Russell v Abbey
[2018] VSC 259
•22 May 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2018 00005
| JOHN (JACK) RUSSELL | Plaintiff |
| v | |
| MARGARET ABBEY | First Defendant |
| MURUNDINDI SHIRE COUNCIL | Second Defendant |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 April 2018 |
DATE OF RULING: | 22 May 2018 |
CASE MAY BE CITED AS: | Russell v Abbey |
MEDIUM NEUTRAL CITATION: | [2018] VSC 259 |
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PRACTICE AND PROCEDURE – Application for removal of a defendant – Supreme Court (General Civil Procedure) Rules 2005 r 9.06(a) – Beamer Pty Ltd v Star Lodge Supported Residential Services Pty Ltd [no 1] [2004] VSC 390 – Swindells v Victoria [2012] VSC 457 – Where decision made by the Chief Executive Officer of a municipal council is subject to judicial review – Where judicial review is sought against both the council and the Chief Executive Officer personally– Whether the Chief Executive Officer is a necessary or proper personal defendant – Application for removal granted – Chief Executive Officer of the council removed as personal defendant.
STATUTES – Acts of Parliament – Interpretation – Interpretation of Legislation Act1984 s 42A(1)(c) – Where power to make an administrative decision is subject to a statutory delegation from a municipal council to the Chief Executive Officer of that council – Whether decision of Chief Executive Officer deemed to be made by the decision of the council – Giddings v Australian Information Commissioner [2017] FCA 677.
LOCAL GOVERNMENT – Powers, functions and duties of municipal councils generally – Regulation and administration – Functions and powers of the Chief Executive Officer of a council – Whether decision to exclude member of public from council premises and facilities is within the power of the Chief Executive Officer of that council – Local Government Act 1989 ss 1, 1A, 3A, 3B, 3C, 3D, 3E, 3F, 5(2), 82, 94A, 98.
PRACTICE AND PROCEDURE – Supreme Court (General Civil Procedure) Rules 2015 r 56.01(3) – Description of defendant in originating motion for judicial review – Whether the Chief Executive Officer of a municipal council is ‘the holder of a public office’ – R v McCann [1998] 2 Qd R 56 – Obeid v R (2005) 91 NSWLR 226.
ADMINISTRATIVE LAW – Prerogative Writs and Orders – Whether order in the nature of certiorari would be directed to the Chief Executive Officer personally - Where it is futile to order relief because the effect or purported effect of the order would be moot.
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiff appeared in person | ||
| For the Defendant | Mr I Munt | Maddocks |
HER HONOUR:
Mr Russell seeks judicial review of a decision banning him from entering 43 Murrindindi Shire Council (‘Council’) buildings and facilities for 12 months. In accordance with that decision, Mr Russell is not permitted to enter those facilities, nor attend Council events or meetings during that period. The decision was communicated to Mr Russell in a letter dated 13 April 2017 from Ms Margaret Abbey, Chief Executive Officer of Council. Ms Abbey will retire from her role on 30 June 2018 and in the meantime, there is an interim Chief Executive Officer acting. Both Ms Abbey and Council are defendants to this proceeding.
Ms Abbey and Council seek an order that Ms Abbey be removed as a defendant in this proceeding pursuant to r 9.06(a) of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’).[1] Accordingly, the primary issue for determination in this application is whether or not Ms Abbey should be removed as a defendant from this proceeding.
[1]By way of summons filed on 9 March 2018.
The analysis of whether or not Ms Abbey should be removed as a defendant, addresses the following questions.
1. What is the applicable test for removal of a party under the Rules?
2. Is the decision deemed by s 42A(1)(c) of the Interpretation of Legislation Act 1984 (‘ILA’) to have been made by Council? This question includes analysis of the following issues.
(a) Did s 94A of the Local Government Act 1989 (‘LGA’) give Ms Abbey power to make the decision pursuant to her direct statutory functions as a Chief Executive Officer?
(b) Did the delegation purportedly given by Council under s 98 of the LGA give Ms Abbey power to make the decision?
3. Is Ms Abbey a ‘holder of public office’ for the purposes of r 56.01(3) of the Rules, and if so, should she have been personally named as a defendant?
4. Would relief in the nature of certiorari be directed at Ms Abbey?
For the reasons outlined below, no remedy may be directed at Ms Abbey. Accordingly, the application of Ms Abbey and Council is granted. Ms Abbey is not a proper or necessary party to Mr Russell’s application for judicial review. I will therefore make orders removing Ms Abbey as a defendant to this proceeding.
The removal of Ms Abbey as a personally named defendant is consistent with Order 56 of the Rules, which provides that holders of a public office be named by office.
Background
The decision that is the subject of Mr Russell’s application for judicial review was communicated in a letter from Ms Abbey to Mr Russell dated 13 April 2017 (‘the letter’). It provides as follows:
Dear Mr Russell,
Re:Review of Withdrawal of Licence (Ban from Accessing Murrindindi Shire Council Facilities)
I refer to my letter of 18 April 2016 and the numerous pieces of correspondence since this date confirming the conditions that relate to your withdrawal of licence from Council facilities, events and meetings.
I am now writing to you to advise I have reviewed the conditions relating to your withdrawal of licence that has been in place for the last 12 months. I have determined that your licence to enter the Council building and facilities as previously advised to you remains withdrawn for the next 12 months, from 18 April 2017.
This means that you remain banned from entering Council buildings and facilities and from attending any Council events or meetings for twelve months, unless expressly invited to do so by myself.
My decision to continue your ban from entering Council facilities and attending Council events results from your unacceptable behaviour when you assaulted a member of Council staff and committed trespass on Council property. These events, of 14 April 2016 at the Yea Library, have been confirmed during the criminal proceedings undertaken at Seymour Magistrates Court, and via the interim Personal Safety Intervention Order that remains in force against you for your actions against a member of Council staff.
Another condition of your withdrawal of licence as stated in my correspondence to you on 18 April 2016, was the requirement of you to seek permission in writing from me, and addressing all of the following criteria, should you wish to return to a Council facility:
·reasons why the ban should be reconsidered;
·your recognition of your inappropriate behaviour; and
·your level of commitment to behaving in a respectful and civil manner to Council Staff.
