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 in reliance upon the resolution.
-Damages, including aggravated and exemplary damages.
-Costs.
-Such further and other orders as the Court considers appropriate.
The proceedings came before a Master of this Court on 29 October 2010. The Master referred the application for permission to proceed, to my Chamber List today. Rule 200 of the Supreme Court Civil Rules 2006 (SA) relevantly provides:
(1)If a plaintiff claims to be entitled to an order for judicial review, an action for judicial review may be commenced but cannot proceed further in the Court without the Court's permission.
…
(3)The originating process for an action for judicial review must, when filed in the Court, be accompanied by—
(a)     an application for the Court's permission to proceed with the action; and
(b)     an affidavit—
(i)     stating the nature of the order sought; and
(ii)setting out, in detail, the grounds on which the applicant seeks the order for judicial review.
(4)The Court may grant permission if the Court is satisfied that there is a reasonable basis on which the applicant might establish a right to an order for judicial review.
(5)If the Court grants its permission, the Court must determine whether the action is to be heard by the Court constituted of a single Judge or by the Full Court.
…
(7)     An action for judicial review may include claims for other relief.
It is to be observed that Rule 200(4) provides the Court with a discretion to grant permission to proceed if the Court is satisfied that there is a reasonable basis on which the applicant might establish a right to an order for judicial review.
In support of the application for permission, counsel for Mr Preece relied on three affidavits and exhibited documents. The history of the matter appearing from the affidavits may be summarised as follows.
On about 14 July 2010, Mr Preece received a letter from the Mayor of the City of Prospect advising of a formal complaint made against Mr Preece by a former Council employee relating to an incident said to have occurred on 6 July 2010. The Mayor advised in the letter that it would be necessary for the Council to refer the complaint to the Local Government Association, Independence Governance Panel. That Panel investigated the complaint and in that process interviewed the employee and Mr Preece. The Panel reported on its investigations with its recommendations in a letter to the Mayor of 11 October 2010.
The finding of the Panel was in the following terms:
It is the finding of the Panel that the essence of the complaint is substantiated. The Panel therefore finds that there has been a breach of the following sections of the City of Prospect Code of Conduct for Elected Members.
11.2 The relationship between Elected Members and staff is based on mutual respect and cooperation to assist Council in achieving its strategic and corporate goals and implementing its policies.
11.3 To maintain a positive relationship with officers and employees, we will:
11.3.1develop mature and constructive working relationships based on       trust;
11.3.2   establish an effective means of communication and be clear about      the distinction between the roles of Elected Members and staff, and    recognize how they work together for the benefit of the community;
11.3.3   act in accordance with Council policy and practice regarding    approaching staff members to obtain reports or other information;
11.3.5not direct Council officers or employees
The investigating Panel member saw very significant signs of contrition and concern in the meeting she had with Cr Preece on 06 September 2010. He was unclear about what constitutes the term “bullying” and was shocked to realize that his behaviour met the criteria for bullying and was prepared to apologise for that behaviour. He wanted [the complainant] to understand that he had not understood Cr Preece’s position but otherwise was contrite. He was very prepared to accept the advice from the CEO that he needed to review his way of communicating with Council and with Council employees and was keen to listen to the CEO’s advice with respect to these matters.
The Panel then made the following recommendations:
The City of Prospect Code of Conduct for Elected Members clause 13.4.5 sets out a range of sanctions available to Council to deal with breaches of the Code of Conduct.
It is a matter for Council to consider what action it wishes to take, however the Panel recommends that Council:
Request the Elected Member undertake training in the area of workplace practices especially regarding bullying [clause 13.4.5(3].
Consider whether the Council should make a public announcement of the complaint made against the Elected Member, the determination and the penalty imposed on the Elected Member [clause 13.4.5(4)].
You may also wish to advise the complainant of the outcome of the investigation, subject to the requirements of confidentiality and after final determination of the matter.
The proposed agenda for the General Council Meeting of the City of Prospect included an item: the Council to consider the Panel report. The paper provided in support of the agenda item referred to the recommendations of the Panel, as extracted above, and contained the Panel recommendation to the Council that the Panel’s recommendations be adopted. The Council at its meeting of 26 October 2010 adopted the recommendations and resolved them in the terms extracted above. On the hearing of the application for permission, this Court was informed that the resolution had been passed by seven votes to one.
