Pittwater Provisional Council v The Council of the Shire of Warringah

[1992] HCATrans 130

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S60 of 1992

B e t w e e n -

PITTWATER PROVISIONAL COUNCIL

Applicant

and

THE COUNCIL OF THE SHIRE OF

WARRINGAH

First Respondent

F.L. THOMSON

Second Respondent

BRIAN GREEN

Third Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

DAWSON J

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 1 MAY 1992, AT 11.08 AM

Copyright in the High Court of Australia

Pittwater 1 1/5/92

MR M.H. TOBIAS, QC: If Your Honours please, I appear with

my learned friends, MR J.S. HILTON, and MR G.

GRIFFIN, for the applicant. (instructed by

Mallesons Stephen Jaques)

MR B.J. TAMBERLIN, QC: If Your Honours please, I appear

with my learned friend, MR J.B. SIMPKINS, for the

respondent. (instructed by Wilshire Webb)

MASON CJ: Thank you. Mr Tobias.

MR TOBIAS:  Your Honours have been provided with extensive

written submissions - - -

MASON CJ: Yes. Now, that enables us to understand the

substance of the case that you want to present if you were successful in obtaining special leave to appeal, but in the first instance we should confine

this case to the question whether special leave to

appeal should be granted. So, will you direct your

submissions to that issue.

MR TOBIAS:  Yes, I will, Your Honour. Your Honour, section

35A of the Judiciary Act, so far as it is presently

relevant, requires this Court to consider, amongst

other things, whether first of all there is a
question of law of public importance involved in

the appeal, whether as a consequence of "general

application or otherwise", and secondly:

whether the interests of the administration of justice, either generally or in the particular case -

requires intervention by this Court. And, although

this Court is required to take the nominated

matters into consideration, it has, in our
submission, a general discretion to grant special

leave and its jurisdiction is not confined.

Having said that, one accepts, of course, in

accordance with authority, that this Court will not

grant special leave to appeal where all that is

involved is a mere question of fact and, true it

is, in the present case, that the identification of

the respondents' purposes in conducting themselves

in the manner in which they did involves inferences

based upon substantially undisputed facts and

therefore involved findings of fact.

To that extent, Your Honours, the actual

findings of fact in terms of purpose are not really

in dispute in this appeal except in relation to one

purpose, adumbrated by the President and

Justice Clarke, but we submit denied by
Justices Sully and Mahoney, and that is the purpose

asserted, in fact the overriding purpose according

Pittwater 2 1/5/92

to Justice Clarke, that the respondent was seeking

to do no more than to ensure a proper or smooth

transition as a consequence of the succession.

That is a finding of fact in terms of the

identification of a purpose which, if special leave

or not, there are no other findings of fact in

is granted, we would seek to challenge. But,

terms of the identification of purpose that we seek

to challenge as being wrong findings of fact.

The question of law that arises, however, of course, is that the classification of those

purposes as proper or improper, in our submission,

does involve questions of law, and this is so

because it requires the construction of the

statutory powers pursuant to which the purpose or

purposes are sought by the respondents to be

legally justified.

In that respect, in our respectful submission,

those questions of law are important and are of
public importance in the context of the public
administration of a council's powers under the

Local Government Act. They are important in two ways: firstly, and obviously, because of the

impact that the decision has, not only upon the

individual councils concerned, but upon some

185,000 ratepayers; some 50,000 ratepayers within

the new municipality of Pittwater, and some 135,000

ratepayers remaining within the shire.

As Your Honours appreciate, from looking at

the written submissions and, no doubt, having read

the judgments, the gravamen of the complaint,

amongst others, which we make, is that what the

shire did was to seek to transfer what it regarded

as a potential redundancy problem from its

ratepayers and the financial burden thereof from

its ratepayers, to the applicant's ratepayers per

medium of the operation of section 20C(l) of the

Act.

