Styles v Wollondilly Shire Council
[2001] NSWLEC 18
•03/01/2001
Land and Environment Court
of New South Wales
CITATION: Styles v Wollondilly Shire Council [2001] NSWLEC 18 PARTIES: APPLICANT
Lynette Mary Styles
RESPONDENT
Wollondilly Shire CouncilFILE NUMBER(S): 40153 of 1999 CORAM: Sheahan J KEY ISSUES: Local Government :- confidentiality of documents - access of councillors to information - closure of meetings to the public - questions of order at meetings - expulsion of councillors from meetings of Council and its committees - minutes of meetings
Injunctions and Declarations - privative clauses - discretion - power to award "general damages" if discretion exercised to grant declaratory reliefLEGISLATION CITED: Local Government Act 1993
Local Government (Meetings) Regulation 1993CASES CITED: Darling Casino Ltd v NSW Casino Control Authority & Ors (1997) 191 CLR 602;
Drummoyne Municipal Council v Marshall (1989) 68 LGRA 258;
Gardiner & Anor v Hornsby Council [2000] NSWLEC 37;
Hacienda Apartments Pty Ltd v Vago (Young J, 19 May 1998);
Hickman v Snowy River Shire Council (1998) 100 LGERA 71;
Nix & Dunn v Pittwater Council (1994) 84 LGERA 199;
NTL Australasia Pty Ltd v Minister for Land & Water Conservation [2001] NSWLEC 5;
R v Hickman Ex parte Fox (1945) 70 CLR 595;
Ryde City Council v Echt & Anor [2000] NSWCA 108;
Sankey v Whitlam (1978) 142 CLR 1;
Sericott v Snowy River Shire Council (1998) 100 LGERA 71;
Styles v Wollondilly Shire Council [1999] NSWLEC 210;
Sullivan v Casino Municipal Council & Anor [1973] 2 NSWLR 708 ;
Warringah Council v Edmondson & Ors [2001] NSWCA 1;
Wherry v Sisters of Charity [2000] NSWLEC 252;
Wilcox v Kogarah Golf Club Ltd (Young J, 23 November 1995)DATES OF HEARING: 23/07/1999, 26/07/1999, 11/02/2000, 10-11/04/2000, 24-25/07/2000, DATE OF JUDGMENT:
03/01/2001LEGAL REPRESENTATIVES:
APPLICANT
Barrister
Mr J McKenzie
Solicitors Johnson & Sendall
(Applicant in person 23/07/1999)
RESPONDENT
Barrister
Mr D Wilson
Solicitors
Marsdens
JUDGMENT:
IN THE LAND AND Matter No: 40153 of 1999
ENVIRONMENT COURT Coram: Sheahan J
OF NEW SOUTH WALES 1 March 2001
Applicant
v
WOLLONDILLY SHIRE COUNCIL
Respondent
JUDGMENT
Introduction
1. The NSW Local Government Act 1993 (“LG Act”) provides for the operation of a system of local government in this State. It invests elected local councils with autonomy to conduct their own affairs in a climate of openness and public accountability (see Annexure ‘D’ to Ms Styles’ affidavit 23 July 1999).
2. There is considerable public interest in the affairs and conduct of local councils, and in ensuring that their affairs are conducted in accordance with the law.
3. The LG Act has been held to be a “planning or environmental law”, which attracts the jurisdiction of this court to legal error in the local government sector, and/or to the enforcement of any rights, duties or obligations arising under it. Ryde City Council v Echt & Anor [2000] NSWCA 108 (at par 17 per Spigelman CJ).
4. This case concerns the affairs of Wollondilly Shire Council (“Council”), particularly during calendar year 1999, and involves questions of:
(i) the confidentiality of Council affairs and documents,
(ii) dealings between individual councillors and the public, through the media,
(iii) the closure of meetings to the public and the press,
(iv) maintenance of “ order ” at Council and Committee meetings, and
(v) “ discipline ” of Councillors.
5. Lynette Mary Styles (“Styles”) was a member of Council from 18 September 1995 until not re-elected to it at the elections held on 11 September 1999. She is a self-employed antique dealer with tertiary qualification and a background as a freelance writer. She has lived in Council’s area since 1985, and also ran as an Independent Candidate for the NSW Parliament.
6. Styles has never been disqualified from, or dismissed from, civic office, nor otherwise “dealt with” in relation to holding civic office (see T 11.2.00 p2 L17-19). However, in late 1995 Council dealt with an alleged breach of confidentiality by Styles (see Exhibit A6 fol 22).
7. These proceedings concern a series of events, which have no relation to that incident, but “came to a head” at a Council meeting on 8 February 1999, and thereafter resulted in the Council excluding Styles from its meetings for some months.
8. At the 8 February 1999 meeting Styles was censured by Council, meeting as a Committee of the Whole, and she then called the Mayor a “liar” and a “bloody bitch”.
9. The proceedings were commenced in class 4, but not until about 15 July 1999, and they focus on Council’s resolution 107/99, carried/adopted by Council on 8 February 1999, following the name-calling incident at that meeting, and on what Council did about that resolution at its subsequent meetings. Events relevant to these proceedings occurred at most of Council’s meetings held on and between 8 February and 26 July 1999.
10. As a consequence of resolution 107/99, Styles was “excluded” from participating in Council meetings, until she apologised at the 26 July meeting.
11. During a calendar year Council normally meets once in late January and then twice a month.
The issues involved
12. In her “further amended application”, dated 15 September 1999, Styles seeks four declarations and two orders, in terms:
(i) A declaration of (sic) the applicant did not breach the respondent’s code of conduct policy as resolved by Council at the closed committee meeting of the whole of the Council on the 8th of February, 1999.
(ii) A declaration that the applicant did not breach section 664 of the Local Government Act 1993 as alleged in a confidential report to the respondent on the 8th of February, 1999.
(iii) A declaration that the expulsion of the applicant from the ordinary meetings of the respondent between the 22nd of February, 1999 and the 12th of July, 1999 was unlawful and contrary to the applicant’s entitlement to attend and participate in those meetings.
(iv) A declaration that the respondent acted unlawfully in adjourning the meeting of the 15th of June, 1999 to enable members of the NSW Police Force to attend at a later time to forcibly expel the applicant.
(v) Damages.
(vi) Costs.
13. Counsel for Styles, Mr J McKenzie, conceded (T 11.2.00 p 8 L43-45) that par (v) “Damages” would “have been better put as compensation”.
14. Points of Claim (“POC”) running to 59 paragraphs were filed on 8 October 1999. The first 53 paragraphs recite the facts up to and including Styles’ failure to be re-elected to Council on 11 September 1999 (including her failure to be elected to the NSW Parliament at the State Election on 27 March 1999), and pars 54-59 read as follows:
54. The Applicant has suffered shame, hurt and embarrassment as a result of the conduct of the Respondent , its servants or agents and the public dissemination of radio, newsletter and newspaper reports arising from the matters set out in these points of claim.
55. The chairman of meetings of the Respondent did not, at any time, call upon the Applicant to apologise for any conduct.
56. The chairman of meetings of the Respondent did not, at any time after 8 February 1999, request or direct that the Applicant leave a meeting of the Respondent.
57. The Respondent acted unlawfully in reintroducing the resolution of the 8th of February, 1999 at subsequent meetings.
58. In the circumstances the behaviour of the Respondent was unlawful.
59. In the circumstances the behaviour of the Respondent did, and was likely to, interfere with freedom of the Applicant to conduct herself as a Councillor of the Respondent without fear, favour or unreasonable interference. (emphasis added).
15. Council’s Amended Points of Defence (“POD”), as filed on 20 July 2000, relevantly include the following:
- …
4. Further, or in the alternative, if, which is denied, the Applicant was expelled from any meeting of the Council at which the applicant was present contrary to the Act and Regulations, or alternatively, the Council acted at or in the course of any meeting of the Council contrary to the Act and Regulations, the validity or effectiveness of any decision of the Council as a consequence thereof may not be questioned in these proceedings.
[Particulars were provided]
5. Further, or in the alternative, if, which is denied, the Council has breached the provisions of the Local Government Act and Regulations as may be alleged by the Applicant, the Court in the exercise of its discretion would refuse to grant relief:
(a) the Applicant is no longer a member of the Council;
(b) the business of the meetings of the Council or any resolution of the Council at which the Applicant was expelled is not being impugned by the Applicant other than as specified by the Applicant in her Points of Claim;
(c) there is no utility in granting the relief sought by the Applicant;
(d) the conduct of the Applicant during the course of meetings of the Council.
6. Further, or in the alternative, the Applicant is guilty of laches acquiescence and delay and therefore disentitled to the grant of any relief.
[Particulars were provided] (emphasis added)
16. In response, Styles filed in court on 24 July 2000 the following “Reply” to the Council’s POD:
1. In answer to paragraph 4, the Applicant was entitled to be present at and to attend to the business of the Respondent at the subject meetings of the Respondent (‘the meetings’).
2. Further, in expelling the Applicant from the meetings or any of them the Respondent acted before at or in the course of any such meeting or meetings contrary to Local Government Act 1993, the Regulations and its Code of Meeting Practice.
3. The said actions of the Council were substantive and not confined to failure on the part of the Council to comply with a procedure or requirement within the meaning of s729 of the Act.
4. Further or in the alternative to 3, to the extent that the said actions constituted failure to comply with a procedure or requirement within the meaning of the said section, the section, in all the circumstances was not apt to prevent the validity or effectiveness of the Respondents’ decision or decisions (to expel the applicant from any such meeting or meetings) from being questioned in these proceedings.
[Particulars were provided]
5. In the further alternative said s729 does not operate to prevent the validity or effectiveness of any such decision from being questioned where such decision was made after 15 April 1999.
[Particulars were provided]
6. In answer to paragraph 5 of the Amended Points of Defence the Applicant denies the availability of the discretionary defences (while admitting that she is no longer a member of the Council).
7. In answer to paragraph 6 of the Amended Points of Defence the Applicant denies being guilty of laches, acquiescence and delay.
[Particulars were provided] (emphasis added)
The relevant regulatory framework
17. Before I turn to the facts and the proceedings themselves, it is necessary to set out relevant components of the extensive regulatory framework, affecting this matter, comprising:
· the LG Act itself,
· some Regulations,
· “Codes” adopted by Council, and
· various guidelines issued by the Department of Local Government and/or by the Local Government and Shires Association.
Functions, Regulations and Proceedings
18. Councils have the wide range of functions specified in Chapters 5-8 of the LG Act (ss 21-201) - note especially the very wide terms of s 24, and the following provision 0s 23:
A council may do all such things as are supplemental or incidental to, or consequential on, the exercise of its functions.
19. Section 748 and schedule 6 of the LG Act provide for “enabling” regulations to be made in respect of, inter alia:
(i) meetings of the Council and its committees (item 2)
(ii) standards for the Council and its committees (item 3)
(iii) the practice and procedures of Councils (item 12)
(iv) the administration of a council (item 13)
(v) delegations (item 16)
(vi) management and reporting (item 18)
(vii) conduct of councillors … (item 19)
20. Section 748(5) provides:
The regulations may incorporate by reference, wholly or in part and with or without modification, any standards, rules, codes , specifications or methods, as in force at a particular time or as in force from time to time, prescribed or published by any authority or body, whether or not it is a New South Wales authority or body.