Mr Preece deposed that prior to the meeting of 26 October 2010, he had concerns with respect to any public announcement, and through his solicitor, he sought an undertaking that there be no resolution in regard to publication. Following the meeting, Mr Preece’s solicitor received by letter from the Council the resolutions that had been passed.
Mr Preece claims that the publication in accordance with the Council resolution may cause irreparable harm to his reputation and may cause him not to be elected to Council at the forthcoming Council election. In substance he asserts that the Council decided to publicise its resolution to influence the electorate against him in the election. He asserts that the Council resolution was an improper exercise of its power. In short he asserts that the Council acted mala fides. He further asserts that the manner in which he has been treated is inconsistent with the way at least one other elected member, who had been found guilty of a breach of the Code of Conduct amounting to serious misconduct, had been treated.
Mr Preece deposed to publications being made by another member of Council, Monica Lee, by way of a flyer placed in a letter box. That flyer consists of an extract from the Sunday Mail Newspaper of 31 October 2010 under the heading “‘Bully’ Claims Rock Council”. In the course of the newspaper article, the following statements are made:
The Prospect Council elections are in turmoil with a councillor taking legal action over bullying claims and a mayoral candidate found guilty of misleading voters.
Councillor Bruce Preece has launched Supreme Court proceedings to stop the council from acting on the findings of an investigation into claims he bullied a staff member.
The recommendations of the investigation conducted by the Local Government Association panel were received at a council meeting last week but on Friday Cr Preece commenced proceedings challenging the council’s actions. The court issued an interim suppression order preventing the publication of the resolutions from the council’s meeting.
Court documents show that the investigation centres on an incident on July 6, in which a staff member alleged that during a phone conversation over a laptop, Cr Preece had been threatening and abusive.
“Bruce asked if I had changed his password as requested, I replied that the laptop password for member login was the generic password assigned to his laptop,” the employee wrote in a formal complaint.
“Bruce’s attitude immediately changed and became nasty and I was subjected to an unprovoked abusive verbal assault as to why I hadn’t completed the work as requested. I find Bruce’s manner and attitude debasing, threatening, abusive, bullying, unprofessional and confronting.”
The Australian Services Union’s Fay Donaghy also wrote on the worker’s behalf, alleging Cr Preece had also said to the employee “Well what sort of IT person are you, you don’t get the f…ing information in the first place.”
In his affidavit filed with the court, Cr Preece – who has renominated for election – said the conduct described was “extremely exaggerated”.
“I deny swearing,” he wrote.
…
Beneath the newspaper article, Ms Lee’s flyer sets out under the heading “Prospect Deserves Better”, the following:
I believe that election campaigns should focus on the positive and outline a clear vision for the future.
However, the behaviour of Cr. Bruce Preece can no longer be excused.
Prospect deserves so much better!
This is the third time in my 18 months on Council that Cr Bruce Preece has been found to be in breach of the City of Prospect’s Code of Conduct. He has been asked to attend anger management training and has refused. The last breach required a public apology to a neighbour and for him to contribute to the costs of yet another investigation. On all these requirements Cr Preece not only refused but sought legal advice to make sure he did not have to comply.
As a resident of Prospect myself, I am tired of this Councillor’s antics.
When considering your choice, vote for candidates who will represent our city with respect and integrity.
According to Mr Preece’s affidavit, a further Prospect resident received a different flyer displaying the same Sunday Mail article, below which appeared the following words:
Forced public retractions, Supreme Court suppression orders, bullying, political affiliation denials, and unendorsed flyers have no place in our community.
A healthy democracy relies on Candidates being truthful, transparent and accountable at all times.
Vote for David O’Loughlin and other Candidates with these values.
This flyer asserts that it is written and authorised by David O’Loughlin. Mr O’Loughlin is the Mayor of the City of Prospect.
