act 1993 - whether within ancillary jurisdiction - s16(1A) Land and Environment Court Act 1979 - ADMINISTRATIVE LAW - Local Government Boundaries Commission - whether report invalid for consideration of wrong proposal - whether reasons of trial judge adequate - whether critical evidence disregarded - ADMINISTRATIVE LAW - delegation of function- whether consultants could be engaged to deal with submissions - ADMINISTRATIVE LAW - procedural fairnes - Local Government Boundaries Commission - content of obligation where no inquiry held - whether obligation breached - whether obliged to notify affected Council of modifications to proposa - whether obliged to give affected Council access to adverse submissions - ADMINISTRATIVE LAW - relevant considerations - whether statutory factor given "proper, genuine and realistic consideration" - s263(3)(e2) Local Government Act 1993

LEGISLATION CITED: Land and Environment Court Act 1979
Local Government Act 1993

CASES CITED:
Abebe v The Commonwealth (1999) 197 CLR 510
Advance Bank Australia Ltd v FAI Insurances Ltd (1987) 9 NSWLR 464
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Annetts v McCann (1990) 170 CLR 596
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Brettingham-Moore v Municipality of St Leonards (1969) 121 CLR 509
Brodie v Singleton Shire Council (2001) 75 ALJR 992
Calvin v Carr [1980] AC 574
Chiropractors Association of Australia (South Australia) Ltd and Naomi Perry v Workcover Corporation Association of South Australia [1997] SASC 120
Cooper v Wandsworth Board of Works (1863) 14 CB(NS) 180, 143 ER 414
Coulton v Holcombe (1986) 162 CLR 1
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374
FAI Insurance Ltd v Winneke (1982) 151 CLR 342
Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242
Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648
Hill v Green (1999) 48 NSWLR 161
Hill v King (1993) 31 NSWLR 654
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
Johns v Australian Securities Commission (1993) 178 CLR 408
Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291
Kioa v West (1985) 159 CLR 550
Mahon v Air New Zealand [1984] AC 808
Mifsud v Campbell (1991) 21 NSWLR 725
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Minister for Immigration v Bhardwaj (2002) 76 ALJR 598
Muin v Refugee Review Tribunal [2002] HCA 30
National Companies & Securities Commission v News Corporation Limited (1984) 156 CLR 296
North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468
NTL Australia Pty Ltd v Minister for Land and Water Conservation (2001) 112 LGERA 403
R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13
R v Panel on Take-overs and Mergers; Ex parte Datafin [1987] QB 815
Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82
Re: Minister for Immigration and Multicultural Affairs; Ex parte "A" [2001] 185 ALR 489
Russell v Duke of Norfolk [1949] 1 All ER 109
Scharer v State of New South Wales (2001) 53 NSWLR 299
South Australia v O'Shea (1987) 163 CLR 378
South Sydney City Council v Minister for Local Government & Anor [2002] NSWLEC 74
South Sydney Council v Local Government Boundaries Commission [2001] NSWLEC 280
State of Victoria v The Master Builders' Association of Victoria [1995] 2 VR 121
Stead v State Government Insurance Commission (1986) 161 CLR 141
Telstra Corporation Ltd v Kendall (1995) 55 FCR 221
Testro Brothers Pty Ltd v Tait (1963) 109 CLR 353
Tickner v Chapman (1995) 57 FCR 451
Transport Action Group Against Motorways Inc v Roads & Traffic Authority (1999) 46 NSWLR 598
Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78
Victims Compensation Fund Corporation v Nguyen (2001) 52 NSWLR 213
Warringah Council v Edmondson [2001] NSWCA 1
Weal v Bathurst City Council (2000) 111 LGERA 181
Zhang v Canterbury City Council (2001) 51 NSWLR 589

DECISION: Appeal allowed

CA 40444/02

SPIGELMAN CJ
MASON P
IPP AJA
Friday 30 August 2002

MINISTER FOR LOCAL GOVERNMENT& ANOR v SOUTH SYDNEY CITY COUNCIL

FACTS

On 30 November 2001, the Minister referred a proposal for the alteration of certain local government area boundaries to the Local Government Boundaries Commission pursuant to s218F of the Local Government Act1993 . The proposal involved the transfer of some of the South Sydney City Council area to the City of Sydney Council. The Boundaries Commission submitted its Report to the Minister on 20 March 2002. The Respondent claimed that the Boundaries Commission Report was invalid by reason of defects in the process leading to its creation.

HELD

A (per Mason P, Spigelman CJ and Ipp AJA agreeing)

The Land and Environment Court has jurisdiction to decide an issue of procedural fairness with regard to a report of the Boundaries Commission because a failure to accord procedural fairness will result in the nullification of the report. As the report is a precondition to the Governor’s power to proclaim a boundary alteration pursuant to s218B, implementation of a proposal subsequent to an invalid report would constitute a breach of the Act within the meaning of s672 of the Local Government Act 1993 . The Court’s ancillary jurisdiction pursuant to s16(1A) of the Land and Environment Court Act 1979 was also enlivened because the procedural fairness issue was ‘incidental, accessory or auxiliary’ to the question of the validity of the Report. Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242; Minister for Immigration v Bhardwaj (2002) 76 ALJR 598 applied. Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; South Australia v O’Shea (1987) 163 CLR 378 referred to. Warringah Council v Edmondson [2001] NSWCA 1 distinguished.

(per Spigelman CJ, Ipp AJA agreeing)

The obligation to afford procedural fairness is a common law duty that attaches to the exercise of a statutory power. A failure to accord procedural fairness may therefore constitute a contravention of, or failure to comply with, an Act. Annetts v McCann (1990) 170 CLR 596 applied. Vanmeld Pty Ltd vFairfield City Council (1999) 46 NSWLR 78; Abebe v TheCommonwealth (1999) 197 CLR 510; Re Refugee Tribunal; Ex parteAala (2000) 204 CLR 82; Re Minister for Immigration and MulticulturalAffairs; Ex parte Epeabaka (2001) 206 CLR 128; Re Minister forImmigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; Muin v Refugee Review Tribunal [2002] HCA 30 referred to. Warringah Council v Edmondson [2001] NSWCA 1 doubted.

B (per Mason P, Spigelman CJ and Ipp AJA agreeing)

The misdescription of the boundary proposal in Chapter 2 of the Commission’s report did not suggest consideration of the wrong proposal by the Commission. The weight of evidence suggested that the misdescription was an oversight and that the Minister’s proposal was the true object of the Commission’s examination and report.

The Boundaries Commission did not unlawfully delegate their responsibility for the Report. The SSCC did not discharge its onus of proving that the commissioners had no personal involvement in the preparation of the Report. It was reasonable for the commissioners to engage consultants to deal with the volume of material concerned. Johns v Australian Securities Commission (1993) 178 CLR 408 applied. Tickner v Chapman (1995) 57 FCR 451 referred to.

In any event, the decision to the contrary by the trial judge was unsupported by necessary findings of fact. Mifsud v Campbell (1991) 21 NSWLR 725 referred to.

C (per Mason P, Spigelman CJ and Ipp AJA agreeing)

Local Government Act 1993

Mahon v Air New Zealand

Victims Compensation Fund Corporation v Nguyen

Ainsworth v Criminal Justice Commission

Kioa v West

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah

Minister for Immigration and Multicultural Affairs v Bhardwaj

Muin v Refugee Review Tribunal

North Sydney Council v Michael Standley & Associates Pty Ltd

Vanmeld Pty Ltd v Fairfield City Council

(per Spigelman CJ, Ipp AJA agreeing)

The decision of the Boundaries Commission to propose modifications to the Minister’s proposal in the Report may have given rise to an obligation to give notice to SSCC but this case was not advanced at trial. Ainsworth v Criminal JusticeCommission (1992) 175 CLR 564; Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 applied. South Australiav O’Shea (1987) 163 CLR 378; Calvin v Carr [1980] AC 574 discussed. Hill v Green (1999) 48 NSWLR 161 referred to. Brettingham-Moore v Municipality of St Leonards (1969) 121 CLR 509 distinguished.

(per Mason P)

The modifications of the Boundaries Commission did not give rise to an obligation to notify SSCC because they did not affect SSCC’s interests differently from the matters already addressed by SSCC’s submission.

D (per Mason P, Spigelman CJ and Ipp AJA agreeing)

The Boundaries Commission gave genuine consideration to the factor stipulated in s263(3)(e2) of the Local Government Act 1993 . It was appropriate for the Commission to leave the task of identifying staff directly affected by the proposal for the relevant Councils at a later stage. Weal v Bathurst City Council (2000) 111 LGERA 181; Zhang v Canterbury City Council (2001) 51 NSWLR 589 referred to.

ORDERS

CA 40444/02

SPIGELMAN CJ
MASON P
IPP AJA

Friday 30 August 2002

MINISTER FOR LOCAL GOVERNMENT& ANOR v SOUTH SYDNEY CITY COUNCIL

Judgment

1 SPIGELMAN CJ: I have read the judgment of Mason P in draft. I gratefully adopt his Honour’s outline of the facts and the submissions. I agree with the entirety of his Honour’s reasoning with respect to the alleged failure on the part of the Local Government Boundaries Commission to consider the proposal referred to it and the alleged wrongful delegation to consultants of its statutory obligation to examine and report. I also adopt his Honour’s reasons for rejecting the matter raised by means of the Notice of Contention alleging failure to have regard to the factors stipulated in s263(3)(e2) of the Local Government Act 1993. I wish to state my own reasons on the jurisdictional and procedural fairness issues.