(emphasis added).
21. Section 674(1) provides that “any person” may bring proceedings in this court for an “order to remedy or restrain a breach of” the Act or regulations as so defined. Councillors have neither more nor less right than non-councillors to bring such proceedings.
22. Section 672 provides that a breach of the LG Act includes a breach of the regulations, and may be a contravention, a failure to comply, or a threatened or apprehended contravention or failure to comply.
23. Section 676 provides as follows:
(1) If the Land and Environment Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.
…
(3) The functions of the Court under this section are in addition to and not in derogation of any other functions of the Court.
24. Section 729, which has been specifically pleaded, provides as follows:
The validity or effectiveness of a decision of a council may not be questioned in any legal proceedings on the ground that, in making or purporting to make the decision, the council failed to comply with a procedural requirement of this Act or the regulations (including a requirement as to the giving of notice ) unless the proceedings are commenced within 3 months after the date of the decision. (emphasis added).
25. Section 374 provides:
Proceedings at a meeting of a council or a council committee are not invalidated because of:
…
(b) a failure to give notice of the meeting to any councillor or committee member, or
…
(e) a failure to comply with the code of meeting practice . (emphasis added).
Council and Committee meetings
26. Section 367 requires the General Manager to send to Councillors in advance of each Council meeting, a detailed notice of the business to be transacted. Section 9(2A) provides for the General Manager to form an opinion that certain items are “likely” to be discussed “when the meeting is closed to the public”. Clause 12(3) of the Local Government (Meetings) Regulation 1993 (“the Regulation”) requires the General Manager to “ensure that the details of any item of business to which section 9(2A) of the Act applies are included in a business paper for the meeting concerned”.
27. Sections 10A to 10D provide for the closure to the public of Council or Committee of the Whole meetings in certain specified circumstances, including “security” matters, “personnel matters concerning particular individuals”, “advice concerning litigation” etc. Section 10A(4) provides for public submissions to be made on the question of closure. Section 10B allows to some extent a “public interest” test, and envisages the promulgation, by the Director General of the Department of Local Government, of “relevant guidelines”. Section 10C provides for closure without notice in urgent circumstances, and s 10D provides for the closure decision to state the grounds for closure in the minutes of the meeting.
28. Section 373 provides that “a council may resolve itself into a committee to consider any matter before the council” (emphasis added).
29. Section 10 provides:
Who is entitled to attend meetings?
(1) Except as provided by this Part:
(a) everyone is entitled to attend a meeting of the council and those of its committees of which all the members are councillors, and
(b) a council must ensure that all meetings of the council and of such committees are open to the public.
(2) However, a person (whether a councillor or another person) is not entitled to be present at a meeting of the council or of such a committee if expelled from the meeting :
(a) by a resolution of the meeting, or
(b) by the person presiding at the meeting if the council has, by resolution, authorised the person presiding to exercise the power of expulsion.
(3) A person may be expelled from a meeting on the grounds specified in, or in the circumstances prescribed by, the regulations. (emphasis added).
30. Sections 360-4 provide that the regulations may provide for conduct of meetings, and that Council may adopt a binding code of meeting practice not inconsistent with the regulations, but s 374(e) (para 25 above) provides that proceedings at meetings “are not invalidated because of … a failure to comply with the code of meeting practice”.
31. The Regulation (par 26 above) applied to the relevant meetings in this case. (New regulations commenced only on 1 September 1999, after the relevant events). The Regulation contained the following relevant clauses (emphasis added):
13. (1) A council must not transact business at a meeting of the council:
(a) unless a councillor has given notice of the business in writing within such time before the meeting as is fixed by the council’s code of meeting practice or (if the council does not have a code of meeting practice or its code of meeting practice does not fix that time) as is fixed by resolution of the council, and
(b) unless notice of the business has been sent to the councillors in accordance with section 367 of the Act.
(2) Subclause (1) does not apply to the consideration of business at a meeting if the business:
(a) is already before, or directly relates to a matter that is already before , the council; or
(b) is the election of a chairperson to preside at the meeting as provided by clause 8(1); or
(c) is a matter or topic put to the meeting by the chairperson in accordance with clause 15; or
(d) is a motion for the adoption of recommendations of a committee of the council.
(3) Despite subclause (1), business may be transacted at a meeting of a council even though due notice of the business has not been given to the councillors. However, this can happen only if:
(a) a motion is passed to have the business transacted at the meeting; and
(b) either:
15. (1) If the mayor is the chairperson at a meeting of a council, the chairperson is, by minute signed by the chairperson, entitled to put to the meeting without notice any matter or topic that is within the jurisdiction of the council or of which the council has official knowledge.
(2) Such a minute, when put to the meeting, takes precedence over all business of the council’s agenda for the meeting. The chairperson (but only if the chairperson is the mayor) may move the adoption of the minute without the motion being seconded.
(3) A recommendation made in a minute of the chairperson (being the mayor) or in a report made by a council employee is, so far as adopted by the council, a resolution of the council.24. (1) The chairperson, without the intervention of any other councillor, may call any councillor to order whenever, in the opinion of the chairperson, it is necessary to do so.
(2) A councillor who claims that another councillor has committed an act of disorder, or is out of order, may call the attention of the chairperson to the matter.
(3) The chairperson must rule on a question of order immediately after it is raised but, before doing so, may invite the opinion of the council.
(4) The chairperson’s ruling must be obeyed unless a motion dissenting from the ruling is passed.25. (1) A Councillor commits an act of disorder if the councillor, at a meeting of a council or a committee of a council:
(a) contravenes the Act or any regulation in force under the Act; or
…
(d) insults or makes personal reflections on or imputes improper motives to any other councillor; or
(e) says or does anything that is inconsistent with maintaining order at the meeting or is likely to bring the council or committee into contempt
(2) The chairperson may require a councillor:
(a) to apologise without reservation for an act of disorder referred to in subclause (1)(a) …; or
…
(c) to retract and apologise without reservation for an act of disorder referred to in subclause (1)(d) or (e).
(3) A councillor may, as provided by section 10(2)(a) or (b) of the Act, be expelled from a meeting of a council for having failed to comply with a requirement under subclause (2). The expulsion of a councillor from the meeting for that reason does not prevent any other action from being taken against the councillor for the act of disorder concerned .26. (1) If disorder occurs at a meeting of a council, the chairperson may adjourn the meeting for a period of not more than 15 minutes and leave the chair. The council, on reassembling, must, on a question put from the chair, decide without debate whether the business is to be proceeded with or not. This subclause applies to disorder arising from the conduct of members of the public as well as disorder arising from the conduct of councillors.
…27. If a councillor or a member of the public fails to leave the place where a meeting of a council is being held:
(a) immediately after the council has passed a resolution expelling the councillor or member from the meeting; or
(b) where the council has authorised the person presiding at the meeting to exercise the power of expulsion, immediately after being directed by the person presiding to leave the meeting.
A police officer , or any person authorised for the purpose by the council or person presiding, may, by using only such force as is necessary, remove the councillor or member from that place and, if necessary, restrain the councillor or member from re-entering that place.28. (1) All the provisions of this Regulation relating to meetings of a council, so far as they are applicable, extend to and govern the proceedings of the council when in committee of the whole , …
…33. (1) Subject to subclause (3), each committee of a council may regulate its own procedure .
…
(3) Voting at a committee is to be by open means (such as on the voices or by show of hands).
36. (1) If in a report of a committee of the council distinct recommendations are made, the decision of the council may be made separately on each recommendation.
(2) The recommendations of a committee of the council are, so far as adopted by the council, resolutions of the council.
(3) If a committee of a council passes a resolution , or makes a recommendation, during a meeting, or a part of a meeting, that is closed to the public , the chairperson must:
(a) make the resolution or recommendation public as soon as practicable after the meeting or part of the meeting has ended; and
(b) report the resolution or recommendation to the next meeting of the council.41. (1) The general manager may allow or refuse to allow any councillor to inspect any record of the council that the councillor requests to see.37. The provisions of the Act and of this Regulation relating to the maintenance of order in council meetings apply to meetings of committees of the council in the same way as they apply to meetings of the council.
(2) If the general manager refuses to allow a councillor to inspect any such record, the councillor may, at a meeting of the council, move for the production of the document. However, the councillor must give notice of intention to move the motion.
…
32. Council adopted a Code of Meeting Practice (“MP Code”) on 14 December 1998 (Exhibit A5).
33. The MP Code incorporates most relevant sections of the Act and Regulations, which need not be restated here, including s 367 and s 374, and clauses 13, and 24 to 27 of the Regulation. It also incorporates s 664 (see par 41 below).
34. Clause 25 of the MP Code mirrors cl 13 of the Regulation regarding notice of “business”. Clauses 43-46 of the MP Code repeat clauses 24-27 of the Regulation. Clause 48 of the MP Code applies it to meetings of the Committee of the Whole, and cl 59, mirroring cl 37 of the Regulation, applies the provisions of the Act and the Code, regarding disorder in Council, to “any Committee of the Council”.
35. Clause 60 of the MP Code (Regulation cl 38) provides:
(1) If a meeting or part of a meeting of a Committee of a Council is closed to the public in accordance with section 10A(2) of the Act, any person who is not a Councillor may be excluded from the meeting as provided by section 10(2)(a) or (b) of the Act.
(2) If any such person, after being notified of a resolution or direction excluding him or her from the meeting, fails to leave the place where the meeting is being held, a police officer, or any persons authorised for the purpose by the Council, Committee or person presiding, may, by using only such force as is necessary, remove the first-mentioned person from that place and, if necessary, restrain that person from re-entering that place.
36. The MP Code relevantly also includes the following clauses (emphasis added):
cl 3
“Committee”, in relation to a Council, means a committee appointed or elected by the Council in accordance with clause 51 of this code [“General Power of Council to Delegate”] or the Council when it has resolved itself into a Committee of the Whole ;cl 23
(1) The General Manager must ensure that the agenda prepared for a meeting of the Council states:
(a) All matters to be dealt with arising out of the proceedings of former meetings of the Council, and
(b) If the Mayor is the Chairperson - any matter or topic that the Chairperson proposes, at the time when the agenda is prepared, to put to the meeting, and
(c) Any business of which due notice has been given.
(2) The General Manager must cause agenda to be delivered to Councillors not later than three days prior to the meeting.
(3) If, in the opinion of the General Manager, business to be transacted at a meeting of the Council or a Committee of the Council is a kind of business referred to in section 10(2) (sic?) of the Act, the business may be included in a confidential agenda. All other business to be transacted at the meeting must be included in an open agenda.
(4) If a confidential agenda is prepared for a kind of business referred to in section 10(2) (sic?) of the Act, the business must be referred to in the open agenda prepared for the same meeting.
…cl 28
(1) Any Councillor may give notice of any motion for consideration by the Council or a Committee of Council by providing the proposed motion in writing to the General Manager by noon on the 6th calendar day prior to the day of the meeting.