Mr Preece relies on the flyers to substantiate his assertion that the resolution was passed for an improper purpose. He also asserts that the resolution should not have been passed as it fell within the definition of a designated decision within the meaning of section 91A of the Local Government (Elections) Act 1999 (SA) and therefore, it is said, as a consequence of the terms of section 91A(4), it was invalid.
Mr Preece further relies on an affidavit of Timothy Newall, an elected member of the City of Prospect. Mr Newall has not nominated for re-election as a member of Council in the current elections. Mr Newall deposed as follows:
On or about 21 October 2010 I received a copy of the proposed agenda for a general Council meeting to be held on the evening of 26 October 2010.
One of the agenda items for that meeting was for Council to consider a report (“the report”) from the Local Government Governance Panel dated 11 October 2010 relating to a breach of Council’s Code of Conduct for Elected members alleged against Councillor BRUCE PREECE.
In the report were recommendations as to the appropriate action that might be taken against Councillor BRUCE PREECE as a result of a breach of Council’s Code of Conduct.
The recommendations included that Council
(a) Request the elected member undertake training in the area of workplace practices especially regarding bullying.
(b) Consider whether the Council should make a public announcement of the complaint made against the Elected Member, the determination and the penalty imposed on the elected member.
On the morning of 26 October 2010 I was contacted by telephone by the current Mayor of the Council DAVID O’LOUGHLIN who asked me “in which manner I intended to exercise my vote in relation to Council resolving to make a public announcement as to the matter concerning Councillor Preece”. I said words to the effect that I thought that it was not an appropriate time being during an election period to make such public announcement and that the issue should be left until after the election and not be decided that evening.
DAVID O’LOUGHLIN said words to me to the effect that he would like me to vote in favour of Council resolving to make a public advertisement in the Messenger Newspaper about BRUCE PREECE as he “should not be in public office”.
I was contacted again by DAVID O’LOUGHLIN on the evening of 26 October 2010 at around 6.30 pm shortly prior to the commencement of the Council meeting and he again asked me how I intended to exercise my vote in relation to the making of a public announcement regarding BRUCE PREECE saying words to the effect that “Bruce needs to be sorted out”. I said words to the effect that I thought that placing any public announcement and any remedial training for BRUCE PREECE as proposed would be an unnecessary expense to the rate payers because he may not have been re-elected in the current elections in any event.
Having regard to this affidavit material, counsel for Mr Preece submitted that permission to proceed should be granted as the evidence should satisfy this Court that there is a reasonable basis on which Mr Preece might establish a right to an order for judicial review. It was contended that Mr Newall’s affidavit relevantly established for present purposes that the Mayor was seeking to publicise the Panel’s decision and the Council’s resolution, for the purposes of influencing the voting public against re-electing Mr Preece.
Counsel for the City of Prospect placed no affidavit evidence before the Court. However, without objection, counsel provided an earlier Local Governance Panel report in respect of an earlier complaint made against Mr Preece. The Panel at that time concluded that the essence of the complaint had been substantiated. The substance of the complaint related to alleged threatening demeanour and rude and abusive behaviour by Mr Preece toward a resident in the City of Prospect. The Panel made recommendations to the Council as to the sanctions that the Council should implement.
Counsel submitted that this material was relevant to the claim for relief and should have been disclosed. It was said that the withholding of this information by Mr Preece should militate against a grant of permission to proceed. Counsel further argued that there had been a failure to disclose what had occurred at the meeting of the Council on 26 October 2010 at the time of passing the resolutions. Finally, it was contended that taking the affidavit evidence at its highest, it did not give rise to the conclusion that there was a reasonable basis on which Mr Preece might establish a right to an order for judicial review.
I have reached the conclusion that Mr Preece has established a case warranting the grant of permission to proceed. The affidavit of Mr Newall in particular suggests that the Mayor of the City of Prospect may have been seeking to use the Panel report for an improper purpose. In particular, the Mayor was concerned with the making of a public announcement and the lodging of a public advertisement, as in his view, Mr Preece “should not be in public office”. Accordingly, my discretion to grant permission is enlivened and I exercise my discretion to grant permission to proceed.
Counsel for the City of Prospect gave an undertaking that in the event of permission being granted, the Council would not seek to act on or implement resolution 3 as set out above. In these circumstances, interlocutory injunctive relief was not pursued by Mr Preece.