In the last twelve months, you have not in any of your correspondence with Council, recognised the inappropriateness of your behaviour, nor have you provided any commitment to behave in a civil and respectful manner towards Council staff.
You have, however, in direct contravention of this ban:
·entered Council facilities on numerous occasions, for example attending the Alexandra Council office on 12 September 2016, 20 October 2016, 21 November 2016, 14 and 21 February 2017, 7 and 23 March 2017 and entering the Yea Council Chambers prior to the Council Meeting on 22 March 2017;
·continued to make inappropriate comments towards Council staff and Councillors, for example comments made regarding reception staff on 21 October 2016 and 23 March 2017; and
·not shown any remorse for your actions on 14 April 2016.
I again remind you that, during the period in which you are banned, if you enter a Council facility you will be committing a trespass and Council staff have been advised to call Victoria Police to remove you. In this event you may be charged by Victoria Police under the Summary Offences Act 1966.
In addition, any future threats or aggressive behaviour towards Councillors, Council staff or contractors of Council will not be tolerated and will be reported to the Police.
Council appreciates that a ban from all Council facilities may impact on your ability to transact legitamate [sic] business with Council. Accordingly all future communications with Council must be in writing and addressed to me as follows:
·Letters –
Margaret Abbey
Chief Executive Officer
Murrindindi Shire Council
PO Box 138ALEXANDRA VIC 3714
·Emails –
As previously indicated, I will determine whether they require any action. If they do, I will either respond to them personally or refer them to another member of Council staff who is best placed to do so.
If you genuinely require an urgent response to a matter, you may contact Council via telephone on 03 5772 0333. If staff determine that the matter is not urgent, your request may not be addressed unless communicated in writing as per above.
All Councillors and Council staff have been advised of these arrangements. If they receive written communications from you, they will not read those communications, but will instead forward them directly to me. If you contact them by telephone, they are authorised to remind you of these arrangements and to terminate the telephone conversation.
If, during the period in which you are banned, you wish me to review the ban, you can request a review from me in writing, addressing all of the following criteria:
·reasons why the ban should be reconsidered;
·your recognition of the inappropriate behaviour; and
·your level of commitment to behaving in a respectful and civil manner to Council staff.
I will not consider, nor reply to, requests from you to attend particular Council facilities or events unless these criteria are addressed.
I will next review this matter in another 12 months. I trust this confirms Council’s position.
Yours faithfully,
Margaret Abbey
Chief Executive Officer
Both parties proceed on the basis that the letter above relates to a ban on 43 Council buildings and facilities. This is a result of the following. As stated in the letter above, this ban purported to continue an earlier ban on Mr Russell from entering Council properties and facilities; the earlier ban being communicated to him by letter dated 18 April 2016.[2] In relation to that earlier ban, and in response to Mr Russell’s correspondence, on 27 May 2016 Council wrote to Mr Russell identifying 43 Council buildings and facilities from which he was banned.[3]
[2]Exhibit ‘AGB-3’ to the affidavit of Andrew Gregory Bond, sworn 23 February 2018 (‘the Bond affidavit’).
[3]Exhibit ‘AGB-4’ to the Bond affidavit.
Several observations can be made at this early stage. The first is that the period of the ban described in the letter above, and the subject of this judicial review proceeding, commenced on 18 April 2017 and ran for 12 months, expiring on 17 April 2018. The ban the subject of the decision under review therefore no longer has effect as at the date of this decision. This matter is addressed further below.
The second observation is that the decision expressed in the letter above was, on the face of that letter, made by Ms Abbey in her capacity as Chief Executive Officer of Council. As further detailed below, one of the issues for consideration is the source of the legal basis upon which Ms Abbey made that decision.
Further Ban
Although it does not touch upon the current application, I note for completeness that, since the hearing of this summons, Mr Russell has caused a further summons to be issued that is listed for hearing on 22 May 2018. In the exhibit to Mr Russell’s affidavit in support of his summons there is a letter dated 20 April 2018 to him on a Council letterhead from Mr Craig Lloyd, Chief Executive Officer, banning him from entering specified Council facilities and from attending any council events or meetings for three years (18 April 2018 to 18 April 2021), unless expressly invited by Mr Lloyd.[4]
[4]Exhibit II to Mr Russell’s affidavit sworn 22 April 2018. The letters ‘BG’ appear after Mr Lloyd’s name and before the words ‘Chief Executive Officer’. This is presumably a typographical error. That is, ‘AG’ (shorthand for Acting) was intended as Mr Lloyd is the Acting Chief Executive Officer.
These further events do not impact on the necessity for me to determine this application in respect of the decision made by the council on 13 April 2017. But, as will be explained,[5] the expiry of the decision indirectly feeds into my conclusion that Ms Abbey is not a necessary or proper party to these proceedings.
Powers delegated by Council to Ms Abbey
[5]See paragraph 81 below.
Councils can exercise their statutory functions in a manner of ways. Relevantly, for current purposes, ss 3(5) and 3(6) of the LGA provide as follows (with my emphasis underlined):
(5)Where a Council is empowered to do any act, matter or thing, the decision to do the act, matter or thing is to be made by a resolution of the Council.
(6) For the purposes of subsection (5), resolution of the Council means—
(a)a resolution made at an ordinary meeting or special meeting;
(b) a resolution made at a meeting of a special committee;
(c)the exercise of a power, duty or function delegated to a member of Council staff under section 98—
but does not include any business transacted at an assembly of Councillors.
As alluded to by s 3(6)(c) above, s 98 of the LGA provides the power for Council to delegate certain powers, duties or functions to a member of its staff. Subsection (1) of s 98 is set out below:
98 Delegations
(1) A Council may by instrument of delegation delegate to a member of its staff any power, duty or function of a Council under this Act or any other Act other than—
(a) this power of delegation; and
(b) the power to declare a rate or charge; and
(c) the power to borrow money; and
(d) the power to approve any expenditure not contained in a budget approved by the Council; and
(e) any power, duty or function of the Council under section 223; and
(f) any prescribed power.
