SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Application for Judicial Review)
PATERSON & ORS v MACPHERSON & ANOR; ZACHARAKIS v MACPHERSON & ANOR
[2011] SASCFC 49
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice Peek)
27 May 2011
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - ABUSE OF POWER
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - FAILURE TO OBSERVE STATUTORY PROCEDURE
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS
On 22 July 2009 the second defendant, the Minister for State and Local Government Relations (‘the Minister’), purporting to exercise the power conferred on her by s 272(1) of the Local Government Act 1999 (SA) (‘LGA’), appointed the first defendant, Mr MacPherson, to investigate and report on certain matters relating to the Council of the City of Burnside (‘the Council’). Mr MacPherson carried out an investigation and in August 2010 sent to each plaintiff, each a member of the Council, a copy of his provisional draft report. He stated that each plaintiff was at liberty to make submissions to him, by a specified date, on any matter in the draft. On 10 September 2010 the plaintiffs sought judicial review contending that (1) Mr MacPherson’s appointment as investigator was invalid; that (2) Mr MacPherson had in any event exceeded the Terms of Reference; and that (3) Mr MacPherson was denying the plaintiffs procedural fairness.
Held:
(1) Doyle CJ and Peek J (White J contra): Although on their face the Terms of Reference authorised an investigation that went beyond any contravention of the LGA by the Council that the Minister had reason to believe had occurred for the purposes of s 272(1) of the LGA, they should, in accordance with s 13 of the Acts Interpretation Act 1915 (SA), be read as limited to the Minister’s belief identified in letters of 2 July 2009 and 22 July 2009, that being a belief in the contravention of, or failure to comply with, ss 6(a) and 132A of the LGA, arising out of the circumstances identified by the Minister in the letter of 2 July 2009. The Minister’s belief defined the scope of the investigation that could be authorised under s 272(1) of the LGA. The ‘matter’ in respect of which the investigator could be appointed was the subject matter of her belief. The scope of the enquiry had to align with that matter. The Notice of Appointment and Terms of Reference were instruments to which s 13 of the Acts Interpretation Act 1915 (SA) applied. The Terms of Reference were to be read as limited to the circumstances identified by the Minister in her letter of 2 July 2009. On that basis, some of the Terms of Reference are beyond power and should be declared invalid. The investigation and the exercise of powers by Mr MacPherson were limited to the matter in respect of which the investigator was validly appointed.
Doyle CJ and Peek J…
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- AGLC
- Paterson v Macpherson; Zacharakis v Macpherson [2011] SASCFC 49
- Case
- [2011] SASCFC 49
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court were whether the Minister's Terms of Reference for the investigation were authorised by the relevant legislation, specifically section 272 of the *Local Government Act* (LGA), and whether the process adopted by the Minister and the investigator breached the principles of procedural fairness. The plaintiffs contended that the Terms of Reference permitted an investigation into matters that the Minister had no reasonable belief existed, thereby exceeding the statutory authority granted.
The Court reasoned that the Terms of Reference, as initially drafted, purported to authorise an investigation that extended beyond the matters in relation to which the Minister had demonstrated a belief for the purposes of section 272(1) of the LGA. Specifically, the authorisation to investigate contraventions of "any provision at all of the LGA" was considered to be beyond power. However, the Court found that the Terms of Reference could be read as limited to the specific contraventions and circumstances identified by the Minister in her letters of 2 July 2009 and 22 July 2009, pursuant to section 13 of the *Acts Interpretation Act 1915* (SA). The Court also noted that while the investigation was primarily directed at the conduct of the Council, it did not exclude an investigation into the conduct of individuals, though drawing this line would be difficult. The Court concluded that the Minister had complied with the obligation imposed by section 272(2) of the LGA.
Orders
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Background
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