Minister for Local Government v South Sydney City Council (No 2)

[2002] NSWCA 317

CITATION:	MINISTER FOR LOCAL GOVERNMENT & ANOR v SOUTH SYDNEY CITY COUNCIL (NO 2) [2002] NSWCA 317
FILE NUMBER(S):	CA 40444/02
HEARING DATE(S):	18/07/02 19/07/02
JUDGMENT DATE:	20 September 2002
PARTIES :	Minister for Local Government (Appellant) Local Government Boundaries Commission (Second Appellant) South Sydney City Council (Respondent)
JUDGMENT OF:	Spigelman CJ; Mason P; Ipp AJA

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:	ADMINISTRATIVE LAW - Boundaries Commission - whether Boundaries Commission required to consider petitioning the Minister for a public inquiry - Local Government Act 1993, s 263
LEGISLATION CITED:	Local Government Act 1993
CASES CITED:	Foster v Minister for Customs and Justice (2000) 200 CLR 442 Minister for Local Government & Anor v South Sydney City Council [2002] NSWCA 288 Parramatta City Council v Hale (1982) 47 LGRA 319 Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363
DECISION:	Appeal dismissed. Orders of 30 August 2002 to stand

- 1 -IN THE SUPREME COURT

CA 40444/02

SPIGELMAN CJ
MASON P
IPP AJA

Friday 20 September 2002

MINISTER FOR LOCAL GOVERNMENT & ANOR v SOUTH SYDNEY CITY COUNCIL (NO 2)

Judgment

1 THE COURT: One issue raised by the Respondent’s Amended Notice of Contention was overlooked in the reasons delivered by the Court on 30 August 2002.

2 The Respondent (“SSCC”) contended that Talbot J should have found that the failure of the Commission to consider or determine whether to hold an inquiry constituted a failure to exercise its function pursuant to s263(2) of the Local Government Act 1993 (“The Act”); and that such a finding would have sustained the declaration and order for costs made below.

3 The Minister’s Orders, made on 20 November 2001 and gazetted on 30 November 2001, each requested the Commission to examine and report on a particular proposal. Each Order also stated:

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

4 Section 263(2) of the Act provides:

For the purpose of exercising its functions, the Boundaries Commission:
(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).

5 The validity of the Minister’s Orders was never in issue at the trial. On appeal, SSCC sought to contend that the Orders were invalid because of the stipulation that the Commission “may not hold an inquiry on this proposal”. Leave to amend SSCC’s Notice of Contention on this basis was refused by the Court on the first day of the hearing of the appeal.

6 It follows that the appeal, like the trial, proceeds on the basis that the various proposals were duly referred to the Commission for examination and report.

7 The Commission did not hold a formal inquiry, nor did it seek ministerial approval to do so. Miss Carnegie gave the following evidence on the matter:

Q. Now, subsequent to that was there any discussion – I’m sorry, I think you told his Honour that subsequent to that there was discussion within the Commission about the prospects in relation to a possible enquiry, is that correct?
A. Yes, that is correct.
Q. Now, on how many occasions did such a discussion take place?
A. On a number of occasions.
Q. Now, to the best of your recollection could you tell his Honour what was the substance of those discussions?
A. The Commission had noted that the Minister’s order referring the proposal specifically stated that the Commission may not hold an enquiry into this matter. The Commission noted the Minister’s view in that regard.
Q. Was anything else said within the Commission on the topic?
A. It was noted that a request for an enquiry would therefore be unlikely to be approved by the Minister and that the Commission is unable to hold an enquiry without the Minister’s approval to do so.

8 SSCC’s pleadings had relevantly alleged that the Commission did not examine and report on the proposal in conformity with s263(3) of the Act because, in the absence of a public inquiry, the Commission denied itself access to relevant information which was essential to discharging its statutory duty (Points of Claim, par 16(d)).

9 Perusal of SSCC’s written and oral submissions at trial confirms that it was accepted below that the Commission was not obliged to seek the Minister’s approval to conduct an inquiry. There were claims as regards s263(3)(a), (d) and (e2), but these were dismissed by Talbot J, whose decision (to the extent that it was challenged on appeal) was upheld in this regard in the appeal. However, neither the pleadings nor the submissions at trial sought to link the absence of a public inquiry to any particular failure to comply with s263(3).

10 The argument that was advanced was that the Commission’s choice not to seek approval for an inquiry effectively deprived it of information which it needed in order to comply with its statutory duties under s263(3). SSCC cited Parramatta City Council v Hale (1982) 47 LGRA 319 at 337-343. Viewed this way, the decision not to seek approval for an inquiry was not treated as an error per se, but rather it was relied upon as part of the evidentiary matrix supporting SSCC’s case in relation to errors otherwise alleged to have occurred.

11 Talbot J addressed SSCC’s specific challenges based upon the nominated paragraphs of s263(3). SSCC contends that he should also have dealt with, and accepted, SSCC’s submission that failure to request an inquiry was either evidence of, or an aspect of, the Commission’s own failure to discharge its obligation to examine and report on the Minister’s proposal and to have regard to the enumerated s263(3) factors.

12 The submission has no merit and the orders of Talbot J cannot be sustained or upheld on the basis of it.

13 As properly conceded at trial, the Commission had no obligation to hold an inquiry. Neither did the Commission have an obligation to seek ministerial approval to that end. The statute is silent in this regard and there is no basis for finding an implicit procedural obligation of this nature. The Commission’s decision to proceed in the manner it did was not an independent breach of the Act, nor did it establish SSCC’s case that asserted particular breaches of the Act, s263(3) in particular. The mere fact that the Commission declined to seek or obtain ministerial approval to hold a formal inquiry cannot be treated as evidence of a failure to have regard to all or any of the factors mentioned in s263(3).

14 In any event, Ms Carnegie’s evidence establishes that the Commission turned its mind to the issue. In light of the Minister’s stipulation in the gazetted Orders (the validity of which, as indicated, was never put in issue at trial), the Commissioners formed a view that it was pointless to press the Minister further. In our view, the Commissioners were entitled to adopt this stance. Certainly, their decision in this regard cannot in the circumstances be categorised as a failure to have regard to some matter to which they were duty bound to pay regard (cf Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375; Foster v Minister for Customs and Justice (2000) 200 CLR 442 at 452 [22], 480 [102]).

15 The fact that the Commission did not record its deliberations in a formal resolution (cf Amended Notice of Contention par 5) is neither here nor there. (See also Minister for Local Government & Anor v South Sydney City Council [2002] NSWCA 288 at [225], per Mason P.)

16 The orders pronounced on 30 August 2002 should stand.

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