By way of instrument of delegation dated 11 March 2015, the Council delegated certain powers to ‘the member of Council staff holding, acting in or performing the position of Chief Executive Officer’. The powers delegated were described in that instrument as follows:
The power to
1. determine any issue;
2. take any action; or
3. do any act or thing
arising out of or connected with any duty imposed, or function or power conferred on Council by or under any Act.
This broad delegation was subject to a list of conditions and limitations that are irrelevant for current purposes.
The delegation above is relevant to the question of whether Ms Abbey had the power to make the decision which Mr Russell now challenges in these proceedings.
Substantive application by Mr Russell
The grounds upon which Mr Russell sought judicial review of the decision by Ms Abbey and the remedies he sought in respect of that decision were unclear from Mr Russell’s amended originating motion. For instance, the amended originating motion contained statements that he had suffered physical and mental impairment due to the ’failing of earlier Court process’ and ‘action of “officers” of Yea Police’. The amended originating motion indicates that Mr Russell intends to rely on his original originating motion in addition to the amended one.
During the course of the hearing, and in response to questions by the Court, Mr Russell clarified the grounds in his originating motion (both the original and amended versions) upon which he seeks judicial review of the decision. Accordingly, for the purposes of considering this application, I consider that:
(a) the ground upon which Mr Russell sought judicial review was on the broad ground that neither the Council nor Ms Abbey had legal power to make the decision to ban him; and
(b) if Mr Russell was to succeed on that ground, he would be seeking an order in the nature of certiorari in respect of the decision.
What is the applicable test for removal of a party?
The application for removal of Ms Abbey as a defendant is made pursuant to r 9.06(a) of the Rules. That sub-rule relevantly provides the following:
9.06 Addition, removal, substitution of party
At any stage of a proceeding the Court may order that—
(a)any person who is not a proper or necessary party, whether or not that person was one originally, cease to be a party; …
The chief question for determination is therefore whether or not Ms Abbey is a ‘proper or necessary party’ to Mr Russell’s application for judicial review. Although this rule is basic in expression, its application for the purposes of this case involves consideration of a number of discrete legal issues. I will first consider the general legal principles governing the application of r 9.06(a).
General principles
The phrase ‘proper or necessary’ in r 9.06(a) is linked with the operation of the conditions for joinder of parties under the Rules. That approach was adopted by Hollingworth J in Beamer Pty Ltd v Star Lodge Supported Residential Services Pty Ltd [no 1][6] and then followed by Lansdowne AsJ in Swindells v Victoria.[7] Those decisions, read together with the rules for joinder under the Rules, present the following principles:
[6][2004] VSC 390 (8 October 2004) (‘Beamer’).
[7]Swindells v Victoria [2012] VSC 457 (3 October 2012).
(a) a person is a ‘necessary’ party for the purposes of r 9.06(a) if the conditions for joinder under r 9.03 are satisfied[8] (i.e. broadly where that party claims any relief to which the original plaintiff is claiming); and
[8]Beamer [2004] VSC 390 (8 October 2004) [21] (Hollingworth J). This principle was accepted by Lansdowne AsJ in one subsequent case, although Her Honour noted that was without the benefit of submissions from counsel: Swindells v Victoria [2012] VSC 457 (3 October 2012) [12] (Lansdowne AsJ).
(b) a person is a ‘proper’ party if either:
(i) the conditions for joinder as a party under r 9.02 are satisfied[9] (i.e. broadly where either (i) if separate proceedings were brought by two or more parties, some common questions of law or fact would arise in those proceedings, (ii) all rights to relief claimed in the proceeding are in respect of or arise out of the same transaction or series of transactions, or (iii) the Court otherwise gives leave to the joinder); or
(ii) the conditions for joinder as a party under r 9.06(b) are satisfied[10] (i.e. broadly where (i) the presence of that party is necessary to ensure that all questions in the proceeding are effectually and completely determined and adjudicated upon, or (ii) there may exist questions involving that party which it is just and convenient to determine in the proceeding).
[9]Beamer [2004] VSC 390 (8 October 2004) [21] (Hollingworth J), citing Payne v Young (1980) 145 CLR 609.
[10]Beamer [2004] VSC 390 (8 October 2004) [21] (Hollingworth J), citing NCSC v Monsoon Nominees Pty Ltd (No 3) (1990) 9 ACLC 66.
The defendants cite these principles in their submissions in support of their application.[11] Mr Russell did not make any relevant submissions on this point.
[11]Defendants’ submissions, [67]–[68].
In applying the principles above, the onus is on the defendants on the current facts to show that the conditions above are not met and therefore that Ms Abbey is not a proper or necessary defendant.[12]
Application
[12]Swindells v Victoria [2012] VSC 457 (3 October 2012) [17] (Lansdowne AsJ).
Applying this approach to the current facts, the Court should order the removal of Ms Abbey as a defendant in the proceedings if the defendants can establish that she would not be a party that could be joined under rr 9.02, 9.03 or 9.06(b) of the Rules.
Rule 9.03 is not applicable on these facts as Ms Abbey is not claiming entitlement to the relief claimed by Mr Russell. The question then is whether Ms Abbey would be a ‘proper’ party by satisfying the tests in either rr 9.02 or 9.06(b).
In summary, rr 9.02 and 9.06(b) require the Court to consider the substantive question of whether a remedy could be made against Ms Abbey (to inform whether she could be joined under those rules). That is because satisfaction of the tests under rr 9.02 or 9.06(b) are premised on the existence of a genuine right of action of Mr Russell against Ms Abbey (as opposed to the Council).
The final determination of whether Ms Abbey acted beyond her powers as Chief Executive Officer would, subject to this ruling, be a question for trial. However, deciding this preliminary application will require consideration of whether or not there is an arguable basis for the exercise of those powers for the purpose of determining whether or not she is a necessary or proper party.
Ms Abbey is not a necessary or proper party
For reasons discussed below, I find that Ms Abbey is not a necessary or proper party and therefore should be removed as a party. In coming to this finding, there are three primary issues for consideration and I shall now examine each in turn.
