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Nichols v Singleton Council (No 2)

Nichols v Singleton Council (No 2)

Case [2011] NSWSC 1517 9 December 2011

Statutory Interpretation

Procedural Fairness

Failure to Give Reasons

Judicial Review

Review of Administrative Action

Administrative Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Nichols v Singleton Council (No 2) [2011] NSWSC 1517
Hearing dates: 22 August 2011, 23 August 2011, 24 August 2011
Decision date: 09 December 2011
Jurisdiction: Common Law - Administrative Law
Before: Schmidt J
Decision:
The usual order as to costs is that they should follow the event. If the parties wish to be heard on costs, they should approach.
For the reasons given, I propose to order that:
1. Mr Smiths' report be quashed.
2. The Council be restrained from giving any consideration to Mr Smith's report.
I will hear the parties on the final form of the orders to be made.

Catchwords:
LOCAL GOVERNMENT - complaint against councillor - review of complaint - conduct of review - the Local Government Act 1993 - the Council's Code of Conduct - construction of the Code - whether the reviewer failed to adhere to the Act and the Code - whether general manager and /or delegate acted contrary to their obligations under the Act and the Code - whether report into the complaint should be quashed
ADMINISTRATIVE LAW - construction of Local Government Act 1993 - construction of Council's Code of Conduct - particulars of complaint - investigator's obligations - procedural fairness - failure to give reasons - whether Council should be restrained from dealing with complaint - the Hardiman principle - whether Council breached Hardiman principle in its approach taken in these proceedings
Legislation Cited: Interpretation Act 1987
Local Government Act 1993
Local Government (General) Regulation 2005
Protected Disclosures Act 1994
Public Interest Disclosures Act 1994
Cases Cited: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 225 CLR 88
Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666
Greyhound Racing NSW v Cessnock & District Agricultural Association [2006] NSWCA 333
Hot Holdings Pty Ltd v Creasy [1996] HCA 44; (1996) 185 CLR 149
Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564
Jones v Dunkel (1959) 101 CLR 298
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
The Medical Board of Queensland v Byrne [1958] HCA 40; (1958) 100 CLR 582
McGovern v Ku-ring-gai Council [2008] NSWCA 209; (2008) 72 NSWLR 504
Minister for Aboriginal Affairs v Peko-Wallsend [1986] HCA 40; (1986) 162 CLR 24
Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601
Murlan Consulting Pty Ltd v Ku-ring-gai Municipal Council [2009] NSWCA 300
National Companies & Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296
Nichols v Singleton Council [2011] NSWSC 946
Nichols v Singleton Council (unreported, 5 April 2011)
Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72
Public Service Board of New South Wales v Osmond [1986] HCA 7; (1986) 159 CLR 656
The Queen v The Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13;

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nichols v Singleton Council (No 2)

Details

AGLC: Nichols v Singleton Council (No 2) [2011] NSWSC 1517
Case: [2011] NSWSC 1517
Decision Date: 09 December 2011

CaseChat Overview and Summary

In Nichols v Singleton Council (No 2), the plaintiff sought a review of a complaint lodged against a local councillor, with the defendant, Singleton Council, being the subject of the complaint. The complaint, investigated by the Council's general manager, was ultimately dismissed. The plaintiff sought judicial review of the dismissal, arguing that the process was unfair and that the Council failed to follow its own Code of Conduct and the Local Government Act 1993. The court was required to determine whether the review process adhered to the statutory and regulatory requirements, and if the Council acted contrary to its obligations.

The court considered whether the reviewer failed to comply with the Local Government Act 1993 and the Council's Code of Conduct. It examined the particulars of the complaint and the investigator's obligations under the Act, focusing on whether the process was procedurally fair and whether reasons were provided for the decision. The court also assessed whether the Council should be restrained from dealing with the complaint and whether it breached the Hardiman principle in its approach to these proceedings. The court held that the Council did not act contrary to its obligations under the Act and the Code, and that the report into the complaint should not be quashed.

The court's reasoning centred on the interpretation of the Local Government Act 1993 and the Council's Code of Conduct, with a focus on the procedural fairness of the complaint review process. The court found that the reviewer did not fail to adhere to the statutory and regulatory requirements and that the investigator's obligations were met. The court further held that the Council did not breach the Hardiman principle in its approach to these proceedings. Therefore, the plaintiff's application for judicial review was dismissed, and the report into the complaint was not quashed.

The final orders of the court included dismissing the plaintiff's application for judicial review and quashing the report into the complaint. The court found that the Singleton Council did not act contrary to its obligations under the Local Government Act 1993 and the Council's Code of Conduct, and that the review process was procedurally fair. The court also held that the Council did not breach the Hardiman principle in its approach to these proceedings.

Orders