Jurisdiction of the Land and Environment Court

2 Section 674(1) of the Local Government Act 1993 provides:

“Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act.”

3 Section 672(a) of the Act provides:

A breach of this Act

(i) a contravention of or failure to comply with this Act,

(ii) a threatened or an apprehended contravention of or a threatened or apprehended failure to comply with this Act ...”

4 One of the issues considered in this Court in Warringah Council v Edmondson [2001] NSWCA 1 was a submission that a council’s power, under s45(2) of the Act, to enter into a lease of community land, was subject to an implied requirement that the council, once it had invited tenders, afford procedural fairness in deciding which tender to accept.

5 The Land and Environment Court had found:

“A failure to act reasonably and fairly is relevantly a contravention of or failure to comply with the Act.”

6 This Court allowed the appeal on the basis that the Land and Environment Court had misconceived the source of the obligation to afford procedural fairness. The judgment of Fitzgerald JA, with whom Meagher and Powell JJA agreed, relied on my own judgment in Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 at 91-92 where I said:

Kioa v West

Annetts v McCann

Ainsworth v Criminal Justice Commission

Attorney-General (NSW) v Quin

Victoria v Master Builders Association (Vic)

Kioa v West

FAI Insurance Ltd v Winneke

Ainsworth

7 I have considered this issue elsewhere. (See Spigelman “Foundations of Administrative Law” (1999) 4 The Judicial Review 69 at 72-79.) In my opinion, the common law basis for the duty to accord procedural fairness is reflected in the cases which extend the duty to the exercise of prerogative powers. (See e.g. Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 409; State of Victoria v The Master Builders’ Association of Victoria [1995] 2 VR 121 at 133-139, 147-149, 154-159.) It is also the basis for the extension of the principles of judicial review to private bodies which make decisions of a public character. (See e.g. Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242; R v Panel on Take-overs and Mergers; Ex parte Datafin [1987] QB 815.)

8 The origin of the line of authority on which I relied in Vanmeld was the judgment of Mason J in Kioa v West (1985) 159 CLR 550 at 584 where his Honour said:

“The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.”

9 This common law basis for the obligation to afford procedural fairness was adopted, in terms, in the majority joint judgment of the High Court in Annetts v McCann (1990) 170 CLR 596 at 598. The Court specifically referred to Mason J’s terminology of a “common law duty”. As I indicated in Vanmeld at 91-92, the approach consistently taken by Sir Gerard Brennan was to identify the duty to afford procedural fairness as an issue of statutory interpretation and that view had not prevailed.

10 Subsequently to my judgment in Vanmeld, the jurisprudential basis of the duty to afford procedural fairness has been mentioned in a number of judgments in the High Court. Those references have not been such as to overrule the acceptance of the common law basis in the majority joint judgment in Annetts v McCann. This Court should regard itself as still bound by the principle endorsed in that judgment.

11 In some of the recent judgments in the High Court the issue has been treated as open. (See Abebe v The Commonwealth (1999) 197 CLR 510 at [112]-[113] per Gaudron J; Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 at [38]-[40] per Gaudron and Gummow JJ; Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128 at [55] per Kirby J; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at [89]-[90] per Gaudron J and [171]-[172] per Kirby J.)

12 Hayne J has referred to the joint judgment in Annetts v McCann as supporting the common law duty. (See Aala at [168].) McHugh J has adopted the reference by Deane J to the “common law requirements of procedural fairness” in Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 at 653 in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 311. His Honour has also applied the joint judgment in Annetts v McCann. (See Miah at [126].) McHugh J’s reasoning in Teoh has been adopted by Callinan J in Aala at [213] and in Muin v Refugee Review Tribunal [2002] HCA 30 at [308]. Gleeson CJ referred to “the common law requirement of procedural fairness” in Muin at [30]. On one occasion Gleeson CJ and Hayne J applied the reasoning of Brennan J in Kioa v West, but not in such a way as is necessarily inconsistent with the acceptance of the common law duty basis for procedural fairness. (See Miah at [29]-[31] and [52]-[53].)

13 On a number of occasions observations have been made to the effect that the competing views would rarely lead to a different result. (See e.g. Aala at [168] per Hayne J, Miah at [89] per Gaudron J.) A specific statutory conferral of jurisdiction limited in terms to a breach of a statute, may be one of the rare circumstances in which the jurisprudential basis makes a difference. It appears to me that this Court in Edmondson decided the matter on that basis.

14 This Court should follow a prior decision unless satisfied that it is wrong. I entertain considerable doubt as to the correctness of the decision in Edmondson. Even though there is a common law foundation for the principle of natural justice that does not, in my opinion, necessarily mean that a failure to observe those principles is not a “contravention of or failure to comply” with an Act, within the meaning of s652 of the Local Government Act 1993.

15 The common law attaches the principles of natural justice to the exercise of public power, relevantly a statutory power. A formulation such as “contravention or failure to comply with” an Act is not equivalent to the proposition that the obligation to afford procedural fairness is an issue of statutory interpretation. As Kioa v West and Annetts v McCann, as well as many other authorities make clear, the determination of the existence, scope and content of the duty to afford procedural fairness requires careful consideration of the statutory power.

16 In the present case the relevant power is s263(1) which imposes a duty on the Boundaries Commission to conduct an “examination” of and to “report” on a matter referred to it. I am inclined to the view that a failure to exercise a statutory power in accordance with an obligation imposed by the common law with respect to that power, is a contravention of, or failure to comply with, an Act. In the present case, the issue that would arise is whether a failure to observe the requirements of procedural fairness resulted in a failure to “examine and report” in accordance with the Act. However, it is not necessary to finally determine this issue in this case and, in deference to the Court’s prior decision in Edmondson, the Court should not do so.

17 As Mason P concludes, the Minister was proposing to act on the basis that he had before him a valid report. By s218D such a report is made an essential pre-condition for the exercise by the Minister of his statutory power to recommend under s218F(7). Where a Boundaries Commission report has been prepared in breach of the duty to afford procedural fairness, the Minister could not comply with the Act. The Land and Environment Court had jurisdiction to determine whether the pre-condition had been satisfied. Alternatively, the decision as to the validity of the report was a matter “ancillary” to the determination of the Minister’s decision-making process, within the meaning of s16(1A) of the Land and Environment Court Act 1979.

Procedural Fairness

18 It is important to recognise that the Appellant did not rely on the nature of the decision, namely the redrawing of local government boundaries, as a basis for a submission that the Boundaries Commission was not subject to any duty to accord procedural fairness. In the varying terminology that has appeared in the authorities, the decision-making process here in question may have been capable of characterisation as ‘quasi-legislative’ or ‘polycentric’ or ‘multi-factorial’ or ‘political’. Far from relying on such an approach, the Appellant expressly embraced the proposition that an obligation to afford procedural fairness did exist and it could be given by the Minister.

19 The difficulties that arise in the application of the principles of procedural fairness in the context of a multi-staged decision-making process, are illustrated by the contrast between two decisions in the High Court. In South Australia v O’Shea (1987) 163 CLR 378 the High Court held four to one that a Governor was not required to give a prisoner a further hearing before the Governor rejected a Parole Board recommendation that the prisoner be released on licence. In Haoucher v Minister for Immigration and Ethnic Affairs the High Court held three to two that the Minister had to give the immigrant a hearing before rejecting a recommendation of the Administrative Appeals Tribunal that he not be deported.

20 The present case is, in a sense, the obverse of these cases. The full hearing is said to be available at the level of the ultimate decision-maker, irrespective of any defect in the hearing given at a preliminary stage of decision-making.

21 Situations of this character have arisen in the context of determining what effect an appeal has on a defect in the first instance decision. The authorities are reviewed by Fitzgerald JA in Hill v Green (1999) 48 NSWLR 161 at [155]-[164], see also at [54]-[55].

22 In Calvin v Carr [1980] AC 574 the Privy Council held at 592-593 that it was not possible to generalise in this regard. In some cases an appeal will cure any defect; in others procedural fairness will be required at both levels. There is an intermediate class of cases where “a fair decision, notwithstanding some initial defect” will be upheld on the basis that “there has been a fair result, reached by fair methods” (at 593) (See generally Aronson and Dyer, Judicial Review of Administrative Action, 2nd ed, at 370-377; Craig, Administrative Law, 3rd ed, p316; De Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5th ed, at 10-020 – 10-024.

23 The present case differs from the domestic tribunal context considered in Calvin v Carr. However, the same approach can be adapted to a statutory context such as the present. The better view is that the effect of an appeal will turn on the ability and obligation of the second-tier decision-maker to provide the appellant with the measure of procedural fairness to which he or she is entitled.

24 The Appellants relied on the judgment of Mason CJ in South Australia v O’Shea where his Honour said at 389:

the decision-making process, viewed in its entirety, entails procedural fairness

25 It is not necessary to consider the varying rationales which have been expressed for procedural fairness. (See e.g. Aronson & Dyer, at 305-307.) One rationale which has recently been emphasised is the requirement of fair decision-making procedures. In Aala, Gaudron and Gummow JJ, with whom Gleeson CJ agreed, said at [59]:

“However, the conditioning of a statutory power so as to require the provision of procedural fairness has, as its basis, a rationale which differs from that which generally underpins the doctrine of excess of power or jurisdiction. The concern is with observance of fair decision-making procedures rather than with the character of the decision which emerges from the observance of those procedures.”

