Preece v City of Prospect - [2010] SASC 309

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
PREECE v CITY OF PROSPECT
[2010] SASC 309
Judgment of The Honourable Justice Gray
8 November 2010
EVIDENCE - PROHIBITION OF PUBLICATION OF EVIDENCE - OTHER MATTERS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - IMPROPER PURPOSES
ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - OTHER MATTERS
Plaintiff, a councillor, seeks an order for judicial review quashing a resolution of the defendant council - where claimed, amongst other things, that defendant council passed resolution for an improper purpose - whether permission to proceed should be granted -whether satisfied that there is a reasonable basis on which the plaintiff might establish a right to an order for judicial review - where issue arose regarding suppression.
Held: plaintiff has established a case warranting the grant of permission to proceed with the application for judicial review - the publication of the resolution would not cause such prejudice as to outweigh the public interest in proceedings being conducted publicly and in open view - decline to extend suppression order, or make any other order as to suppression.
Supreme Court Civil Rules 2006 (SA) r 200; Evidence Act 1929 (SA) s 69A; Evidence Amendment Act 1989 (SA); Local Government (Elections) Act 1999 (SA) s 91A, referred to.
Re JN Taylor Holdings Ltd (in liq) (2007) 62 ACSR 695; McLachlan v Australian Stock Exchange Ltd (No 2) (unreported, SASC, Lander J, 18 December 1998); Russell v Russell (1976) 134 CLR 495; R v Tait (1979) 24 ALR 473; John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131; John Fairfax & Sons v Police Tribunal (NSW) (1986) 5 NSWLR 465; R v Francis [2007] SASC 364, considered.

PREECE v CITY OF PROSPECT
[2010] SASC 309
CIVIL
GRAY J.

In the within proceeding the plaintiff, Bruce Preece, a councillor of the City of Prospect, seeks an order for judicial review quashing the following resolution of the defendant, the City of Prospect, of 26 October 2010:
1. Council receives the report of the Local Government Governance Panel.
2.Cr Preece undertake training in the area of workplace practices especially regarding bullying.
3.Council make a public announcement of the complaint made against Cr Preece, the determination and the penalty imposed on Cr Preece.
4.Pursuant to Section 91(7) of the Local Government Act, 1999 Council orders that only the parts of the report, attachments and Minutes that identify the complainant relating to this Agenda Item be kept confidential as it was considered by the Council under Section 90(2) and (3) (a) to be information the disclosure of which would involve the unreasonable disclosure of information concerning the personal affairs of any person (living or dead).
5. The order of confidentiality be reviewed by 30 June 2011.
Mr Preece seeks the following further relief:
-A declaration that the resolution is invalid and of no effect.
-An injunction restraining the City of Prospect from acting pursuant to or…

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 Preece v City of Prospect

Details

AGLC: Preece v City of Prospect [2010] SASC 309
Case: [2010] SASC 309
Decision Date: 8 November 2010

CaseChat Overview and Summary

The plaintiff, Mr Preece, a councillor, sought judicial review of a resolution passed by the defendant, the City of Prospect. Mr Preece claimed that the council passed the resolution for an improper purpose, among other things. The court had to decide whether to grant permission for Mr Preece to proceed with his application for judicial review and whether the court was satisfied that there was a reasonable basis for him to establish a right to such an order. Additionally, there was an issue regarding the suppression of certain evidence.

The court considered that the hearing of the application should be determined as a matter of urgency. It was in the interests of both Mr Preece and the City of Prospect. If Mr Preece's allegations were correct, any conduct by the City of Prospect undertaken for improper purposes should be addressed promptly. From the City of Prospect's perspective, it was precluded from giving full effect to resolution 3 of its resolutions of 26 October 2010, due to its undertaking. There was also a public interest in the resolutions being given effect if they were valid and effective. Therefore, the matter was fixed for an urgent hearing.

The court granted permission to proceed with the application for judicial review. It declined to extend the suppression order of the Master of 29 October 2010 or make any other order as to suppression. The publication of the resolution would not cause such prejudice as to outweigh the public interest in proceedings being conducted publicly and in open view.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GRAY J

During the course of this hearing I have formed the opinion that the hearing of the application for judicial review should be determined as a matter of urgency. I consider this to be both in the interests of Mr Preece and the City of Prospect. If Mr Preece is correct in his allegations, any conduct by the City of Prospect undertaken for improper purposes should be addressed as soon as practicable. From the point of view of the City of Prospect, by its undertaking, it is precluded from giving full effect to resolution 3 of its resolutions of 26 October 2010. There is a public interest in those resolutions being given effect to if they are valid and effective resolutions. For these reasons, I have fixed the matter for urgent hearing. Conclusion For the foregoing reasons, permission to proceed with the application is granted. I decline to extend the suppression order of the Master of 29 October 2010 or make any other order as to suppression.

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

Full text does not contain this section.