Socares Support Group Inc v Cessnock City Council
[2012] NSWLEC 23
•21 February 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: SOCARES Support Group Inc v Cessnock City Council [2012] NSWLEC 23 Hearing dates: 6 - 7 February 2012 Decision date: 21 February 2012 Jurisdiction: Class 4 Before: Pain J Decision: 1. The Applicant's summons filed on 15 September 2011 is dismissed.
2. Costs are reserved.
Catchwords: JUDICIAL REVIEW - whether council decision not to tender for pound services in breach of tender obligations in Local Government Act 1993 - whether council could be satisfied of exceptions to requirement to tender contract for services - whether council satisfied of extenuating circumstances or unavailability of competitive or reliable tenders - whether mandatory relevant considerations not taken into account by council - whether irrelevant considerations taken into account by the council - grounds of judicial review not established by the applicant which bears the onus of proof Legislation Cited: Companion Animals Act 1998 Pt 7
Impounding Act 1993 Pt 2, s 21
Local Government Act 1993 s 55, s 626(1)
Prevention of Cruelty to Animals Act 1979 s 5, s 34ACases Cited: Alexander v Yass Council [2011] NSWLEC 148
Foley v Padley [1984] HCA 50; (1984) 154 CLR 349
Gee v Council of the City of Sydney [2004] NSWLEC 581
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507
Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74
Tonkin v Cooma-Monaro Shire Council [2006] NSWCA 50; (2006) 145 LGERA 48
Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118Texts Cited: Concise Oxford Dictionary
Macquarie DictionaryCategory: Principal judgment Parties: SOCARES Support Group Inc (Applicant)
Cessnock City Council (Respondent)Representation: Ms F Berglund (Applicant)
Dr J Griffiths SC with Ms M Allars (Respondent)
University of Newcastle Legal Centre (Applicant)
Sparke Helmore Lawyers (Respondent)
File Number(s): 40845 of 2011
Judgment
These are judicial review proceedings challenging a decision of Cessnock City Council (the Council) not to engage in a competitive tendering process under the Local Government Act 1993 (the LG Act) before entering into an agreement in July 2011 with the Royal Society for the Prevention of Cruelty to Animals (RSPCA) for the provision of pound services for the Council's local government area.
Section 55(1)(c) of the LG Act provides:
(1) A council must invite tenders before entering into any of the following contracts:
...
(c) a contract to perform a service or to provide facilities that, by or under any Act, is directed or authorised to be performed or provided by the council,
Section 55(3)(i) provides:
(3) This section does not apply to the following contracts:
...
(i) a contract where, because of extenuating circumstances, remoteness of locality or the unavailability of competitive or reliable tenderers, a council decides by resolution (which states the reasons for the decision) that a satisfactory result would not be achieved by inviting tenders
Part 7 of the Companion Animals Act 1998 provides for animals seized or surrendered under that Act to be delivered to a council pound. A council pound is a pound established by a local council under the Impounding Act 1993. A local council is an "impounding authority" for the purposes of the Impounding Act. Division 1 and 2 of Pt 2 of the Impounding Act empower impounding officers (appointed by an impounding authority) to impound unattended animals. Section 21 of the Impounding Act imposes upon an impounding authority standards of care of impounded animals. The Impounding Act dictionary defines "animal" as any of the following:
· cattle, horses, donkeys, mules, asses, camels, sheep, goats, pigs and deer,
· any dog that is in a national park, historic site, nature reserve, state game reserve, karst conservation area or Aboriginal area (as defined in the National Parks and Wildlife Act 1974 ),
· an animal (including a bird, reptile and fish) of any species prescribed by the regulations as a species of animal that can be impounded under this Act.
Section 5(1) of the Prevention of Cruelty to Animals Act 1979 makes it an offence for a person to commit an act of cruelty upon an animal. Section 5(2) makes it an offence for a person in charge of an animal to authorise the commission of an act of cruelty upon the animal. Section 5(3) imposes certain duties upon a person in charge of an animal, including to "exercise reasonable care, control or supervision of an animal to prevent the commission of an act of cruelty upon the animal". Section 34A gives statutory force to the Animal Welfare Code of Practice and Draft Code of Practice.
The Council accepts that a contract entered into by the Council for the provision of pound services or a pound facility is a contract falling within s 55(1)(c), being a contract to perform a service or to provide facilities that under an Act is authorised to be performed or provided by the Council. As a consequence the Council accepts that it had a duty to invite tenders before entering the contract unless one of the exceptions in s 55(3) applied. The Council submits that it referred to the circumstances in s 55(3)(i) in making its decision to engage the RSPCA to manage impounded animals on the Council's behalf.
Amended Points of Claim
The Applicant's Points of Claim, as amended during the course of the hearing (APOC), state:
1 The applicant, Socares Support Group Inc is an incorporated non-profit association under the Associations Incorporation Act 2009 and is entitled to bring these proceedings in its incorporated name.
2 The respondent, Cessnock City Council, is an entity constituted under and entitled to exercise powers pursuant to the Local Government Act 1993.
3 At the Ordinary Council Meeting on 8 December 2010, the Respondent passed the following resolution ("December Resolution"):
1. That the General Manager confirm with the RSPCA, Council's interest in entering into a formal arrangement for the RSPCA to manage impounded animals on behalf of Cessnock City Council.
2. That the General Manager continue formal negotiations with the RSPCA on the premise of a 5 year formal arrangement.
3. That Councillors receive a briefing from Council staff in January 2011 in relation to the current status of the Kurri Kurri Animal Shelter and its operating costs.
4. The General Manager also negotiate with the RSPCA to allow animal care groups to take animals for rehoming.
4 At the Ordinary Council Meeting held on 15 June 2011 the respondent passed the following resolution ("June Resolution"):
1. That Council pursuant to section 55(3) of the Local Government Act, 1993 enter into the proposed agreement with the RSPCA NSW without the calling of tenders as it considers that a satisfactory result would not be achieved by inviting tenders because of extenuating circumstances and the unavailability of competitive or reliable tenders for the following reasons:
a. The RSPCA is the only organisation available within the area that has an industry best practice regional animal shelter capable of providing the professional animal care and management required of Council under legislative requirements;
b. Part of the RSPCA's core business is to set up and provide professional animal management services to Local Government;
c. Council has an immediate and critical need to address operational requirements and occupational health and safety concerns as addressed in the accompanying report; and
d. The entry into this contract provides a significant economic benefit to the Council over the term of the contract when compared to the cost of Council providing its own facility.
2. That Council authorise the Common Seal of Cessnock City Council to be affixed to the Deed of Agreement between Cessnock City Council and the Royal Society for the Prevention of Cruelty to Animals, New South Wales.
3. That Council authorise the Mayor and General Manager to execute the Deed of Agreement between Cessnock City Council and the Royal Society for the Prevention of Cruelty to Animals, New South Wales.
4. That Council resolves that the RSPCA Animal Shelter situated at 6/10 Burlington Place Rutherford NSW be approved as a Council Pound, a place approved by Council for the holding of animals for the purposes of the Companion Animals Act 1998 and be established as a public pound under Section 28 of the Impounding Act 1993.
5 The respondent was required by section 55(1) of the Local Government Act 1993 to call for tenders for the provision of pound services unless an exception was reasonably open to it.
6 The respondent relied on section 55(3) of the Local Government Act 1993 but was not entitled to so rely:
a. The Council relied on the exception of "extenuating circumstances" under section 55(3)(i), but there were no "extenuating circumstances" permitting departure from the requirement in section 55(1);
b. The Council relied on the exception of "unavailability of competitive or reliable tenders" under section 55(3)(i) in circumstances in which Council had not properly determined whether there were competitive or reliable alternative tenderers. [note - this paragraph amended in course of the hearing]
7 Further or in the alternative, if by the June Resolution Council purported to rely on the exemption from section 55(1) of the Local Government Act 1993 in section 55(3)(i) of the Local Government Act 1993 , there were the following errors of law in the way section 55(3) was purportedly applied:
a. The respondent did not take into account relevant considerations in passing the June resolutions:
i. The respondent did not consider whether there were "competitive and reliable" alternatives to the Royal Society for the Prevention of Cruelty to Animals (" RSPCA ") as required by s55(3)(i);
ii. In the alternative if the respondent did consider whether there were "competitive and reliable alternatives" to the RSPCA, these alternatives were not given "proper, genuine and realistic consideration" as required by law in passing the June resolution;
iii. The respondent was aware of the availability of "competitive and reliable" alternatives including Akuna Care Pet Hotel but did not take this alternative into account in passing the June Resolution;
iv. There were no "extenuating circumstances" under section 55(3)(i) permitting departure from the requirement in section 55(1).
b. The respondent took into account irrelevant considerations in passing the June Resolution, namely:
i. an organisation need not be "industry best practice", as taken into account under a. of the Resolution, in order to be a "competitive and reliable alternative" for the purposes of section 55(3)(i);
Particulars
Item 1(a) of the June Resolution
ii. While the nature of the RSPCA's core business may be a factor relevant to whether to grant a tendered contract to it under section 55(1), it is an irrelevant consideration in respect of whether Council was required by section 55(1) of the Local Government Act 1993 to tender for pound services;
Particulars
Item 1(b) of the June Resolution
iii. While Council's need to address operational requirements and occupational health and safety concerns may be relevant to whether to grant a tendered contract to a certain party under section 55(1), they are irrelevant considerations in respect of whether Council was required by section 55(1) of the Local Government Act 1993 to tender for pound services; and
Particulars
Item 1(c) of the June Resolution
iv. While the potential economic benefit to Council of entering into a contract rather than providing its own facility may be relevant to whether to grant a tendered contract under section 55(1), this is an irrelevant consideration in respect of whether Council was required by section 55(1) of the Local Government Act 1993 to tender for the contract for the provision of pound services.
Particulars
Item 1(d) of the June Resolution.
8 Further and in the alternative if Council purported to rely any other exemption from section 55(1) of the Local Government Act 1993 in section 55(3) of the Local Government Act 1993 , no other ground properly applied.