So that there is clearly, in terms of public administration, important financial ramifications

that affect, and will affect, a very, very large

group of citizens.

Secondly, however, in our respectful

submission, Your Honours, the conduct which is

attacked in the present case may be taken, we would

submit, in these days as a fairly typical reaction,

of what I might term the old Council, to the

proposed succession of part of its area to form a

new and separate Council and area. Its legal

validity, in our submission, and the approach that

Pittwater 1/5/92

was adopted will, therefore, be a matter of

continuing public importance. It is true that

succession of part of a Council's area to form a

new area, this was the first for many, many, many

years. There have been a number of amalgamations

of Council areas, but I think this was the first

for some 40-odd years.

That is not to say, however, in our respectful

submission, that it is not going to happen again,

and if it happens again and if the legislation

remains as it is, and bearing in mind that it is

common now for Councils to organize their staff on
a municipal or shire needs basis rather than on a
ward or riding basis, then this problem, in terms
of the transfer of staff which is a critical matter

in relation to the succession of a part of an area

to form a new Council, will, in our respectful

submission, arise again.

Given the financial implications involved, by

virtue of the retrenchment of the entrenched
provisions of section 21C, in terms of the effect

that they have upon the finances of a new Council

that is set up, as is one might well expect,

because of dissatisfaction with the old Council by

the ratepayers of the former who wish to seek a

more efficient and cost-effective manner in which

their affairs will be conducted, that this question

of transfer of staff and the method by which it can

be achieved so as to avoid the very type of problem

that was perceived by the shire in the present

case, namely, redundancies - and I mean by that not

redundancies in terms of what the President

referred to as the misery that will be inflicted

upon individuals by redundancies, but, we would

submit, the financial implications that would be

involved in the payment of redundancy payments and

the effect that that will have upon the remaining ratepayers. That the transfer of that obligation

from one body to the other is a matter of

significance and one which will, in our respectful

submission, be there a further succession and the legislation remain as it is, will be grasped upon in order to achieve the same result.

This case, in our submission, involves what we

allege to be, in public law terms, misconduct on the part of a body with public duties to perform

and which has financial ramifications for the

number of persons to which I have referred.

That factor, of itself, in our respectful

submission, involves a matter of public importance

in the administration of justice with respect to

the proper ambit of the public powers and duties to

Pittwater 4 1/5/92

reorganize staff in these circumstances that the

Council undertook in this case.

MASON CJ: 

Can you identify the precise question of law which you say lies at the heart of this case?

MR TOBIAS: 

The precise question of law that lies in the

heart of this case, Your Honour, is the error that
the majority fell into in determining whether the

admitted purposes fell within the ambit of the

statutory powers that the Shire Council sought to

exercise in the reallocation of their staff.

DEANE J: That is section 20C?

MR TOBIAS:  No, it is section 84.

MASON CJ: When you say "purposes", to what purposes are you

referring, the purpose found by Mr Justice Sully,

at first instance?

MR TOBIAS:  The purposes found by Justices Sully and

Mahoney, as well - - -

MASON CJ: They are the same, are they not?

MR TOBIAS:  They are the same. As well as the further

purpose found by the other two judges which was the

purpose of a smooth transition enabling continuity

of services from the old Council to the new

Council. That, itself was an improper purpose, as

a matter of law, we submit, because it was an

action taken pursuant to section 84 of the Act but

contrary to the provisions of section 21 of the

Act, in that it sought to carry out a task which by

the proclamation of the governor, which had been

made under section 21 of the Act, was a task which

had been vested in and which was the responsibility

of the new Council.

It was a matter for the new Council to

determine the level of service and the level of

staff, subject only to section 20C which the new

Council, that is the Provisional Council, pending

the election of a new Council, would and was

required to provide to its ratepayers. It was of

no business and of no concern to the respondent

Council.

Certainly, they had a concern to ensure that

pre-succession facilities and services were
provided to the whole shire, including "A Riding".