1. Is the decision deemed by s 42A(1)(c) of the ILA to have been made by the Council?
The first issue for consideration is whether s 42A(1)(c) of the ILA deems the decision to have been made by the Council.
A few steps are required to analyse whether s 42A(1)(c) of the ILA applies to the current case. The first step is to set out the terms of that provision and then extract relevant legal principles from a recent case involving the interpretation of an equivalent provision.
The statutory provision
Section 42A(1)(c) of the ILA provides the following:
42A Construction of power to delegate
(1) If an Act or subordinate instrument confers on a person or body a power to delegate the discharge, exercise or performance of a responsibility, power, authority, duty or function under that or any other Act or subordinate instrument, then, unless the contrary intention appears—
…
(c) a responsibility, power, authority, duty or function so delegated, when discharged, exercised or performed by the delegate, shall, for the purposes of the Act or subordinate instrument, be taken to have been discharged, exercised or performed by the person or body.
In a recent decision, Giddings v Australian Information Commissioner[13] (‘Giddings’), Tracey J made certain findings concerning the Commonwealth equivalent of s 42(1)(c) of the ILA, namely s 34AB(1)(c) of the Acts Interpretation Act 1901 (Cth). On the facts of Giddings, Tracey J ordered that the statutory delegate in that case be removed as the respondent and replaced with the delegator, being the Information Commissioner, despite the decision subject to judicial review having been made by the delegate.[14]
[13][2017] FCA 677 (16 June 2017).
[14]Giddings v Australian Information Commissioner [2017] FCA 677 (16 June 2017) [2] (Tracey J).
The key passages from Giddings are set out as follows (with my emphasis underlined): [3] It has been said that, where a decision-maker is exercising delegated power, he or she may validly exercise that power in his or her own name: see Owendale Pty Ltd v Anthony (1967) 117 CLR 539 at 562 (Windeyer J), 598 (Taylor J) and 611 (Owen J); Re Reference under Section 11 of the Ombudsman Act 1976 for an Advisory Opinion; Ex parte Director-General of Social Services (1979) 2 ALD 86 at 94 (Brennan J). The delegate could, therefore, be an appropriate respondent.
[4] However, s 34AB(1)(c) of the Acts Interpretation Act 1901 (Cth) (“the AI Act”) provides that, where an Act confers a power on a person to delegate a function to another person, that function, “when performed or exercised by the delegate, shall, for the purposes of the Act, be deemed to have been performed or exercised by the [delegator]”. An evident effect of this provision is to prevent an unsuccessful applicant from making a fresh application to the delegator under the empowering Act. It may also have the effect of altering the principle expressed in Owendale and Re Reference, at least for the purposes of the enabling legislation, by treating a decision of a delegate as being equivalent to that of a person acting pursuant to an authorisation, such that the act is deemed to have be done in the name of the authority: see Re Reference at 94 (Brennan J)…
[5] In the context of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”), the appropriate respondent to an application for judicial review is, prima facie, the decision-maker under the relevant enactment... As s 34AB(1)(c) of the AI Act deems, for the purposes of the enabling enactment, a decision of a delegate to be a decision of the delegator, that section provides a basis for the naming of the delegator as the respondent in this proceeding…
[6] There otherwise appears to be no reason why the delegator (in this case the Commissioner) should not be the respondent: see Singh v Minister for Immigration & Border Protection [2016] FCAFC 141 at [37] (Kenny, Griffiths and Mortimer JJ). In many proceedings before this Court, an office-holder will be named as the respondent even when the decision that is challenged is that of a delegate appointed by him or her...
[7] In my view, it is better that the statutory office holder be named as the respondent in such circumstances. This renders less personal the litigation: cf Re Reference at 95 (Brennan J). It is also generally consistent with the view that, when naming a party, it is appropriate to refer to a person’s office, rather than the name of the person who held that office at the time the decision was made… It also facilitates the easier recognition, from the title of the case, of the general class of case to which the litigation relates. The applicant is in no way disadvantaged by this course being adopted.
It can therefore be observed that the effect of s 42(1)(c) of the ILA, stated generally and subject to a contrary statutory intention, is to deem a decision by a delegate made pursuant to a statutory delegation to have been made by the delegator of that power. The corollary of this, as noted by Tracey J in Giddings, is that the delegate of that power is no longer a necessary or proper party to a proceeding involving a challenge to the exercise of that power.
Does s 42(1)(c) of the ILA apply to the circumstances here?
Application
Section 42(1)(c) of the ILA only applies in respect of powers, exercised by a delegate, which are subject to a statutory delegation. The provision does not apply in respect of the exercise of statutory powers directly vested in the person exercising that power.
Section 42(1)(c) of the ILA will only apply, in the context of the current facts, where:
(a) ‘an Act or subordinate instrument confers on [the Council] a power to delegate the discharge, exercise or performance of a responsibility, power, authority, duty or function under that or any other Act or subordinate instrument’;
(b) that responsibility, power, authority, duty or function has been ‘so delegated’ – in this case by Council to Ms Abbey; and
(c) that delegated responsibility, power, authority, duty or function was then ‘discharged, exercised or performed’ by Ms Abbey.
In contrast, s 42(1)(c) of the ILA does not apply in respect of decisions made by Ms Abbey pursuant to statutory powers invested directly in her as Chief Executive Officer of Council.
The relevant question is thus whether the decision to ban Mr Russell was made by Ms Abbey pursuant to powers delegated by Council to her, in which case s 42(1)(c) of the ILA will apply, or otherwise made pursuant to statutory powers vested directly in Ms Abbey, in which case s 42(1)(c) of the ILA will not apply.
It is necessary, then, to consider whether Ms Abbey made the decision pursuant to her direct statutory functions or powers. I will then consider whether the decision was made pursuant to powers delegated by Council to her.
Did s 94A of the Local Government Act 1989 give Ms Abbey power to make the decision pursuant to her direct statutory functions as a Chief Executive Officer?
To determine whether s 42A(1)(c) of the ILA applies, the first step is to consider whether Ms Abbey as Chief Executive Officer of Council has direct statutory power to make the decision.The starting point for that enquiry is the LGA.