(2) The provision of confidential issues as defined in Section 10(2)(sic?) of the Act applies to Notices of Motion.
(3) The matter of raising issues via a Notice of Motion must be considered with restraint. This method does not allow for research or balanced, informed decisions. A Notice of Motion that doesn’t require an urgent decision may be dealt with via a report from Officers.cl 35
(4) The chairperson may adjourn a meeting at any time , based on issues at hand and operation of meeting at the time.cl39
(1) During Council meetings Councillors and staff shall at all times address other Councillors and staff by their official designation, as Mayor, Chairperson or Councillor, as the case may be; and with the exception of the Chairperson, or any Councillor prevented by physical infirmity, shall stand when speaking. Staff are not required to stand.
(2) During Committee meetings a less formal method of address is appropriate and there is no need to rise to speak.cl 42
If a Council passes a resolution during a meeting, or a part of a meeting, that is closed to the public , the Chairperson must make the resolution public as soon as practicable after the meeting or part of the meeting has ended.cl 48
(1) The Council, during a Council meeting, may resolve itself into a Committee of the Whole , closing the meeting to the public only for the receipt or discussion of, and recommending resolutions upon, any of the matters listed in section 10(2)(sic?) of the Act. It may move into a Committee of the Whole, open to the public, to more fully discuss issues under the less formal procedure as provided in subclause 2.
(2) All the provisions of this Code relating to meetings of the Council, so far as they are applicable, extend to and govern the proceedings of the Council when in Committee of the Whole, except the provision limiting the number and duration of speeches.
(3) The General Manager, or in the absence of the General Manager, an employee of the Council designated by the General Manager, is responsible for reporting to the Council the business and any recommendations arising from the Committee of the Whole. It is not necessary to report the proceedings in full, but any recommendations of the Committee must be reported.
(4) The Council must ensure that a report of the proceedings (including any recommendations of the Committee) are recorded in the Council’s Minutes . However, the Council is not taken to have adopted the report until a Motion for adoption has been made and passed.cl 52
(1) The General Manager of the Council must send to each Councillors, at least three days before each meeting of the Committee, a notice specifying :
(a) the time and place at which and the date on which the meeting is to be held, and
(b) the business proposed to be transacted at the meeting.
(2) However, notice of less than three days may be given of a Committee meeting called in an emergency .
(3) When Committee meetings are held in succession, there will be a 5 minute period between the closing of one meeting and the opening of the next meeting.cl 54
(1) Each Committee of the Council may regulate its own procedure .
(2) In the absence of specific procedures for any Committee being adopted, the provisions of this Code apply to meetings of any Committee.
(3) Voting at a committee meeting is to be by open means (such as by voice or by show of hands).
(4) In the absence of specific procedures for any Committee being adopted, the general provisions of this code apply to meetings of any Committee.cl 67cl 59
The provision of the Act and of this code relating to the maintenance of order in Council meetings apply to meetings of any Committee of the Council in the same way as they apply to meetings of the Council.
(1) Councillors and staff shall at all times comply with Council’s adopted ‘Code of Conduct’ .
(2) Councillors can be sued at any time for remarks made in meetings of the Council or its Committees. However, as they are performing a public duty, they have qualified privilege as a defence against any liability or defamation. As members do not have absolute privilege, they only retain this protection so long as any statements they make, which may be defamatory, are relevant to the matter at hand, are made in good faith and without malice.
Minutes, Records and other information
37. The taking and keeping of Minutes of meetings are dealt with in s 375 and s 703 of the LG Act which provide:
703 Every entry in the minutes of the business transacted at a meeting of the council and purporting to be signed by the person presiding at a subsequent meeting of the council is, until the contrary is proved, evidence:
375 (1) The council must ensure that full and accurate minutes are kept of the proceedings of a meeting of the council.
(2) The minutes must, when they have been confirmed at a subsequent meeting of the council, be signed by the person presiding at that subsequent meeting.
(a) that the business as recorded in the minutes was transacted at the meeting, and
(b) that the meeting was duly convened and held.
38. Clause 3 of the Regulation also defines “record” in these terms:
‘record’ means a document ( (sic) including any written or printed material or object (including a sound recording, coded storage device, magnetic tape or disc, microfilm, photograph, film, map, plan or model or a painting or other pictorial or graphic work) that is or has been made or received in the course of official duties by a councillor or an employee of the council and, in particular, includes the minutes of meetings of a council or of a committee of a council.
39. Sections 12-13 of the LG Act deal with access to information. Councillors and other citizens can also avail themselves of Freedom of Information legislation, but the LG Act sets out a long list of documents to be freely available for inspection, and (s 12B) copying. Inter alia, s 12 provides:
(6) The council must allow inspection of its other documents free of charge unless, in the case of a particular document, it is satisfied that allowing inspection of the document would, on balance, be contrary to the public interest.
(7) However, subsection (6) does not apply to the part (if any) of a document that deals with any of the following:
(a) personnel matters concerning particular individuals,
(b) the personal hardship of any resident or ratepayer,
(c) trade secrets,
(d) a matter the disclosure of which would:
(i) constitute an offence against an Act, or
(ii) found an action for breach of confidence.
(8) For the purpose of determining whether allowing inspection of a document would be contrary to the public interest, it is irrelevant that the inspection of the document may:
(a) cause embarrassment to the council or to councillors or to employees of the council, or
(b) cause a loss of confidence in the council, or
(c) cause a person to misinterpret or misunderstand the information contained in the document because of an omission from the document or for any other reason.
40. Section 12A provides:
(1) If the general manager or any other member of the staff of a council decides that access to a document or other information held by the council should not be given to the public or a councillor, the person concerned must provide the council with written reasons for the restriction.
(2) The reasons must be publicly available.
(3) The council must review any such restriction no later than 3 months after it is imposed.
(4) The council must, at the request of any person made after the expiry of a period of 3 months after that review (or of a period of 3 months after the most recent of any subsequent reviews), carry out a further review of the restriction.
(5) The council must remove the restriction if, at any time:
(a) it finds that there are no grounds for the restriction, or
(b) access to the relevant document or other information is obtained under the Freedom of Information Act 1989.
(6) A review is not required under this section if the restriction concerned has been removed.
41. Section 664 provides that improper disclosure of information may be dealt with as an “offence”:
(1) A person must not disclose any information obtained in connection with the administration or execution of this Act unless that disclosure is made:
(a) with the consent of the person from whom the information was obtained, or
(b) in connection with the administration or execution of this Act, or
(c) for the purposes of any legal proceedings arising out of this Act or of any report of any such proceedings, or
(d) in accordance with a requirement imposed under the Ombudsman Act 1974 or the Freedom of Information Act 1989, or
(e) with other lawful excuse.
(1A) In particular, if part of a meeting of a council or a committee of a council is closed to the public in accordance with section 10A(1), a person must not, without the authority of the council or the committee, disclose (otherwise than to the council or a councillor of the council) information with respect to the discussion at, or the business of, the meeting.
(1B) Subsection (1A) does not apply to:
(a) the report of a committee of a council after it has been presented to the council, or
(b) disclosure made in any of the circumstances referred to in subsection (1)(a)-(e), or
(c) disclosure made in circumstances prescribed by the regulations, or
(d) any agenda, resolution or recommendation of a meeting that a person is entitled to inspect in accordance with section 12.
(2) A person acting in the administration or execution of this Act must not use, either directly or indirectly, information acquired by the person in that capacity, being information that is not generally known but if generally known might reasonably be expected to affect materially the market value or price of any land, for the purpose of gaining either directly or indirectly an advantage for the person, the person’s spouse or de facto partner or a relative of the person.
(3) A person acting in the administration or execution of this Act, and being in a position to do so, must not, for the purpose of gaining either directly or indirectly an advantage for the person, the person’s spouse or de facto partner or a relative of the person, influence:
(a) the determination of an application for an approval, or
(b) the giving of an order.
Maximum penalty: 50 penalty units.
Mayor, Councillors & Officers
42. Section 226 defines the mayor’s role thus:
The role of the mayor is:
· to exercise, in cases of necessity, the policy-making functions of the governing body of the council between meetings of the council
· to exercise such other functions of the council as the council determines
· to preside at meetings of the council
· to carry out the civic and ceremonial functions of the mayoral office.
43. Sections 232ff deal with Councillors. Section 234 provides for vacancies to occur in the “civic offices” of Mayor or Councillor in the event of death, resignation, “disqualification”, absence without leave, insolvency, mental incapacity, and “dismissal”. Section 275 sets out the grounds of disqualification, and sections 329, 330 and 331 deal with dismissal. Section 482 deals with suspension from office.
44. Section 377 gives Council a wide power to delegate non-specified functions to the “General Manager or any other person or body (not including another employee of the council)”. In turn, the General Manager has a delegation power under s 378.
45. Under s 335(1) the General Manager is “generally responsible for the efficient and effective operation of the council’s organisation and for ensuring the implementation, without undue delay, of decisions of the Council”, and under s 335(2) the General Manager has the “particular function” of “the day-to-day management of the council”.
46. Section 342 requires the General Manager to designate a member of staff as the “public officer of the council”, whose functions, as set out in s 343(1), include control of and access to documents. Under s 343(2) the public officer is subject to the direction of the General Manager.
Regulation of Conduct
47. Section 439 deals with “Conduct of councillors, staff and delegates” in these terms:
(1) Every councillor, member of staff of a council and delegate of a council must act honestly and exercise a reasonable degree of care and diligence in carrying out his or her functions under this or any other Act.
(2) Although this section places certain duties on councillors, members of staff of a council and delegates of a council, nothing in this section gives rise to, or can be taken into account in, any civil cause of action.
48. Section 440 obliges councils to “prepare or adopt a code of conduct to be observed by Councillors” and others. The Minister may prepare and issue a “model code of conduct” which Councillors may adopt. The balance of Chapter 14 of the LG Act (ss 441-490) deals with pecuniary interests, honesty, and disclosure.
49. Council adopted a Code of Conduct (Exhibit A4) on 14 December 1998. Observance of a code of conduct by councillors is essentially a matter for each individual council (see Annexure ‘D’ to Styles’ affidavit 23 July 1999). Council’s Code of Conduct includes the following relevant provisions:
· In Section 2 “Personal Benefit” subsection 1 “Use of Confidential information”
(a) Councillors and staff shall not use confidential Council information to gain improper advantage for themselves or for any other person or body; in ways which are inconsistent with their obligation to act impartially; or to improperly cause harm or detriment to any person, body, or Council.
…
(c) Councillors and Council staff should not use confidential information in ways:
(i) which are an abuse of their privileged position; or
(ii) which are inconsistent with their obligation to act impartially.
· In Section 3 “Conduct of Councillors and Staff” subsection 1 “Personal behaviour”:
- (a) Councillors and staff shall:
(i) act, and be seen to act, properly and in accordance with the requirements of the law and the terms of this Code;
(ii) perform their duties impartially and in the best interests of their communities, uninfluenced by fear or favour;
(iii) act in good faith (ie honestly, for the proper purpose, and without exceeding their powers) in the interests of the Council and the community;
(iv) make no allegations which are improper or derogatory (unless true and in the public interest) and refrain from any form of conduct, in the performance of their official and professional duties, which may cause any reasonable person unwarranted offence or embarrassment; and
(v) always act in accordance with their obligation of fidelity to Council.