9 The December Resolution evidences that Council had already made up its mind to grant the contract to the Royal Society for the Prevention of Cruelty to Animals ("RSPCA") without calling for tenders and therefore did not at any time give "proper, genuine and realistic consideration" to whether there were "competitive and reliable alternatives" to the RSPCA.
10 For the reasons above the June Resolution is invalid, void and of no legal effect.
11 For the reasons above the December Resolution is invalid, void and of no legal effect.
12 The Court should grant the relief sought in exercise of its discretion under section 676(1) of the Local Government Act 1993.
13 The applicant seeks the following relief:
a. In relation to the resolution numbered 1576 regarding a proposed agreement with RSPCA NSW passed by the Respondent at the Ordinary Council Meeting held on 15 June 2011 (" June Resolution "):
i. a declaration that the June Resolution is invalid and of no effect; and
ii. an order that the June Resolution be set aside.
b. An order restraining the Respondent from taking any action in reliance on the June Resolution.
c. In relation to the resolution regarding the Kurri Kurri Animal Shelter passed by the Respondent at the Ordinary Council Meeting held on 8 December 2010 (" December Resolution "):
i. a declaration that the December Resolution is invalid and of no effect; and
ii. an order that the December Resolution be set aside.
d. An order that the Respondent pay the Applicant's costs of the proceedings.
e. Such further or other orders as the Court thinks fit.
Onus of proof/test of council satisfaction
A key issue arising at the outset is which party bears the onus of proof. The usual rule in judicial review proceedings is that the applicant bears the onus of establishing its case (recently confirmed by the High Court in Minister for Immigration and Citizenship v SZGUR [2011] HCA 1; (2011) 241 CLR 594 at [67] per Gummow J). Here the Applicant argues to the contrary, that is, it is for the Council to establish that its decision-making processes under s 55 were lawful relying on the construction of the section in the Court of Appeal decision in Tonkin v Cooma-Monaro Shire Council [2006] NSWCA 50; (2006) 145 LGERA 48 at [63].
Tonkin was not judicial review proceedings but a contract enforceability case inter alia being an appeal from the District Court awarding an amount payable by a landholder to a local council, being the amount paid to a contractor to spray weeds on the landholder's property. The landholder challenged the oral contract with the contractor on the basis the tender provisions of the LG Act had not been complied with. The passage relied on which states that the onus lies on the Council to demonstrate that an exception applied under s 55(3)(i) is brief, with no analysis provided no doubt because it was unnecessary in the context of that case. It alone does not provide the necessary reasoning to overturn the well established and long standing principle that the applicant bears the onus of proof in proceedings of this kind.
As to the construction of s 55(3)(i), it requires a council to decide by resolution that a satisfactory result would not be achieved by inviting tenders because of one or more of three defined circumstances. There is nothing in the drafting of this section which suggests that the usual onus of proof in judicial review proceedings does not apply. Further, the Applicant has not brought a case based on jurisdictional fact the existence of which, if established, requires the Court to form its own view of whether the relevant facts are established on the evidence before it. The Applicant's submissions (par 11 outline opening submissions) that an objective test should be applied to the Council's consideration of s 55(3)(i) is not the case identified in the APOC, cannot be pressed for that reason and does not appear to be maintainable given the wording of the section.
The test to be applied in judicial review proceedings is correctly identified in the Council's submissions. The Council accepts that s 55(3)(i) should be construed as requiring a council to be reasonably satisfied of one of the three grounds in s 55(3)(i), referring to Foley v Padley [1984] HCA 50; (1984) 154 CLR 349 at 370 per Brennan J and Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507 at [73]. The Council must form the required state of satisfaction having regard to the evidence relevant to the ground in s 55(3)(i) relied upon. The question in judicial review proceedings is whether the Council could be reasonably satisfied on the basis of the material before it of the two exceptions relied on in s 55(3)(i) (extenuating circumstances and unavailability of competitive or reliable tenderers). This is not an objective test.
Relief sought
Under s 676(1) of the LG Act the Court can remedy or restrain any breach of the LG Act it finds established. Following amendment of the summons during the hearing, the Applicant continues to seek declarations of invalidity of two Council resolutions dated 8 December 2010 and 15 June 2011. No consequential order is now sought by the Applicant if these declarations are made.
As indicated by me at the hearing, I do not consider the December 2010 resolution of the Council (APOC par 3) is in terms which suggest a declaration of invalidity would have any utility. That resolution authorises the General Manager to confirm with the RSPCA the Council's interest in entering an agreement with the RSPCA, to continue formal negotiations with the RSPCA and that councillors receive a briefing on the current status of the Kurri Kurri Animal Shelter (the pound). Authorisation of these actions by the General Manager does not give rise to legally binding obligations on the Council and are matters for which a declaration of invalidity would appear futile. Similarly, the resolution that councillors receive a briefing on a particular matter is not the appropriate subject of a declaration of invalidity. A further reason is that the resolution was made in December 2010 and the events have now occurred in any event.
Matters that may be relevant to the exercise of discretion if I am considering making a declaration of invalidity of the June resolution are that the Council entered into an agreement with the RSPCA on 7 July 2011, that money has been paid to the RSPCA pursuant to the agreement as identified in invoices included in the agreed tender bundle (exhibit A p 920A, 920B, 921A - 921D, 923 - 926), and that the Kurri Kurri Animal Shelter previously run by the Council has been closed.
Evidence
The Applicant read in part and subject to relevance, the affidavit of Marcus Nicholls, owner of Akuna Care Pet Hotel and director of Akuna Care Pty Limited, filed on 28 October 2011. Mr Nicholls is not related to or involved with the Applicant. Akuna Care Pet Hotel operates 72 boarding kennels on 10 acres of land at Sawyers Gully near Cessnock, providing daily, weekly and longer term commercial boarding services to owners of dogs and cats.
On or about 12 October 2010 Mr Nicholls received a telephone call from Ms Jenny Lange, Environmental Health Officer of the Council who communicated that the Council was thinking of building a new pound in Cessnock Shire and requested to visit the Akuna Care Pet Hotel with her supervisor "to have a look around [his] facility for ideas on how it should be built". Mr Nicholls understood "new pound" to refer to a replacement for Kurri Kurri Animal Shelter, Kurri Kurri. On 19 October 2010 Ms Lange and Mr Colin Davis arrived at Akuna Care Pet Hotel and Mr Nicholls took them on an inspection of the kennels. During the inspection Ms Lange asked Mr Nicholls whether he would be interested in running the pound and he replied "No".
On or about 21 May 2011 Mr Nicholls left a telephone message with Councillor McCudden asking whether he would be interested in inspecting Akuna Care Pet Hotel "in light of the proposed Kurri pound contract". On 24 May 2011 Mr Nicholls emailed and hand delivered a letter of the same date to the Council, a copy of which was annexed to his affidavit. In his letter to the Council Mr Nicholls stated he was aware the Council had decided to contract the work to the RSPCA at Rutherford without tendering and expressed his interest in tendering in the hope the Council would reconsider its decision. Mr Nicholls was aware that councillors would be visiting the Kurri Kurri Animal Shelter and the RSPCA to compare the two and extended an offer to inspect his "pet boarding complex in Abermain". A copy of the email and letter were attached to his affidavit. On 11 June 2011 Councillors McCudden and Gorman attended Akuna Care Pet Hotel. Mr Nicholls and Ms Ariel Endean, a fellow owner of the premises, took them on a tour of dog kennels on the premises. During this time Councillor McCudden asked whether Mr Nicholls was interested in running the pound at the premises. He responded, "No we don't want to run the pound on this site" and added, "We don't want to run it here but we could help you out - if you wanted to shut the pound down tomorrow, we could board the animals here until a suitable site could be found, in the indoor rooms in the kennels. Same with the catteries."
The Applicant read the affidavit of Ariel Endean, General Manager of Akuna Care Pet Hotel, filed on 27 October 2011 admitted subject to relevance. On or about 28 May 2011 Ms Endean took a telephone call from Councillor McCudden who communicated that the signing of the pound contract with the RSPCA had been deferred so that the councillors could visit the RSPCA premises. Ms Endean replied, "You should come and visit here as well to compare us". On 9 June 2011 Ms Endean sent an email to Councillor McCudden asking inter alia whether he would inspect Akuna Care Pet Hotel. On 11 June 2011 Mr Nicholls and Ms Endean took Councillors McCudden and Gorman on a tour of the dog kennels. In response to the email from Councillor Davey on 7 July 2011, (referred to in the affidavit of Mr Nicholls), Ms Endean emailed letters to Councillor Davey and the General Manager of the Council on 14 July 2011. Ms Endean received a reply from Mr Curtis, a Council officer, on 26 July 2011 explaining that an inspection of Akuna Care Pet Hotel was carried out by two Council officers on 19 October 2010 during which time Mr Nicholls stated that "he was not set up or interested in taking Council animals" and that Akuna Care Pet Hotel had development consent for a dog boarding kennel and cattery which did not permit Ms Endean to operate a council pound in accordance with the Companion Animals Act and Impounding Act. This affidavit was not referred to by either party in submissions.
The Respondent read two affidavits of Diana Grant, solicitor for the Respondent, filed 21 November 2011 and 2 December 2011 attaching transcripts typed from CDs containing recordings of the Council's meetings held on 3 March 2010, 8 December 2010, 18 May 2011 and 15 June 2011. Copies of the transcripts were also included in the tender bundle of documents. The parties highlighted particular extracts of these transcripts as supportive of their respective cases.
Chronology of relevant events
The parties provided the Court with an agreed chronology based on the documents tendered (exhibit A) which were admitted subject to relevance. In particular the Council submitted the first seven entries from 2003 to 2008 were irrelevant to the December 2010 and June 2011 resolutions. Amendments made by me to reflect the contents of documents referred to by the parties are at entries for 5 December 2008, January 2009, 7 January 2009, 3 February 2010 (first entry), 1 September 2010 (first entry), 3 September 2010, 13 September 2010, 23 October 2010, 9 February 2011, 16 February 2011, 18 May 2011, 24 May 2011, 8 June 2011 (both entries) and 15 June 2011 (first and third entries).