That had been carried on satisfactorily on a

shire needs basis for many years previously and

there was nothing to suggest that it could not be

carried on up to and including today, being the

relevant date.

Pittwater 1/5/92

But what the old Council sought to do, on the contrary, was to impose its will as to the level of

services or the continuity of services and

facilities to be provided by the Provisional

Council to its ratepayers in circumstances when,

firstly, the Provisional Council was not consulted

on the issue, and, therefore, the conduct was

unilateral and, secondly, in a manner which was

contrary, in our submission, to the proclamation

that had been made under section 21 and which

vested that responsibility post-succession in the
Provisional Council.

That was a factor, and a legal factor, in our submission, that the majority failed to recognize

and, in fact, practically made no mention of except

the President who, in a passing reference,

suggested that if that had the effect of cutting

down the ambit of the Provisional Council's powers,
then it was a mere consequential effect or

by-product of a valid exercise of power.

DEANE J: But, does not section 21 only come in afterwards,

in this sense: if section 20C is seen, as it were,

as a narrow section which operates to say that if

you have a 100 employees and a 40 per cent area is

taken away but the employees' activities were
spread evenly, the remaining Council, with a

60 per cent area, is landed with the whole

100 employees - - -

MR TOBIAS: Section 20C may well have that effect.

DEANE J:  - - - or whether you look at 20C in the context of

the Act and see it as being aimed as a means of
achieving a reasonable division of staff between

old and new?

MR TOBIAS:  That was certainly the view that was taken by

the two majority judges and it is a construction of

section 20C, in our submission, that we seek to

challenge.

DEANE J:  I follow that, but the point I am asking you about

is, if that construction be right section 21 says

nothing to the issue in the case because section 21

only operates after that division has been made.

MR TOBIAS:	No, Your Honour, with respect. Section 21 empowers the governor to make a proclamation in
relation to the powers of the Provisional Council, both pre-succession as well as post-succession, and
that is what the proclamation did.  What the
proclamation did, as set out in our written submissions - if that is a convenient place to
refer to them - on pages 2 and 3, was to delegate
to the Provisional Council, firstly to determine

Pittwater 6 1/5/92

with Warringah Council which employees of that

Council shall be transferred to the Pittwater
Council - this is paragraph (e) under the

delegations - which involved a process of

negotiation. Secondly, to determine and recommend

to the minister an organizational and

administrative structure, including employees

numbers, which was a pre as well as a

post-succession obligation, and thirdly to

determine and recommend to the minister what

services shall be provided on an interim basis by

the Pittwater Council pending full elections.

MASON CJ: What is the statutory authority for (e) and the

following paragraphs?

MR TOBIAS:  The statutory authority, Your Honour, is

section 21(1)(k) and (r). Paragraph (k) relates to

the appointment of:

a provisional council and empower it to

exercise all or any of the powers of a council

pending the election of a council -

which would include determining level of services,

and (r) is a catch-all provision enabling the

proclamation to:

provide for any matter or thing ..... the the circumstances.

DEANE J: Yes, but you do not seem to appreciate what I am

putting to you, and that is if 20C has the wide

operation that the majority in the Court of Appeal

have held, section 21 says nothing at all to that.

It only operates in terms of employees are
concerned after, or subject to, what the operation

of section 20C does.

MR TOBIAS:

If the construction of section 20C,

notwithstanding any other provision, is to empower

the Council to reallocate its employees in such a

manner as to maximize the benefit to it of the

conscription provisions of section 20C - - -

DEANE J:  I did not say that, Mr Tobias. What I said was to

reallocate for the purpose of achieving a fair and

appropriate division between the old and the new by

virtue of the operation of section 20C.

MR TOBIAS:  Then, Your Honour, we would still attack the

validity of the conduct upon the basis - - -

DEANE J:  I understand that, but I was just trying to

investigate the relevance of section 21 to an

Pittwater 7 1/5/92

attack upon, for example, the judgment of

Mr Justice Clarke.

