Shellharbour City Council v Minister for Local Government

[2016] NSWLEC 54

Land and Environment Court

New South Wales

Medium Neutral Citation:	Shellharbour City Council v Minister for Local Government and Ors [2016] NSWLEC 54
Hearing dates:	12 May 2016
Date of orders:	12 May 2016
Decision date:	12 May 2016
Jurisdiction:	Class 4
Before:	Moore J
Decision:	See [17]
Catchwords:	INJUNCTIONS – ex parte application – injunction to restrain implementation of proposed council merger – interim injunction granted for limited period – matter set down for further hearing within injunction period
Legislation Cited:	Local Government Act 1993
Category:	Procedural and other rulings
Parties:	Shellharbour City Council (Applicant) Minister for Local Government (First Respondent) NSW Department of Premier and Cabinet (Second Respondent) Mr Mike Allen in his capacity as delegate of the Acting Director-General of the Office of Local Government (Third Respondent)
Representation:	Counsel: Mr J Robson SC/Ms V McWilliam, barrister (Applicant) – ex parte   Solicitors: Sparke Helmore (Applicant)
File Number(s):	40416 of 2016
Publication restriction:	No

EXTEMPORE Judgment

1. HIS HONOUR: I have, this morning, heard an urgent application based on a Notice of Motion (filed in Court) on behalf of Shellharbour City Council seeking interim relief to ensure that a Class 4 Summons in Matter 40416 of 2016 is not rendered ineffectual as a consequence of the Governor giving effect to a recommendation from the Minister for Local Government that Shellharbour City Council be amalgamated with Wollongong City Council

2. If such recommendation were to be approved by his Excellency, Shellharbour City Council, which is the Applicant in these Class 4 proceedings, would cease to exist and the proceedings would therefore be rendered entirely without foundation.

3. I have, on the Motion that has been put before me this morning, read the affidavits of Carey James McIntyre, sworn 11 May 2016 and filed in Court. Mr McIntyre is the General Manager of the applicant Council in these proceedings. That affidavit sets out a compendious chronological history of the interaction between the Council, on one hand, and the Minister, the Office of Local Government and the delegate of the Director-General of the Office of Local Government concerning the proposal to amalgamate the applicant Council with its neighbour to the north, Wollongong City Council

4. I have also read an unsigned affidavit from Ms Stephanie Elizabeth Nevin, sworn 12 May 2016 - an affidavit that I have accepted subject to an executed original being filed with the Court. Ms Nevin is a solicitor employed by the solicitors for the Council. In annexures to her affidavit, of particular relevance to this urgent application, is correspondence between Ms Nevin and Mr John McDonnell, a solicitor in the employ of the Crown Solicitor's Office and acting on behalf of the Minister. There are a number of critical elements contained in that exchange - particularly those contained in Annexure D and Annexure E to Ms Nevin's affidavit

5. First, with respect to the e-mail from Ms Nevin to Mr McDonnell (which is Annexure D), Ms Nevin seeks consent to short service of this Notice of Motion - Mr McDonnell indicating in his response (Annexure E) that he is instructed to accept such short service.

6. With respect to the second proposition put by Ms Nevin to Mr McDonnell - that is an enquiry as to whether the Minister has made any recommendation of the Governor regarding the proposal to merge Shellharbour City and Wollongong City Council's, Mr McDonnell advised (at 10:23 pm last evening, Wednesday, 11 May 2016) by Annexure E to Ms Nevin's affidavit that “documents containing a recommendation by the Minister have been forwarded to Exco”.

7. I interpolate that, in this context, “Exco” means the Executive Council for the State of New South Wales - an instrument of the state by which the Governor receives advice from his Ministers and acts upon that advice - giving effect to (or otherwise) recommendations made by those Ministers. In this instance, it would be the recommendations by the Minister for Local Government concerning amalgamation proposals.

8. As a consequence of that acknowledgement, the third of the questions posed by Ms Nevin to Mr McDonnell is rendered unnecessary to be dealt with as the recommendations have already been forwarded.

9. Mr McDonnell also responded to the fourth paragraph contained in Ms Nevin's e-mail - a paragraph that reads:

Given the proceedings that are on foot and that you have been put on notice that interlocutory relief is being sought, any steps taken by your client/s to progress the proposed merger including the making of any recommendation by the Minister would be highly inappropriate and may amount a denial of procedural fairness

10. With respect to that paragraph Mr McDonnell responded:

Again, the Minister does not accept the assertions made in the 4th paragraph of your email.

11. I am satisfied that, under the circumstances of the evidence provided by Mr McIntyre and Ms Nevin, it is appropriate to grant interim relief to the Council and to do so in terms of the orders 2 and 3 sought in the Notice of Motion (subject to temporal limitations thereupon) and the setting down of the matter within the time period I am minded to permit - a time period until 4:30 pm on Friday, 13 May 2016. The matter is then to return to be considered further by the Court, with the Minister having the opportunity to be heard.

12. I have concluded that that is the appropriate course to be followed as there are a number of other proceedings of a similar nature currently commenced and running in the Court.

13. With respect to one of them, that is a challenge by Hawkesbury City Council to its proposed amalgamation with The Hills Shire Council (Matter 40396 of 2016), I would have a reasonable expectation that those proceedings will be dismissed as a consequence of comments in the Premier’s press release (a press release appearing as Annexure C to Ms Nevin's affidavit) in which the Premier records that the proposed amalgamation between Hawkesbury City Council and The Hills Shire Council is not to proceed.

14. However, the remaining proceedings - in which the applicant councils are Mosman Municipal Council (Matter 40395 of 2016), Hunters Hill Council (Matter 40380 of 2016), North Sydney Council (Matter 40403 of 2016), Strathfield Municipal Council (Matter 40411 of 2016) and Ku‑ring‑gai Municipal Council (Matter 40365 of 2016) - are intended to be heard from late May for an extended period thereafter.

15. It is the intention of the Court to conduct case management in at least four of those matters early next week (in order to ascertain whether there are any common matters that can be heard concurrently and, if so, to isolate and define them) but nonetheless to set a timetable for the hearing and determination of at least the first four of those proceedings (and possibly for the Ku-ring-gai proceedings).

16. It would be desirable if, in that process, Shellharbour City Council's matter could be encompassed. As a consequence, I will make orders reflecting that.

17. The orders are in the following terms:

1. The First Respondent is restrained from making any recommendation of the Governor under s 218F(7) of the Local Government Act 1993 into the proposed amalgamation of the Shellharbour City Council and Wollongong City Council Local Government Area pending the resolution of the substantive proceedings including any appeal;

2. The Governor is restrained from making any proclamation under s 218A of the Local Government Act 1993 pending the resolution of the substantive proceedings (including any appeal);

3. The orders in (1) and (2) are effective until 4:30 pm on Friday, 13 May 2016, unless earlier dissolved.

4. The matters are listed for further hearing at 1.00 pm on Friday, 13 May 2016 before Moore J; and

5. Those orders may be served on the Minister and his Excellency the Governor by electronic and/or physical service on the Crown Solicitor.

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Decision last updated: 12 May 2016