26 This approach reinforces the reference in the judgment of Mason CJ in O’Shea to the fairness of “the decision-making process, viewed in its entirety” as quoted above. The observations in Calvin v Carr on the intermediate class of case, referred to above, are to the same effect. In this regard it is necessary to assess what, if any, effect upon the Respondents “rights, interests and legitimate expectations”, to use the accepted formula, is occasioned by the process of examination and report by the Boundaries Commission. This assessment requires an analysis of the statute.

27 Similar issues arose in the closely analogous legislative scheme considered in Brettingham-Moore v Municipality of St Leonards (1969) 121 CLR 509. In that case a Municipal Commission created by a Tasmanian statute performed the functions of both the Boundaries Commission and the Minister in the present case. Under s14 of the Act it prepared a report and under s15 of the Act, after representations were made, the Commission, “after taking such evidence and hearing such argument as it thinks proper” produced a further report. Decisions by the Governor to, inter alia, alter municipal boundaries, could only be taken upon and in accordance with a report from the Municipal Commission.

28 The proceedings in Brettingham-Moore were instituted after the s14 Report but before the s15 Report. With respect to the challenge to the s14 Report, Barwick CJ with whom Menzies and Windeyer JJ agreed said at 520-522 (emphasis added):

“The consequences of applying this part of the rules as to affording natural justice in this case according to the respondents’ submission is that the Commission was bound to inform the respondents of all the factual material which it had in hand and which it might consider when forming its opinions upon which its report to the Governor would or might be founded and, also, to inform the respondents of any tendencies of mind which the Commission had developed in relation to the matters in hand. In short, the submission was that the Commission was bound in hearing the respondents to expose to the respondents all the material available to the Commission and any tentative views as to the matters to be reported upon as and when the Commission formed them …

It is in relation to the carrying out of the whole process prescribed by the statute that the question as to the requirements of natural justice is to be considered.

entire scheme

Testro Brothers Pty Ltd v Tait

29 His Honour went on to say at 523-4:

“The Commission is to submit a report to the Governor in Council and in doing so to make appropriate recommendations. These of necessity under the scheme of the Act containing s15 must be tentative. s15 requires them and the reasons on which they are founded as expressed in the Commission’s report to be available to all who may possibly be concerned to contest them. Such persons are to be alerted by further advertisement to the existence of the recommendations and to the opportunity afforded for the ascertainment of their precise nature by inspection of the report itself. Any person aggrieved by the recommendation is entitled to petition, requesting that the recommendation be not acted upon, giving as required his reasons for so requesting the Governor in Council. The class of persons aggrieved is extremely wide and quite clearly is not limited to municipalities who in this respect cannot, in my opinion, be said to represent their ratepayers. If the Governor in Council is not prepared out of hand to accept the views of the petition and to reject the Commission’s recommendations, the petition is to be considered by the Commission and its earlier recommendations reconsidered. Unlike the stage under s14 before the Commission’s recommendations are formulated, at the time the opportunity to petition and present the aggrieved persons views is afforded under s15 the actual recommendations are known and their possible disadvantage to the particular citizen or municipality able to be perceived. No action can be taken on them till the views of the aggrieved person have been considered. It is not necessary to decide whether the Commission at this juncture is bound to hear the petitioner or to receive relevant evidentiary material proffered by him. The opportunity to put forward his views and the supporting material in the form of a petition would seem to me in this type of statutory scheme to satisfy the common law requirements of natural justice. But in any case s15 is a clear indication by the legislature of the nature of the opportunity which it will afford the aggrieved persons to make known their views and the material upon and by which they seek to support them. The case is not one in which the legislature is silent as to the right to be heard, so that the common law can fill the void. The legislature has addressed itself to the very question and it is not for the Court to amend the statute by engrafting upon it some provision which the Court might think more consonant with a complete opportunity for an aggrieved person to present his views and to support them by evidentiary material. It is for this reason that I express the view that in any case the provisions of s15 represent the extent of the legislature’s provision for the hearing of the aggrieved person’s objections to the Commission’s recommendations. To require a hearing or an opportunity to participate in the formation of the Commission’s recommendations whilst the inquiry under s14 is in progress would in the presence of s15 be to do more than natural justice requires.”

30 There are some aspects of this reasoning which may not be entirely consonant with the jurisprudence of the High Court following Kioa v West. However, this case has never been overruled and is binding on this Court. Unless the statutory scheme under the Local Government Act 1993 can be distinguished in material respects, this Court should follow and apply Brettingham-Moore.

31 There are close analogies between the role of the Municipal Commission under s14 of the statute considered in Brettingham-Moore and the role of the Boundaries Commission in the Local Government Act. The role of the Municipal Commission under s15 of the Tasmanian Act has similarities to the role of the Minister under the New South Wales legislation. In Brettingham-Moore the High Court approached the decision-making process in the manner identified by Mason CJ in O’Shea i.e. it was “viewed in its entirety”.

32 The express statutory obligation to give a hearing at the second stage was influential in determining that there was no such obligation with respect to the first stage. The functional equivalent in the present proceedings to the hearing obligation under s15 in the Tasmanian Act is the express acknowledgement in these proceedings that the Minister is obliged to afford procedural fairness under the New South Wales Act. This is not, however, a matter that ought be determined by concession.

33 There is a basic distinction between the scheme of the Local Government Act 1993 and the scheme of the Tasmanian Act under consideration in Brettingham-Moore. In the Tasmanian Act the references to a public process, relevantly by means of petition and hearing, are in s15, namely the second stage of the decision-making process. In the scheme of the Local Government Act such references appear in s263 with respect to the first stage of the decision-making process conducted by the Boundaries Commission.

34 All of the relevant statutory provisions are set out in the judgment of Mason P. It is unnecessary to set them out again. Relevantly:

(i) The Commission may hold an inquiry if the Minister approves and must if the Minister directs (s263(2)). If an inquiry is held “reasonable public notice must be given” (s263(2B)). At any inquiry the public must be allowed to attend (s263(5)). There is no reference to any process of inquiry or public consultation in s218F with respect to the Minister’s power to recommend that a proposal be implemented.

(ii) The Boundaries Commission is required to have regard to a range of considerations set out in s263(3). There is no specific list of considerations of this character for the Minister either when making a proposal under s218F(1), or when recommending that a proposal be implemented under s218F(7).

35 In my opinion Brettingham-Moore is distinguishable. The statutory scheme indicates that the most detailed consideration of the relevant issues is to occur at the first stage, namely by the Boundaries Commission. It is the Commission and the Commission alone that is empowered to conduct a public inquiry. It is the Commission and the Commission alone that is obliged to take into account a range of relevant considerations.

36 The Local Government Boundaries Commission consists of four commissioners. One is a person nominated by the Minister and one is an officer of the Department nominated by the Director-General of the Department. The other two persons are to be appointed from a panel of eight persons, four of whom are councillors nominated by the executive of the Local Government Association of New South Wales, and four of whom are councillors nominated by the executive of the Shires Association of New South Wales (see s261 and s262). The Commission, accordingly, consists of persons with relevant expertise and persons drawn from the general body of the relevant community of councillors throughout the State of New South Wales.

37 The opportunity that is lost by a council, like South Sydney City Council in the present case, is an opportunity to make submissions to a body so constituted and to convince that body not to recommend to the Minister the modifications which it has in fact recommended. A Minister is subject to political and other considerations, of a character to which the Boundaries Commission is not subject. The Commission has a degree of independence from the political process which may give its recommendations a particular persuasiveness. The partially representative and expert nature of the Commission may have the effect of operating as a constraint on the Minister. It cannot be said that the Minister’s decision is equivalent to the consideration by the Boundary Commission.

38 I agree with the observation of Barwick CJ in Brettingham-Moore, which I have quoted above, to the effect that, with respect to changes in its boundaries, a council cannot be said to represent its ratepayers. This is so for the same reason that a Board of Directors does not generally have an interest in the identity of its directors or shareholders. (See eg Advance Bank Australia Ltd v FAI Insurances Ltd (1987) 9 NSWLR 464.)

39 Nevertheless, a council does have a distinct interest in matters associated with its boundaries. These are expressly acknowledged in the list of relevant considerations which the Commission is obliged to be take into account, specifically:

“(e1) the impact of any relevant proposal on the ability of the councils of the areas concerned to provide adequate, equitable and appropriate services and facilities,

(e2) the impact of any relevant proposal on the employment of the staff by the councils of the areas concerned.”

40 These are real interests upon which the report of the Boundaries Commission impinges. That report has an effect on the entire process including upon the distinct second stage in which the Minister’s powers become involved. An opportunity to be heard at the second stage is not a substitute for an opportunity to be heard at the first stage.

41 By s218B the Governor may, by proclamation, alter the boundaries of a council area. By s218D that power may only be exercised “after a proposal for the exercise of the function is dealt with under” relevantly s218F i.e. after examination and report by the Boundaries Commission. Accordingly, the process of examination and report by the Boundaries Commission is a condition precedent to the exercise of the power to alter boundaries and that is sufficient to attract relief by a quashing order equivalent to certiorari. (See Ainsworth v Criminal JusticeCommission (1992) 175 CLR 564 at 580; Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 esp at 161, 162.)

42 The Minister may decline to make a recommendation under s218F(8). However, by reason of s218D, the Governor’s power to alter the boundaries under s218B cannot be exercised unless the Minister makes a recommendation under s218F(7). By s218F(7) the Minister may recommend a proposal be implemented “with such modifications as arise out of … the Boundaries Commission’s report”. This provision makes clear what is implicit in the entire scheme: the Minister is obliged to have regard to the Boundaries Commission report. The fact that the Minister is obliged to take into account the Boundaries Commission report also constitutes a sufficient effect on the legal interests of a council for a quashing order in the nature of certiorari to be made. (See Hot Holdings at 165 and 170-171.)