MR TOBIAS:  Your Honour, the relevance of section - that

depends upon what view one takes of section 20C.

DEANE J: That is what I was putting to you.

MR TOBIAS:  Assuming that what Mr Justice Clarke said about

section 20C is correct, then it may well be that
section 21 has nothing to say about that,

notwithstanding that it may be inconsistent with

the proclamation. The difficulty we have with the

proposition, Your Honour - and I am not prepared to

concede it, with respect - is that even if

section 20C empowers the Council to effect what

only it can regard as a fair and equitable

distribution of staff, then the relevance of

section 21 is that that brings it into conflict

with the terms of the proclamation brought into

effect under section 21 which says nothing about

fair and equitable distribution but in fact the

opposite.

A point then arises as to which power is to be

read subject to the other. So a point arises

there, in our respectful submission, because it

would be our contention that where, in the specific

case, the proclamation does not contemplate a fair
and equitable distribution because it requires

negotiation on transfer, then in those

circumstances there is brought into conflict a

situation between the authority of the proclamation

on the one hand, and, on the interpretation of

Justice Clarke, the unilateral power on the part of the old Council to impose, notwithstanding lack of

negotiation, its understanding of what is fair and

equitable upon the new Council.

DEANE J:  I follow the way you put it.

MR TOBIAS:  Our primary argument, of course, Your Honours,

is that section 20C is not a repository of power in

any event and, in fact, the respondents'

submissions accord with that. Section 20C(l)

simply has a consequential effect upon the exercise

of power sourced in other provisions and it only

operates, in our respectful submission, in relation

to, as the words indicate, those person who, at the

relevant time, are "wholly or principally" engaged,

and it is only those who are then protected once

they come into the employment by operation of law
of the new Council. But it was never the
contention below, nor is it the contention now,

having read my learned friend's written

submissions, of the respondents that section 20C is

a repository of power. Our argument below, and in

Pittwater 1/5/92

this Court, was and would be that what the Council

had sought to do is use it as a repository of power

when none in fact existed.

DEANE J: Well, is that right, or is the real basic question

whether a Council can use its powers for the

purpose of effecting the operation of section 20C

or whether it must regard section 20C as a

self-operating provision on a situation which it is

not entitled to exercise - to influence by

reference to the section?

MR TOBIAS:	The latter.
DEANE J:	You say the latter and the other side say the

former.

MR TOBIAS:	Section 20C will operate upon any valid exercise of power and as Justice Mahoney pointed out, in our
respectful submission correctly, there are no doubt
many circumstances in which a reallocation of staff
duties could have been validly carried out to
effect a change which would have increased by
virtue of the operation of section 20C the number
of employees that would be conscripted, over and above those that would have been conscripted, if
that reallocation had not taken place. Section 20C
is a neutral as it were, in the sense that it only
operates if there is otherwise a valid exercise of
power.

DEANE J: Could I ask you what you would say about an

example, simply so I can understand the way you put

it. Assume there was a planning division in this

Council of 20 people, none of whom dealt with any

one riding, which means all of whom dealt with less

than 50 per cent of their time with Riding - it is

Riding "A", is it?

MR TOBIAS:  Yes.

DEANE J:  Now, what if the Council had said, "There's going

to be a division under 20C; the whole 20 will stay

with us. Obviously, the sensible thing is to

allocate 30 per cent of them to Riding "A" and the

other 70 per cent to the continuing Council, and

we'll work out what seems to us to be a fair means

of doing that and forming the appropriate division

by reference to the appropriate proportion".	On
your argument, would that be bad or good?

MR TOBIAS:  Not in the circumstances of this case.

DEANE J: Well, it would be what, bad or good?

MR TOBIAS:  Bad.