· In Section 3 subsection 2 “Honesty and integrity”:
Councillors and staff shall:
…
(iii) be frank and honest in their official dealings with each other.
· In Section 4 “Other responsibilities of councillors, members of staff and delegates” subsection 1 “Equitable Treatment of People and Situations”:
A Councillor, member of staff or delegate must:
· act in accordance to law;
· act reasonably, justly and in a non-discriminatory manner; policy and guidance of the Council (sic);
· deal with like situations in a like manner, but treating each matter on its merits;
· take all relevant information into consideration and not take irrelevant information or opinions into consideration;
· take all reasonable steps to ensure that the information upon which decisions or actions are based is factually correct and that all relevant information has been obtained;
· treat members of the public, Councillors and other staff members fairly, equitably and with respect, courtesy, compassion and sensitivity;
· refrain from any form of conduct, in the performance of his or her public or professional duties, which may cause any reasonable person unwarranted offence of embarrassment or give rise to the reasonable suspicion or appearance of improper conduct or partial performance of his or her public or professional duties; and
· not act for an improper or ulterior purpose or on irrelevant grounds.
· In Section 5 subsection 3 “Access to information”:
· Councillors and staff should ensure that members are given access to all Council held information necessary for them to properly perform their functions and comply with their responsibilities as members.
· In Section 9 “The Role of the Mayor”:
The role of the Mayor is:
· to exercise, in cases of necessity, the policy making functions of the governing body of the council between meetings of the council;
· to exercise such other functions of the council as the council determines;
· to preside at meetings of the council;
· to carry out the civic and ceremonial functions of the mayoral office.
· In Section 11 “Councillors as a Team”:
…
Issues can be discussed in a mature and constructive manner;
…
Team members listen to one another;
The team is comfortable in disagreement and opinions are not suppressed;
Most decisions are reached by consensus;
Criticism is frank and frequent and there is no personal attack;
There is no domination by a leader and the team doesn’t defer to the leader;
…
50. The currently accepted “best practice” for dealing with matters of councillor conduct is set out in the Local Government & Shires Association’s Weekly Circular 36/96 (dated Friday 6 September 1996) (“the Circular”) (Exhibit A8 at pp 13-15), and was based on suggestions made by the Ombudsman and the Department of Local Government.
51. Specific reference is made in the Circular (at p13) to “prohibited activities”, such as criminal offences like disclosure/misuse of Council information (LG Act s 664), which may attract criminal charges. Next in the hierarchy (at p 13) are, relevantly:
(2) legal obligations, including obligation of fidelity, the obligation to comply with lawful directions and the obligation to give effect to lawful council/government policies.
and then:
(3) guidance as to acceptable or unacceptable conduct including avoidance of conflicts of interest, refraining from conduct that may cause offence or embarrassment, and treating people with respect, courtesy, compassion and sensitivity.
52. “Breaches of an Act or a common law duty” may be dealt with in various ways, including class 4 proceedings (s 673-s 674) and, again relevantly (p14):
(e) exclusion of a councillor or member of a council committee from attending meetings of the council or committee:
(i) for engaging in or being engaged in disorderly conduct at a meeting
(ii) for having failed to comply with a requirement made by the chairperson arising out of an act of disorder at a meeting [clause 25(3), Local Government (Meetings) Regulation 1993]
(iii) while a matter is under consideration in which the councillor or member has an interest required to be disclosed under the Act (section 445, LG Act).
53. Among the suggested ways of dealing with “breaches of legal obligations or the provisions of a code as to acceptable or unacceptable conduct”, the Circular nominates (at p 14 in par (3)):
…
(c) investigations and relevant findings by the NSW Ombudsman, Department of Local Government or the ICAC.
(d) bad publicity arising out of:
(i) debate on the issue in open council or committee meetings
…
(iv) investigations and relevant findings by the NSW Ombudsman, Department of Local Government or the ICAC
…
(f) the provision of relevant advice or guidance by an appropriate officer (eg by the Mayor in relation to councillors, and supervisors in relation to staff), or by a relevant external body (eg the NSW Ombudsman or the Department of Local Government).
54. In relation to the prospect of Councils carrying resolutions noting that a Councillor has breached Council’s code of conduct, the document (at p 15) notes that:
… there may be circumstances where it is appropriate for a council to draw attention to, or merely record, its view that a councillor has breached the provisions of the council’s code of conduct. However:
(1) such a practice should only be used in rare cases where evidence of a serious breach of the code of conduct is clear
(2) such a resolution should not, either explicitly or implicitly, be framed to express no confidence in, or censure of, a councillor (given that such motions, while fundamental elements of the Westminster system of government, are of limited relevance to Local Government where there is no concept of a parliamentary majority akin to a government, a ministry or chamber comparable to a parliament).
…
In relation to such decisions being made by a council in relation to a councillor, it is essential that the procedures followed be fully transparent and the decision is clearly justified. Otherwise majority councillors lay themselves open to allegations of improper political harassment or victimisation of minority councillors.
In addition, the Department of Local Government advised that while the Local Government Act does not have provisions prescribing offences for a breach of the code, it is nevertheless appropriate for council, having satisfied itself that there has been a breach of its code, to counsel or reprimand the councillor by way of resolution. The process leading up to action being taken should only be concluded after due consideration has been given to all issues and points of view. The breach should relate to council’s role, responsibilities or reputation whereas external factors such as political or other affiliations should not influence any decision.
Practical courses of action have been suggested by the Department including council resolving to pass a censure motion, issue a public statement, request a formal apology, issue a reprimand or counsel the councillor. …Further, it is advised that the decision to invoke the code of conduct should reflect the concern of the overwhelming majority of councillors about the conduct of a councillor and the impact on council’s reputation or operations. Any action taken must not interfere with the councillor’s common law right to conduct his or her civic duties but should send a clear message that the breach is unacceptable.
55. Much of this information was summarised/paraphrased in a long letter from the Director General of the Department of Local Government to Council dated 24 February 1999, following a meeting he had with the Mayor on 16 February 1999 to discuss the events of 8 February. (Annexure ‘D’ to Styles’ affidavit 23 July 1999).
56. The Director General specifically said in his letter (first paragraph of p 3 of Annexure ‘D’):
The Department holds the view that the expulsion power applies whether the act of disorder is committed at that meeting or at an earlier meeting. This follows from there being nothing in clause 25 to restrict the requirement to retract or apologise to an act of disorder committed at the same meeting at which the retraction or apology is called for. It might be expected that the chairperson would generally only exercise an expulsion power beyond one meeting where a pattern of disorder has occurred.
57. The court sees no basis at all on which to disagree with, or depart from, the Director General’s interpretation of the Act and Regulations, and respectfully adopts it as a correct interpretation of the law.
Changes made in the way disorder is dealt with
58. Before moving on from the Regulatory framework relevant to this case, it is important to note that prior to the 1993 meetings regime, established by s 10 and the Regulation quoted above, questions of order were dealt with by Ordinance 1. Clauses 36 and 37 of Ordinance 1 dealt with acts of disorder at Council meetings, and cl 49A with those at Committee meetings, in these terms (emphasis added):
36. (a) Any member who at any meeting of the Council or of any Committee commits a breach of the Act or any Ordinance, or who moves or attempts to move any motion or amendment embodying any matter beyond the legal jurisdiction of the Council or Committee, or who in any other way raises or attempts to raise any question, or addresses or attempts to address the Council or Committee upon any subject which the Council or Committee has no legal right to entertain or to discuss, or who uses any language which, according to the common usage of gentlemen, would be held disorderly , or makes use of any expression inconsistent with good order and decorum , or who says or does anything calculated to bring the Council or Committee into contempt , shall be guilty of an act of disorder .
(b) In any such case the Chairman may call upon the offender to withdraw and apologise without reservation. If the offender do (sic) not so withdraw and apologise, he shall (apart from any other provision made by or under the Act) be guilty of an offence .
49A. (a) The provisions of the Act and Ordinances relating to the maintenance of order in Council meetings shall, subject to the modifications hereinafter in this clause contained, apply to meetings of Committees of the Council.37. If disorder arise at any meeting, the Chairman may adjourn the meeting for a period of fifteen minutes and quit the chair. The Council, on reassembling, shall, on question put from the chair, decide without debate whether the business shall be proceeded with or not.
(b) The Chairman of any Committee meeting may, at any meeting of the Committee, remove or cause the removal of any member of the Committee who, after warning, is guilty of disorder; and at the same or any subsequent meeting exclude or remove such member unless he apologise without reservation.
(c) If any member of a Committee, after warning, be guilty of disorder, the member shall be guilty of an offence .
59. Part of Styles’ argument turns on differences Mr McKenzie identified between these provisions and those which applied in 1999.
The interlocutory proceedings in July 1999
60. I turn now to the relevant history of these proceedings.
61. The matter first came before me, on the question of interlocutory relief, on 23 and 26 July 1999, and most of the relevant and important events and circumstances were the subject of evidence on that occasion.
62. Styles had consistently refused to apologise to the Mayor, as required by resolution 107/99.
63. Although she had continued to occupy, and enjoy all the privileges and facilities of, her office as a Councillor, she had been expelled from and, indeed, on at least some occasions physically removed from, those Council meetings which she had attended after 8 February 1999.
64. Council had on 12 July 1999 granted a development consent to one of Styles’ constituents, a Mr Pace, and there had been a Notice of Motion given for the rescission of that resolution by Council at its meeting of 26 July 1999. Styles supported Mr Pace’s consent, and she did not want to be excluded from the 26 July meeting, as she wished to attend and vote against the recission motion.
65. As I noted in my judgment of 26 July 1999 - [1999] NSWLEC 210 (at par 11):
The applicant says 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 .
66. She had threatened, within one month of the original expulsion, to bring some proceedings, but this Class 4 application was filed only on or about 15 July 1999. It was amended on 23 July 1999 to seek, by way of “final” relief:
(a) a declaration that her common law entitlement to attend and vote at Council meetings be reinstated,
(b) a declaration that the respondent’s ongoing actions against her were unlawful and unreasonable, and
(c) an order that neither the Council’s Code of Conduct nor s 664 of the LG Act had been breached.
67. By way of interlocutory relief she sought an interim injunction to allow her to attend the meeting of 26 July 1999, and to restrain the respondent from carrying out any further forced expulsions.
68. On each occasion on which she had been excluded from meetings she had apparently - according to Council minutes, but contrary to POC 55 and 56 - been given a fresh opportunity to apologise, and had declined to do so.
69. She believed that the Council had no right on each such occasion to reactivate the February resolution, or at least Part 2 of it (POC 57-59), which had provided, in terms, for her exclusion or expulsion “from this meeting” (my emphasis).
70. I was satisfied on 26 July 1999 that there were substantial issues to be tried.
71. However, because the proceedings had not been commenced immediately after the applicant was first expelled, and a large number of meetings had taken place, resulting in further expulsions, I formed a view that the “status quo is really the stalemate”, which could be broken only by a back-down on the part of one of the parties, or by the applicant’s success in the substantive proceedings.