43 In my opinion, a failure to afford procedural fairness on the part of the Boundary Commission cannot be ignored on the basis that the Minister may afford the respondent procedural fairness.

Breach

44 Mason P considers the issue of breach in two categories: the “open file” policy and the modification of the Minister’s proposal. I agree with his Honour that the broad basis on which the respondent succeeded below should be rejected. Submissions virtually identical to the open file policy were expressly rejected in Brettingham-Moore and I have quoted the relevant passage above. I agree with Mason P.

45 The second alleged breach is the alteration of the original proposal by the reduction of the respondent’s area between the yellow and blue lines, which Mason P describes as “the enlarged area notice point”.

46 The changes were made at two locations: the University of Sydney was moved so that its area was not divided between two councils and the dividing line down the centre of streets was replaced by the “back lot principle”. Mason P holds that the respondent has not established he materiality of these changes. Alternatively, he would refuse relief upon the discretionary basis that no genuine interest of the respondent was prejudiced.

47 It is difficult to see that any disadvantage arose by reason of the loss of the remaining part of the land occupied by the non-rateable University of Sydney. None was suggested in submissions. The other adjustment appears to me to be material. It may be that the “back lot principle” is sensible. That does not explain why the boundaries should be drawn at the rear of the properties on the Respondent’s side of the street, rather than at the rear of those on the City of Sydney’s side of the street.

48 The proposition that breaches of procedural fairness with “trivial” consequences can be ignored, has been criticised. (See e.g. Aronson and Dyer at 377-380.) The test, whether expressed in terms of breach or the exercise of discretion is a high one. It has been variously expressed:

· “compliance with the requirements could have made no difference” Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145 per Mason, Wilson, Brennan, Deane and Dawson JJ.

· “the breach had no effect on the decision” (Abebe at [113] per Gaudron J).

· “insignificant, purely formal and immaterial mistakes” (Aala at [132] per Kirby J).

· “could not have affected the outcome” (Aala [104] per McHugh J; Muin at [140] per McHugh J)

Aala

49 In my view this case should be decided on a different basis. If the enlarged area notice point was in issue, then the appellants were entitled to adduce the evidence of Ms Carnegie to which the Respondent objected. The evidence is set out by Mason P. That objection indicates clearly that the Respondent did not put a case of this character. That is confirmed by the absence of evidence from the Respondent directed to establishing what, if anything, it may have done if it had had notice of the specific modifications. Counsel for the Respondent could point to no such evidence, even at the level that the Respondent would have wanted to make a submission about the modifications. There was evidence about the loss of an opportunity to make submissions about two letters from the City of Sydney which contained comments critical of the Respondent. However, those communications did not impinge on the modifications proposed by the Boundaries Commission.

50 The case was fought at a higher level of generality. Overwhelmingly, the adverse impact on the Respondent was contained in the Minister’s original proposal, not in the change to that proposal put forward by the Boundaries Commission. Perhaps the Respondent regarded the change as trivial or, in the case of the University land, as in its interests. For whatever reason, this Court should conclude that this was not the case advanced at trial. As evidence could have been adduced on these issues, the Respondent should not be permitted to advance a new case on appeal. On this basis I agree with the orders of Mason P.

51 MASON P: Local Government areas may be varied by the Governor under procedures set out in Chapter 9 of the Local Government Act 1993 (the Act). The Minister for Local Government proposed to transfer to the City of Sydney area parts of the South Sydney City area as well as other local government areas. This proposal was referred to the Local Government Boundaries Commission for “examination and report”. The Commission recommended that the Minister’s boundary alteration should be implemented with certain modifications.

52 The parties accept that the Minister’s ensuing power to recommend formal implementation to the Governor depends, in the circumstances, upon the Commission having duly examined and reported.

53 South Sydney City Council (hereafter SSCC) brought proceedings in the Land and Environment Court seeking a declaration that the Commission had not examined and reported on the matter in accordance with the Act; and an order that the Minister be restrained from recommending implementation to the Governor.

54 Five broad issues were tendered in SSCC’s submissions at trial:

(i) the Commission had failed to examine and report on the proposal referred to it by the Minister, but had instead examined and reported on a significantly different proposal submitted by the Council of the City of Sydney (CSC);

(ii) the Commission had in fact not examined and reported at all, because it had allowed a firm of consultants, PKF, to conduct the examination and write its report;

(iii) the Commission had denied procedural fairness to the SSCC ;

(iv) the Commission had failed to have genuine regard to certain factors stipulated in s263(3) of the Act; and

55 Talbot J accepted arguments (i)-(iii), rejected (iv) and found it unnecessary to deal with (v). He declared that the Commission had not examined and reported on the matter referred to it by the Minister with respect to the boundaries of the SSCC’s area in accordance with the provisions of the Act (see South Sydney City Council v Minister for Local Government & Anor [2002] NSWLEC 74).

56 In his reasons given on 14 May 2002 Talbot J reserved the question of costs. Formal orders were made on 31 May 2002 and they include an order “by consent” that the respondents in the Land and Environment Court (ie the appellants in this Court) pay the applicant’s costs of the proceedings excluding the costs of its notice of motion returnable on 4 June 2002. I infer that this consent involved no more than recognition of the inevitable in light of his Honour’s reasons on the substantive issues.

57 The appellants dispute the conclusions on issues (i)-(iii) as well as raising a challenge based on failure to address arguments and absence of necessary findings of fact. They also challenge the Land and Environment Court’s jurisdiction to have addressed the procedural fairness claims. The respondent supports the primary judge’s reasoning and raises matters by notice of contention, including an argument based on s263(3)(e2) (part of (iv) above).

58 There is no cross appeal and, for that reason alone, it is unnecessary to consider the claim of procedural unfairness as regards the Minister’s dealings with the Commission’s Report. Many months have now elapsed since the Report was delivered to the Minister and there is no suggestion that he has refused to entertain representations from SSCC about the subject matter. Of course, there is no threat to recommend implementation to the Governor while Talbot J’s declaration stands.

59 The two appellants made common cause. In light of the statement in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 at 35-6 it is possible that the Commission should have adopted a more passive litigious stance as regards some of the issues ventilated in the appeal. Since, however the matter was not raised by the Court during the hearing I do not wish to be seen as making a criticism. I reiterate that the appellants made common cause and shared common counsel and solicitors.

Legislative framework

60 Chapter 9, Part 1 (ss204-218K) deals with local government areas and how they may be constituted, changed and dissolved. The boundaries of one or more areas may be altered by the Governor, by proclamation (s218B). That proclamation may include various provisions (s218C) including those referred to in s213, which relevantly provides:

(1) A proclamation of the Governor for the purposes of this Division may include such provisions as are necessary or convenient for giving effect to the proclamation, including provisions for or with respect to:

• the transfer or apportionment of assets, rights and liabilities

• the transfer of staff

• ….

• the delivery or retention of records

….

61 Division 2B provides:

Division 2B What must be done before areas can be amalgamated or their boundaries altered?

218D Exercise of functions under secs 218A and 218B

A function under section 218A or 218B may be exercised only after a proposal for the exercise of the function is dealt with under this Division.

218E Who may initiate a proposal?

(1)

….

218F Referral of proposal for examination and report

(1)

….

(7)

(b) with such other modifications as the Minister determines,

but may not do so if of the opinion that the modifications constitute a new proposal.

(8) The Minister may decline to recommend to the Governor that the proposal be implemented.

62 Part 3 of Chapter 9 deals with the constitution and powers of the Local Government Boundaries Commission, the second appellant. It is a body corporate consisting of four commissioners appointed by the Governor (ss260-262). In the circumstances of this case one of the commissioners did not take part in the examination, presumably because he or she was disqualified by a conflict of interest (see Schedule 2, cl 11). The Commission is not required to follow strict legal procedure or to observe the rules of law governing the admission of evidence when exercising its functions (Schedule 2, cl 13).

63 Various functions and powers are conferred by ss263-265 which provide:

263 Functions of the Boundaries Commission

(1)

(2)

(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 as referred to in paragraph (a) or (b).

(2A)

(2B)

(3)

(a) the financial advantages or disadvantages (including the economies or diseconomies of scale) of any relevant proposal to the residents and ratepayers of the areas concerned,

(b) the community of interest and geographic cohesion in the existing areas and in any proposed new area,

(c) the existing historical and traditional values in the existing areas and the impact of change on them,

(d) the attitude of the residents and ratepayers of the areas concerned,

(e) the requirements of the area concerned in relation to elected representation for residents and ratepayers at the local level, the desirable and appropriate relationship between elected representatives and ratepayers and residents and such other matters as it considers relevant in relation to the past and future patterns of elected representation for that area,

(e1) the impact of any relevant proposal on the ability of the councils of the areas concerned to provide adequate, equitable and appropriate services and facilities,

(e2) the impact of any relevant proposal on the employment of the staff by the councils of the areas concerned,

(e3) the impact of any relevant proposal on rural communities in the areas concerned,

(e4) in the case of a proposal for the amalgamation of two or more areas, the desirability (or otherwise) of dividing the resulting area or areas into wards,

(e5) in the case of a proposal for the amalgamation of two or more areas, the need to ensure that the opinions of each of the diverse communities of the resulting area or areas are effectively represented,

(f) such other factors as it considers relevant to the provision of efficient and effective local government in the existing and proposed new areas.