Pittwater 9 1/5/92

DEANE J:	Bad.
MR TOBIAS:	It would be bad because one would have to find

whether the purpose that was sought to be achieved
was itself a valid purpose, and one then has to

source it in, in this case we would submit

section 84, and one would have to then determine

what other factors, in this case the question of

redundancies in particular, the extent to which that

played a part in what might otherwise be a

legitimate purpose.

In our respectful submission, section 20C simply plays no part in that. That is the end

consequence of what they do, providing they do it validly. If the end consequence is, because they

have done it invalidly, that no employees at all

are transferred pursuant to section 20C, so be it.

DEANE J: But what I was asking you - and I think I follow

your answer - is, is it invalid for a council to

arrange its staff in such a way that in its view

section 20C will operate to effect a fair division

of staff?

MR TOBIAS:  Yes.

DEANE J: That is invalid?

MR TOBIAS:  Yes.

DEANE J: And is that, in one sense, the underlying question

in the case?

MR TOBIAS:	It is the underlying question in the case but not the only question, Your Honour.
DAWSON J:	So that what Justice Deane put to you would in no

circumstances be good?

MR TOBIAS: In our respectful submission, in no	circumstances, of itself, would it be good but,	Your Honour, we must add to it, on the facts of
this case, that in our submission the findings of
fact do not establish that that was the sole
purpose, but that it was contaminated, to use the president's term, by what we submit was an
illegitimate purpose without which the valid
purpose, if it be a valid purpose, would not have proceeded.

DAWSON J: That is saving redundancy packages?

MR TOBIAS: That is the redundancy packages, yes.

Pittwater 10 1/5/92

GAUDRON J: It would amount to this: That it can never be a

legitimate purpose to order affairs to effect the

operation of 20C?

MR TOBIAS:	On its own, no, and a fortiori, in combination with what we submit was an illegitimate purpose,
which was a substantial purpose in the relevant
sense in which that term is used in the
authorities.

GAUDRON J: If it were a redundancy matter, in any event,

one purpose had to be to effect the operation of

20C?

MR TOBIAS: Yes.

DAWSON J:  You say, of itself, going back to the example

that Justice Deane gave, if you assume that the

planning department, comprising a number of people,

does in fact, in this instance - this is

hypothetical - serve the relevant riding, but you

could not say that any one person in the planning

department was wholly or principally employed in

relation to that riding.

MR TOBIAS:  That leaves out of account what is meant by the

word principally -

DAWSON J: Yes, of course.

MR TOBIAS: - - - and, of course, that is disputed. Let us

assume, for the purpose of the argument, that

whichever view one takes of the word principally,

what Your Honour says is the case - - -

DAWSON J: Yes, but if some reorganization were not done, in

relation to the planning department anyway,

section 20C would really not operate as it was

intended, because Riding "A" would get no planners.

MR TOBIAS:  No, Your Honour, that is not so at all.

DAWSON J:  Why not?

MR TOBIAS: Riding "A" would get no planners that were

conscripted to it.

DAWSON J: Yes.

MR TOBIAS: That is not to say that Riding "A" would not get

planners -

DAWSON J:	I take your point.
MR TOBIAS:	- - - because the whole point of the

proclamation was to require and obligate the

Provisional Council to negotiate with the Warringah

Pittwater 11 1/5/92

Council to ensure that it did obtain transfers of service, but that was a question of negotiation not

conscription.

DAWSON J: Riding "A" would not get its fair share of the

planners who were already employed?

MR TOBIAS:  That may well be because, in our respectful

submission, it was a matter for the Provisional

Council to determine how many planners it required

for its purposes, not for the Warringah Council.

DAWSON J: And not for 20C?

MR TOBIAS:  And not for 20C.

DAWSON J: Yes.

GAUDRON J: And, similarly, you would say, if it transpired

that the Council's best planner had been wholly and

principally engaged in one area his duties could

not be reorganized to cover the whole area, to

avoid conscription.

