Styles v Wollondilly Shire Council
[1999] NSWLEC 210
•07/26/1999
Land and Environment Court
of New South Wales
CITATION:
Styles v Wollondilly Shire Council [1999] NSWLEC 210
PARTIES
APPLICANT
Lynette Mary STYLESRESPONDENT
Wollondilly Shire Council
NUMBER:
40153 of 1999
CORAM:
Sheahan J
KEY ISSUES:
Interlocutory Relief :- orders seeking an interim injunction to allow an expelled Councillor attend a Council meeting
LEGISLATION CITED:
Local Government Act 1993 s 664
DATES OF HEARING:
07/26/1999
EX TEMPORE JUDGMENT DATE:
07/26/1999
LEGAL REPRESENTATIVES:
RESPONDENT
APPLICANT
Mr J McKenzie (Barrister)
SOLICITORS
Johnson & Sendall Inc. Mullens
Mr D Wilson (Barrister)
SOLICITORS
Marsdens
JUDGMENT:
IN THE LAND AND Matter No: 40153 of 1999
ENVIRONMENT COURT Coram: Sheahan J
OF NEW SOUTH WALES 26 July 1999
Applicant
v
WOLLONDILLY SHIRE COUNCIL
Respondent
JUDGMENT
1. The applicant is a member of the respondent council.
2. The Court has but sketchy knowledge of what relevantly occurred prior to 8 February 1999 save that it is alleged by the council that the applicant committed a breach of the confidentiality envisaged by the Local Government Act 1993 and its various regulations.
3. Those relevant events were in some way, and to some extent, canvassed in a closed meeting of the council sitting as its committee of the whole on 8 February 1999 during which - it is alleged and I think admitted - the applicant called the mayor of the council " a liar " and " a bloody bitch ", at least once, and perhaps " repeatedly ".
4. The Act, the regulations, and council's codes of conduct and of meeting practice, ( Exhibit S1 ) provide for the functioning of the council and the way in which alleged acts of disorder in meetings are to be dealt with.
5. In purported exercise of those powers, council resolved, inter alia, that the applicant be censured for releasing the confidential information contrary to the code (see also the LGA s 664), and called on her to apologise for her statements. The resolution provided that if she did not apologise " then she be expelled from this meeting ".
6. She has consistently refused to apologise and although she continues to occupy, and enjoy all the privileges and facilities of, her office as a councillor, she has been expelled from, and indeed on at least some occasions physically removed from, those council meetings she has attended since 8 February (see the minutes of meetings contained in Exhibit W2 ).
7. At some of those meetings, if not all, standing orders have been suspended to, as it were, reactivate that part of the February resolution (resolution number 107 of 1999) which has provided for exclusion or expulsion " from this meeting ".
8. The applicant has been given on each occasion a fresh opportunity to apologise and has declined.
9. In all of these matters the council appears to have relied at least in part on advice from the Department of Local Government (see Exhibit S2 ), and no action has yet been taken to have her disqualified from office.
10. Those essentially are the bare facts of the matter as the Court knows them from the necessarily truncated evidence one sees in these types of interlocutory proceedings.
11. The applicant says that she has been punished enough, and, whether rightly or wrongly excluded, she should now be allowed to resume her attendance and voting at council meetings.
12. She threatened some proceedings within one month of the original expulsion (see Exhibit W1 ), but did not commence any until her class 4 application was filed on or about 15 July. Following some proceedings before me last Friday, when I adjourned the question of interlocutory relief until today, she amended her application late last Friday.
13. The relief she sought in the original application and amended application are as follows.
14. In the original application she sought a declaration that the applicant Councillor Lynette Styles’ common law right entitlements to attend and vote at Wollondilly council meetings be reinstated and that the respondent's ongoing actions are unlawful and unreasonable in the circumstances. She sought also an order that the council's code of conduct at ss 3.1(a), 2.1 and 4.1, and s 664 of the LGA, had not been breached as alleged by the respondent.