Date
Event
8.8.03
Email to Council ("Council") from RSPCA expressing interest in working collaboratively on animal management.
17.8.05
Council feasibility report initiated into options for contractual arrangements with the RSPCA for the operation of Council's Animal Pound at Kurri Kurri.
30.11.05
Council Corporate and Regulatory Services Committee Meeting discussion of Feasibility Report into Council utilising the RSPCA Establishment.
2005-2008
Meetings between RSPCA and Cessnock CC regarding options for pound management.
2008
Council approaches RSPCA "requesting that (it) take over the operation of (its) impound facility ...at Kurri Kurri".
11.9.08
RSPCA provides indicative quote to Cessnock CC for operation of Kurri Kurri impound facility [arrangement did not proceed]
5.12.08
Council approaches RSPCA regarding its contracting to the RSPCA for provision of impounding services to Council at its Rutherford Shelter [did not proceed]. (This is the first query from the Council to the RSPCA.)
A Council officer emailed an RSPCA staff member to ask if there was a possibility of the Council contracting to RSPCA to take Rutherford Shelter to take its dogs like "NCC and LMCC". An RSPCA staff member replied that she "would be better positioned to consider that possibility once [she knows] the number of animals, by species incoming and outgoing, through Kurri Kurri."
January 2009
Department of Local Government's Report on the section 430 Investigation into Council released (DLG Report).
An investigation under Local Government Act 1993 s 430 into aspects of the Council's activities became necessary due to ongoing concerns about the Council's past performance and its continued capacity to meet responsibilities under the Local Government Act 1993. The report states (ATB p87, 156 - 157) that the Council must "focus on and commit resources to the completion of outstanding critical requirements in this area" including "a Best Practice review of its animal pound (this should explore alternative options to carry out the required functions) and a policy for the disposal of euthanased animals."
On p154 the report notes one of the critical areas highlighted as requiring attention in an audit report issued in December 2006 was the Council's animal pound operations.
7.1.09
Council Workplace Inspection Report into Kurri Kurri Animal Shelter completed. It noted that the Council was liable under the OH&S Act for not complying with a notice issued by a WorkCover inspector in 2006 requiring the Council to improve the access area within the shelter to ensure that when dealing with the public staff were not placed at risk. It made the following comments: the shelter is in an isolated area and is of poor design and set up putting staff and animals at risk; the Council put in place a plan of action to identify a clear direction of what is needed for the future of the shelter; the Council should consider updating the current shelter to a suitable standard or rebuilding a new shelter to deal with abandoned and surrendered animals.
20.1.10
Report No. BN5/2010 provided to Ordinary Meeting of Council (Kurri Kurri Animal Shelter Operating Hours)
20.1.10
Council Resolution No. 716 to "investigate extending the opening times of the Kurri Kurri Animal Shelter by one extra hour per day to facilitate the community's need to retrieve impounded animals. The investigation to include consideration of volunteer programmes and the relocation of the pound."
3.2.10
Report No. QS14/2010 provided to Ordinary Meeting of Council (Kurri Kurri Animal Shelter). It noted that the "purpose of the shelter is to temporarily house stray and abandoned companion animals and stray livestock such as horses, cows, goats and at times, birds such as chickens and roosters ... The Kurri Kurri Shelter does not meet the standards prescribed in the draft Code of Practice. Investigations of the options of relocating the animal shelter or contracting the provision of the service have commenced." Further, a "number of occupational health and safety issues have been raised by the ranger staff and there is genuine concern for the welfare of rangers within the unit."
3.2.10
Council resolves that the information in Report QS14/2010 be noted.
3.3.10
Report No. QS21/2010 provided to Ordinary Meeting of Council (Animal Shelter Opening Hours).
3.3.10
Council passes Resolution 787 that "Council give in principle support to extending the opening hours at the Kurri Kurri Animal Shelter to 5 hours a day on Monday, Tuesday, Wednesday and Thursday and 3 hours on a Saturday, as the preferred option; That consideration be given in the 2010/2011 budget process to funding the extension to opening hours of the Kurri Kurri Animal Shelter and the provision of staff to manage the facility; (and) Council continue investigating the tendering out of the Kurri Kurri Animal Shelter activities along the lines of Port Stephens Council".
Council staff commence investigations of alternative pound management strategies for Kurri Kurri Animal Shelter, including searches of internet and utilising the yellow pages.
12.3.10
Council staff "inspection and review" of Port Stephens Council pound service (Belmont Kennels)
12.3.10
Council staff "inspection and review" of Lake Macquarie City Council's holding facility.
16.3.10
Council staff "inspection and review" of Newcastle City Council's holding facility.
17.3.10
Council staff carry out investigations re: Maitland City Council's pound operations.
18.3.10
Council staff carry out investigations re: RSPCA's Rutherford facility.
5.7.10
Council staff inspection of Wyong pound facility.
9.7.10
Council staff carry out inspection of Blacktown pound facility,
31.8.10
Colin Davis of Council email to Land & Property Management Authority re: approvals/applications required should Council decide to upgrade or construct a new facility at the Kurri Kurri Animal Shelter site.
1.9.10
Report No. QS71/2010 provided to Ordinary Meeting of Council (Improvements to Facilities at the Kurri Kurri Animal Shelter)
The purpose of this report was to "submit for consideration the funding of a portable office building at the Kurri Kurri Animal Shelter to address occupational health and safety standards associated with having full-time staff at the facility." It mentioned concerns raised "regarding the lack of OH & S standards at the facility for permanent staff working an extended 35 hour week and that these concerns would need to be resolved before any staff are permanently deployed at this work facility." The concerns are in relation to the provision of reasonable toilets/shower facilities, provision of a lunch staff room of adequate standard, appropriate workspace for an office facility and security.
Under "Statutory Implications" the report contains a risk analysis table under the subheading "Risk Implications" showing that there is a high risk to the Council by not providing adequate staff facilities to undertake all duties in accordance with OH & S requirements and statutory/legislative responsibilities.
Under the subheading "Other Implications" the report states "Community concerns in relation to providing an Animal Shelter that complies with legislative requirements and industry best practice".
1.9.10
Council passes Resolution No. 1107 to "approve the funding of works at Kurri Kurri Animal Shelter as detailed in [Report No. QS71.2010]."
3.9.10
Darryl Fitzgerald (Council's then Director of City Planning) emails David Simms of Maitland City Council re: feasibility of joint arrangement with Maitland Council for pound services between Hunter Councils.
The email states that in 2008 the Council "initiated discussions with the RSPCA in relation to closing Council's Kurri Kurri Animal Shelter and utilising the RSPCA's facility at Rutherford. The RSPCA advised Council that the Rutherford facility did not have sufficient capacity to services the Cessnock LGA and that the RSPCA was not looking to provide a service to any new Councils."
The options at this stage were to upgrade the existing facility, build a new facility at the current location or build a new facility at a new location.
13.9.10
Colin Davis (Council's Health & Building Manager) emails Steven Coleman of RSPCA re: option of Council entering into agreement to use the RSPCA Rutherford Shelter for its impounding services. (This is the second query from the Council to the RSPCA.)
30.9.10
Colin Davis (Council's Health & Building Manager) emails David Baxter re: quote for upgrading/constructing new facility at Kurri Kurri Animal Shelter site.
19.10.10
Council staff carry out inspection of Akuna Care Boarding facilities.
23.10.10
David Baxter (David Baxter Building Solutions) emails Colin Davis with fee proposal for upgrading/constructing new facility at Kurri Kurri Animal Shelter site.
Mr Baxter estimated that that to upgrade the existing facility by adding 24 new kennels would cost $450,000 (excluding GST and 10% consultant's fees). The estimated cost to construct a new facility is $1,750,000 (excluding GST and 10% consultant's fees).
30.11.10
Letter from Steve Coleman of RSPCA to Lea Rosser (Council's General Manager) re: costings for possible pound management partnership.
December 2010
Division of Local Government releases Post Investigation Review Report on Council. Recommendation 16 of the Action Plan to the report required Council to "consider updating and expanding the facilities for the future needs of companion animal management in the local government area" by 30 June 2011 (ATB at Vol 1 page 266 and Vol 2 at 532).
8.12.10
Mayoral Minute No. MM11/2010 reported to Ordinary Meeting of Council re: Kurri Kurri Animal Shelter "That the General Manager confirm with the RSPCA Council's interest in entering into a formal arrangement for the RSPCA to manage impounded animals on behalf of Cessnock City Council; That the General Manager continue formal negotiations with the RSPCA on the premise of a 5 year arrangement; That councillors receive a briefing from Council staff in January 2011 in relation to the current status of the Kurri Kurri Animal Shelter and its operating costs."
8.12.10
Resolution passing amended Mayoral Minute No. MM11/2010 (see previous entry directly above).
8.12.10
Council Report No. AQ3/2010 Answer to Question without Notice (Animal Shelter) submitted to Ordinary Council Meeting
1.2.11
Email from Colin Davis (Council's Health & Building Manager) to Steve Coleman of RSPCA requesting meeting to progress negotiations on pound management partnership.
2.2.11
Email from David Simm of Maitland City Council to Colin Davis (Council's Health & Building Manager) regarding earlier discussions regarding a potential joint animal pound enterprise (see email from David Simm to Colin Davis dated 3.9.10 referred to above and at ATB Vol 1 437).
8.2.11
Email from Colin Davis to David Simm replying to email of 2.2.11 regarding potential joint animal pound enterprise (see email from David Simm to Colin Davis dated 2.2.11 referred to above and at ATB 583).
9.2.11
Briefing Session by Colin Davis the Council's Health and Building Manager, to Councillors takes place regarding the current status of Kurri Kurri Animal Shelter and its operating costs (arising from Mayor's request in MM11/2010 8/12/10 ATB 587).