MR TOBIAS:  Not for the purposes of 20C. If Warringah

wanted, voluntarily, to transfer him and the

Provisional Council was happy to accept him, that

is a different matter -

GAUDRON J:  No, no, I am looking at it from the other point

of view. If the Provisional Council wanted him or

her because he or she had been entirely involved

with one -

MR TOBIAS:  Section 20C would operate on him or her as the case may be.

GAUDRON J: Yes. It could not be reorganized because -

could it be reorganized because the remaining
Council would be deprived of its best planner?

MR TOBIAS:  The old Council could not, in our respectful

submission, so reallocate duties either to
frustrate the normal operation of section 20C or,

in our submission, to give it an operation that it

would not otherwise have, or an application.

GAUDRON J: So, what you say is that everything is frozen

the minute - - -

MR TOBIAS:  No, everything is frozen except to the extent to

which the powers are exercised for the purpose for
which they were given.

GAUDRON J: Take the best planner. The Council says, "The

best planner will go.	The Council will be left
with inadequate planning staff.	The best planner

Pittwater 12 1/5/92

must have his duties changed to take account of the

planning responsibilities over the entire

municipality."

MR TOBIAS:  Your Honour, that is of course the converse to

the present case, but it is fair enough to test it
that way. But, in our submission, what Your Honour

says is that that employee would go under the

operation of the section and it would not be

legitimate, unless there was some other legitimate

reason for doing so.

GAUDRON J: But the other legitimate - - -

MR TOBIAS: There is one other possible legitimate reason,

and that is that because of the larger area of the

shire or because of the requirements of the shire,

his duties could be reallocated in order to provide

greater efficiency in the planning department in

relation to the balance of the shire. That would

be a legitimate purpose, and that is the point made

by Justice Mahoney.

GAUDRON J: But it necessarily also involves the purpose of

frustrating the operation of 20C.

MR TOBIAS: No, Your Honour, it does not frustrate it. It

only frustrates it if it is for a legitimate

purpose. We accept that section 20C is there to

operate on whatever might be the relevant factual

situation. We do not suggest that it would not be

open in the example given by Your Honour if it was

appropriate and bona fide to reallocate the chief
town planner's duties upon the basis that unless

they do so, the old Council would be left with an

inefficient planning department, and therefore that

would be a legitimate purpose. That was the point

that was - - -

GAUDRON J: But I do not see how that differs from

redundancy payments.

MR TOBIAS:  But it does, Your Honour, because in relation to

redundancy payments, it involves quite a different

situation. That was not for the benefit or for the

purposes of efficiently carrying out the tasks with

which the old Council was charged. It may be true

that if sufficient staff are taken by the

Provisional Council in the eyes of the old Council, that they may be faced with redundancy payouts but,

in our respectful submission, the old Council

cannot exercise a power pursuant to section 84 to

say, "Well, that's a financial detriment not to all

our ratepayers, but only to those ratepayers who

will remain after succession, and we will

therefore, pre-succession or on the date of

Pittwater 13 1/5/92

succession, transfer that burden from our

ratepayers to the new ratepayers."

DAWSON J:  I find some difficulty with that. Why - it is

the manager, is it not? Looking at it

realistically, he says, "Well, now, the shire at

the moment includes 'Riding A', and I have got to
act in the best interests of the shire overall, but

the shire is going to be diminished by the excision

of 'Riding A' and I'll be left with a shire which

is diminished, which I've got to exercise my powers

in relation to by looking ahead. Overall, the best

thing to do for the shire, looking ahead and

looking to the past, is to rationalize the

situation".

MR TOBIAS: Well, that is not rationalizing it, Your Honour,

with respect, that is seeking to -

DAWSON J: Well, it is, "Plainly, to do the best I can for

the shire I will have".

MR TOBIAS:  That is seeking to advantage your own shire to

the detriment of the new area.