Section 94A of the LGA outlines functions of a Chief Executive Officer employed by a Council:
94A Functions of the Chief Executive Officer
(1) A Council's Chief Executive Officer is responsible for—
(a)establishing and maintaining an appropriate organisational structure for the Council; and
(b)ensuring that the decisions of the Council are implemented without undue delay; and
(c)the day to day management of the Council's operations in accordance with the Council Plan; and
(ca)developing, adopting and disseminating a code of conduct for Council staff; and
(d)providing timely advice to the Council; and
(e)carrying out the Council's responsibilities as a deemed employer with respect to Councillors, as deemed workers, which arise under or with respect to the Accident Compensation Act 1985 or the Accident Compensation (WorkCover Insurance) Act 1993.
(2)The Chief Executive Officer may appoint as many members of Council staff as are required to enable the functions of the Council under this Act or any other Act to be carried out and to enable the Chief Executive Officer to carry out her or his functions.
(3)The Chief Executive Officer is responsible for appointing, directing, managing and dismissing Council staff and for all other issues that relate to Council staff.
(4)A reference to Council staff in this section does not include a reference to the Chief Executive Officer.
The defendants submit, for the purposes of defending the substantive application for judicial review, that Ms Abbey had power to make the decision pursuant to ss 94A(1)(c), (e) and/or 94A(3) of the LGA. Mr Russell says that Ms Abbey did not have the authority to act on her own. He says that she had no authority to make the decision.
More specifically, the defendants submit that:
(a) with respect to s 94A(1)(c), the ‘day-to-day management of the Council’s operations’ covered the ban. They refer to Council’s occupational health and safety obligations being part of the day-to-day management of Council. The Council Plan, which is referred to in s 94A(1)(c), is, however, not in evidence;
(b) with respect to s 94A(1)(e), the power to implement the ban is sourced from the Council’s responsibilities under the Occupational Health & Safety Act 2004 (‘OHSA’), despite that Act not being specified in s 94A(1)(e); and
(c) with respect to s 94A(3), the Chief Executive Officer’s responsibility for all issues that relate to Council staff includes occupational health and safety issues and accordingly empowered her to make the ban.
Before considering these submissions, it is necessary to set out some further provisions of the LGA governing that Act’s interpretation (ss 1 and 1A) and the statutory functions and powers of a Council (ss 3A to 3F). Those provisions provide as follows (with my emphasis underlined):
1 Preamble
(1)Section 74A(1) of the Constitution Act 1975 provides that local government is a distinct and essential tier of government consisting of democratically elected Councils having the functions and powers that the Parliament considers are necessary to ensure the peace, order and good government of each municipal district.
(2)It is the role of Councils in exercising those functions and powers to work in partnership with the Governments of Victoria and Australia.
(3)It is necessary to ensure that the Councillors who comprise each Council are democratically elected by persons entitled to vote at municipal elections and that the Council is responsible and accountable to the local community.
(4)It is the role of the Council to provide governance and leadership for the local community through advocacy, decision making and action.
(5)It is essential that there is a legislative framework that provides for Councils to be accountable to their local communities in the performance of functions and the exercise of powers and the use of resources.
(6)The purpose of this Act is to establish a legislative scheme that supports the system of local government in accordance with Part IIA of the Constitution Act 1975.
1AInterpretation of Act
(1)It is the intention of the Parliament that the provisions of this Act be interpreted so as to give effect to the Preamble and the local government charter.
(2)The Preamble and the local government charter are not to be construed as having the effect of limiting the functions and powers of Councils under this Act or any other Act.
(3)In the interpretation of the Preamble and the local government charter, a construction that promotes consistency between the provisions of this Act and any other Act is to be adopted.
(4)In this Act—
local community includes—
(a) people who live in the municipal district; and
(b) people and bodies who are ratepayers; and
(c)people and bodies who conduct activities in the municipal district;
local government charter means the provisions in Part 1A;
Preamble means the Preamble in section 1.
…
3AWhat is the purpose of local government?
The purpose of local government is to provide a system under which Councils perform the functions and exercise the powers conferred by or under this Act and any other Act for the peace, order and good government of their municipal districts.
3BHow is a Council constituted?
A Council consists of its Councillors who are democratically elected in accordance with this Act.
3CObjectives of a Council
(1)The primary objective of a Council is to endeavour to achieve the best outcomes for the local community having regard to the long term and cumulative effects of decisions.
(2)In seeking to achieve its primary objective, a Council must have regard to the following facilitating objectives—
(a)to promote the social, economic and environmental viability and sustainability of the municipal district;
(b)to ensure that resources are used efficiently and effectively and services are provided in accordance with the Best Value Principles to best meet the needs of the local community;
(c)to improve the overall quality of life of people in the local community;
(d)to promote appropriate business and employment opportunities;
(e)to ensure that services and facilities provided by the Council are accessible and equitable;
(f)to ensure the equitable imposition of rates and charges;
(g)to ensure transparency and accountability in Council decision making.
3DWhat is the role of a Council?
(1)A Council is elected to provide leadership for the good governance of the municipal district and the local community.
(2) The role of a Council includes—
(a)acting as a representative government by taking into account the diverse needs of the local community in decision making;
(b)providing leadership by establishing strategic objectives and monitoring their achievement;
(c)maintaining the viability of the Council by ensuring that resources are managed in a responsible and accountable manner;
(d)advocating the interests of the local community to other communities and governments;
(e)acting as a responsible partner in government by taking into account the needs of other communities;
(f)fostering community cohesion and encouraging active participation in civic life.
3EWhat are the functions of a Council?
(1) The functions of a Council include—
(a)advocating and promoting proposals which are in the best interests of the local community;
(b)planning for and providing services and facilities for the local community;
(c)providing and maintaining community infrastructure in the municipal district;
(d)undertaking strategic and land use planning for the municipal district;
(e)raising revenue to enable the Council to perform its functions;
(f)making and enforcing local laws;
(g)exercising, performing and discharging the duties, functions and powers of Councils under this Act and other Acts;
(h)any other function relating to the peace, order and good government of the municipal district.
(2)For the purpose of achieving its objectives, a Council may perform its functions inside and outside its municipal district.