Eleven of fourteen councillors were present at this briefing. The briefing in the form of a PowerPoint presentation which states under the heading "Current Status of the Kurri Kurri Animal Shelter" that the shelter is on Crown land and the Land and Property Management Authority have advised that they will not consent to any improvements/works on the current site until the following issues have been resolved:
Contaminated site
The land is subject to an aboriginal land claim
The site does not have approval for animal pound purposes
The shelter is in an isolated location (vandalism, theft of animals, animal care/management and staff OH &S issues)
An antiquated facility with minimal upgrade and/or maintenance over many years
A facility that does not comply with current codes or industry standards for animal care and management
...
The issues of non-compliance within council's animal shelter need to be addressed urgently so as to provide:
- Best practice animal care and management;
- Compliance with legislative requirements;
- Customer service standards that meet the community's expectations.
Under the heading "Operating Costs", the estimate of operating costs of a new best practice shelter managed by Council is $601,070. Under the heading "Capital Costs", the estimate of capital costs for a new best practice shelter constructed and managed by Council is $2,2000,000 [sic should be $2,200,000].
Under the heading "RSPCA Partnership Agreement" the briefing states:
The RSPCA presented a proposal to Council in November 2010 confirming the RSPCA's interest in managing impounded animals...
The proposal detailed capital costing of $869,000 to be used to assist in the management of impounded animals ...
...
Negotiations are continuing in relation to a 5 year formal arrangement with the RSPCA in accordance with Mayoral Minute No. MM11/2010
Under the heading "Future Direction" the briefing proposes that the best option for the Council is to form a partnership with the RSPCA which has an industry best practice regional facility and has a core business of animal care and management. This option was expected to eliminate occupational health and safety risks for staff and visitors within the operation of the animal shelter.
The briefing also includes a report entitled 'The Current Status of Kurri Kurri Animal Shelter and its Operating Costs' .
16.2.11
Preliminary Contamination Assessment Report for the Kurri Kurri Animal Shelter prepared by Coffey Environments Australia Pty Ltd provided to Council.
The site was used as a Council sanitary depot for over 50 years and Council commissioned the preliminary contamination assessment to assess if the site was suitable for commercial use as a dog kennel. The report found that the site was not suitable for commercial/industrial use and contained recommendations to render the site suitable for such use.
15.3.11
Negotiations between Council and RSPCA on proposed agreement commence. RSPCA emails initial proposed draft of contract to Council.
15.3.11-20.5.11
Negotiations between Council and RSPCA on proposed agreement ongoing.
12.4.11
Letter from Steve Coleman of RSPCA to Lea Rosser of Council noting RSPCA will "consider the involvement of animal rescue groups to assist in the rehoming of animals relevant to the agreed contract".
15.4.11
Colin Davis of Council email to RSPCA stating he is "currently drafting a report to Council for adoption of the final agreement, once consensus is reached."
28.4.11
Colin Davis email to RSPCA stating "Now agreement has been reached on the Deed of Agreement I will be putting a report to the Council meeting of 18 May 2011 for sign off."
16.5.11
Email from Colin Davis (Council's Health & Building Manager) to Gareth Curtis (Council's Group Leader Built & Natural Environment) outlining tender process (or lack thereof) undertaken by Lake Macquarie, Maitland and Newcastle Councils.
18.5.11
Memo provided by Gareth Curtis (Council's Group Leader Built & Natural Environment) to Councillors providing response to submissions made on Report No. QS29/2011.
The first issue/concern relates to whether the pound should be renovated or built anew, whether RSPCA was the "ideal candidate" and whether other animal welfare and rescue organisations were approached. The consideration/comment is "Councillors were briefed on the issue on 9 February 2011. This has been addressed in the report to Council. Other organisations (with an industry best practice animal shelter capable of providing the professional animal care and management) do not operate in this area - further comments in 3 below. Council cannot continue to operate the existing facility for the reasons specified in the report - it is currently operating on land without permission, subject to constraints and does not meet legislative requirements or animal welfare standards. The matter was also reported to Council at its ordinary meeting of 8 December 2010, Council staff acted in good faith to implement the resolution of Council regarding the matter".
The third issue/concern relates to not tendering and the Council's response is: Council staff investigated opportunities for the required services to be provided for Cessnock City Council within the local area, Hunter Region and further afield. This revealed a lack of service providers in this area to provide the required level of service. This has also been outlined in the report and advised to Councillors at the briefing on 9 February 2011." It comments on the experience of four other councils in relation to this issue.
The fourth issue relating to the possibility of other persons and companies who could submit a competitive tender, the comment is: "Investigation by staff in preparing both reports to Council revealed a lack of current supplies for the services sought. This is outlined within the report for Council's consideration."
In response to the tenth issue which urges the Council to reject the contract and conduct a full inquiry, the follow comment appears: "The process has been reported to the Council openly several times. The current report is also public information and will be considered by Council."
18.5.11
Report No. QS29/2011 provided to Ordinary Meeting of Council (Pound Management Strategy) (deferred).
Under "Options for Animal Shelter" the report states "The Options previously outlined for Council are to develop a new best practice Animal Shelter constructed and managed by the Council or to negotiate a deed of agreement with the RSPCA to manage all Council's impounded and surrendered animals".
It adds, "The issues of non-compliance within the Council's Animal Shelter need to be addressed urgently so as to provide:
Best practice animal care and management;
Compliance with legislative requirements;
To ensure customer service standards meet the community's expectations."
The report mentions that the Council's current shelter does not comply with the Animal Welfare Code of Practice No 5 (NSW Agriculture) and the Draft Code of Practice for the Accommodation or Shelter of Animals (Prevention of Cruelty to Animals Act 1979) and that the RSPCA's shelter complies with these codes. It also mentions that the Council's shelter does not comply with s 21 of the Impounding Act 1993 concerning animal care and management and that the RSPCA's shelter complies with all requirements of the Impounding Act 1993.
The options identified as available to the Council are as follows:
Retain the status quo.
Council to develop and manage its own Animal Shelter.
Council to enter into an agreement with the RSPCA.
18.5.11
Resolution 1525 passed by Ordinary Meeting of Council giving Mr David Atwell the opportunity to speak.
Mr Atwell spoke against the closing of the Kurri Kurri Animal Shelter and stated, " I went around to a couple of boarder kennel operators, one in particular which is here in Cessnock, and I had a conversation with him as late as Monday". Mr Atwell was of the opinion that there were other viable contenders who may wish to tender including his small company.
Mr Atwell argued that the proposed contract with the RSPCA breached two sections of the Local Government Act. When asked by Councillor Gorman if he could name a group that would be an alternative without having to buy land, Mr Atwell said "probably one of the boarder kennel operators." Mr Atwell complained that "no public consultation in this respect has been held at all and apparently this has been going on since December if not earlier." Councillor Gorman explained that as Mr Atwell's company does not own enough land currently, it is not an available alternative even though it could make money available to buy land.
18.5.11
Resolution 1534 passed by Ordinary Meeting of Council "That [Council Report QS29/2011] be deferred and a site inspection be carried out of the RSPCA facility at Rutherford and also the Kurri Kurri Dog Pound facility."
20.5.11
Further draft of agreement emailed to Steve Coleman of RSPCA by Colin Davis of Council.
24.5.11
Letter from M Nicholls to General Manager of Council regarding interest of Akuna Care Pet Hotel in tendering for pound contract.
8.6.11
The summary document prepared by the Council's Acting Manager Health and Building and Senior Ranger entitled "History that occurred leading up the Council decision regarding agreement with RSPCA" dated July 2011 states that councillors carried out a site inspection of RSPCA Rutherford facility and Kurri Kurri Animal.
8.6.11
Briefing Session to Council Councillors takes place re: Pound Management Strategy Submissions
The briefing in the form of a PowerPoint presentation which reports that 69 submissions were received, mostly from current animal rescue groups and many were from outside the Council's area. In "Summary of Submissions and Responses", the response to the complaint that "Council management has not given full picture" is "Council has had several public reports and briefings on cost and strategy." The response to the complaint "Council has not consulted the community nor called public tenders and therefore breached the Local Government Act" is " Public reports have allowed public comments. There has been a public address and deferral to allow site visits. Council is complying with section 55(3) of the Local Government Act by providing reasons for the process. "
11.6.11
Inspection of Akuna Care Pet Hotel animal shelter by Councillors McCudden and Gorman per affidavits of Mr Nicholls and Ms Endean.
15.6.11
Report No. QS29/2011 provided to Ordinary Meeting of Council (Pound Management Strategy). The purpose of the report was to advise that the General Manager has confirmed with the RSPCA the Council's interest in entering into a formal agreement. Negotiations have continued over the past four months and agreement has been reached on a Deed of Agreement for a five year period with an option for a further five years. The report also advised the councillors that the requirement to tender under the LG Act did not apply to certain contracts under s 55(3)(i) of the LG Act. It recommended that in accordance with this section, "a satisfactory result would not be achieved by inviting tenders for the following reasons:
The RSPCA is the only organisation available within the area that has an industry best practice regional animal shelter capable of providing the professional animal care and management required of Council under legislative requirements.
Part of the RSPCA's core business is to set up and provide professional management of services to Local Government.
Council has an immediate and critical need to address operational requirements and occupational health and safety concerns as addressed in the accompanying report.
The entry into this contract provides a significant economic benefit to the Council over the term of the contract when compared to the cost of Council providing its own facility."
It adds the following comments:
The RSPCA provides facilities designed to meet the Council's legislative responsibilities under the Companion Animals Act 1998, the Prevention of Cruelty to Animals Act 1979 and industry best practice in companion animal management.
The RSPCA's core business is animal shelter management (professional animal care and management) and the RSPCA is ideally placed to manage Council's impounded and surrendered animals in accordance with the State Government's requirements
The Kurri Kurri Animal Shelter does not comply with the Animal Welfare Code of Practice No 5 (NSW Agriculture) and the Draft Code of Practice for the Accommodation or Shelter of Animals (Prevention of Cruelty to Animals Act 1979). The RSPCA's Rutherford shelter complies with these Codes and with all requirements of the Impounding Act, whereas the Kurri Kurri Animal Shelter does not comply with s 21 of that Act.