Mr Preece then made an application to extend a suppression order made by the Master. The order of the Master for suppression was in the following terms:
Pursuant to s. 69A(3) of the Evidence Act, until 4:00pm on 5 November 2010, there be an interim order forbidding the publication of any material that may disclose the terms of paragraph 2, 3 and 4 of the resolution made by the Defendant on 26 October 2010 concerning Councillor Preece.
The Master further referred Mr Preece’s application for an ongoing suppression order to this Court. The Master gave reasons for making the suppression order, concluding:
It is therefore, in my view, arguable at least for the purposes of an interim order, that the proper administration of justice would be prevented by an unrestricted publication of material by the court thereby being deprived of the capacity to render a judgment and provide effective relief on the plaintiff’s application.
For those reasons I intend to make an interim suppression order pursuant to s 69A(3). The order will be in terms of amended paragraph 2 of the minutes of order that are presented to me this day, namely that pursuant to s69A(3) of the Evidence Act until 4.00 pm on 5 November 2010 there be an interim order forbidding the publication of any material that may disclose the terms of paragraphs 2, 3 and 4 of the resolution made by the defendant on 26 October 2010 concerning Councillor Preece.

The power to make suppression orders is contained in section 69A of the Evidence Act 1929 (SA). That section was introduced into the Evidence Act by the Evidence Amendment Act 1989 (SA), and relevantly provides:
(1)     Where a court is satisfied that a suppression order should be made –
(a)     to prevent prejudice to the proper administration of justice; or
(b)     to prevent undue hardship –
(i)to an alleged victim of crime; or
(ii)to a witness or potential witness in civil or criminal proceedings who is not a party to those proceedings; or
(iii)to a child,
the court may, subject to this section, make such an order.
(2)Where the question of making a suppression order (other than an interim suppression order) is under consideration by a court –
(a)     the public interest in publication of information related to court proceedings, and the consequential right of the news media to publish such information, must be recognised as considerations of substantial weight; and
(b)     the court may only make the order if satisfied that the prejudice to the proper administration of justice, or the undue hardship, that would occur if the order were not made should be accorded greater weight than the considerations referred to above.
(3)Where an application is made to a court for a suppression order, the court may, without inquiring into the merits of the application, make such an order (an “interim suppression order”) to have effect, subject to revocation by the court, until the application is determined; but if such an order is made the court must determine the application as a matter of urgency and, wherever practicable, within 72 hours after making the interim suppression order.
(4)A suppression order may be made subject to such exceptions and conditions as the court thinks fit and specifies in the order.
(5)     Where an application is made to a court for a suppression order –
(a)     any of the following persons, namely:
(i)the applicant for the suppression order;
(ii)a party to the proceedings in which the suppression order is sought;
(iii)a representative of a newspaper or a radio or television station;
(iv)any person who has, in the opinion of the court, a proper interest in the question of whether a suppression order should be made,
is entitled to make submissions to the court on the application and may, by leave of the court, call or give evidence in support of those submissions;
(b)     the court may (but is not obliged to) delay determining the application to make possible or facilitate non-party intervention in the proceedings under paragraph (a)(iii) or (iv).
(6)A suppression order may be varied or revoked by the court by which it was made, on the application of any of the persons entitled to make submissions by virtue of subsection (5)(a).
…
Section 69A of the Evidence Act provides for exceptions to be made to the common law position that the business of a court should be conducted in the public domain. A purpose of the section is to protect the integrity of the administration of justice and to protect those persons in the court who may be vulnerable or who are exposed to hardship.
Section 69A(5) of the Evidence Act provides certain classes of persons affected by a proposed suppression order with the statutory right to make submissions to the court prior to the making of the order, and to appeal from a suppression order once made. The news media are one such class. Section 69A(2) of the Evidence Act provides that the interest of the “news media” must be taken into consideration in the making of any suppression order.