3F What are the powers of Councils?
(1) Subject to any limitations or restrictions imposed by or under this Act or any other Act, a Council has the power to do all things necessary or convenient to be done in connection with the achievement of its objectives and the performance of its functions.
(2) The generality of this section is not limited by the conferring of specific powers by or under this or any other Act.
After considering these provisions, in particular the primary objective of Council ‘to endeavour to achieve the best outcomes for the local community having regard to the long term and cumulative effects of decisions’, together with the facilitating objectives, I consider the defendants’ submission that s 94A empowered Ms Abbey to make the decision is arguable. This will be a substantive issue to be considered at trial and accordingly, it would be inappropriate for a final determination on this issue to be made in this ruling. However, given the issues were ventilated during the hearing, I will make some observations based upon the material before me, including what, in particular, I have found to be arguable and what is not.
As to s 94A(1)(c), it was not established (nor even contended) that the decision was in accordance with the Council Plan. Indeed, that document was not in evidence. Secondly, s 94A(1)(c) applies to ‘day to day management of the Council operations’. Day to day activities refer to those of a routine, ordinary or everyday nature.[15] The defendants did not establish that the decision could be appropriately characterised as one of that nature. A generic reliance on occupational health and safety responsibility obligations does not alter that conclusion. In particular, given the primary and facilitative objectives outlined above, it is incumbent upon the defendants to identify precisely how the decision is said to be part of the day to day operation of Council. This is an arguable issue for trial.
[15]Burton v Arcus (2006) 32 WAR 366, 371 [4] (McLure JA), 386 [73], 387 [80] (Buss JA).
As to s 94A(1)(e), there is no reference in that provision to the OHSA. In contradistinction, two other Acts are specifically named. They are the current and former Acts relating to workers’ compensation and rehabilitation of workers injured in the course of their employment: Accident Compensation Act 1985 and the Workplace Injury Rehabilitation and Compensation Act 2013. An ordinary reading of the phrase ‘which arise under or with respect to’ in s 94A(1)(e) suggests that references to those two Acts are exhaustive. I do not consider this submission concerning s 94A(1)(e) to be arguable.
As to s 94A(3), this provision is directed to the Chief Executive Officer’s responsibility towards staff. I accept that the phrase ‘and for all other issues that relate to Council staff’ may encompass responsibility for the health and safety of staff. The interpretation contended by Council is a wide one, namely, that the Chief Executive Officer could make this decision which affected a person who was not a staff member because it purportedly relates to Council staff. If that contention was accepted, it may impact on the delineation between the duties of Councillors and the duties of the Chief Executive Officer because it has the effect of interpreting s 94A(3) so as to empower the Chief Executive Officer to make decisions affecting third parties on the basis a staff member is affected. Section 65(3) of the LGA stipulates the role of Councillor does not include the performance of any functions that are specified as functions of the Chief Executive Officer under s 94A. The breadth of s 94A(3) and whether or not it can be relied upon by Council is an arguable issue for trial.
In conclusion, I find it is arguable that s 94A of the LGA gave Ms Abbey power to make the decision pursuant to her direct statutory functions as a Chief Executive Officer.
At this point, I will add another reason why this issue should be ventilated at trial. There were no submissions on whether or not the Charter of Human Rights and Responsibilities Act 2006 (‘Charter’) is relevant to this issue. On reflection, one of the issues that may need to be ventilated at trial is whether s 18 of the Charter is relevant to the interpretation of the LGA.
18 Taking part in public life
(1)Every person in Victoria has the right, and is to have the opportunity, without discrimination, to participate in the conduct of public affairs, directly or through freely chosen representatives.
(2)Every eligible person has the right, and is to have the opportunity, without discrimination—
(a)to vote and be elected at periodic State and municipal elections that guarantee the free expression of the will of the electors; and
(b)to have access, on general terms of equality, to the Victorian public service and public office. Did the delegation purportedly given by Council under s 98 of the LGA give Ms Abbey power to make the decision?
It is next necessary, for the purposes of determining whether s 42A(1)(c) of the ILA applies, to consider whether Ms Abbey made the decision pursuant to the delegation given by Council under s 98 of the LGA.
Mr Russell submits that the instrument of delegation did not provide Ms Abbey with the requisite power to make the decision.[16] He refers to the ‘Council Conditions of Limitations’ as created by Seal of Council in November 1994 and says there is no power to make the decision to ban him. Mr Russell says that Council is made up of Councillors. They make decisions. Their involvement with Ms Abbey was not recorded. There is no full Council resolution to give her the power to make the decision. He says that Ms Abbey acted upon her own and outside her authorised scope of authority.
[16]Minutes of Council meeting on 25 February 2015.
Mr Russell also submits that Council did not have the power to ban his access to all 43 premises nominated. He disputes Council’s ownership of the 43 nominated properties.
The relevant statutory provisions governing a delegation by Council, and the terms of the delegation by Council to Ms Abbey, are set out at paragraphs 12 to 15 above. The powers delegated by Council to Ms Abbey broadly comprised those ‘arising out of or connected with any duty imposed, or function or power conferred on Council by or under any Act’. It was therefore necessary for the defendants to identify the statutory functions or powers conferred on the Council that had, pursuant to the instrument of delegation, been delegated to Ms Abbey. For this purpose, the defendants referred to a number of statutory provisions.
The defendants firstly submit that ss 5(2)(d) and (e) of the LGA provided the relevant source of power. Section 5(2) of the LGA provides as follows (with the relevant paragraphs underlined):
5 The Council
* * * * *
(2) A Council—
(a) is a body corporate with perpetual succession; and
(b) must have a common seal; and
(c) may sue or be sued in its corporate name; and
(d) is capable of acquiring, holding, dealing with or disposing of property for the purpose of performing its functions and exercising its powers; and
(e) is capable of doing and suffering all acts and things which bodies corporate may by law do and suffer and which are necessary or expedient for performing its functions and exercising its powers.