15.6.11
Amendment to proposed Resolution regarding Deferred Business No. QS29/2011, "that Council issue a tender for the operation of pound services in accordance with Section 55 of the Local Government Act at the earliest possible time", negatived by Ordinary Meeting of Council.
15.6.11
Resolution passed by Ordinary Meeting of Council regarding Deferred Business No. QS29/2011, "that Council pursuant to section 55(3) of the Local Government Act, 1993 enter into the proposed agreement with the RSPCA NSW without the calling of tenders as it considers that a satisfactory result would not be achieved by inviting tenders because of extenuating circumstances and the unavailability of competitive or reliable tenders for the following reasons:
a.The RSPCA is the only organisation available within the area that has an industry best practice regional animal shelter capable of providing the professional animal care and management required of Council under legislative requirements;
b.Part of the RSPCA's core business is to set up and provide professional management services to Local Government;
c.Council has an immediate and critical need to address operational requirements and occupational health and safety concerns as addressed in the accompanying report; and
d.The entry into this contract provides a significant economic benefit to the Council over the term of the contract when compared to the cost of Council providing its own facility."
7.7.11
Deed of Agreement between RSPCA and Council for pound management executed.
28.7.11
Facility Access fee payable to RSPCA under clause 34 of agreement paid by Council.
20.8.11
Kurri Kurri Animal Shelter closes.
8.9.11
Management fee payable to RSPCA under Schedule A of the agreement for August 2011 paid by Council.
15.9.11
Balance of Facility Access fee payable to RSPCA under clause 34 of agreement paid by Council.
20.10.11
Management fee payable to RSPCA under Schedule A of agreement for September 2011 paid by Council.
17.11.11
Management fee payable to RSPCA under Schedule A of agreement for October 2011 paid by Council.
Applicant's submissions
APOC par 6a, b
Section 55(3) requires the Council to pass a resolution stating reasons why a satisfactory result would not be achieved by inviting tenders in this case on the basis of extenuating circumstances and/or unavailability of competitive or reliable tenderers. The Applicant accepts that only one of the three exceptions in s 55(3)(i) must be satisfied. Section 55(3)(i) requires that the resolution by the Council address the exceptions (in this case) of extenuating circumstances and/or unavailability of competitive or reliable tenderers as a first step. The section also requires a second step that the Council separately identify that it is satisfied that no satisfactory result would be achieved if tenders were invited. There is no evidence that the second step was undertaken in the June 2011 resolution.
The Applicant submitted that there were no extenuating circumstances permitting departure from the requirement to tender in s 55(1). Further there was no evidence before the Council of extenuating circumstances. The Applicant did not accept that reason (c) in the June 2011 resolution (immediate and critical need to address operational requirements and other concerns) were extenuating circumstances.
The Applicant submitted that the Council did not take any steps to properly determine whether competitive or reliable tenderers were available. The reliance on this exception was not a genuine reason to depart from the requirement to tender. The Applicant referred to a number of documents in the agreed tender bundle which are referred to in the chronology above. These documents are largely drawn from the Council's records. The Council documents for the period 2003 to 2008 relied on by the Applicant purported to show that the Council had already decided to enter into an agreement with the RSPCA, which culminated in the December 2010 resolution authorising the General Manager to confirm with the RSPCA the Council's interest in entering into a formal arrangement for the RSPCA to manage impounded animals on behalf of the Council. The Applicant relied on an absence in the Council documents of references to whether a particular provider could be a competitive and available tenderer, to submit that there was no process of identifying other tenderers when there should be such a process. For example, Council staff went on inspections (on 12 March 2010, 16 March 2010 and 5 July 2010 according to inspection reports in exhibit A p 322 - 423) of pounds run by or on behalf of other adjoining local councils. The inspection reports make no mention of whether the officers considered if they were suitable services which could tender for the Council's work. Similar criticism is made of the councillors' briefing by Council staff on 9 February 2011 about the Kurri Kurri Animal Shelter and alternative options including agreement with the RSPCA to provide facilities.
In relation to the period from the December 2010 resolution until the June 2011 resolution the Applicant criticised the absence in the Council documents of any specific reference to the possibility of alternative competitive tenderers. It was also submitted that the Council was not aware of the interest of the Akuna Care Pet Hotel owner, Mr Nicholls, in tendering for the work at the time it passed the June 2011 resolution as there was no reference to the letter of 24 May 2011 from Mr Nicholls expressing interest in tendering at the time of the June 2011 resolution.
The Applicant also appeared to submit orally a case based on no evidence of extenuating circumstances or of unavailability of competitive or reliable tenderers, which is not the case identified in APOC par 6.
APOC par 7a(i), (iii), (iv) - failure to consider relevant matters
APOC par 7a states that the Council did not take into account relevant considerations when it passed the June 2011 resolution as identified in a(i) and (iii). In relation to par 7a(i) there is no reference on the Council file as to whether there were competitive or reliable alternatives to the RSPCA. In relation to par 7a(iii), the Council was aware of at least one interested prospective tenderer in Akuna Care Pet Hotel and potential interest from other organisations, either separately or as a joint bid. This was known to individual councillors who were present at the address by Mr Atwell to the Council meeting on 18 May 2011 and through other communications. A letter dated 24 May 2011 from Akuna Care Pet Hotel expressing interest in tendering for the pound work is on the Council file but there is no indication on the file or in any transcripts that this letter was considered by the councillors. There is no evidence that the briefing note by Council staff on 8 June 2011 (agreed tender bundle p 845) which refers to an operator of a boarding kennel expressing interest in tendering refers to the Akuna Care Pet Hotel.
APOC par 7a(iv) states that there was a failure to take into account that there were no extenuating circumstances.
APOC par 7a(ii) - failure to give matter proper, genuine and realistic consideration
The Applicant accepts that APOC par 7a(ii) is a separate ground. It alleges that the Council was required to give proper, genuine and realistic consideration to the existence of alternative tenderers before making that determination and failed to do so. Any inquiries Council did make about prospective tenderers were limited, incomplete and inadequate to establish that no competitive or reliable tenderers were available. Further, the Council staff enquiries were insufficient to determine whether there may have been other potential tenderers apart from those directly contacted by the Council to express interest. The inspections by Council officers of other pound premises in neighbouring council areas, the reports of which are in the Council file, were not inspections carried out for the purpose of identifying if any of the operators were competitive or reliable alternative tenderers. A Council officer's memorandum to the councillors dated 18 May 2011 attaching considerations addressing concerns raised in submissions on Report QS29/2011 - Pound Management Strategy, the first issue addressed relates to whether the pound should be renovated or built anew, whether the RSPCA was the "ideal candidate" and whether other animal welfare and rescue organisations were approached. Although the memorandum states that "Councillors were briefed on the issue on 9 February 2011" and "This has been addressed in the report to Council", there is no specific reference to alternative tenderers in the briefing to Council dated 9 February 2011. Under the heading "Future Direction" the report to Council dated 9 February 2011 states that "The best option for Council to provide access to best practice animal care facilities that comply with legislative requirements is to form a partnership with the RSPCA ..." The 8 June 2011 briefing note refers to material being supplied in the deferred report of 18 May 2011 (QS29/2011) but there is no such information in that report.
APOC par 7b(i) - (iv) - irrelevant matters considered
The Applicant alleges that there are several identified irrelevant matters which were taken into account in passing the June 2011 resolution. It submits that the four reasons (reproduced at par 7 above) were not legitimate. An organisation need not be industry best practice in order to be a competitive or reliable alternative for the purposes of s 55(3)(i) (reason (a)). Even if the Council had established that there was only one industry best practice regional animal shelter that is not a proper matter on which to decide not to invite tenders. It could be a desirable criterion to include in the tender documents and might be a matter considered in deciding to whom to grant a tender.
The nature of the RSPCA's core business is an irrelevant consideration to the requirement of s 55(1) of the LG Act as to whether there should be a tender for pound services (reason (b)). It is but one factor to consider in deciding whether to grant a tendered contract under s 55(1). The avoidance of monopolies, a significant reason for the tendering requirements to exist, agitates against that being a sole criterion for the grant of a tender. The Council's need to address operational requirements and occupational health and safety concerns may be relevant to whether to outsource the work but not to whether or not tenders should be called for under s 55(1) (reason (c)). Economic benefit to the Council is not a category of exception available under s 55(3) as it is not a reasonable basis for a decision that there are extenuating circumstances justifying an exception to the requirement to tender (reason (d)). Even if economic concerns were a legitimate basis for an exception, the Council did not properly investigate whether the RSPCA was the most cost effective option available.
None of the reasons in the June 2011 resolution refer to or establish the existence of extenuating circumstances or could reasonably form the basis of a decision not to tender on that basis.
APOC par 9
The Applicant asks the Court to infer from the evidence including the December 2010 resolution that the Council had already made up its mind to grant the contract to the RSPCA long before a decision was made not to invite tenders. Evidence demonstrates contact with the RSPCA by the Council from 2003 and the intention to enter an agreement with the RSPCA is confirmed by the December 2010 resolution. That evidence shows that there was no proper consideration of any other possible providers. None of the inspections of pounds in other council areas were undertaken with the purpose of identifying alternative tenderers. There was no process of identifying whether there were other available tenderers.
On any reasonable construction of s 55(3)(i) the section is not intended to permit a council to avoid the tender process because it has decided in advance that it would prefer one potential tenderer over other potential tenderers if the contract was tendered.
Council's submissions
The LG Act requires compliance with s 55 at the time of entry into the contract, as specified in the opening words of the section. The relevant point in time when compliance was required in this case was 7 July 2011 when the parties entered into the agreement with the RSPCA. The Applicant's case is largely a challenge to the merits of the Council's decision not to invite tenders, an impermissible basis for judicial review proceedings.
APOC par 6a, b
This ground is an impermissible attack on the merits of the Council's decision in the June 2011 resolution. It was open to the Council to be satisfied of the matter in par 6a that there were extenuating circumstances as those words are ordinarily understood. It is permissible to consider a dictionary meaning adapted to the particular statutory context. According to the Concise Oxford Dictionary "extenuating" means acting in mitigation to lessen the seriousness of guilt or an offence. In the context of s 55(3) this means circumstances which are sufficiently different to justify not calling for tenders. The word can be contrasted with exceptional. In any event, the resolution clearly identifies the basis for the Council being satisfied as to par 6a.