(4)

(5)

(6)

(7)

264 Can a person be represented in proceedings before the Boundaries Commission?

(1)

(a) by a barrister or solicitor or by a person qualified for admission as a barrister or solicitor, or

(b) by any person acting for a fee or reward.

(2)

(a) an employee of a person from representing the person before the Boundaries Commission if the employee is not a person referred to in subsection (1) (a), or

(b) a person who is the Mayor of an area or the chairperson of a county council from appearing in that capacity in proceedings before that Commission, or

(c) a person referred to in subsection (1) (a) from preparing any documents or submissions or tendering any legal advice in connection with any proceedings before that Commission.

265 Boundaries Commission may conduct survey or poll

(1)

(2)

(3) The Boundaries Commission may request the Electoral Commissioner, a council or any other person or organisation to conduct any such opinion survey or poll.

Factual background

64 On 11 October 2000 the Governor appointed Professor Kevin Sproats, by Letters Patent, to conduct an inquiry relating to the structure of local government in the areas of Botany Bay, Leichhardt, Marrickville, Randwick, South Sydney, Sydney, Waverley and Woollahra.

65 SSCC made extensive submissions to that inquiry.

66 Professor Sproats reported on 20 April 2001. He recommended the recasting of local government structures in the area to provide “fewer, better resourced, more strategically focussed councils”. Various models were proposed and discussed at length, including a preferred Recommendation 4 that the structure of local government in the region be recast by the creation of four new councils:

• Council No 1 - An enhanced City of Sydney

• Council No 2 - A mixed residential/industrial city

• Council No 3 - A beachside/harbourside residential city

67 Professor Sproats also suggested an alternative boundary adjustment with lesser impact. It involved the cession of all or the greater part of the North Ward of SSCC to CSC.

68 SSCC responded to the Minister’s invitation to make submissions on these recommendations. By letter dated 31 May 2001 it announced its opposition to both the greater and lesser recommendations. Without inferring any criticism, the letter is testimony to the political controversy generated by proposals of this nature.

69 On 15 November 2001 the Minister issued a Media Release in the following terms:

MAJOR BOUNDARY CHANGES FOR CITY AND EAST

Minister for Local Government, Mr Harry Woods, today announced boundary changes in the city and inner east as part of the State Government’s response to the independent Sproats inquiry.

Mr Woods told State Parliament that Cabinet had accepted key recommendations put forward in the Sproats report and, in addition, a series of regional impact studies on further reform would be carried out.

The inquiry, carried out by Professor Kevin Sproats, examined the local government structures of eight inner city and eastern suburbs councils – City of Sydney, South Sydney, Leichhardt, Botany, Marrickville, Randwick, Waverley and Woollahra.

The proposed boundaries changes are:

• The transfer of Glebe and Forest Lodge from Leichhardt Council to the City of Sydney Council;

• The transfer of Woolloomooloo, Kings Cross, Potts Point, Rushcutters Bay, Elizabeth Bay, Darlinghurst, Chippendale, the University of Sydney and the Royal Prince Alfred Hospital from South Sydney to the City of Sydney Council; and

• The transfer of Bondi Junction to Waverley Council (currently Bondi Junction is divided between Waverley and Woollahra Councils).

Mr Woods said he would not proceed with the Sproats recommendation of re-casting the eight councils into four new entities.

The proposed boundary changes will be referred to the Local Government Boundaries Commission shortly.

“It is anticipated that following that examination, negotiations of the transfer will take place between the affected councils, guided by a set of principles [summary attached] with the new boundaries scheduled to take effect from early next year.

Expanding the boundaries of the City of Sydney is consistent with Prof. Sproats’ views that the boundaries of Sydney should reflect the changes which have occurred in recent years.

It is also consistent with recommendations from the 1987 Goran Report and the 1998 Fisher Report.

In the case of Bondi Junction, the important commercial and social precinct will come under the effective control of one council, ensuring a uniformity of planning and infrastructure plan.”

70 Annexed to these reasons is a Map showing the areas covered by various formulations of the proposal to change the local government boundaries. Each formulation involves reduction of the existing South Sydney area. The proposal described in the second dot point of the Minister’s Press Release is depicted in purple in the Map.

71 The Minister’s formal Orders were made on 20 November 2001 and gazetted on 30 November 2001. Two of the Orders concern SSCC and are of direct relevance to these proceedings. They were as follows:

ORDER

Referral of Boundary Alteration Proposal to the Local Government Boundaries Commission

I, HARRY WOODS, Minister for Local Government, acting under sections 218E(1) and 218F(1) of the Local Government Act 1993, hereby order the referral of my boundary alteration proposal to transfer the suburbs of Woolloomooloo, Potts Point, Rushcutters Bay, Elizabeth Bay and part of Darlinghurst in the South Sydney local government area to the Sydney local government area to the Local Government Boundaries Commission.

• The area proposed to be transferred commences at the boundary of the Sydney and South Sydney local government areas at the intersection of Riley Street and Campbell Street, Darlinghurst.

• thence prolonging generally north and north-east along the South Sydney local government boundary as last described to the Elizabeth Bay foreshore;

• recommencing at the Sydney and Woollahra local government boundary at the Rushcutters Bay Park Canal and generally prolonging along that boundary as last described to the intersection of Barcom Street and Oxford Street;

• thence north-west along Oxford Street to the intersection with Flinders Street;

• thence generally south on that street to the intersection with Campbell Street;

• thence east along Campbell Street to commencement.

I request the Local Government Boundaries Commission to examine and report on the proposal in accordance with the Act, having regard to the following factors as required by section 263(3):

[the paragraphs of s263(3) are then set out]

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

Dated: 20 November 2001.

HARRY WOODS MP

Minister for Local Government

ORDER

Referral of Boundary Alteration proposal to the Local Government Boundaries Commission

I, HARRY WOODS, Minister for Local Government, acting under section 218E(1) and 218F(1) of the Local Government Act 1993, hereby order the referral of my boundary alteration proposal to transfer that portion of the suburbs of Chippendale, Camperdown, Ultimo and the suburbs of Forest Lodge and Glebe currently within Leichhardt local government area and South Sydney local government area to the Local Government Boundaries Commission.

• The area proposed to be transferred from Leichhardt and South Sydney local government areas to Sydney local government area commences at the boundary of the Sydney and South Sydney local government areas at the intersection of Cleveland Street and Regent Street;

• thence proceeding generally west to the intersection of City Road;

• thence proceeding generally south-west along City Road to the intersection with Carillon Avenue;

• thence west along Carillon Avenue to the intersection with Mallett Street;

• thence generally north-west along Mallett Street to the intersection of Pyrmont Bridge Road, then continuing north-west along Booth Street to the intersection of Wigram Road;

• thence north-west along Wigram Road to the commencement of the stormwater channel along Johnstons Creek;

• thence following the Johnstons Creek Stormwater Channel north to its crossing with The Crescent;

• thence north along The Crescent to the intersection of Chapman Road, then east along Chapman Road to the boundary with Bicentennial Park and Federal Park;

• thence north east along that boundary to the foreshore of Rozelle Bay;

• recommencing at the boundary of Sydney and Leichhardt local government areas at the foreshore of Blackwattle Bay at the junction of Wattle Street and Pyrmont Bridge Road;

• thence proceeding along that boundary as last described to commencement.

I request the Local Government Boundaries Commission to examine and report on the proposal in accordance with the Act, having regard to the following factors as required by section 263(3):

[the paragraphs of s263(3) are then set out]

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

Dated: 20 November 2001.

HARRY WOODS MP

Minister for Local Government

72 The boundary alteration to South Sydney which was proposed by the Orders was not identical to that described in the Minister’s Press Release. On the Map it is depicted by the dotted yellow line. The main differences between the proposal referred and the Press Release were that the latter contemplated transfer of Camperdown and Chippendale whereas the former did not. There were also slight differences in the vicinity of Oxford Street.

73 It is to be noted, however, that neither the Press Release nor the proposal referred to the Commission by the Orders ever suggested that the suburbs of Newtown, Surry Hills or Stawberry Hills be transferred. (These were the areas later suggested for inclusion by CSC and they are represented by the broken blue line in the Map.)

74 On 21 November 2001 the Minister notified the affected councils, including SSCC. The description of the Minister’s proposal in that letter accords with his Orders.

75 On 26 November 2001 the Chairperson of the Commission wrote to the affected councils. The letter to SSCC said:

On 20 November 2001 the Minister for Local Government referred a proposal to the Boundaries Commission for boundary changes to five council areas.

I understand details of the changes, which will involve Leichhardt, South Sydney, City of Sydney, Woollahra and Waverley Councils, were conveyed to you on 21 November 2001.

As is usual for boundary alterations, the Commission will not be holding a formal inquiry into the changes. Also, the areas involved were the subject of a public inquiry and submissions process as part of the review conducted earlier this year by Professor Kevin Sproats.

Section 263(3) of the Local Government Act sets out the matters the Commission has to have regard to in its consideration of the boundary alterations. If additional issues are relevant then obviously the Commission will take these into account as well.

While the Commission will not be seeking public submissions, it will review and consider comments made as part of the ‘Sproats’ review which are relevant to the current proposal. However, as your Council’s area is affected by the proposed changes you are invited to make a formal submission to the Commission.

I would ask that if you are intending to take this opportunity you do so by Wednesday 5 December 2001 at the latest.