In respect of s 5(2)(d), the defendants submit that, because a Council is capable of ‘holding’ property for the purpose of performing its functions and exercising its powers, it could implement the decision as it affects access to Council properties. Further, in respect of s 5(2)(e), the defendants submit that the ban was ‘necessary or expedient’ for Council to perform its functions and exercise its powers. They contend that these two subsections give Council the power, like any landowner, to regulate access to its property.
The defendants also rely on ss 3A, 3C, 3E and 3F of the LGA (the terms of which were extracted at paragraph 45 above) to supply the relevant power to be picked up by the instrument of delegation. The defendants place particular emphasis on s 3F which gives Council the power to ‘do all things necessary or convenient to be done in connection with the achievement of its objectives and the performance of its functions’. They say this covers the decision (having reference to the purpose and functions in ss 3A, 3C, 3E).
In addition to identifying the provisions of the LGA noted above as the relevant sources of power, the defendants also rely upon:
(a) s 82 of the LGA, which imposes an obligation on Council to maintain premises and an office; and
(b) Council’s obligation as an employer to comply with the OHSA.
The question of whether or not the delegation given by Council under s 98 of the LGA empowered Ms Abbey to make the decision is ultimately for final determination at trial. It should not be determined at this interlocutory stage as the outcome of this question may be determinative of the trial itself. It suffices for the purpose of the current preliminary application to conclude that the defendants’ contentions are arguable.
Conclusion on s 42A(1)(c) of the Interpretation of Legislation Act
The analysis above concludes that the submission that Ms Abbey made the decision pursuant to statutory powers vested directly in her as Chief Executive Officer is arguable. It is also arguable that she made the decision pursuant to her delegated powers. If the decision was solely made on the basis of the latter powers, namely the delegated powers, then s 42(1)(c) of the ILA would be applicable. However, given my finding that it is arguable the decision was made pursuant to statutory powers vested directly in her as Chief Executive Officer, I cannot conclude, for the purpose of this application, that s 42(1)(c) of the ILA is applicable.
For completeness, I observe that the deeming by s 42A(1)(c) of the ILA will not apply where, in accordance with the terms of that provision, a ‘contrary intention appears’ in legislation. There is no legislative intention — in particular no intention expressed by the LGA — that a decision made by a Chief Executive Officer of a Council pursuant to a power delegated by Council is to be construed as having been made by the Chief Executive Officer as the delegate of that power.
2. Is Ms Abbey a ‘holder of public office’ for the purposes of r 56.01(3) of the Rules, and if so, should she have been personally named as a defendant?
The second issue to consider is whether pursuant to r 56.01(3) of the Rules, Ms Abbey should not have personally been named as defendant in Mr Russell’s originating motion. If not, she is not a necessary or proper party. This, in turn, requires consideration of whether or not she is a ‘holder of a public office’.
This proceeding is an application for judicial review. Order 56 of the Rules is accordingly applicable. Order 56.01 relevantly provides as follows:
56.01 Judgment or order instead of writ
…
(2) The proceeding [seeking the grant of any relief or remedy in the nature of certiorari, mandamus, prohibition or quo warranto] shall be commenced by originating motion in Form 5G naming as defendant—
(a) a person, if any, having an interest to oppose the claim of the plaintiff; and
(b)the court, tribunal or person in respect of whose exercise of jurisdiction or failure or refusal to exercise jurisdiction the plaintiff brings the proceeding.
(3) A person named as defendant in accordance with paragraph (2)(b) who is sued in the capacity of a judicial or public authority or as the holder of a public office shall be described in the originating motion by the name of that authority or the name of that office. …
Mr Russell’s amended originating motion names Ms Abbey as a defendant and describes her as “Public Officer”.
There is no question or submission that Ms Abbey made the decision in any private capacity. Indeed, if such was the case then an application for judicial review cannot be maintained.
In accordance with r 56.01(3) of the Rules, Ms Abbey should not have been personally named as a defendant in Mr Russell’s originating motion.
‘Holder of a public office’
I have determined that Ms Abbey, as Chief Executive Officer of Council, was the ‘holder of a public office’ for the purposes of r 56.01(3) of the Rules. Although this issue did not appear to be in dispute between the parties (and was not subject to any submission), I will provide my reasons for reaching that conclusion. The starting point is two relevant authorities.
The Queensland Court of Appeal construed the meaning of the phrase ‘the holder of any public office’ in R v McCann.[17] On the facts, the Court of Appeal held by majority (Davies JA and Byrne J, Macrossan CJ dissenting) that a person employed as a temporary administration officer by the Queensland Corrective Services Commission under s 34(1) of the Corrective Services (Administration) Act 1988 (Qld) was not the ‘holder of any public office’ within the meaning of s 87(1) of the Criminal Code Act 1899 (Qld). Whilst each judge in the Court of Appeal wrote a separate judgment construing the phase, the common principle in each judgment is that the meaning of the phrase ‘holder of any public office’ should be taken from the full context in which it appears.[18] Macrossan CJ in dissent, after reviewing previous authorities, concluded that the phrase ‘holder of any public office’ should, for the purposes of s 87(1) of the Criminal Code Act 1899 (Qld), be construed as meaning:
... a person appointed to or engaged in a position to serve for a defined period or an indefinite duration and perform functions and duties of a public character, that is matters in which the State has an interest. A strong indication that the interest of the State is involved can be the fact that the person is paid from public funds.[19]
[17][1998] 2 Qd R 56.
[18]R v McCann [1998] 2 Qd R 56, 61 (Macrossan CJ), 67-68 (Byrne J). See Sykes v Cleary (1992) 176 CLR 77, 96–97 (Mason CJ, Toohey and McHugh JJ).
[19]R v McCann [1998] 2 Qd R 56, 62 (Macrossan CJ).
Davies JA identified that the essential characteristic of a ‘holder of any public office’ is that the office exists independently of its holder.[20]
[20]Ibid 64 (Davies JA).
