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…

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 Russell v Abbey

Details

AGLC: Russell v Abbey [2018] VSC 259
Case: [2018] VSC 259
Decision Date: 22 May 2018

CaseChat Overview and Summary

In the case of Russell v Abbey, the applicant sought judicial review of a decision made by the Chief Executive Officer (CEO) of a municipal council to exclude him from the council's premises and facilities. The CEO was named as a personal defendant in the proceeding along with the council itself. The Supreme Court was required to determine whether the CEO was a necessary or proper personal defendant in the proceedings.

The court considered whether the CEO's decision was deemed to be made by the council under the Interpretation of Legislation Act 1984 and whether the CEO was 'the holder of a public office' for the purposes of Supreme Court (General Civil Procedure) Rules 2015 r 56.01(3). The court also examined whether it would be futile to order relief against the CEO personally, given that the effect or purported effect of the order would be moot.

The court found that the CEO's decision was deemed to be made by the council under the Interpretation of Legislation Act 1984 s 42A(1)(c), and that the CEO was not 'the holder of a public office' for the purposes of Supreme Court (General Civil Procedure) Rules 2015 r 56.01(3). The court held that it would be futile to order relief against the CEO personally, as the effect or purported effect of the order would be moot. Accordingly, the CEO was removed as a personal defendant in the proceeding.

The court ordered that the CEO of the council be removed as a personal defendant in the proceeding and that the council be the sole defendant in the proceeding.

Orders