Shellharbour City Council v Stewart - [2008] NSWLEC 151

Land and Environment Court

of New South Wales

CITATION: Shellharbour City Council v Stewart [2008] NSWLEC 151
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT:
Shellharbour City Council
FIRST RESPONDENT:
Helen Stewart
SECOND RESPONDENT:
Geoff Rose

FILE NUMBER(S): 41097 of 2004

CORAM: Biscoe J

KEY ISSUES: Civil Enforcement :- Whether local government councillors disclosed information obtained in connection with the administration or execution of the Local Government Act 1993 in breach of s 664(1) and (1A) - Standard of proof taking into account the gravity of the matters alleged - Nature of circumstantial evidence.

LEGISLATION CITED: Evidence Act 1995 (NSW), s 140
Local Government Act 1993 (NSW), ss 10A, 428, 664, 666, 673(1), 676(1)

CASES CITED: Briginshaw v Briginshaw (1938) 60 CLR 336
City of Canada Bay Council v Bonaccorso Pty Ltd (No 3) [2008] NSWCA 57
F & D Bonaccorso Pty Ltd v City of Canada Bay Council (No 3) [2007] NSWLEC 569
Gianoutsos v Glykis (2006) 65 NSWLR 539
Jones v Dunkel (1959) 101 CLR 298
Martin v Osborne (1936) 55 CLR 367
R v Buckland [1977] 2 NSWLR 452
Shepherd v The Queen (1990) 170 CLR 573
Vines v Australian Securities and Investments Commission (2007) 62 ACSR 1

DATES OF HEARING: 31/7/07, 1-2/8/07, 2/10/07, 11-14/2/08, 25-26/3/08

DATE OF JUDGMENT:
23 April 2008

LEGAL REPRESENTATIVES:
APPLICANT:
Mr B. McClintock SC (until 2/10/07) and Mr K. Connor SC
Mr F. Douglas QC (from 11/2/08)
SOLICITORS:
Maddocks
FIRST RESPONDENT:
Mr P. Clay (until 2/10/07) and Mr N. Eastman (until 2/8/07)
Mr W. Moss (from 11/2/08)
SOLICITORS:
Russell McLelland Brown (until 11/2/08)
Robert Watson Solicitor (from 11/2/08)
SECOND RESPONDENT:
Mr P. Clay (until 2/10/07) and Mr N. Eastman (until 2/8/07)
Mr P. Maiden SC (from 11/2/08)
SOLICITORS:
Russell McLelland Brown

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

23 April 2008

41097 of 2006

SHELLHARBOUR CITY COUNCIL v STEWART & ANOR
JUDGMENT

1 HIS HONOUR: These unprecedented proceedings concern alleged unauthorised disclosures of information by local government councillors. The applicant, Shellharbour City Council, claims a declaration that two of its councillors, the respondents Helen Stewart and Geoff Rose, disclosed information obtained in connection with the administration or execution of the Local Government Act 1993 (NSW) (LG Act) in breach of s 664(1) and (1A). The council also claims consequential orders, including that the respondents be restrained from any further disclosures of information in breach of s 664 and that they deliver up any documents that have been or might be utilised by them.

2 The council alleges that the disclosure of information occurred as follows:

(a) on about 29 March 2006, Councillor Stewart telephoned and offered to fax, and then did fax, to Mr Peter Holstein, business papers and a confidential agenda for a closed committee meeting of council to be held on 29 March 2006, intending or knowing that they were likely to be posted on an internet website called the…

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.

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Details

Case: [2008] NSWLEC 151
Decision Date: 23 April 2008

CaseChat Overview and Summary

In the Land and Environment Court of New South Wales, Shellharbour City Council initiated proceedings against Councillors Helen Stewart and Geoff Rose, alleging breaches of s 664(1) and (1A) of the Local Government Act 1993 (NSW) by disclosing confidential information. The council sought declarations and consequential orders, including restraining the respondents from further disclosures and requiring them to deliver up documents. The respondents denied the allegations and disputed the confidentiality of some information. The court had to determine whether the council had proved the allegations on the balance of probabilities, considering the gravity of the matters. The council relied on Mr Holstein's statutory declaration, telephone records, and circumstantial evidence, while the respondents argued against the reliability of Mr Holstein's evidence and the sufficiency of the circumstantial evidence. The court found that the council had proved a breach by Councillor Stewart in relation to the May 2006 leak but not for the other two leaks. The court made a declaration against Councillor Stewart and ordered the council to pay the costs of Councillor Rose.

Orders