72. The making of the interlocutory order sought by Styles would, in my view, have prejudged that final question, and I, accordingly, declined to grant her interlocutory relief.
73. At the Council meeting on the evening of 26 July 1999 she tendered a form of apology, which was accepted by Council (Exhibit A2 fol 785), and Styles apparently then attended Council meetings until she lost her Council seat in the September 1999 elections.
74. The substantive proceedings came back before the court on 11 February 2000.
The factual background to the expulsions
Some relevant history
75. During the life of that particular Council (1995-99), up to and including the end of 1998, there had obviously been a fair amount of disharmony within it (see generally Exhibit A6).
76. While the evidence is not completely informative, there had clearly been:
(i) differences between Styles and Councillor Hall (“ Hall ”), resulting in public unpleasantness at meetings (see T 11.4.00 p14 L50), and in at least two sets of court proceedings (see Exhibit A6 fol 90-134).
(ii) differences between Styles and Councillor Towndrow (“ Towndrow ”), resulting in public unpleasantness at meetings (see T 11.4.00 p95 L15), in their not being on speaking terms (see T 10.4.00 pp5-6), and in Styles writing officially to Taylor on 15 April 1999 to express “ no confidence ” in Towndrow as Mayor, citing twelve incidents, nine of which predated 8 February 1999, including Towndrow’s handling of the 1995 incident, to which I referred in the introductory section of this judgment. (See Annexure “ I ” to Styles’ affidavit 23 July 1999, and par 6 above).
77. Hall ceased attending Council meetings after September 1998, allegedly “due to stress from certain things which have happened at the Council and outside the Council between herself and other councillors” (Exhibit A3 par 2). She appears to have “vacated” her Council seat by 24 May 1999 (Exhibit A2 fol 476).
78. Towndrow was Mayor at the material times in 1999, and chaired most of the relevant meetings of Council and its Committee of the Whole.
79. The first Council meeting of 1999 was scheduled for 28 January 1999.
80. Hall’s solicitor, Kevin Worthington of Moss Vale (“Worthington”), wrote to Council’s General Manager (“Taylor”) on 12 January 1999 (Exhibit A3), saying inter alia:
I am instructed that during 1998 my client was subject to sexual harassment by a Councillor and was assaulted by other Councillors but no action has been taken by Council in that regard.
My client will be returning to the Council meetings in late January, 1999 and should there be any further harassment of my client I am instructed to commence proceedings immediately against the responsible parties.
My client’s health is suffering from what has taken place during 1998 and she is not prepared to allow behaviour such as has occurred in the past to continue.
Should it be necessary to commence proceedings in any jurisdiction, it is intended that this letter will be tendered to the court in relation to the question of costs.I trust that Council will treat this matter seriously and that this letter will not be returned to me as has happened to Mrs Hall on a previous occasion. This correspondence is not intended to intimidate any person and merely to request that Cr Halls’ (sic) rights be respected and that she be treated properly and fairly as any other Councillor is treated by the Council.
A Dispute arises about Confidentiality
81. On 19 January 1999 Taylor sent to all Councillors a memorandum, framed in the following terms, and marked “confidential” (Exhibit A1, folio 1):
I recently received correspondence from solicitors representing Cr Hall who advised that Cr Hall will be attending the January 1999 Council meeting and that should any further harassment occur with Cr Hall, then action will be taken immediately against the responsible parties.
I have responded to the solicitor - and this is an internal confidential matter.The advice indicates that it is not intended to intimidate, and merely requests that Cr Hall’s rights be respected and she be treated fairly and properly.
82. Styles received that communication by fax, and with it came a copy of a letter on Council letterhead, which was headed “draft”, but had already been signed by Taylor.
83. That copy letter was not itself marked “confidential” when received by Styles (T 10.4.00 p25 L15ff), but it was addressed to Worthington and dated 15 January 1999, and it said (Exhibit A1, folio 19):
Dear Mr Worthington,
CR JENNY HALL
If it is your client’s claim that this Council has either contributed to or is in any way responsible or liable for sexual harassment or assault as alleged, such claim is strenuously denied.Thank you for your letter of 12 January 1999 and I note the contents and issues raised.
84. The Worthington letter of 12 January 1999 was not included with the memo of 19 January, and Styles asked Taylor for a copy of it.
85. In a memo to Styles dated 22 January 1999, Taylor referred to her “recent memos seeking copies of documents” and said, inter alia (Exhibit A1, folio 2):
I believe this is a confidential document that should not be released.The copy of Cr Hall’s Solicitor’s letter is deemed confidential, which is why my confidential memo summarised the matter and brought it to Councillors’ attention.
86. Styles wrote to Taylor, again and at length, on 25 January 1999, complaining about the failure to supply “Council with a copy of Mr Worthington’s letter”, saying (Exhibit A1, folio 3):
Council is not in a position to know what the General Manager is strenuously denying, so how can you speak on behalf of Council in this matter?
87. Styles’ letter went on:
(i) to complain that the warning regarding “ any further harassment … with Cr. Hall ” would intimidate Councillors from doing their “ elected jobs involving debate for and against issues ”;
(ii) to seek details of any “ harassment ” which had already occurred with Hall, “ as none of us are aware of the contents and allegations raised by Cr. Hall ”;
(iii) to note (at fol 4) that Hall had taken out an apprehended violence order (“ AVO ”) against Styles “ for alleged verbal abuse at Council meetings .. and alleged head/shoulder barging at a budget meeting … and at a work’s (sic) inspection at Werombi ”; and
(iv) to note that the AVO application had been dismissed by the Moss Vale Magistrate on 6 May 1998.
88. Styles’ letter of 25 January 1999 concluded:
I advise that you give me no alternative but to apply for a copy of Cr. Hall’s legal letter under Freedom of Information. Should this be refused, I will immediately take this matter to the Ombudman’s Office and my legal representative.
Styles goes to the media
89. Council met on Monday 25 January (see Exhibit A2 fol 4, items 64/99 and 65/99).
90. Styles, on her own admission (T 10.4.00 p27 L5-10), met on 26 January with a local journalist, Andrea Kuhn, who then published, in the “District Reporter” of 28 January 1999 (Exhibit A1 fol 7), the contents of the 19 January memo and of the “draft” copy letter from Taylor to Worthington.
91. Kuhn’s article quoted some comments made by Styles and indicated that Styles had “said she was happy to be named as the source”. The article went on to refer to the AVO proceedings, and concluded with a comment that Hall and Taylor were unavailable for comment.
92. An article, which would appear to have been based on that in the District Reporter, appeared in the Illawarra Mercury on Saturday 30 January 1999 (Exhibit A1, folio 8).
The General Manager reacts
93. On 29 January, Taylor responded to Styles’ letter of 25 January (Exhibit A1 fol 5), apparently after obtaining legal advice (see Exhibit A6 fols 30-32).
94. He returned her letter, apparently in accordance with “the recommendations of the Ombudsman of 1996 and Council’s subsequent resolution and adopted policy”, and his letter continued (Exhibit A1, folio 15):
At this stage I would also refer you to the provisions of Section 664 of the Local Government Act 1993 which prohibits the disclosure of information obtained in connection with the administration or execution of the Act.
95. That same day (29 January), Styles responded to Taylor (Exhibit A1, folio 6). Inter alia, she said:
I am not bound by your personal decision to stamp confidentiality on matters that affect Councillors’ liberty or security. Further, as an Independent, I reject any action on your part to limit Councillors’ freedom in any way.
…
Accordingly, do not expect me to desist with my campaign to seek the truth behind Cr. Hall’s allegations …In closing, I regret to advise that I dislike the tone of your letter. Consequently, under the recommendations of the Ombudsman’s letter of 18 September 1996 and Council’s subsequent resolution and adopted policy, your letter and associated material is returned.I strongly recommend you reread the provisions of Section 664 of the Local Government Act 1993 and correct your misunderstanding of the clauses. As the matter did not go to an open or closed meeting of Council, your advise (sic) is in error. However, if it is you (sic) intention to intimidate me, allow me to make the point that you have not succeeded.
The Business Paper for 8 February
96. Council was to meet next on 8 February 1999, and, as Item 27 of the Business Paper for that meeting, Taylor raised the following (Exhibit A1 folio 9):
27. CONFIDENTIALITY OF COUNCIL ISSUES
1010 Attachment C35/15
Report
Council, I feel obliged to bring information to your attention which relates to dealings of Council being brought to a public area.Copies of recent newspaper articles and correspondence are attached.
It appears to me that issues associated with the ‘Code of Conduct’ (ie Sections 3.1(a), 2.1 and 4.(1) may need consideration by Council as the Code is administered by Council.
Further, the process of Section 664 of the Local Government Act also must be considered, regarding the use of information received while in Council. This is an issue that appears to warrant consideration by Council and or our governing authority.
It is important for the principles of our Code of Conduct to be maintained and that all parties associated with Council have the ability to undertake their role without fear or favour.
Council I seek your guidance regarding the maintenance of our Corporate principles and practices.
RECOMMENDATION:
For Council.
97. Associated with that submission to Council was a series of copied documents. Every page, including the submission itself was “endorsed”, in bold letters down its right-hand side, “Confidential”. Those associated documents (Exhibit A1 folios 10-19) were copies of the following:
(i) Folio 10 - memo from Councillor Styles of 1 February 1999 to the General Manager’s Secretary (Julie Bacon) saying:
Correspondence from GM & Mayor
Re Cr Hall’s allegations of sexual harrassment
Julie,
I have returned Graham’s material regarding Cr. Hall under the Ombudsman’s Recommendations of 18/9/1996.
Please do not send me any furth (sic) correspondence signed by Mr. Taylor or Cr. Towndrow on this matter which is now before my solicitor.(ii) Folio 11 - The Illawarra Mercury article dated 30 January 1999.
(iii) Folio 12 - Styles’ letter of 29 January 1999.
(iv) Folio 13 - The District Reporter article dated 28 January 1999.
(v) Folio 14 - A message Mayor Towndrow had faxed to “ all Councillors ” on 29 January, with which she forwarded to Councillors some of this associated material, saying:I’m appalled at the breaches of confidentiality, the nature and content of comments and a blatant disregard for corporate image of Council and the inferences on individuals .
(vi) Folio 15 - Taylor’s letter to Styles, dated 29 January 1999.(That fax carried, just above the words I have quoted, the bold endorsement “ confidential ”. Attached to it were copies of the “ District Reporter ” article of 28 January 1999, Styles’ letter to Taylor of 25 January, Taylor’s memo 19 January, and Taylor’s “ draft ” letter to Worthington dated 15 January (see Exhibit A6 fols 14-19)).
(vii) Folio 16 and 17 - Styles’ letter to Taylor, dated 25 January 1999.
(viii) Folio 18 - Taylor’s Memorandum to Councillors, dated 19 January 1999.
(ix) Folio 19 - the signed “ draft ” letter to Worthington, dated 15 January 1999.