Byrne J undertook the deepest inquiry into the phrase, in which His Honour, amongst other things, quoted from an American legal encyclopaedia, which described the relevant considerations as follows:
The key considerations in determining whether one is a public officer are the nature of the office, the powers wielded, and the responsibilities which are carried out. In making such a determination, the court must look to the nature of the service performed by the incumbent and the duties imposed upon him. The characteristics of a public office are generally agreed upon, although the distinction between an office and employment may be vague in particular fact situations. The characteristics of a public office include: (1) creation by statute or constitution; (2) exercise of some portion of the sovereign power; (3) a continuing position not occasional or contractual; (4) a fixed term of office; (5) an oath requirement; (6) liability for misfeasance or nonfeasance; and (7) the official has an independence beyond that of employees. A public officer may be either appointed or elected; customarily will perform a public or governmental duty; the enforcement of governmental regulations or the control of the general interest of society will be confided in him; usually he will have general duties as part of the regular administration of government; and the right to emoluments.[21]
[21]Ibid 72 (Byrne J), quoting 63A American Jurisprudence 2d. ‘‘Public Officers and Employees’’, § 9 at 672–673. See, generally, Lexis Advance, 63C American Jurisprudence 2d, Public Officers and Employees § 9.
Turning to the second relevant authority, the New South Wales Court of Appeal held that a member of the NSW Legislative Council held a ‘public office’ for the purposes of a common law offence in Obeid v R.[22] Although the factual background is vastly different to that in the current case, the considerations of the New South Wales Court of Appeal are informative. In reaching the conclusion that Mr Obeid, the appellant in that case, had held a ‘public office’ for the purposes of the relevant offence, the Court quoted and agreed with the following passage from a journal article, which highlights some of the relevant criteria:
[H]ow does a Member of Parliament measure up to these criteria? His salary is paid from public funds; he is very much a ‘public character’; his duties are exclusively of a public nature, concerned with the governance of the country, supervising the executive and legislating; the post if vacant will by operation of law be filled by someone else; there is unquestionably status, dignity, responsibility and public position; he is, perhaps more so than anyone else, ‘employed by the public’ and dismissible by them as no other officer is; and the public is plainly interested in the duties he discharges.[23]
[22]Obeid v R (2005) 91 NSWLR 226, 251 [125] (Bathurst CJ, Beazley P and Leeming JA).
[23]Ibid 250 [123] (Bathurst CJ, Beazley P and Leeming JA), quoting Graham Zellick, ‘Bribery of Members of Parliament and the Criminal Law’ [1979] Public Law 31, 38.
Applying these principles here, it is necessary to consider the nature of the Chief Executive Officer’s role within Council under the LGA.
‘Chief Executive Officer’ is defined in the LGA as ‘the person appointed by Council to be its Chief Executive Officer or any person acting in that position’.[24] The Chief Executive Officer position is created by the LGA, which also stipulates the functions and duties of that role.[25] Given it is created by statute, the Chief Executive Officer’s role exists separately from the person who is appointed to the role. The engagement of a Chief Executive Officer is not simply a contractual matter: it is regulated by the LGA. Indeed, an employment contract engaging a person as a Chief Executive Officer of a Council will be void if it does not meet certain requirements of either the LGA or a notice published in the Government Gazette and given by the relevant government Minister.[26] (However, anything done by a person purporting to act as a Chief Executive Officer is not invalid merely because their contract of employment was void at the time the thing was done.[27]) The Chief Executive Officer is remunerated by Council.[28] Their contract of employment must be no more than five years from the date it commenced.[29]
[24]Local Government Act 1989 s 3. ‘Council’ means a ‘municipal council’ and may be constituted as a city, rural city or shire Council: ss 3, 4(1).
[25]Ibid ss 94, 94A, 94D.
[26]Ibid ss 94(7), 95A(4)(a), 95B(7).
[27]Ibid s 95C.
[28]See ibid s 94, particularly s 94(5).
[29]Ibid s 95A(2)(b). Note the definition of ‘senior officer’ in s 3 of the LGA includes the Chief Executive Officer. On expiry of the contract, a senior officer may be invited to enter into a new contract: s 95A(3). There are however restrictions on this: see for instance LGA s 94(7)(b).
Given the features of the statutory framework above, I find that the Chief Executive Officer of a Council is a holder of a public office for the purposes of r 56.01(3) of the Rules. Therefore Ms Abbey should not be personally named as the defendant to this proceeding.
3.Would orders in the nature of certiorari be directed at Ms Abbey if Mr Russell was successful at trial?
The third issue on the question whether Ms Abbey is a necessary or proper party, concerns whether, if Mr Russell were to successfully challenge the decision, a remedy would be directed personally at her.
The defendants submit that, even if the decision was to be held ‘beyond the power’ of Ms Abbey, relief would regardless only be directed at the Council (and not Ms Abbey).
Given the grounds (discussed above) upon which Mr Russell seeks judicial review, I discern that he is seeking an order in the nature of certiorari.
I do not consider that an order in the nature of certiorari would be directed at Ms Abbey if Mr Russell is successful at trial. This is for three reasons.
First, beyond 30 June 2018 Ms Abbey will no longer hold the position of Chief Executive Officer and thus will not be the holder of the delegated power. The trial is listed after that date, namely on 16 August 2018. It will therefore not be possible for her to act as the Chief Executive Officer at the time of judgment in these proceedings.
Second, it would be futile to order relief against Ms Abbey because the ban the subject of the decision currently under review has now expired. The High Court has recently stated:
An order in the nature of certiorari is not available in respect of an exercise or purported exercise of power the legal effect of purported legal effect of which is moot or spent’.[30]
[30]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 492 [25] (French CJ, Crennan, Bell and Gageler and Keane JJ). See also Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 580–1 (Mason CJ, Dawson, Toohey and Gaudron JJ); Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200, 222 [96] (Lander J), 229 [130] (Buchanan J), 242–3 [182]–[183] (Perram J).
This reflects the principle that ‘[t]he court will refuse certiorari if no benefit will arise from granting it’.[31]
[31]LexisNexis, Halsbury’s Laws of Australia (at 22 April 2016) 10 Administrative Law, ‘V Judicial Review’, [10-14135].
Conclusion and orders
For the reasons outlined above, Ms Abbey is not a necessary or proper party to Mr Russell’s application for judicial review.
I will accordingly order removal of Ms Abbey as a defendant pursuant to r 9.06(a) of the Rules.
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