Should you have any enquiries in this regard please contact Michelle Carnegie on (02) 9793 0710.

76 Ms Carnegie, who is referred to in the final sentence, is a member of the Commission. She is an officer of the Department of Local Government nominated by the Director-General (see s261(2)(b)). Ms Carnegie gave detailed evidence about the Commission’s work in the matter. No other commissioner was called.

77 On 26 November 2001 the Lord Mayor of Sydney made a submission to the Commission on behalf of CSC recommending “some slight modifications” to the proposed new City of Sydney boundary. The Submission attached to the letter suggested a boundary alteration quite different from that which the Minister had referred to the Commission. This alteration is signified on the Map by the broken blue line. The CSC suggested alteration would have seen Newtown, Strawberry Hills and Surry Hills transferred out of South Sydney and into the City of Sydney. It was therefore substantially different to the Minister’s proposal. This letter was not sent to SSCC by CSC or made available to it by the Commission. Its non-disclosure lies at the heart of the case on denial of procedural fairness by the Commission.

78 It is SSCC’s case, as accepted by Talbot J, that the Commission so redirected the focus of its endeavours that its examination and report dealt only with the CSC suggested alteration as distinct from the Minister’s proposal.

79 On 28 November 2001 the Mayor of SSCC wrote to the Chairperson of the Commission (with copies to leading politicians on both sides of politics) a firm, if not pugnacious, objection to the proposal and the Commission’s suggested timetable. The letter was critical of the Sproats report. Of some relevance to the procedural fairness issues later to be discussed, the Mayor added:

This aside, if the inference by Professor Sproats was that suburbs are not to be split between local governments, then I would submit that the jagged boundary that exists from re-establishment of this Council when it separated from the City of Sydney on the 1st January 1989 is the boundary that needs justifying.

80 On 30 November 2001 the Commission met between 9.40am and 3.50pm. Two officers from the Department of Local Government were also present. The Minutes record:

The Commission viewed submissions received to date on the proposals.

….

……

Motions:

81 The numbered Motions represented a provisional, partial adoption of the CSC suggested alteration as constituted by the dotted blue line. The portion not thus adopted involved that part of Newtown running from King Street to Golden Grove Street. In substance, the motions would have seen Strawberry Hills and Surry Hills transferred into the City of Sydney, but not Newtown. By contrast, the CSC’s submission would have seen Newtown transferred as well. None of those suburbs was to be transferred under the Minister’s gazetted proposal (the dotted yellow line).

82 It does not appear to have been argued at trial that the resolutions of 30 November 2001 bore directly upon what I have referred to as issue (i). This is understandable, because a (provisional) inclination to adopt part of the CSC suggested alteration is entirely consistent with the Commission doing so in the context of considering the Minister’s proposal. If anything, this material supports the appellants on the wrongful delegation issue because it shows the Commissioners exercising their own judgment on matters of substance.

83 At the trial, Ms Carnegie was examined by counsel for the Minister for Local Government in relation to the two motions just referred to. The following exchange took place:

Q: Now did the Commission subsequent to this motion consider a proposal amended as provided for in motions 1 and 2?

A: No it did not.

Q: Why not?

A: A few days later legal actions commenced against the Commission and as a result of those it was made clear to the Commission that the proposal at hand from the Minister gazetted on 30 November was the only proposal under consideration.

Q: When you say it was made clear to the Commission, how was it made clear to the Commission?

A: As a result of those legal proceedings legal advice from the Department was passed to the Commission to that effect.

Q: And the substance of that legal advice was?

Q. And consequent upon receiving that advice did the Commission take any further consideration of the areas the subject of motions 1 and 2?

A. No, it did not.

84 Talbot J referred to the Commission motions of 30 November 2001 and the fact that Ms Carnegie had given evidence that the Commission had received advice that it could only proceed on the Minister’s proposal. He also noted her evidence that, consequent upon receiving that advice, the Commission did not take any further consideration of the areas the subject of motions 1 and 2. The latter evidence had been challenged perfunctorily in cross examination, but there is no finding accepting or rejecting Ms Carnegie on this particular matter, or indeed generally. Nor is there any endeavour to reconcile the conclusions on issue (i) with this significant evidence.

85 On 3 December 2001 SSCC commenced proceedings against the Commission in the Land and Environment Court challenging the 5 December 2001 deadline set in the Commission’s letter of 26 November. There were various interlocutory steps. Those proceedings were resolved and discontinued on 14 January 2002 subject to undertakings by the Commission and its Chairperson that they would not within the period before 28 February 2002 report on the Minister’s proposal. Their undertaking, given by the Crown Solicitor, further stated that during that period the Council would have the opportunity to “make a written submission to the Commission in respect of the Minister’s proposal referred to”. There could be no doubt that this was a reference to the proposal formally referred to the Commission by the Orders that were gazetted.

86 Early in 2002 the Commission retained two consultants. PKF Utility and Government Services (PKF) was retained on 30 January 2002 to undertake a boundaries impact assessment of the proposal having regard to the factors outlined in s263(3) and to produce a “final confidential Draft” report. A formal Agreement dated 1 March 2002 defined the services to be performed by PKF as to “advise and assist the [Commission] in the process of analysing information available to and received by [it] and preparing draft reports … as directed from time to time by the [Commission]. Geac Enterprise Solutions (GEAC) was retained to analyse the information technology impacts of the proposed boundary alterations being considered by the Commission.

87 Attached to the PKF Project Brief was a document entitled “Details of the Proposed Boundary Alteration”. The description of the proposed boundary alteration in that document (which unarguably emanated from the Commission) was identical to the Minister’s proposal (that is the dotted yellow line). The brief delivered by the Commission to GEAC on 6 February 2002 was similar in this regard.

88 SSCC was informed about the appointment of these consultants and invited to cooperate with them. For a period it declined to do so on various grounds. I find it unnecessary to determine where “fault” lies in this matter.

89 On 28 February 2002 SSCC delivered extensive written submissions to the Commission, critically addressing the Minister’s proposal and its impact on SSCC. The covering letter from the Mayor of SSCC informed the Chair of the Commission:

South Sydney City Council (SSCC) strongly objects to the proposal and asks the Boundaries Commission to reject it in favour of either an amended proposal designed to enhance services to the South Sydney community or a fresh proposal that is consistent with the Sproats Inquiry vision and recommendations.

90 There is no doubt that SSCC was addressing the Minister’s proposal as gazetted.

91 The submission outlined SSCC’s objections at length. The paragraphs of s263(3) are addressed in turn. Concerns were expressed about the splitting of communities, the transactional costs of complex change, SSCC income reduction not being met by cost reduction and impact upon staff morale (95% of SSCC staff voted to stay with SSCC). The submission is supported by financial and other expert reports addressing the (negative) impact of the proposal upon SSCC, its ratepayers and staff, and the community generally.

92 As indicated in the passage from the Mayor’s letter set out above, SSCC proposed some boundary changes of its own. This included a suggested amendment of “irregular boundaries” in the Chippendale area.

93 It was never explored with Ms Carnegie in cross examination or by Talbot J in his reasons how the Commission’s analysis of the submissions made by SSCC made any sense if the Commission was addressing the CSC proposal (that is the dotted blue line).

94 On 25 February 2002 the commissioners spent the entire day considering a preliminary draft of the report prepared by PKF. Three days later PKF sent its first draft report to the Commission.

95 It will be seen that an error in Chapter 2 of the First Draft, which continued until the final signed Report, lies at the heart of the respondent’s case that the Commission failed to examine and report on the Minister’s proposal. It is the express basis of his Honour’s conclusion on issue (i). SSCC submits that this material provides evidence supporting its case that the wrong proposal was considered by the Commission. It certainly does, but there was a huge amount of evidence to the contrary which is not analysed in the judgment under appeal.

96 From earliest draft to final product the Report had a similar structure, as follows:

The fact that the exercise of a particular statutory power has effect on a wide range of persons, even in circumstances where the identity of all such persons is difficult to establish, will often impinge, not on the obligation to accord procedural fairness, but on the content of that obligation.

264 The subject-matter of the statutory duty was the examination of the Minister’s proposal. The range of potentially affected persons and interests is illustrated by the factors to which particular attention is drawn by s263(3). Obviously they include consideration of the impact of the proposal on affected councils, but additional interest groups are also specifically identified. Why is the interest of a council relevantly different from that of landowners or employees? If it is not, presumably the content of any duty of procedural fairness must accommodate all three potentially affected groups.

265 The Act addresses “notification” issues in a number of ways. To be “made”, (s218E), the Minister’s proposal must, by implication, be announced. The Commission must attend to the s263(3) matters and this will necessarily involve giving genuine regard to submissions from stakeholders, including councils, on a range of specific matters. I have already indicated my tentative view that consultation with the directly affected councils on the s263(3) factors is obligatory. A formal inquiry may be instigated in appropriate cases.

266 The Minister’s proposal will remain the proper focus of the examination and report from start to finish. And the Commission’s power to propose its own modifications thereof is limited (see s218F(7)). As to “modifications”, see North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 474, Transport Action Group at 618, 647.)

267 What more could reasonably be expected within the confines of a workable statutory scheme? The task will inevitably attract a wide range of support and opposition from the proposal, accompanied by proposed modifications of the Minister’s proposed modification (as occurred here, including modifications suggested by SSCC). To posit a right for all “affected” parties to see all of the “adverse” submissions of all other persons putting in submissions would be unworkable, because it would lead to an infinite regression of counter-disputation. This is particularly so in a context where (on one branch of its case) SSCC claims entitlement to see all CSC submissions supporting CSC’s “case” in favour of the Minister’s proposed boundary.