DAWSON J:  He has no responsibilities in relation to the new

shire under section 84.

MR TOBIAS:  Your Honour, with respect, he - - -

DAWSON J:  I am putting that to you. I do not know.

MR TOBIAS: With respect, pre-succession, their obligation

is to the totality of ratepayers, including "A

Riding" ratepayers. The redundancy problem will

only occur, of course, post-succession.

DAWSON J: But what I am putting to you is, it would be

unrealistic not to look at what was about to

happen, if you are acting in the best interests of

the shire. Surely, when you are making decisions

you look to the future and the shire, in the

future, in relation to which he has to act in the
best interests of, is going to be a diminished one.

MR TOBIAS: But, Your Honour, in our respectful submission, what that seeks to do, exercising that power under

section 84 which is a power which is made subject

to the other provisions of the Act, is the exercise

of a power which, in our respectful submission,

runs contrary to the terms of the proclamation made

under section 21, which leaves it to the new

Council to (a) subject to 20C negotiate - and

therefore which proclamation has statutory force -

which leaves it to the new Council to negotiate

with the old Council as to which staff will be

transferred and, most importantly, in our

Pittwater 14 1/5/92

submission, the effect that that staff will have

upon the level of services that it will provide to

its ratepayers.

DAWSON J:  I suppose really only what I am putting to you

is - because section 84 does not refer to acting in

the best interests of the shire, it just says that

the council is:

charged with the local government of its area.

MR TOBIAS:  As a whole.

DAWSON J: Well, it does not say that but we can interpolate

that.

MR TOBIAS:  Yes, one can interpolate that.

DAWSON J: But it would be just simply unrealistic if one

could not have regard to the future.

MR TOBIAS:	One can have regard to the future in terms of the efficient organization of staff within the
balance of the shire.

DAWSON J: Quite realistically: "We don't want to be saddled

with redundancy payments which we can avoid".

MR TOBIAS:  But they can only avoid them, in our respectful

submission, by transferring that liability to the
new Council in a manner that seeks to

frustrate -

DAWSON J: At a time when the Council has no responsibility

to that new Council.

MR TOBIAS:	But if Your Honour is correct in saying you can look to the future, then one is saying, "Well, we
know that the transfer of staff, post-succession, and the level of services to be provided
post-succession, is not our problem, but their
problem, but what we will do - we don't care about
that, we will impose the appropriate level upon
them because we want to get rid of our redundancy
liability".
DAWSON J:	I am not saying this is correct, but I am just

asking you why you cannot say "We have to look to

the Shire of Warringah, and in doing that we look

to the Shire of Warringah now and what it will be

in the future" .

MR TOBIAS:  If that was a correct argument, Your Honour,

then the point made by the president would have no

validity, namely he said that it would be an

improper exercise of power if they took what they

regarded as the lame ducks in on their staff and

Pittwater 15 1/5/92

transferred them to Warringah - transferred them to

the - - -

DAWSON J: That is what I am seeking to investigate: why

would it be improper, because in doing so what the

manager is doing is having regard solely to the

interests of the Warringah Shire, as it is now and

as it will be in the future.

MR TOBIAS:  If that is correct, Your Honour, what it means

is there is simply no limit as to how you

manipulate your staff and how many you send across.

DAWSON J: Well, you say "manipulate", but arrange in order

to secure the best interests of the Warringah

Shire.

MR TOBIAS:  And that would then include logically, in our submission, retaining all the best staff - - -

DAWSON J: Yes.

MR TOBIAS:	- - - sending out all the other staff and, in fact, getting rid of excess staff which you would
have had, in any event, even if there had been no
succession because you are now provided with that opportunity of getting rid of these people.

DAWSON J: Doing the best you can for the Shire of

Warringah.

MR TOBIAS: In our respectful submission, Your Honour, that

would simply be going too far.

DAWSON J: Well, there may be lots of criticisms to be made,

but in terms of section 84, how do you make it a

criticism?