The official record of events at the 8 February meeting
98. Council’s meeting on Monday 8 February 1999 commenced at 6.02pm, and followed the published agenda, which generated minutes running to 71 pages (Exhibit A2 Item 1 - folios 1-71).
99. As Styles’ name is mentioned at several stages of the meeting, including several occasions on which she asked for her name to be recorded as voting against particular resolutions, the court concludes that she participated fully in that meeting as an elected Councillor.
100. Agenda Item “27 Confidentiality of Council Issues” (par 96 above) came before the Council meeting as the 29th item of business, and the Minute of the Council meeting in this particular regard reads as follows (Exhibit A2 Item 1 - folio 70):
close meeting to the public
Under the provisions of Section 23AA of the Meeting Regulations, Mayor Towndrow asked the public regarding representations as to why this item should or should not go into Committee of the Whole and the item be dealt with in a closed forum without the press and public -
Cr Styles objected to this item being dealt with in a closed Committee of the Whole.The gallery and press provided no response.
106/99 Resolved on the motion of Crs Voncina and Kuiper that the Council meeting be adjourned and go into Committee of the Whole and close the meeting at 8.40pm to the press and public in accordance with Section 10A(2)(f) of the Local Government Act 1993 regarding matters affecting the security of the Council, Councillors, Council staff or Council Property. The meeting be closed for approximately 15-30 minutes.
Cr Styles asked to have her name recorded as voting against this resolution.
OPEN COUNCIL WAS ADJOURNED AND CLOSED COMMITTEE OF THE WHOLE COMMENCED.
OPEN COUNCIL RESUMED AT 9.02PM WITH THE SAME PEOPLE PRESENT AS IN COMMITTEE OF THE WHOLE.Those present in Committee of the Whole were:-
Councillors Auchterlonie, Voncina, Wilson, Towndrow, Banasik, Kuiper and Styles and the General Manager, Director - Works, Acting Director - Corporate & Community Services and Manager - Development.
101. The next item in the minutes of the Council meeting (appearing on folio 70 of Exhibit A2) is “resolution 107/99”, dealing with “the recommendations of the Committee of the Whole”.
102. The Minutes of the Meeting of “Council in Committee of the Whole” do not appear in the minutes of the Council meeting itself, but are in evidence (at folios 21-22 of Exhibit A1).
103. It is important that the minutes of that committee meeting (omitting formal parts) be set out in full at this point, so that the full Council record of events on the evening of 8 February is clear:
Minutes of Council in Committee of the Whole held in the Council Chambers, 62-64 Menangle Street, Picton on Monday, 8 February 1999 commencing at 8.40pm
PRESENT:
Councillors Towndrow (Mayor), Auchterlonie, Banasik, Kuiper, Styles, Voncina and Wilson.
ALSO PRESENT WERE:
General Manager, Director - Works, Acting Director - Corporate & Community Services and Manager - Development.The Mayor then asked that item 27 be dealt with and sought a motion.
MOVED On a motion of Crs Wilson and Voncina that:
Cr Styles be censured for release of information contained in a confidential memo from the General Manager dated 19 January 1999 which is contrary to Council’s adopted Code of Conduct.
Cr Styles be further advised that as a Councillor she is required to act, and be seen to act, properly in accordance with the requirements of the law and Council’s Code of Conduct, and act in good faith (ie honestly, for the proper purposes and without exceeding Councillors’ powers) in the interest of the Council and the community.
That a copy of this report and resolution, together with supportive documentation be forwarded to:
- The Minister for Local Government;
- The Director of the Department of Local Government;
- The Office of the Ombudsman (ie Mr C Wheeler) for their attention, information and action.Discussion then followed regarding this motion. During discussion on these items:
The Mayor asked for the mover to speak - Cr Wilson indicated he reserved his right of reply.
- The Mayor asked for speakers for - Cr Voncina spoke.
- The Mayor asked for Speakers against - no response.
- The Mayor continued with any other speakers.Cr Styles interjected.
Cr Kuiper spoke regarding the motion and asked Cr Styles if she would like to comment on the issue and the motion.
Cr Styles remained silent - no comment.
Cr Kuiper then speaking to the motion was then interrupted by Cr Styles who spoke in a childish voice in a derogatory manner towards Cr Kuiper, other Councillors and the Mayor.
The Mayor called Cr Styles to order.
Cr Styles responded saying “Shut Up Towndrow, you’re a bloody bitch, a bitch, you’re a liar, liar, liar”.
The Mayor repeatedly called Cr Styles to order and Cr Styles continued to call the Mayor a “liar, liar, liar”.
Motion by Cr Voncina standing to her feet seconded by Cr Wilson that the matter of disorder be raised as an urgent item immediately after dealing with this agenda item before us - this was carried.
The Mayor put the first motion as moved by Crs Wilson and Voncina regarding the censure of Cr Styles and this was carried.
Cr Styles recorded her name against this resolution.
Motion moved by Cr Voncina and seconded by Cr Wilson that:
‘Cr Styles apologise to the Mayor for her acts of disorder repeatedly calling the Mayor a liar, and a bloody bitch and if Cr Styles does not apologise then she be expelled from this meeting’.
The Mayor called for debate.
There was no debate.
The Mayor put the Motion and it was carried unanimously.
Resolved on the motion of Crs Voncina and Auchterlonie that the Committee of the Whole close and Council move back into the reconvened open Council meeting at 9.02pm.
There being no further business, the Chairman declared the Committee of the Whole Meeting closed at 9.02pm.CLOSING:
104. The Minutes of the (resumed) Ordinary Meeting of Council (Exhibit A2 Item 1 folios 70-71) complete the chronology of events of that evening, recording:
OPEN COUNCIL RESUMED AT 9.02PM WITH THE SAME PEOPLE PRESENT AS IN COMMITTEE OF THE WHOLE.
107/99 Resolved on the motion of Crs Voncina and Wilson that the recommendations of the Committee of the Whole held this night be adopted as resolutions of the Council, (carried unanimously). Resolutions being:-
1. ‘Cr Styles be censured for release of information contained in a confidential memo from the General Manager dated 19 January 1999 which is contrary to Council’s adopted Code of Conduct.
That a copy of this report and resolution, together with supportive documentation be forwarded to:Cr Styles be further advised that as a Councillor she is required to act, and be seen to act, properly in accordance with the requirements of the law and Council’s Code of Conduct, and act in good faith (ie honestly, for the proper purposes and without exceeding Councillors’ powers) in the interest of the Council and the community.
- The Minister for Local Government;
- The Director of the Department of Local Government;
- The Office of the Ombudsman (ie Mr C Wheeler) for their attention, information and action.’
2. ‘Cr Styles apologise to the Mayor for her acts of disorder repeatedly calling the Mayor a liar, and a ‘bloody bitch’ and if Cr Styles does not apologise then she be expelled from this meeting’.
Cr Styles was asked by Cr Voncina to apologise to the Mayor.
Cr Styles refused.
The Mayor asked Cr Styles to leave the meeting.
CLOSINGCr Styles refused.
There being no further business, the Mayor declared the Ordinary Meeting closed at 9.10pm.
A summary of the key relevant events up to and including 8 February
105. Let me now abstract from what has been said above a more concise chronology of events up to and including the meeting of 8 February 1999:
(1) For reasons, and in circumstances, not fully revealed by the evidence, the General Manager of the Council took it upon himself to “ deem ”, and/or “ declare ”, as “ confidential ”, an item of Council business regarding Councillor Hall.
(2) Styles disagreed with such assertion of confidentiality and briefed the local media on 26 January 1999.
(3) On 8 February 1999, when Council reached the item of business listed on the agenda as “ Item 27 Confidentiality of Council issues ”, (which came before the meeting as “ No.29 ”), the Council resolved itself, with Styles voting against the motion, into a “ Committee of the Whole ” to deal with it.
(4) That item, in its terms (see par 96 above), made no recommendation, and there was no agenda item foreshadowing or suggesting any censure of any person. The item merely sought “ guidance ” from Council.
(5) In opening the Committee’s consideration of the notified item of business, the Mayor (Towndrow) did not call for any debate on the background circumstances (T p36 L19-34), she merely “ sought a motion ”.
(6) Immediately, a pre-prepared motion of censure against Styles, “ for release of information in a confidential memo … contrary to Council’s adopted Code of Conduct ”, was moved and seconded (see Exhibit A7 Item 6, and T p99 L35-37).
(7) Some ensuing “ disorder ” resulted in the Mayor calling Styles to order, and Styles apparently directed her “ liar ” and “ bitch ” remarks to the Mayor at that point.
(8) The Committee resolved to deal with “ the matter of disorder ” as an urgent item immediately after the Committee had disposed of “ this agenda item before us ”.
(9) The censure motion was put and carried, with Styles having her name recorded as voting against it.
(10) The Committee then proceeded to deal with the “ matter of disorder ”, and it was moved and seconded (see Exhibit A1 fol 22) that:
Cr Styles apologise to the Mayor for her acts of disorder repeatedly calling the Mayor a liar, and a bloody bitch and if Cr Styles does not apologise then she be expelled from this meeting.
(11) There being no debate, the motion was put and carried - the minutes say “ unanimously ”.
(12) It was then immediately resolved that “ open Council ” reconvene.
(13) The censure motion carried by the Committee of the Whole came to Council as a “ recommendation ” of the Committee. It became part 1 of Council’s resolution 107/99, and the “ apologise or be expelled ” motion became part 2 of it (see par 104 above).
(14) Styles was then asked, in open Council, to apologise, and she “ refused ”.
(15) She was then asked to leave the meeting, and she “ refused ”.
(16) The Council meeting was then closed.
Meetings of the Council after 8 February 1999
106. Relevantly, the Council met again on Monday 22 February 1999, Monday 8 March 1999, Monday 22 March 1999, Monday 12 April 1999, Monday 27 April 1999, Monday 10 May 1999, Monday 24 May 1999, Tuesday 15 June 1999, Monday 21 June 1999, Monday 28 June 1999, Monday 12 July 1999, and then Monday 26 July 1999. (See Exhibit A2 fols 76, 105-107a, 186-9, 264-8, 316-7, 384-5, 643, and 707-9 for minutes of relevant events at the meetings held 22 February, 8 March, 22 March, 12 April, 27 April, 10 May, 28 June and 12 July 1999).
107. The court notes that Styles did not attend the scheduled meeting of 24 May (see Exhibit A2 fol 471), nor the meeting of 21 June which was the continuation of the (adjourned) meeting commenced on 15 June (see Exhibit A2 fol 576-8), to which I will return.
108. Council relies on the Minutes of its meetings (see Exhibit A2 folios 1-799) as being an accurate report of what occurred at its various meetings (see LG Act ss 375 and 703, par 37 above).
109. Styles believes that some of the Council minutes are inaccurate (POC 55 and 56), and some of those which she thinks are inadequate she also regards as fabrications. (See T 10.4.00 p68-9). She annexed an alternative/annotated “extract”, with a personal commentary, to her affidavit of 23 July 1999 (see par 12 thereof, and the 13 pages following it).
110. The court itself identified at least one “inadequacy” in relevant minutes (see T 10.4.00 p61 L8-16), and considers them to be quite unsatisfactory in many other respects, which need not be canvassed in detail at this point.