15. By way of interlocutory relief she claimed an order that the respondent be restrained from further considering motions for the forced police expulsion of the applicant, for an alleged act or omission as circulated in a confidential report by the general manager of the respondent at a closed meeting of council on 8 February.
16. The amended application filed on 23 July seeks a declaration that the applicant's common law entitlement to attend and vote at Wollondilly Shire Council meetings be reinstated and that the respondent's ongoing actions are unlawful and unreasonable; and an order that the council's code of conduct and s 664 of the LGA has not been breached, as alleged by the respondent.
17. By way of interlocutory relief she sought an order that an interim injunction allow her to attend the Wollondilly Shire Council meeting on 26 July 1999, and to restrain the respondent from further forced expulsions of the applicant.
18. If interlocutory relief is to be granted, Mr McKenzie, who appeared for the applicant today, suggested I should make the orders set out in draft short minutes of order. The order he seeks on an interlocutory basis is that the court order until further order that the respondent, its servants, agents, mayor and councillors be restrained from resolving that, and/or permitting or suffering that, the applicant be expelled from any meeting of the council (whether as a committee of the whole or otherwise), on the grounds of the applicant's refusal to apologise to the mayor and councillors of the respondent for the acts of disorder alleged to have been committed by the applicant at the closed meeting of the committee of the whole of council which was held on 8 February 1999.
19. The short minutes go on to suggest further orders that the costs to and including the date of this order be the applicant's costs in the proceedings; (b) that the proceedings be listed for mention on a date to be chosen; and (c) that the parties be granted liberty to apply on two days notice.
20. It is a serious matter for the court to interfere with the statutory functioning of a local government authority and with its democratic processes.
21. In order to grant interlocutory relief I have to be satisfied that the applicant has a serious case to be tried, that the balance of convenience dictates that relief should lie in order to preserve the status quo until the substantive issues are tried, and that there is no bar on discretionary grounds to the granting of relief.
22. The questions of damages and of the usual undertakings given in that regard do not arise in this case.
23. It is clear from the exchanges between counsel and the bench that there are some serious questions in this case: What on the facts constitutes the disorder relied upon at each meeting from which the applicant was excluded? What is council's power regarding the applicant's continued refusal to apologise? How long should what I will call " the stalemate " between the parties be allowed to continue? What rights do the rate payers and residents have in regard to less than full representation in the reaching of council resolutions? and so on.
24. There are strong views and arguments on both sides so I am easily satisfied on the first question posed in my task, namely that there is a substantial issue to be tried.
25. However, these proceedings were not taken out, and this decision is not being made, immediately after the applicant was expelled from the first relevant meeting. They were taken in anticipation of, and today we face, the twelfth or thirteenth relevant meeting.
26. The status quo is really the stalemate situation I have referred to. It would appear that that stalemate can be broken only by a backdown on council's part, or on the applicant's part, or by the applicant's success in the substantive proceedings.
27. The making of the order sought today would prejudge that final question and I believe such orders should not be made.
28. The relevant authorities are referred to in the leading text by Meagher, Gummow and Lahane JJ. Par 2173 of the second edition also collects a list of other relevant factors which fortify me in this conclusion.
29. I can find nothing in the leading judicial expositions of the process I should follow and the principles I should apply to bring me to an alternative conclusion. I refer here to the judgment of Acting Chief Justice Mason (as he then was) in Castlemaine Tooheys v South Australia (1986) 161 CLR 148, at pp 153-7, and that of the New South Wales Court of Appeal in Silkstone Pty Ltd v Devreal Capital Pty Ltd (1990) 21 NSWLR 317, see especially the judgment of Kirby P at 320-325.
30. The motion for interlocutory relief is refused.
31. The question of costs is reserved pending the final disposition of the proceedings.
32. Those substantive proceedings are now adjourned to the Registrar's list for callover and directions on Friday 6 August 1999 at 9.30.
33. All the exhibits may be returned to the parties except Exhibits S3 and S4 , which should remain in the court file as they were attachments to what was filed by way of affidavit evidence in support of the amended class 4 application.