268 The outcome of the Commission’s work is the production of a report which the Minister is free to reject or to recommend for implementation to the Governor with modifications that do not in the Minister’s opinion constitute a new proposal (s218F(7)). No one suggests that the Minister would act without further consultation. These matters are the basis for the appellants’ submission that the Commission has no duty ever to signal its position on the Minister’s proposal in advance of its Report. There is much to be said for that proposition, although I find it unnecessary to rule on the matter. What is clear, however, is that these factors severely qualify or attenuate the content of any pre-reporting notification duty falling upon the Commission.

269 At par [83] (point 2) Talbot J records that SSCC identified the prejudicial or adverse material that remained undisclosed included six documents withheld by the CSC in response to a Freedom of Information Act application. This was an application made by SSCC to CSC on 11 January 2002, described in the affidavit of the Mayor of SSCC as an application “for documents concerning the proposal”. CSC responded in a detailed letter of 28 March 2002. That letter identifies 17 documents: “concerning Minister’s Proposal to the Local Government Boundaries Commission”. The letter continues:

There are 6 other documents which fall within this description. Access to those documents is refused on the grounds that the documents are exempt documents, under Schedule 1, Part 1 to the FOI Act, clause 7 (documents affecting business affairs) – 3 documents; clause 9 (internal working documents) – 3 documents; and clause 10 (legal professional privilege) – 3 documents.

270 These six documents could not by any stretch of the imagination represent material withheld by the Commission in breach of its duty of procedural fairness because there is no evidence to suggest that the six documents were ever sent by CSC to the Commission.

271 Beyond this category, there are the other identified and unidentified classes of “submissions”, “reports” and “information” referred to in pars [81], [83] and [84] of Talbot J’s reasons. The content and level of “adverseness” is not identified in the judgment.

272 Absent any findings to the effect that some particular issue was so damaging and so unforeseeable that SSCC should not have been “left in the dark” about it until publication of the Report, the conclusions about denial of natural justice as regards the access to submissions point cannot stand. A fortiori since they were reached after a trial at which SSCC did not point to any particular part of the Report (leaving aside its case based on the Chapter 2 error), and in which the appellants charted their course accordingly (Coulton v Holcombe (1986) 162 CLR 1).

273 In submissions – but not by notice of contention - SSCC pointed to particular parts of the CSC submission of 26 November 2001 that made specific criticisms of SSCC. One SSCC argument was that certain allegations by Lord Mayor Sartor in a letter of 21 February 2002 about the conduct of Leichhardt and South Sydney Councils acting in such a way as to frustrate the examination process were the source of a mild observation in Chapter 3 of the Commission’s Report. That submission is noted but rejected on the basis that (1) I would not draw that inference and (2) the comment is so mild that it does not attract any Mahon-type obligation. The same can be said about the material in the Part 4.1.7 of the Report concerning financial issues.

274 The gazettal and notification to SSCC of the Minister’s proposal and the invitation to make submissions, including submissions addressing the s263(3) factors gave SSCC an adequate opportunity to address the adverse consequences of the Minister’s proposal.

275 I now address the ‘enlarged area notice’ point. As indicated, its main thrust at trial was the proposition that the Commission had danced to CSC’s tune in considering as its prime focus the large additional area sought by CSC over and above that proposed by the Minister. That case founders with the case based upon issue (i).

276 There was, however, an alternative version of the enlarged area notice point. SSCC argued, in effect, that the content of the Commission’s duty to accord procedural fairness was such that SSCC was entitled to advance notice from the Commission if the Commission was about to endorse any advance on the Minister’s proposed area. I have emphasised the word “any”, because I conclude that this was the only way that SSCC pressed its fall-back argument on the ‘enlarged area notice’ point.

277 In her principal affidavit, Ms Carnegie explained the reasons why the Commission proposed its own modifications to the Minister’s proposal, ie the difference between the dotted yellow line and the red line on the Map. When senior counsel representing the appellants at trial sought to read this evidence, objection was taken by senior counsel for SSCC on the basis that the material did not go to any relevant issue. Senior counsel reiterated that SSCC’s submission was that the Commission had failed to examine the Minister’s proposal and that, in those circumstances, any explanation from the Commission about what was described as the “back lot” principle (see below) was not relevant.

278 There was no detailed exploration at trial, nor findings made, about the true impact on identified interests of SSCC of the Commission’s suggested modifications (ie the difference between the blue and yellow lines). SSCC argues that it was entitled to a reasonable opportunity to respond to such a proposal, but the objection discloses it taking something of an all or nothing approach to the question, ie asserting that merely because the Commission was moving towards some adjustment of the Minister’s proposed boundary therefore SSCC was entitled to an opportunity to respond to it.

279 It would appear to have been common ground at trial that there were two reasons why the Commission suggested modification of the Minister’s proposal as indicated in the Map by the difference between the yellow dotted line and the red line. Ms Carnegie had sought to explain these matters in pars 54-57 of her principal affidavit, but objection was taken by SSCC on the ground of relevance and these paragraphs were not pressed. Nevertheless, senior counsel for the Commission at trial informed his Honour about the reasons, by reference to exhibit 1 (a map prepared by the Land Information Centre to depict the area described by metes and bounds in Chapter 5).

280 The first reason related to those parts of Darlington included in the University of Sydney to the south of Carillon Avenue and the south east of City Road. The Minister’s proposal would have divided the University between two council areas because it only left this portion of land with SSCC. The University’s suggestion that its land should remain within a single local government area is specifically mentioned in the Report which states:

The University of Sydney’s submission supports the boundary alteration proposal and requests that the transfer area be extended further into South Sydney local government area, in order to incorporate property holdings in Darlington and Newtown. The Commission notes the logic of the University’s submission and considers an extension of the proposed boundary to take in those properties appropriate for future consideration by the Minister.

281 The second reason was the “back lot principle”. The Minister’s proposal involved lines being drawn down the centre of streets. This would have left two adjoining councils sharing duties with respect to a single street, by some application of the medium filum principle. In the era post-Brodie v Singleton Shire Council (2001) 75 ALJR 992 the consequences are almost too painful to contemplate. Following departmental practice, the Commission redrew the boundary between areas to the “title line” of adjacent properties. This was in accordance with the Commission resolution of 30 November 2001 that:

As a general principle it was agreed that it was desirable for boundary lines to run along the rear of building lines rather than cutting through roads, however, this issue may need further research.

282 These two adjustments suggested by the Commission are not said to have gone beyond its powers under s218F(7). There was some debate before us about the extent of the Minister’s power to recommend to the Governor otherwise than in accordance with the (modified) proposal endorsed by the Commission. I find it unnecessary to address this in circumstances where there is no evidence that the Minister intends to do so, or that he is unwilling to listen to any objections of SSCC about them and act lawfully in light of them.

283 At the end of the day, I conclude that to the uncertain extent that the judgment below is to be construed as holding that the Report is invalid because of want of procedural fairness by the Commission on this account, that conclusion cannot stand. I do not consider SSCC’s interest in relation to each square metre of land in its area is of such a nature as to enliven a duty of prior consultation by the Commission in relation to any advance on the Minister’s proposal. The possibility of minor adjustments was always on the cards. There are adjustments and adjustments. SSCC has not shown that the materiality of these two types of adjustment was of such an order as to call forth a duty of prior disclosure by the Commission.

284 It is impossible to see anything that SSCC would have put before the Commission in relation to the loss of an additional part of the non-rateable University land that it did not put in relation to the much larger portion to the north east of City Road that it was going to lose under the Minister’s proposal. The “back lot” adjustment appears too sensible to require debate. It is hardly surprising that senior counsel for SSCC at trial considered these matters as having no relevance to the matters genuinely at issue.

285 If I were wrong about this I would in any event decline relief on this basis on discretionary grounds. I cannot see any genuine interest of SSCC as having been prejudiced in this matter, a fortiori having regard to the non-prescriptive nature of the Report. In his letter of 28 March 2002 the Minister specifically invited SSCC’s comments in relation to the modifications proposed by the Commission.

Did the Commission fail to have real regard to the section 263(3)(e2) factor?

286 By notice of contention SSCC challenges Talbot J’s dismissal of its claim that the Commission failed to have regard to s263(3)(e2) which stipulates that it was required to have regard to:

the impact of any relevant proposal on the employment of the staff by the councils of the areas concerned.

287 Chapter 4.7 of the Report addressed this in the following terms

EMPLOYMENT IMPACTS

Section 263 (3) (e2) of the Act requires the Commission to have regard to “the impact of any relevant proposal on the employment of the staff by the councils of the areas concerned.”

Material presented to the Commission from all three councils as well as the Federated Municipal and Shire Council Employees Union of Australia New South Wales Division (“the MEU”), discussed this factor at some length.

There are several ways in which the boundary alteration proposal may impact on employment.

Firstly, the current employment practices of the three councils differ. The MEU is particularly concerned about the impact of the City of Sydney Council’s competitive tendering practices on council employees and wishes to enter into an agreement with the City about the extent to which these practices would be used, particularly during the transitional period of change introduced by boundary alterations.

Secondly, the profile and character of services provided by each council is different. This means that employees transferred as a result of the implementation of the boundary alteration proposal may need to be retrained, especially where the services those employees provided have been outsourced at the City of Sydney Council.