166. Mr McKenzie concedes that under the pre 1993 Local Government meetings regime (Ordinance 1, cl 49A) it was possible for an expulsion from one Committee meeting to “roll over” to a subsequent meeting, unless there were an apology “without reservation”. In contrast, cl 36 and cl 37 of Ordinance 1 dealt differently with acts of disorder at Council meetings - no expulsion from them was possible, but an offence was created.
167. He submits that, as the post 1993 regime (s 10 and the Regulation) makes no provision for a Councillor to be expelled from more than the meeting at which the act of disorder occurs (T 11.2.00 p12 L22-28), the court should infer the legislature’s intention that councils should not exclude anyone from meeting after meeting.
168. In the result, Styles’ reputation has been damaged by “widespread publicity about an act which … was illegal” (T 11.2.00 p41 L11-12).
The Council’s case
169. Mr Wilson, for the Council, argues that the censure motion and the decision to expel Styles are two separate matters, and that both are within Council’s powers. Council took no action against Styles other than make, and seek to implement, those two decisions. The censure began and ended at the meeting of 8 February. In particular, Styles was at no stage dealt with under s 664 of the LG Act, but, in these civil proceedings, the court cannot declare that she was not in breach of that section.
170. Styles was quite well aware that such issues as the Hall matter, and legal proceedings, should be dealt with on a confidential basis. The General Manager performed his duties properly, and Styles acted wrongly in deliberately flouting the law as she knew or should have known it to apply to the circumstances - she acted wrongly in using the “confidential Council information” as she did, because it was so used “to improperly cause harm or detriment to any person, body, or Council” (Code of Conduct 2/1(a)), or in “abuse of [her] privileged position” (Code of Conduct 2/1 (c)(i)).
171. The only matter continuing beyond 8 February was Styles’ regular expulsion for her act of disorder. Council can and should continue to bring the matter up until the disorder is “purged”, and it cannot remain “in committee”, because committees of Council, including the Committee of the Whole, have to report to meetings of Council.
172. There is no temporal connection between the ground for expulsion, in Regulation 25, and the meeting where s 10(3) takes effect. Regulation 25 requires disorder at a meeting, not necessarily the meeting at which Council resolves to expel. It is, therefore, arguable that Council can find the ground made out at any meeting and then act accordingly. Council at every meeting from and including 8 February followed precisely the procedures laid down by the Act.
173. There is no factual basis for Declaration (i) because the Council did not resolve that the applicant had breached the Code of Conduct, even if it be true that she did.
174. There is no factual basis for Declaration (ii) because the Council made no allegation that the applicant contravened s 664 and no proceedings were commenced within the time provided.
175. There is no factual basis for Declaration (iii) as every expulsion took place in accordance with s 10 as it then stood.
176. Declaration (iv) is misconceived, because the meeting of 15 June was not adjourned to enable the police to attend. It was adjourned because Council could not continue with its business. Adjournment was within the Council’s power, and the Mayor, as chair of Council’s meetings, exercised that power.
177. If damages, or compensation, should flow from any Council action, this court does not have the jurisdiction to assess and award them/it - damages are not relevantly ancillary to these class 4 civil enforcement proceedings. Mr Wilson referred the court to Nix & Dunn v Pittwater Council (1994) 84 LGERA 199 (at 204-5). Hence, these proceedings have no utility.
178. Mr Wilson sought to rely on two further cases on the question of utility.
179. In Wilcox v Kogarah Golf Club Ltd (Young J, 3138 of 1995, 23 November 1995) the plaintiff served his suspension and resumed his use of his Club’s facilities. His Honour said (at p 10):
… the Courts have consistently said that a suspension for a short period of time is ordinarily not a matter with which they will interfere … this is a discretionary matter and each case would have to be considered on its own basis.
180. Styles here ended her own “suspension”, and is no longer on this Council in any event.
Findings and conclusions
Do these proceedings have utility?
181. In Hacienda Apartments Pty Ltd v Vago (Young J, 5039 of 1985, 19 May 1988), cited to the court by Mr Wilson as being in similar vein to Wilcox, I note that His Honour said (at p4):
…if a dispute is live at the date of its commencement but has become spent, but the point involved is of some public importance, the court will still consider the matter and grant declarations…
182.
I believe there is utility in Styles’ persisting with these proceedings, and I decline to dismiss them on that ground. The matters involved in this case are “of some public importance”.
Are these proceedings precluded by s 729 of the LG Act?
183. Section 729 has been set out in full (see par 24), and essentially imposes a three month time limitation on claims against councils which are based on failure to comply with procedural requirements of the LG Act or Regulations, specifically “including a requirement as to the giving of notice”.
184. It is, in terms and effect, a “privative clause”. See R v Hickman Ex parte Fox (1945) 70 CLR 598, Darling Casino Ltd v NSW Casino Control Authority & Ors (1997) 191 CLR 602, and, e.g., Sericottv Snowy River Shire Council (1998) 100 LGERA 71 (at 83).
185. At the end of the case Mr Wilson for the Council submitted that s 729 operated to prevent the court from entertaining “proceedings in respect of procedural matters prior to 15 April 1999” (written submissions 10 April 2000 par 13), but the full application of such a bar was not seriously pressed in argument.
186. Council may indeed have failed to comply with a “procedural requirement” that Styles be given notice of the intention of a councillor (Wilson), known at least to the General Manager (Taylor), to move that Council should censure her.
187. However, I agree with the applicant’s Reply document (pars 3 and 4) and Mr McKenzie’s submissions, that any such failure in all the circumstances of this case would be more “substantive” than “procedural”, and Styles claim is not based on a relevant procedural failure, but on Council’s failure to observe s 10(3) of the LG Act.
188. In any event, I am conscious of the provisions of s 374 (see par 25 above). Also, many relevant events occurred within the three months prior to 15 July 1999.
189. Other than “bitter experience” of meetings on and after 8 February 1999, there is no evidence of any (formal) “notice” being given of motions to reactivate resolution 107/99, and/or to expel Styles from “this meeting”. However, I would look favourably upon an argument that the Mayor’s fax message of 29 January (see par 97 (v) above) informally set the stage for a possible censure motion against Styles in all the publicly known circumstances of that time. It may even amount to a “mayoral minute” (See cl 15 of the Regulation), to which certain procedural privileges apply.
190. I can find no bar in s 729 to the court’s dealing with these proceedings. See Warringah Council v Edmondson & Ors [2001] NSWCA 1 (at pars 14-16 per Fitzgerald JA).
Is there any evidentiary basis for the making of any declarations?
191. For convenience I set out again the four declarations Styles is seeking:
(i) A declaration of (sic) the applicant did not breach the respondent’s code of conduct policy as resolved by Council at the closed committee meeting of the whole of the Council on the 8th of February, 1999.
(ii) A declaration that the applicant did not breach section 664 of the Local Government Act 1993 as alleged in a confidential report to the respondent on the 8th of February, 1999.
(iii) A declaration that the expulsion of the applicant from the ordinary meetings of the respondent between the 22nd of February, 1999 and the 12th of July, 1999 was unlawful and contrary to the applicant’s entitlement to attend and participate in those meetings.
(iv) A declaration that the respondent acted unlawfully in adjourning the meeting of the 15th of June, 1999 to enable members of the NSW Police Force to attend at a later time to forcibly expel the applicant.
Re Declaration (i) - the Code of Conduct
192. The first relevant resolution carried on 8 February 1999 was that Styles “be censured for release of information … contrary to Council’s adopted Code of Conduct”, i.e., contrary to Mr Wilson’s submission, I interpret that resolution to be to the effect that Styles did, in fact, breach the Code of Conduct.
193. The evidence is to the same effect - in going to the media, Styles did, in fact, breach the Code of Conduct, section 2/1(a) and (c), certainly in doing so before Council had considered the question of confidentiality.
194. The law has long recognised the right of councillors to see documents it is necessary for them to see, “in order to exercise his office as a councillor”, and courts may enforce that right by mandamus. Drummoyne Municipal Council v Marshall (1989) 68 LGRA 258. See also cl 41 of the Regulation, and Code of Conduct section 5/3.
195. However, I find nothing “illegal” about the General Manager’s deciding that the relevant “information” should be kept “confidential”, until and unless Council (or perhaps the Mayor between Council meetings) decided otherwise - presumably with the benefit of advice from either the Department, or its own lawyers, and possibly in response to a successful motion by a Councillor to have the General Manager’s “confidentiality” lifted. See cl 41 of the Regulation, and LG Act ss 226 and 335.
196. Styles complains that Taylor “usurped” the power of Council or the Mayor in so deciding, but the court has no evidence as to whether or not he was acting on his own authority, or pursuant to a delegation/direction by the Mayor. However, accepting that he did so act, and given the weight of a General Manager’s statutory duties, powers and responsibilities (LG Act s 335), I do not think he needs such direction/delegation (LG Act s 377) to make such a decision, in circumstances where he intends to bring the matter generally before the Council, as evidenced here by his submission of Item 27 (see par 96 above).
197. Likewise I can find no illegality in the decision of Council to go “into committee” (s 373), and close to the public the meeting of 8 February to deal with “Item 27”. That item was “properly before Council”, and Council has the right to decide to have a confidential discussion of any such matter. Sullivan v Casino Municipal Council & Anor [1973] 2 NSWLR 708. See also Sections 10A-10D.
198. I, therefore, decline to make the first declaration sought.
Re Declaration (ii) - s 664
199. I accept Mr Wilson’s submissions in respect of the second declaration sought.
200. While there is authority for declaratory relief to be granted in some circumstances where criminality is in issue (Sankey v Whitlam (1978) 142 CLR 1), these are entirely civil proceedings, and it is not the function of this court, outside of class 5 of its jurisdiction, properly invoked in appropriate circumstances, to make any finding at all in respect of the breach or otherwise of a provision such as s 664 of the LG Act, which is “criminal” in character. (See discussion in Young, “Declaratory Orders”, 2nd edition, 1984, pp 151-5).
201. Accordingly, I decline to exercise this court’s discretion to make the second declaration sought.
Re Declaration (iii) - The expulsions themselves
202. I turn then to the question posed by the third declaration sought - namely, that the series of expulsions on and between 22 February and 12 July were “unlawful and contrary to the Applicant’s entitlement to attend and participate”.
203. I can find no basis or authority for the assertion by Styles that when a Councillor refuses to apologise for extreme disobedience of, and/or discourtesy to, the Chair, the matter must just be left unresolved.
204. Her words and actions in the 8 February meeting, following the censure resolution, are clear breaches of cl 25 of the Regulation, and sections 3/1(a)(iv), 4/1, and 11 of the Code of Conduct (Exhibit A4), despite cl 39 of the MP code. (See also cl 37 of the Regulation, and MP Code cl 59).
205. It is certainly true that such a situation in council could be handled in a number of ways. For example, Styles argued in her evidence for a short adjournment, and then a closed conciliatory meeting of some sort between councillors. Adjournment for a short period was one alternative available to the Mayor, under the MP Code and the Regulation, but she chose, instead, to close the meeting and consult the Department of Local Government. (See cl 33 of the Regulation, and MP Code cl 54). The Mayor must act “immediately” (cl 24 of the Regulation), and take any course decided upon, consistent with cls 26 and 27 of the Regulation.