MR TOBIAS: Because, Your Honour, in our respectful

submission, section 84, as it says, is subject to

the provisions of the Act which include section 21.

It cannot be looked at in isolated of the affect on

the powers in section 84 of the proclamation

under - - -

DAWSON J: Section 21 or 20C?

MR TOBIAS:  21 - the proclamation made under section 21.

DAWSON J: Yes, and what part of that proclamation do you

refer to?

MR TOBIAS:  The proclamation in relation to the

determination between the two Councils of which

employees would be transferred, including the

number of them and, secondly, the determination of

the services to be provided by those staff.

Pittwater 16 1/5/92

DAWSON J:  So that on that view the obligation to act fairly

with regard to the interests of both Riding "A" and
the Shire of Warringah stems from the proclamation

not section 84.

MR TOBIAS: Well, Your Honour, it stems from the

proclamation because section 84 is made subject to

the proclamation.

DAWSON J:	I understand that, but I thought you were putting that section 84 imposed the obligation to act in
some impartial way.
MR TOBIAS:	No, section 84 requires the Council to act for the benefit of its area as a whole - I accept
that - subject to the other provisions of the Act,
but it cannot do so, in our submission, in a manner
which seeks to run contrary to the thrust of other
provisions of the Act or a proclamation made under
those provisions, and that is what, in our
submission, they have sought to do in the present
case.

DAWSON J:  I understand that. You say it is the

proclamation that imposes the obligation, not

section 84 that you seek to establish.

MR TOBIAS:  The proclamation limits the extent of the power

under section 84, in our submission.

DAWSON J: Yes.

MR TOBIAS:  Of course, Your Honours, I appreciate this does

not necessarily fall within the specific provisions of 35A, we do have a situation where the judges are evenly divided on the issue. They are not

necessarily divided on the state of the law because the principles to be applied are common ground, but
they are divided, in our respectful submission, on
the correct interpretation of these provisions and,
to that extent, as they are provisions of general

application, then, in our submission, that gives

rise to a special leave point of its own. Bearing

in mind the material that is in our written

submissions, Your Honour, I would only be

repetitive if I sought to detail those. Those are

the reasons why, in our submission, special leave

should be granted.

MASON CJ: Yes, Thank you, Mr Tobias. The Court will take a

short adjournment to consider the course it will

take in this matter.

AT 11.52 AM SHORT ADJOURNMENT

Pittwater	17	1/5/92
UPON RESUMING AT 11.57 AM:

MASON CJ:  The Court need not trouble you, Mr Tamberlin.

MR TAMBERLIN: If the Court pleases.

MASON CJ:  The interpretation of section 20C of the Local

Government Act, 1919 of New South Wales is a

question of some importance and it is critical to
the outcome of this case. However, we are not
persuaded that the Court of Appeal was in error in
the interpretation which it gave to the provision.

In particular, we agree with the interpretation

given to it by Mr Justice Clarke.

Once that conclusion is accepted, it follows

that a reallocation of duties of employees by the

old Council for the purpose of bringing about a

fair and equitable division of staff by means of

section 20C between the old and the new Council is

within power.

The applicant contends that in the present

case that was not the sole or substantial purpose
for which the reallocation of duties was
undertaken. That question is one of fact, partly

perhaps of characterization, and it is one in

respect of which the judges below expressed

differing views. But it is not a question of a

kind which is appropriate for the grant of special

leave to appeal.	The application is therefore
refused.

MR TAMBERLIN:	We would ask for costs, Your Honour.
MASON CJ:	You do not oppose costs, Mr Tobias?
MR TOBIAS:	No, Your Honour.

MASON CJ:  The application is refused with costs. The Court

will now adjourn until 10.15 am next Tuesday.

AT 11.59 AM THE MATTER WAS ADJOURNED SINE DIE

Pittwater 18 1/5/92