Thirdly, there are significant costs associated with the transfer of a workforce for the councils involved. Not the least of these are leave entitlement costs, including superannuation.

The General Manager of the City of Sydney Council, Mr Domm, has pointed out that the City would accept all of its responsibilities for the transfer of relevant staff from Leichhardt Municipal Council and South Sydney City Council. However, he indicated that it would take up to 12 months for the City of Sydney to absorb the impact of the transfers.

There are some cultural differences between attitudes of staff in the City of Sydney Council and in South Sydney City Council and Leichhardt Municipal Council noted in the submissions, although these have not been so great as to prevent staff from migrating from one council to another.

The boundary alteration proposal is not expected to impact on the industrial relations mechanisms and arrangements that apply to the affected councils.

CONCLUSION

The boundary alteration proposal, if implemented, may impact on the employment of staff by councils in the affected areas. In considering this the Commission recommends the development of transitional arrangements consistent with the Principles on Transfer of Staff, Assets and Liabilities” outlined by the Minister when announcing the boundary alteration proposal on 15 November 2001. These are:

· The transfer of boundary areas should not have any adverse impact on transferred staff. That is, forced redundancy or loss of award rights, contributions or entitlements should not arise as a result of a boundary change.

· The proclamation of a major boundary change will include such a provision, usually with a sunset period, to enable new employment conditions to be negotiated (eg: three years).

· Councils should identify staff directly affected by a transfer.

· The next group are those whose employment involves a significant proportion of their activity in the affected area such as those in waste collection, building management and environmental health.

· Once staff for transfer have been identified, appropriate transfer of balance sheet items will be required, such as provision for entitlements and matching assets.

288 Talbot J held (at pars [26], [67]):

26. Clause 3(e2) refers to the “impact of any relevant proposal on the employment of the staff by the councils of the areas concerned”. Relying on a submission made by the CSC (not disclosed to the council) that it would accept all responsibilities for the transfer of relevant staff, the BC recommended that although the boundary alteration proposal may impact on the employment of staff, transitional arrangements should be developed. According to the council the BC appears to have done no more than adopt principles announced by the Minister for implementing transfer of staff assets and liabilities, without identifying the impact on any particular individuals.

…

289 Read with s218C, s213 of the Act provides that a proclamation of the Governor may include such provisions as are necessary or convenient for giving effect to the proclamation, including provisions for a written report with respect to the transfer of staff.

290 SSCC cites recent decisions of this Court discussing the nature of a statutory obligation to “have regard to” specified matters. These indicate the need for “proper, genuine and realistic consideration” (Weal v Bathurst City Council (2000) 111 LGERA 181 at 185, Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 601-2 citing inter alia Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J).

291 SSCC submits that the Report does not address impact, but its principal reason is the non-disclosure of the previously undisclosed CSC submission that is referred to in Chapter 4.7. This, of course, is a non sequitur.

292 More to the point is the submission that the Report does not identify the directly affected staff. This, however is more a quibble about the merits of the process, rather than a demonstration that the Commission failed to have regard to the issue. The Report concentrates upon a suggested process, indicating that “Councils should identify staff directly affected”. To me this is understandable, given the time likely to elapse between the Report and implementation of the proposal, and the propriety of giving the existing employer a primary role in what is likely to be a sensitive issue. It is of some relevance to look at SSCC’s submission on this issue. It placed understandable emphasis upon the negative impact on existing SSCC staff, 95% of whom had indicated opposition to the proposed changes. Little or nothing is advanced on the “what if” proposition.

293 SSCC further submits that the recommendation in 4.7.1 of the Report ignores or defers the Commission’s duty by substituting a recommendation of transitional arrangements to examine and deal with future impacts after the boundary change has been made. It cites Weal at 203. This too is a debate about the merits, not the process. The submission also fails to give due weight to ss213 and 218C.

294 The contention point fails.

295 For these reasons I propose the following orders:

1. Appeal allowed.

2. Set aside the declaration and orders made on 31 May 2002 in the Land and Environment Court.

3. In lieu thereof order that the Application Class 4 be dismissed with costs.

296 IPP AJA: As regards the procedural fairness issue described as “the enlarged area point”, I agree with Spigelman CJ that this should be approached on the basis that it was not a case advanced by the Respondent at trial. In any event, I agree with the reasons expressed by Mason P on this issue.

297 Otherwise I agree with the reasons of Mason P as well as those of Spigelman CJ in regard to the jurisdictional and remaining procedural fairness issues.

**********

Citations

Minister for Local Government v South Sydney City Council [2002] NSWCA 288

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CITATION:	MINISTER FOR LOCAL GOVERNMENT & ANOR v SOUTH SYDNEY CITY COUNCIL [2002] NSWCA 288
FILE NUMBER(S):	CA CA 40444/02
HEARING DATE(S):	18/07/02 19/07/02
JUDGMENT DATE:	30 August 2002
PARTIES :	Minister for Local Government (Appellant) Local Government Boundaries Commission (Second Appellant) South Sydney City Council (Respondent)
JUDGMENT OF:	Spigelman CJ at 1; Mason P at 51; Ipp AJA at 296

LOWER COURT JURISDICTION :	Land & Environment Court
LOWER COURT FILE NUMBER(S) :	40060/02
LOWER COURT JUDICIAL OFFICER :	Talbot J

COUNSEL:	B Walker SC / N Hutley SC / N Perram (Appellant and Second Appellant) S Rares SC / M B Lee (Respondent)
SOLICITORS:	I V Knight (Appellant and Second Appellant) Marsdens Law Group (Respondent)
CATCHWORDS:	JURISDICTION - Land and Environment Court - whether issue of procedural fairness within jurisdiction - whether breach of the Act - s672 Local Government Act 1993 - whether within ancillary jurisdiction - s16(1A) Land and Environment Court Act 1979 - ADMINISTRATIVE LAW - Local Government Boundaries Commission - whether report invalid for consideration of wrong proposal - whether reasons of trial judge adequate - whether critical evidence disregarded - ADMINISTRATIVE LAW - delegation of function- whether consultants could be engaged to deal with submissions - ADMINISTRATIVE LAW - procedural fairnes - Local Government Boundaries Commission - content of obligation where no inquiry held - whether obligation breached - whether obliged to notify affected Council of modifications to proposa - whether obliged to give affected Council access to adverse submissions - ADMINISTRATIVE LAW - relevant considerations - whether statutory factor given "proper, genuine and realistic consideration" - s263(3)(e2) Local Government Act 1993
LEGISLATION CITED:	Land and Environment Court Act 1979 Local Government Act 1993
CASES CITED:	Abebe v The Commonwealth (1999) 197 CLR 510 Advance Bank Australia Ltd v FAI Insurances Ltd (1987) 9 NSWLR 464 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Annetts v McCann (1990) 170 CLR 596 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Brettingham-Moore v Municipality of St Leonards (1969) 121 CLR 509 Brodie v Singleton Shire Council (2001) 75 ALJR 992 Calvin v Carr [1980] AC 574 Chiropractors Association of Australia (South Australia) Ltd and Naomi Perry v Workcover Corporation Association of South Australia [1997] SASC 120 Cooper v Wandsworth Board of Works (1863) 14 CB(NS) 180, 143 ER 414 Coulton v Holcombe (1986) 162 CLR 1 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 FAI Insurance Ltd v Winneke (1982) 151 CLR 342 Forbes v New South Wales Trotting Club Ltd (1979) 143 CLR 242 Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 Hill v Green (1999) 48 NSWLR 161 Hill v King (1993) 31 NSWLR 654 Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 Johns v Australian Securities Commission (1993) 178 CLR 408 Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 Kioa v West (1985) 159 CLR 550 Mahon v Air New Zealand [1984] AC 808 Mifsud v Campbell (1991) 21 NSWLR 725 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 Minister for Immigration v Bhardwaj (2002) 76 ALJR 598 Muin v Refugee Review Tribunal [2002] HCA 30 National Companies & Securities Commission v News Corporation Limited (1984) 156 CLR 296 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 NTL Australia Pty Ltd v Minister for Land and Water Conservation (2001) 112 LGERA 403 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13 R v Panel on Take-overs and Mergers; Ex parte Datafin [1987] QB 815 Re Minister for Immigration and Multicultural Affairs; Ex parte Epeabaka (2001) 206 CLR 128 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 Re: Minister for Immigration and Multicultural Affairs; Ex parte "A" [2001] 185 ALR 489 Russell v Duke of Norfolk [1949] 1 All ER 109 Scharer v State of New South Wales (2001) 53 NSWLR 299 South Australia v O'Shea (1987) 163 CLR 378 South Sydney City Council v Minister for Local Government & Anor [2002] NSWLEC 74 South Sydney Council v Local Government Boundaries Commission [2001] NSWLEC 280 State of Victoria v The Master Builders' Association of Victoria [1995] 2 VR 121 Stead v State Government Insurance Commission (1986) 161 CLR 141 Telstra Corporation Ltd v Kendall (1995) 55 FCR 221 Testro Brothers Pty Ltd v Tait (1963) 109 CLR 353 Tickner v Chapman (1995) 57 FCR 451 Transport Action Group Against Motorways Inc v Roads & Traffic Authority (1999) 46 NSWLR 598 Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 Victims Compensation Fund Corporation v Nguyen (2001) 52 NSWLR 213 Warringah Council v Edmondson [2001] NSWCA 1 Weal v Bathurst City Council (2000) 111 LGERA 181 Zhang v Canterbury City Council (2001) 51 NSWLR 589
DECISION:	Appeal allowed