It was open to the Council to reach findings reflected in the four reasons which it then set out in the June 2011 resolution. The "accompanying report" dated 18 May 2011 prepared by Mr Colin Davis, the Council's Health & Building Manager, set out the history of the matter, the options, and addressed s 55(3)(i) of the LG Act. This material indicated why the circumstances were sufficiently different to justify not calling for tenders. The transcript of the Council meeting on 15 June 2011 indicates that councillors addressed their minds to the matters in s 55(3)(i) and that the General Manager answered questions as to its application to the circumstances of the case. Only one councillor, who did not attend the briefing session on 8 June 2011, voted against the June 2011 resolution. There is no basis in the evidence for concluding that the Council could not reasonably have been satisfied that there existed extenuating circumstances within s 55(3)(i).
In relation to par 6b the Council was not required by s 55(3)(i) to determine whether there was an alternative tenderer. The term "alternative" does not appear in the section. The Council is required to be satisfied of the unavailability of competitive or reliable tenderers. These words should be construed according to their ordinary meaning. "Unavailability" means not able to be used or obtained per Macquarie Dictionary. "Reliable" means consistently good in quality or performance. The June 2011 resolution clearly indicates that the Council was satisfied of the matter in reason (c) and it was open to the Council to be so satisfied. The transcript of the meeting on 15 June 2011 indicates that the councillors addressed their minds to the matters in s 55(3)(i) and the General Manager answered questions about enquiries made as to the unavailability of competitive or reliable tenderers. On the evidence there was abundant material placed before the Council over a period of time and specifically for the purpose of its meeting on 15 June 2011 that its officers had made enquiries which showed the unavailability of competitive or reliable tenderers for a contract to provide pound services or facilities. Enquiries had also been made by individual councillors without any available competitive or reliable tenderers being identified other than the RSPCA.
Paragraphs 2.19 - 2.35 of the Council's submissions sets out relevant history as follows:
In January 2009 the Department of Local Government issued a Report on the Section 430 Investigation into Cessnock City Council ("Section 430 Report"). In the context of recommendations relating to management of rangers, the Report recommended that the Council undertake a best practice review of its animal pound, exploring alternative options to carry out the required functions. A Council workplace report in January 2009 identified a large number of deficiencies in the physical facilities of the pound.
At its meeting on 3 February 2010 the Council resolved to investigate relocating the pound.
At its meeting on 3 March 2010 the Council considered a report by its officers that the pound was in a remote location, that the site was a former sanitary deposit with contamination potential and that the buildings did not meet current standards. Further there was no development consent to operate a pound on the site. The report stated that investigation of possible options was continuing and that the Council had already looked at animal shelters operated by other councils and welfare organisations. At the meeting one councillor moved as an amendment that the Council tender for a pound facility to be provided, as Port Stephens Council had done. The councillors discussed the fact that Lake Macquarie, Newcastle and Maitland Councils contracted a service from the RSPCA, while Port Stephens had a private operator, and that discussions were commencing with other councils in order to understand the costs charged by the RSPCA. The Council resolved to continue to investigate tendering out the service along the lines of Port Stephens Council. Council records indicate that its officers carried out these investigations as to pound arrangements in place at other councils.
In August and September 2010 Council officers reported on upgrade requirements for the facility at Kurri Kurri including reference to its being located on Crown land and subject to an Aboriginal land claim.
On 3 September 2010 Mr Darryl Fitzgerald at the Council informed an officer at Maitland City Council of the current state of investigation. Although the RSPCA had advised the Council two years ago that it could not provide the Council with a pound service, the investigation had shown that the RSPCA was now providing such services to other councils. Lake Macquarie and Newcastle were satisfied with the service, whilst Maitland was not.
On 13 September 2010 Mr Colin Davis, the Health and Building Manager of the Council made a direct email enquiry of the RSPCA. Whilst advising this was only one option the Council was considering, he enquired whether the RSPCA was interested in an agreement to provide pound services. On 30 September 2010 he requested a cost estimate for building works at the Kurri Kurri Animal Shelter site, including the upgrading of the facility and construction of a new facility. This estimate was provided on 23 October 2010. On 30 November 2010 the RSPCA provided an estimate for providing pound services.
In the Division of Local Government's Post Investigation Review Report - Cessnock City Council , December 2010 ("Post Investigation Report"), it was noted that the Kurri Kurri Animal Shelter operated at a high standard above industry best practice but that the facility was old and small and may not be able to meet future needs. In the context of best practice the Post Investigation Report's Recommendation 16 was that the Council consider updating and expanding the facility. Recommendation 16 was listed as a medium priority to be achieved by 30 June 2011, with Council "currently looking at a range of options regarding the pound and animal management".
A staff report to councillors was included in the agenda papers for the Council's meeting to be held on 8 December 2010. Also included was a mayoral minute to the Council dated 8 December 2010, summarising the communications with the RSPCA and recommending that formal negotiations commence.
At its meeting held on 8 December 2010 the Council considered the Post Investigation Report and the mayoral minute. The December 2010 Resolution was that the General Manager confirm with the RSPCA the Council's interest in entering into a formal arrangement for the provision of a pound service and enter into negotiations with the RSPCA, and brief councillors in January 2011.
The December 2010 Resolution did not conclude the Council's investigation. In an answer to a question without notice, Mr Davis advised that options alternate to the Kurri Kurri shelter were continually being explored and the RSPCA was just one option.
On 19 October 2010 the Council's officers had inspected the Akuna Care boarding kennels. This facility provided boarding for cats and dogs. It did not accommodate large livestock such as horses, cattle, goats and sheep, or poultry, in respect of which the Council had statutory obligations. In the period from January to June 2011 Council officers and councillors inspected other animal shelter facilities.
On 9 February 2011 councillors attended a briefing session on the current status of the Kurri Kurri Animal Shelter, having been provided with a briefing paper dated 9 February 2011. The slides presented on that evening indicated the problems with the present site at Kurri Kurri which failed to meet a variety of standards and requirements. The proposal of the RSPCA was set out and identified as a best option.
During March 2011 the Council negotiated with the RSPCA as to the terms of an agreement.
In May 2011 Council officers considered the approach taken by other councils to tendering for animal shelter services. On 18 May 2011 a memorandum was circulated to councillors summarising submissions made to the Council concerning its pound management strategy. The memorandum made specific reference to material relevant to the Council's forming a state of satisfaction under s 55(3)(i) of the LG Act . This included that Council officers had ascertained that nine other councils had contracted out pound services to the RSPCA; that Lake Macquarie City Council had found through a tender process that there was no organisation other than the RSPCA with the capacity to meet statutory requirements as to standards; that Newcastle City Council had carried out a public tender in February 2011, with only one tender being received, from the RSPCA; that Lake Macquarie, Newcastle and Blue Mountains Councils had found by their public tendering processes that NSW lacks organisations able to provide care in a cost effective manner; and that the RSPCA was the only organisation that could provide best practice facilities complying with standards at a competitive price.
On 16 May 2011 Mr Davis emailed Mr Curtis as to whether other councils had used public tender processes before contracting with the RSPCA. Council officers prepared a report for inclusion in the agenda papers for the Council's meeting held on 18 May 2011, which included consideration of the options for an animal shelter, which were: to retain the status quo; to develop a council managed shelter; or to enter an agreement with the RSPCA. The report also directly addressed the application of s 55(3) of the LG Act.
At the meeting held on 18 May 2011 the Council resolved to defer a decision on the pound services. A full discussion occurred which included reference to whether or not to go to tender.
On 8 June 2011 the mayor and ten other councillors attended a briefing on submissions made to the Council concerning the Council's pound management strategy. Council staff prepared and provided to councillors a summary of submissions received by the Council, which included consideration of whether there should be a public tender for the contract.
This history of the Council's consideration of the future of the Kurri Kurri Animal Shelter, following the Report on the Section 430 Investigation into Cessnock City Council (Section 430 Report) , underpinned the summary in the report to Council for its meeting on 15 June 2011. It is a history of thorough exploration by the Council of options, including whether there were available competitive or reliable tenderers.
This ground fails on the evidence. The Council could reasonably be satisfied as to the unavailability of competitive or reliable tenderers.
APOC par 7a(i), (iii), (iv) - failure to consider relevant considerations
There was no failure to take into account mandatory relevant considerations. APOC par 7a(i) states that the Council had to be satisfied if it relied only on ground (c) of the unavailability of competitive or reliable tenderers, not whether there were competitive or reliable alternatives. The terms of the June 2011 resolution indicate that the Council was satisfied as to this matter.
In relation to par 7a(iii) the evidence including that relied on by the Applicant shows that Akuna Care Pet Hotel was not an available competitive or reliable tenderer. It was a matter for the Council as to whether it was satisfied of the matter on the evidence before it. The Council had a number of statutory obligations under animal welfare statutes such as the Impounding Act which required a certain level of facility to accommodate large animals such as horses, goats, cattle and donkeys, inter alia, as animal is defined under that Act. The Akuna Care Pet Hotel accommodated dogs and cats only. As identified in the June 2011 resolution the Council was entitled to come to the conclusion that 'the RSPCA was the only organisation available within the area that had an industry best practice regional animal shelter capable of providing the professional animal care and management required of council under legislative requirements". It is important that the whole of the reason of the Council be considered not parts only as the Applicant's case does. APOC par 7a(iv) is a criticism of the merits of the Council's decision.
APOC par 7a(ii)
Failure to give proper, genuine and realistic consideration to a claim is a separate ground of review to failure to consider and the test has been criticised in the Court of Appeal because it must not be used to impermissibly trespass on the merits. In Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [26] - [30] the High Court referred to the early authorities that introduced the expression "proper, genuine and realistic" without disapproval but also referred to Basten JA's criticism of the epithet. It appears the formulation may be deployed in connection with the ground of inflexible application of policy, provided there is no impermissible slide into the merits: SZJSS at [23]; Alexander v Yass Council [2011] NSWLEC 148 at [107] - [115]. It is not established on the evidence in any event.