The presumption that justice be administered in public is a well-recognised common law principle and has been consistently applied in this Court.[1] In Russell[2] Gibbs J explained the basis of this principle as follows: [3]
It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted "publicly and in open view" (Scott v. Scott). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for "publicity is the authentic hall-mark of judicial as distinct from administrative procedure" (McPherson v. McPherson ). To require a court invariably to sit in closed court is to alter the nature of the court. Of course there are established exceptions to the general rule that judicial proceedings shall be conducted in public; and the category of such exceptions is not closed to the Parliament. …
[Footnotes omitted]
[1]    See for example Re JN Taylor Holdings Ltd (in liq) (2007) 62 ACSR 695 (Debelle J); McLachlan v Australian Stock Exchange Ltd (No 2) (unreported, SASC, Lander J, 18 December 1998).
[2]    Russell v Russell (1976) 134 CLR 495.
[3]    Russell v Russell (1976) 134 CLR 495 at 520.
In Tait,[4] the Full Court of the Federal Court observed:
…To deny the public knowledge of any part of the proceedings of a court is a matter of gravity, especially where the court is exercising criminal jurisdiction. …
This was subsequently echoed by Kirby P in John Fairfax Group Pty Ltd v Local Court of New South Wales:[5]
The normal rule of our courts is that justice is administered in a court open to the public where the names of the parties are openly revealed and may be the subject of fair and accurate reports without fear of prosecution for contempt or action for defamation or other civil wrong. This rule, which we have inherited from the common law of England, has been described as an “inveterate” rule of our system of justice: see Earl Loreburn in Scott v Scott [1913] A.C. 417 at 445. …
[4] R v Tait (1979) 24 ALR 473 at 487 (Brennan, Deane and Gallop JJ).
[5] John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 at 140.
The position was summarised by McHugh JA in John Fairfax & Sons v Police Tribunal:[6]
The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. …
[6] John Fairfax & Sons v Police Tribunal(NSW) (1986) 5 NSWLR 465 at 476-477.
Consequently, the issue for determination is whether the reasons underlying the making of the suppression order still exist to justify the continuation of that order. This involves a consideration of whether Mr Preece in this case would, if the suppression order is not extended, suffer undue hardship so as to outweigh the public interest in the publication of information related to court proceedings.[7]
[7] Evidence Act 1929 (SA), section 69A(1), (2); see further the authorities as set out in R v Francis [2007] SASC 364.
The Messenger Newspaper sought leave to oppose the application for the continuation of the suppression order. No objection was raised by either party. Counsel for the City of Prospect did not wish to be heard with respect to suppression.
Mr Preece contended that if suppression were not ordered his claims for relief would be rendered nugatory. However, when pressed, his counsel accepted that his claims for judicial review, a declaration, for damages and exemplary damages and costs, would remain as claims to be pursued. I do not accept that his claims would be rendered nugatory if the suppression order were not continued.
Further, it is evident from the newspaper publication and the flyers referred to above, that there has been publication within the City of Prospect, of the complaint of the employee, the substance of the findings and of the fact that the Council had passed certain resolutions. Counsel for Mr Preece accepted that the Panel report was now in the public domain. It follows that the public are aware of the allegations made, of Mr Preece’s response as recorded in that report, of the Panel’s conclusions and of the Panel’s recommendations. I do not consider that the publication of the resolution of the City of Prospect adopting the Panel’s recommendations would cause such a prejudice as to outweigh the public interest in proceedings being conducted publicly and in open view.
Turning to the provisions of section 69A of the Evidence Act, when considering the question of extending the suppression order I have had regard to the public interest in publication of information relating to the within Court proceedings, and to the consequential right of the news media to publish such information. I have recognised in particular that this is a consideration of substantial weight. Further, I am not satisfied that the prejudice to the proper administration of justice or the undue hardship that would occur if the order were not made, should be accorded greater weight than the public interest considerations identified. In my view, given the publications that have occurred thus far, I do not consider that the publication of the Council’s resolutions would cause any undue hardship to Mr Preece. For these reasons I decline to extend the suppression order made by the Master or make any other suppression order.
In reaching these conclusions, both as to granting permission to proceed and declining to extend the suppression order, I have proceeded on the basis of as yet untested assertions of fact. Accordingly, my factual findings and conclusions in this interlocutory process are no more than that. Those findings do not bind me in any way on the further hearing of the proceeding.
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.