APOC par 7b(i) - (iv) - irrelevant considerations considered
The ground of taking into account an irrelevant consideration has a high hurdle as there is no fixed list of matters for any given decision which can be described as irrelevant. The determination depends on the statutory framework, the objects and purposes of a particular Act. The Applicant must demonstrate that having regard to that framework a certain matter is irrelevant.
In relation to APOC par 7b(i), the whole of reason (a) in the June 2011 resolution must be considered. The Council was entitled to take into account that the RSPCA was capable of meeting the standards required pursuant to s 21 of the Impounding Act, the best practice emphasised in the Section 430 Report and the Division of Local Government's Post Investigation Review Report - Cessnock City Council December 2010 , as well as the RSPCA's ability to comply with the Animal Welfare Code of Practice and Draft Code of Practice, which have statutory force by virtue of s 34A of the Prevention of Cruelty to Animals Act. This was plainly relevant to the reliability of a tenderer. The Council was entitled to assess any other possible tenderer by reference to its capacity to meet those standards. No potential tenderer was in any event discovered. No potential tenderer was eliminated purely on the basis of failure to meet best practice standards. The question of whether this consideration was improperly taken into account cannot arise.
In relation to APOC par 7b(ii) it cannot be an irrelevant consideration that the RSPCA's core business is to provide professional animal management services to local government given the Council's statutory obligations under the Impounding Act, inter alia. There was evidence on the Council file which pointed to the RSPCA being the only provider able to meet all statutory obligations falling on the Council.
In relation to APOC par 7b(iii), there is ample evidence of concerns about the occupational health and safety problems and other operational issues at the Kurri Kurri Animal Shelter (including contamination because of previous land use for sanitary disposal, no development consent to operate pound, land owned by Department of Lands not the Council and no upgrade would be permitted of aging facilities unless numerous matters addressed). This cannot be an irrelevant consideration when viewed from the Council's perspective.
In relation to APOC par 7b(iv), the significant economic benefit of contracting to the RSPCA (reason (d)) was not irrelevant given information on the Council file about the comparative costs of various alternatives.
APOC par 9
The evidence after December 2010 is inconsistent with the proposition that the Council had made up its mind to grant the contract to the RSPCA without calling for tenders. There is reference to ongoing negotiations with the RSPCA and the information in the briefings to councillors in February 2011 and June 2011, and the deferral of the decision on 18 May 2011 shows that the councillors had not made up their minds. The 8 June 2011 briefing refers to Akuna Care Pet Hotel as it is clearly the boarding kennel referred to in the Council staff briefings.
The Applicant's submissions in relation to the Council file attempt to segment particular actions from the overall perspective in which these must be viewed. Given that the Applicant bears the onus of establishing its case it is not sufficient to submit that no weight should be given to a document produced by unnamed staff on the Council file when that clearly forms part of the business records of the Council and is presumed to be material of which councillors were aware in the absence of contrary evidence.
Consideration
The Council is required to comply with s 55 of the LG Act in conducting its activities. Section 55(1) requires the Council to invite tenders for specified activities, including contracts for services or facilities which the Council is required by any Act to perform or provide. As identified earlier at par 1 - 5, the responsibilities of the Council in issue here arise under the Impounding Act, the Companion Animals Act and the Prevention of Cruelty to Animals Act. Section 55(3) identifies contracts to which s 55(1) does not apply. In this case the Council decided to enter into an agreement, effectively a contract, with the RSPCA. Section 55(3)(i) is an exception provision identified by the Council in the June 2011 resolution. That exception must be satisfied at any time before entry into the contract and practically in this case at the time of decision to enter into a contract on 15 June 2011. The Council need only be satisfied of one of three specified circumstances for the exception in s 55(3)(i) to operate.
I agree with the Council's submissions that much of the Applicant's case amounts to a challenge to the merits of the Council's decision in the June 2011 resolution, which is not a matter able to be considered in judicial review proceedings per Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 40 - 41. The factual correctness of matters is not able to be challenged in these proceedings, per Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 at [63] . The Applicant's submission that the reasons in the Council resolution of 15 June 2011 were not genuine in relation to the unavailability of competitive or reliable tenderers or that there were no extenuating circumstances reflects such an impermissible approach. That is really a submission that the Applicant disagrees with the Council's determination on the basis of the stated reasons in the June 2011 resolution.
APOC par 6a, b
APOC 6a states that there were no extenuating circumstances and APOC 6b that the Council did not properly determine whether there were competitive or reliable tenderers. The construction argument of the Applicant that s 55(3)(i) requires a two step process which must be reflected in the resolution does not arise from the terms of the section. It is an artificial construction, not reflective of the clear terms of the subsection, to argue that the Council was required to word its resolution to identify as a separate step that it was satisfied that a satisfactory result would not be achieved by inviting tenders. The resolution otherwise mirrors the words of s 55(3)(i). As identified by the Council, in the June 2011 resolution the Council expressly states that it considers that a satisfactory result could not be achieved by inviting tenders for the stated reasons, which also appear in the resolution. The terms of the resolution comply with the requirements of s 55(3)(i) in that it is a resolution giving reasons for the decision that a satisfactory result would not be achieved for four stated reasons purporting to relate to extenuating circumstances and unavailability of competitive or reliable tenderers.
As framed, APOC par 6a cannot be maintained by the Applicant. It is an attack on the merits of the Council's view that extenuating circumstances existed. On that basis alone the ground must fail. As identified above at par 11 the relevant test is whether the Council was satisfied of a certain matter on the basis of the material before it. As submitted by the Council, "extenuating" should be given its ordinary meaning in the absence of a definition in the statute. The common practice of considering dictionary definitions in order to ascertain a word's ordinary meaning is not particularly helpful as none of those identified in the Macquarie or Concise Oxford dictionaries appear to address the use of the word in the context of this statute. The meaning relied on by the Council of being "sufficiently different to justify not calling for tenders" was extrapolated from the Concise Oxford dictionary meaning of acting in mitigation to lessen the seriousness of guilt, a criminal law context. That suggested meaning of extenuating sets a low hurdle for a matter about which a council need be satisfied under s 55(3)(i). While there does not appear to be an immediate correlation between the Concise Oxford dictionary definition and that proposed by the Council, no other definition, dictionary or other, recommended itself either.
The term "extenuating circumstances" appears in other legislation, generally in a criminal context, which context is reflected in the dictionary definitions available. Its application in this civil law context is less clear in terms of the standard the legislative drafter intended by its use. As the Council identified, s 55(3)(i) does not refer to "exceptional", defined in various dictionaries as "unusual or extraordinary" which would be a high hurdle if relevant. That is an important distinction in determining how "extenuating" should be applied here. I accept the Council's submission that the meaning of extenuating in this context is that the Council must be satisfied that there are circumstances which are sufficiently different to justify not calling tenders in order to comply with s 55(3)(i).
Although strictly unnecessary to do so in light of my previous finding, I will consider the evidence in relation to reason (c) in the June 2011 resolution, the reason which on its face suggests it is an extenuating circumstance to which the Council clearly had regard. This identifies that the Council has an immediate and critical need to address operational requirements and occupational health and safety concerns. There are numerous examples in the Council file commencing from 7 January 2009 where the unsatisfactory working environment at the Kurri Kurri Animal Shelter for staff is identified. As identified in the Council's submissions at par 47 above and based on the documents from the Council file, the site is subject to contamination, lacks development consent for its use as a pound, the land is owned by the Department of Lands not the Council and the Department of Lands would not permit an upgrade of aging facilities unless numerous matters were addressed. That the shelter also does not meet the statutory obligations of the Council under several statutes and codes concerning animal welfare is clearly identified in reports of Council officers. That material suggests that it was reasonable for the Council to be satisfied that extenuating circumstances existed. The parties agree that the Council need be satisfied of only one of the exceptions in s 55(3)(i) in order for the section to be satisfied. As APOC par 7a(iv) raises the same issue in different terms of failing to take into account extenuating circumstances the same finding applies there.
Similar observations also apply to par 6b. That is also framed as a merits review ground, not a permissible ground of judicial review, given the allegation that the Council had "not properly determined" whether there were competitive or reliable alternative tenderers. As submitted by the Council the ordinary meaning of words "unavailability" and "reliable" apply. It is the Council's reasonable satisfaction in relation to these matters which must be considered.
The Applicant's analysis of the documents in the Council file is premised on the incorrect basis that there must be explicit statements that the Council has considered the availability of other tenderers. No such statutory requirement exists in s 55. In any event the Council file in evidence suggests the Council did give consideration to this issue. This is explained more fully below at par 71 to 73. The Applicant has failed to establish this ground of appeal.
APOC par 7a(i), (iii) (iv) - failure to take into account relevant matters
In order to succeed on a ground of appeal alleging a failure to take into account relevant matters, these must be mandatory in the context of the statutory scheme, here the LG Act. In Peko-Wallsend at 39 - 40 Mason J stated:
The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision ... What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion ...where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act. (citations omitted)
It is necessary to frame the matter alleged not to have been taken into account in light of the statutory scheme under consideration. Section 55(3)(i) refers to the "unavailability of competitive and reliable tenderers". In APOC par 7a(i) the Applicant submitted that there was a failure to consider whether there were competitive and reliable alternatives to the RSPCA. As submitted by the Council, the availability of alternative competitive or reliable tenderers to the RSPCA is not required by s 55(3)(i) to be identified by the Council. The Council is required to be satisfied of the unavailability of competitive or reliable tenderers, a materially different emphasis in the obligation imposed on the Council by s 55(3)(i).
In any event, when the Council file in evidence is considered it is clear that there was a process undertaken by the Council officers to determine the availability of tenderers who could undertake all of the services required in light of the Council's legislative responsibilities for impounded animals defined to include a number of large animals such as horses, donkeys, goats, cattle and camels, inter alia. That investigation included visiting pounds in neighbouring local government areas and the Akuna Care Pet Hotel which catered only for dogs and cats.
That leads to APOC par 7a(iii) which alleges that the Council was aware of the availability of competitive or reliable alternative tenderers including Akuna Care Pet Hotel but did not take this alternative into account in passing the June 2011 resolution. That ground is not maintainable in light of the evidence. In addition to a visit by Council staff in October 2010, the owner of Akuna Care Pet Hotel wrote to the Council on 24 May 2011 advising of his interest in tendering and two councillors also visited the premises on 11 June 2011. The briefing to councillors on 8 June 2011 included a reference to a boarding kennel being interested but identified that it could not provide the necessary range of services required by the Council. Mr Atwell in his address to the councillors on 18 May 2011 referred to the interest of a couple of boarding kennel operators including one in Cessnock. There is no requirement that a council when passing a resolution provide reasons for its decision and it is not required to refer to a specific document such as the letter dated 24 May 2011 from Akuna Care Pet Hotel owner, Mr Nicholls, expressing interest in tendering on the Council file. The history of this matter before the councillors in terms of briefings provided by Council staff, consideration at Council meetings in February 2011, May 2011 and June 2011, and attendance by two councillors at Akuna Care Pet Hotel in June 2011 gives rise to the clear inference that the councillors were aware of other interested parties including Akuna Care Pet Hotel at the time of the June 2011 resolution.
Given the evidence of consideration by the councillors identified in the previous paragraph, it is not strictly necessary to apply the general presumption that documents on a council file are inferred to be before the councillors in the absence of any contrary evidence identified in Schroders Australia Property Management Ltd v Shoalhaven City Council [2001] NSWCA 74 at [72] and adopted in several cases since, fo r example, Gee v Council of the City of Sydney [ 2004] NSWLEC 581 at [20] - [21] . The Applicant bears the onus of establishing its case and must rebut that inference and has failed to do so.
APOC par 7a(iv) states that there was a failure to take into account a mandatory relevant consideration being that "there were no extenuating circumstances under s 55(3)(i) permitting departure from the requirement in s 55(1)". That ground covers the same territory as APOC par 6a which failed. The same result applies to this ground.
APOC par 7a(ii) - failure to give matter proper, genuine and realistic consideration
The Applicant submits that the Council failed to give proper, genuine and realistic consideration to whether there were competitive or reliable alternative tenderers to the RSPCA when it passed the June 2011 resolution. The Council's written submissions contained a useful summary of recent authorities which have criticised this formulation and I set this out:
In Kindimindi Investments Pty Ltd v Lane Cove Council Basten JA (with whom Handley AJ and Hunt AJA concurred), in rejecting a submission that the ground was established, observed:
... the danger is that adoption of the epithets such as 'proper, genuine and realistic' consideration, may be understood to qualify the statutory terminology in a manner inconsistent with accepted principles in relation to judicial review. As noted in Bruce v Cole , they risk an assessment of the nature of the consideration which will encourage a slide into impermissible merit review. ...
In Belmorgan Property Development Pty Ltd v GPT Re Ltd Basten JA rejected the epithet "proper, genuine and realistic" in a more comprehensive way, not just as an expression unsuited to describing the ground of review argued. The expression was rejected as a description of any ground of review, in part because the use of the expression encourages trespassing upon the merits.
The passage in the judgment of Basten JA in Kindimindi provides the foundation for the rejection by Tobias JA (with whom Spigelman CJ and Macfarlan JA concurred) in Anderson v Director General of the Department of Environment and Climate Change of a claim of failure to take into account a relevant consideration of inter-generational equity in granting consent to development of a site involving destruction of Aboriginal objects. Tobias JA held at [67] that use of an epithet is "fraught with the danger of a slide into impermissible merit review". The danger of the impermissible slide lies in the use of an expression which diverts attention from the relevant terms used in the statute.
In SZJSS the High Court referred to the early authorities that introduced the expression proper, genuine and realistic, without disapproval, but also referred to Basten JA's criticism of the epithet. (footnotes omitted)
I considered a number of these authorities in Alexander where I held the ground appeared to still be available but in its application a court must be mindful that merits must not be trespassed upon. The Council submitted the ground, if available, was to be confined to the inflexible application of policy: SZJSS at [23]. On the assumption that such a formulation can be pressed the ground is not made out on the evidence in any event for the reasons already identified above in relation to APOC par 7a(i) and (iii) at par 61 to 62 above. The Applicant's submissions in relation to this ground concerning alleged inadequacies in the Council file are summarised in par 28 above and include that references in the memorandum to councillors dated 18 May 2011 and the June 2011 briefing note to information being supplied in other documents or reports in the file were not established by the contents of those documents or reports. That criticism I deal with below under the heading "Council's decision-making to be viewed in its entirety" (at par 71 to 73).
APOC par 7b(i) - (iv) - irrelevant matters considered
As held in Peko-Wallsend by Mason J at 40 (Gibbs CJ and Dawson J agreeing, Brennan and Deane JJ concurring in a separate judgment but silent on this point) in order to succeed on a challenge on the basis that an irrelevant matter has been taken into account, that matter must be expressly or by implication a matter which a decision-maker must ignore . The Appellant must therefore establish that the fact or matter it says is irrelevant has to be ignored as a matter of statutory interpretation in light of the objects and purpose of the LG Act: per Meriton Apartments Pty Ltd v Council of the City of Sydney [ 2010] NSWLEC 64 at [27], quoted in Meriton Apartments Pty Ltd v Council of the City of Sydney [2011] NSWCA 17 at [39] per Tobias JA, Campbell and Macfarlan JJA agreeing.
In judicial review proceedings "where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard" per Mason J in Peko-Wallsend at 40. As the Council submitted this ground must satisfy a high hurdle in order to succeed.
The Applicant's grounds and submissions were essentially assertions that the four reasons in the June 2011 resolution were irrelevant without proper bases for that submission being established in law or on the evidence. The relevant test of whether a matter is irrelevant must be viewed from the Council's perspective in light of the statutory context. I essentially agree with the Council's submission on this ground as set out at par 45 - 48. In relation to reason (a), the whole reason must be considered, not singling out part of it such as whether an organisation is industry best practice, as being an irrelevant matter for determining whether there is a competitive and reliable alternative. In relation to reason (b), that the RSPCA's core business includes services for local government is not self-evidently an irrelevant consideration in the context of s 55 of the LG Act and given the broad responsibilities of local councils under that Act. In relation to reason (c) referring to operational requirements inter alia, once again it is not self-evident that this is an irrelevant consideration in this statutory context. The same observation also applies to reason (d) particularly if read with reasons (a) and (b) concerning the RSPCA's operations.
APOC par 9
The Applicant alleges in APOC par 9 that the December 2010 resolution demonstrates that the Council had already made up its mind to grant the contract to the RSPCA without calling for tenders. No authority was cited to support this ground of review. The Council documents subsequent to the resolution disclose a lengthy period of investigation of options in relation to the continued operation or closure of the Kurri Kurri Animal Shelter utilising another service provider. There is nothing irregular in that investigation. The point at which s 55(3)(i) must be satisfied is before the date of entry into the contract, that is sometime before July 2011. This ground also fails.
Council's decision-making to be viewed in its entirety
It is important to review the whole of the Council's investigatory and decision-making processes as disclosed in the agreed tender bundle drawn from the Council's files rather than scrutinising single documents without regard to that wider context. By way of general answer to the Applicant's case, the evidence in the agreed tender bundle of documents and the affidavit of Mr Nicholls shows a lengthy process of consideration by the Council from 2003 of the best way to deal with its statutory animal welfare obligations. The 8 December 2010 resolution reflects the Council's interest in engaging with the RSPCA. That engagement was part of a process leading up to the 15 June 2011 resolution which included briefings by Council staff of relevant issues on 9 February 2011 and 8 June 2011, the deferral of the decision on 18 May 2011 following Mr Atwell's address to the Council at the 18 May 2011 meeting. Mr Nicholls' and Ms Endean's affidavits confirm inquiries were made by Council staff in October 2010 and by two councillors in May 2011. The councillors were well informed of issues relevant to the decision made in June 2011. There can be no suggestion that the councillors had closed their minds at a point in time before the June 2011 resolution. The Council's characterisation of the Council's behaviour quoted in par 38 accurately records the actions of the Council from the receipt of the Section 430 Report onwards.
The Applicant's submissions were premised on the basis that the aim of s 55 was the encouragement of tendering processes by councils in order to facilitate competition and reduce provision of services by monopoly interests. Such a submission can be accepted. Nevertheless the LG Act specifically provides for exceptions to the requirement to tender imposed on local councils. The Applicant also submitted that in order for the exception of unavailability of competitive or reliable tenderers there had to be explicit statements on the Council file which reflected whether there were other tenderers available, which submission I have rejected. The briefing note to councillors of June 2011 shows that a boarding kennel inferred to be Akuna Care Pet Hotel was expressly considered by Council staff. The Applicant also sought to challenge the accuracy of a memorandum dated 18 May 2011 where it stated that certain matters had been identified to the Council or were in an unnamed Council officer's report on the basis there was no evidence of what was said at a particular Council meeting or the officer's report did not cover certain matters. As submitted by the Council, these are business records of the Council. It does not bear the onus of establishing their accuracy, that is the Applicant's onus. These documents simply reflect how local councils operate and usual record keeping practice. The documents should be given weight and their context accepted in these judicial proceedings.
There was also criticism by the Applicant of the Council file because no record of the two Council staff visiting the Akuna Care Pet Hotel in October 2010 appears in the file. This visit is referred to in the affidavit of Mr Nicholls in any event and there can be no dispute that it occurred.
Conclusion
The Applicant has been unsuccessful on all the grounds of appeal and its Class 4 summons should therefore be dismissed. Costs will be reserved.
Orders
The Court makes the following orders:
1. The Applicant's summons filed on 15 September 2011 is dismissed.
2. Costs are reserved.
Decision last updated: 23 February 2012
3
14
4