206. On my assessment of all the evidence, the Mayor appears to have acted as the Director General then advised her was appropriate in the circumstances (see again Annexure ‘D’ to Styles’ affidavit 23 July 1999).
207. As I can find no fault with that advice, I can find no fault with the fundamental elements of what followed the disorder. Item 27 was on the agenda; the Council can close its meeting to discuss it; a censure or expulsion motion can be moved without being on notice (cl 13(3) of the Regulation and cl 25(3) of the MP Code); the meeting can expel, and the Mayor can call the police (s 10, and cl 27 of Regulation).
208. Each failure by Styles to apologise, as demanded, and reaffirmed, by Council, amounted to an act of disorder at each meeting where it occurred. In this respect I depart strongly from Mr McKenzie’s arguments on Styles’ behalf.
209. Even though I acknowledge the differences between the former Ordinance 1 and the relevant Regulation, I note the specific power in cl 25(3) of the Regulation to take “any other action” - in those circumstances there was no need for cl 49A of Ordinance 1 to be carried forward to the Regulation. The powers in Ordinance 1 did not include a provision as broad as cl 25(3) of the Regulation.
210. The outcome of any meeting of the Committee of the Whole must be formally reported to the Council which would then meet in public to receive such reports as recommendations requiring Council resolution. (cl 36(3) of the Regulation, and MP code cl 42).
211. That is what happened here.
212. The Committee of the Whole is the Council, meeting informally, and/or “in camera”. (See cl 28 of the Regulation, and cls 3 and 48 of the MP Code).
213. All the proceedings on 8 February constitute only one meeting of Council in any event, albeit that some is “secret”, and the MP Code applies to that part of it. (Regulation cl 28(i), and MP Code cl 48(2)).
214. Styles started this controversy by wanting things “out in the open”, and it is somewhat ironic that Council’s reaction to the position she adopted in that regard was played out so publicly.
215. However, she had the two weeks from 8 to 22 February to ponder what should happen about her censure and her disorder, left uncompleted at the end of the 8 February meeting, and I find it highly surprising that she seems to have expected that the sudden closure of the Council meeting on 8 February brought a complete end to all the events of that evening.
216. True it is that there were elements or overtones of “ambush” about the closed and open sessions on 8 February, and, later, the reactivation of Resolution 107/99, at least at the meeting of 22 February - “ambush” in Council’s failure to list the censure, or the reactivation of 107/99, on the agenda published in advance of each meeting. See s 367, MP Code cl 25 and cl 52, cls 12(3) and 13(1)(a) of the Regulation; but c.f. cl 13(3) of the Regulation, and MP Code 25(3), and note s 374(e).
217. However, this applicant is/was not an unsophisticated ingenue, and she had had, it appears, a quite stormy time on Council to that point; so those elements or overtones of these events are not sufficient to win Styles her third declaration. See also s 374(b) and (e), and MP Code cl 52(2).
218. The disorder in the open meetings of Council, from and including that at the end of proceedings on 8 February, is the failure to withdraw/apologise for the unseemly comments to, and defiance of, the Chair at the closed meeting on 8 February, in circumstances where the “sentence” passed at that meeting was not carried out.
219. Council concluded, after the Mayor obtained advice from the Director General, that the question of disorder was “unfinished business”, carried over from the meeting of 8 February. The announcement of 23 February so asserted.
220. It seems to me that Council had every right, indeed perhaps a statutory duty, to pursue this matter until it was resolved in an edifying way for the benefit of this Council, local government generally, and the community at large. However, even if that be wrong, Styles has not sustained her claim that Council’s actions were “unlawful”.
221. Styles was deprived by Council, for a fortnight at a time, of her “entitlement to attend and participate”. I have concluded that that was completely lawful in all the circumstances. She resisted Council’s sustained pressure for her to end the matter, in the way envisaged by the regulatory regime under which she was elected, a regime comprehensively explained in various documents she herself voluntarily produced to the court, until she lost her interlocutory proceedings on 26 July 1999.
222. Although her apology was carefully crafted, and she testified that she really did not mean it, Council reinstated her “entitlement”, without demur, once it was given.
223. The court acknowledges that these events have caused Styles distress. One can only wonder what impact the public spectacle involved in this unfortunate saga had on the constituents of the Council. Perhaps it may have played some role in her losing her seat on Council, but the court is in no way satisfied that the expulsions were unlawful, and has come to the opposite conclusion.
224. I, therefore, decline to make the third declaration sought.
Re Declaration (iv) - adjournment on 15 June 1999
225. I can find nothing “unlawful” in the adjournment of the 15 June 1999 meeting. The “pending” business of the Council (in this case the question of finding, rightly or wrongly, Styles to be in disorder) could not be concluded because the expulsion on which Council had decided could not be then achieved.
226. I can find no authority for Styles’ proposition that, with the meeting in that state, the Mayor needed a resolution of Council to legally adjourn the meeting to another date. Indeed, the MP Code (Exhibit A5 cl 35(4)) provides that “the chairperson may adjourn a meeting at any time, based on issues at hand and operation of meetings at the time”.
227. Accordingly, I also decline to make the fourth declaration sought.
Some other matters
228. Having come to the conclusion that none of the four declaration sought by Styles can, on the evidence, be made by the court, it is not necessary to deal completely with the evidence and submissions regarding questions of discretion, laches, acquiescence, delay or damages.
229. However, given the unusual circumstances of this case, and the issues of public interest it raises, a few brief remarks should probably be made about those matters.
Questions of Compensation or Damages
230. Sections of the LG Act, such as 128, 179, 181, 198 and 730 provide that the court can order “compensation” in the nature of “expenses incurred”, or reimbursement of the cost of “damage caused”, in certain specified circumstances, e.g. during authorised entry of premises. Section 730 provides for claims under s 128 or s 198 to be referred to commercial arbitration. If not resolved, s 730(3) provides:
The Land and Environment Court may hear and determine the matter and make any order with respect to the claim and the costs of the case as having regard to the circumstances of the case and to the public interest the Court thinks just.
231. In addition, s 677 provides:
(1) The Land and Environment Court, on the hearing of proceedings brought under section 674, has a discretion to award compensation to the person against whom such proceedings are taken if the Court considers that:
(a) the proceedings against the person are frivolous or vexatious, and
(b) the person has incurred expense as a consequence of any delay to an activity that has occurred as a result of the proceedings, and
(c) the activity is authorised by an approval held by the person.
(2) A claim for compensation may not be made more than 28 days after the date on which the Court gives its decision in the proceedings.
(3) Compensation under this section is to be awarded against the person by whom the proceedings under section 674 were taken.
232. Styles’ claim for “damages” was put thus (Mr McKenzie’s submissions par 24):
The damages claimed do not include out-of-pockets, economic loss and soforth. The claim is for pecuniary compensation to the Applicant reflecting the Community’s outrage at the invalid and improper acts of the Council affecting, as they did, her representation of her constituents at meetings of the Council and affecting the discharge by the Council of its duties and functions under LGA and reflecting the Community’s further outrage at the public calumny suffered by the Applicant in consequence of the manner in which she was shut out and removed for (sic) meetings on invalid grounds.
233. That, clearly, is a claim for “general damages”, and not a claim for reimbursement of actual costs incurred.
234. The evidence to support it was received by the court, originally on the basis that, if declarations were made, as sought, some further hearing may be required on detailed questions of “damages”. However, submissions were made on the matter at the hearing.
235. I can find authority only against the argument implicitly advanced in this case that in some way this court, in proceedings like these, can “compensate” the applicant for some form of defamation (see POC 54), or other proven tortious conduct, assuming the court were satisfied that such consequential relief was relevantly “ancillary” to its jurisdiction (see par 177 above, and the recent judgment of Pearlman J in NTL Australasia Pty Ltd v Minister for Land & Water Conservation [2001] NSWLEC 5, pars 22-28).
236. The word “compensation”, where it occurs in legislation of concern to this court, has been narrowly construed.
237. In Wherry v Sisters of Charity [2000] NSWLEC 252, Bignold J held [see pars 45, 46, 64], in the context of the Encroachment of Buildings Act 1922, that “compensation” was “not in the nature of damages for trespass or nuisance or other tortious act”, but was intended to cover actual losses incurred, and not any punitive element for “unreasonable conduct”.
238. In Gardiner & Anor v Hornsby Council [2000] NSWLEC 37, Pearlman J interpreted the word “compensation”, in the context of s 181 of the LG Act, as covering only expenses incurred as a consequence of an order which, under the Act, was held to be unsubstantiated or unreasonable, and not extending to the costs of litigation.
239. I do not believe this court would have the power to accede to Styles’ prayer for ancillary relief, under s 676(1) of the LG Act, had she succeeded in obtaining the declarations. See Nix & Dunn.
Laches, acquiescence and delay
240. On the evidence presented I would not have been satisfied that Styles was guilty of laches, acquiescence or delay.
241. Delay was certainly a factor in my decision to decline interlocutory relief, but the expulsions were certainly contemporaneous with the commencement of the proceedings, and the damages claim really arose once Styles lost her seat on Council. The various adjournments of the proceedings were granted by the court on appropriate grounds.
Discretion
242. Had the applicant succeeded, on the evidence, in establishing a prima facie entitlement to declaratory relief, the question of discretion to refuse relief would have required determination.
243. All the players on the Local Government stage are equally bound by its regulatory regime, under which, by virtue of s 748(5), validly adopted codes of conduct and meeting procedure are “called up” as regulations, and any breach of “regulations” is tantamount to a punishable breach of the LG Act (s 672, par 22 above).
244. While Styles’ relevant behaviour certainly cannot be condoned by the court, and would have weighed heavily in the balance against her succeeding in the proceedings, several elements of Council’s handling of the matter certainly expose it to criticism, and Mr McKenzie several times questioned the bona fides of Council and its General Manager.
245. I do not underestimate how difficult such events as those involved here can be for all concerned. However, Council relied before me only on its official records, and cross-examination of the applicant, and put on no evidence on its own behalf, thus leaving some adverse conclusions available to the court, on the evidence, had it come to a consideration of discretion.
246. Firstly, I observe that the minutes of the passages of meetings involving the issues relevant to these proceedings certainly go beyond the formal record, required, by the Act and Regulations, of Council’s decision-making, containing, as they do, personalised references to Styles, her conduct and her demeanour, and other subjective remarks (see examples in par 103 above).
247. Also, the evidence suggests different tenable versions of events, not only that advanced by Styles, but also others from other eye witness accounts, and any bias in the minutes, if it were proven, would be a serious breach by Council of the regulatory regime, which requires its compliance with the provisions of the Code of Conduct (MP Code cl 67).
248. Beyond questions of the language and accuracy of Council’s minutes, I also note:
(a) the “ ambush ” environment, dealt with above. While not perhaps unlawful, it precluded an appropriate debate, and precipitated a disorderly event, which served to disrupt the activities of Council for six months of meetings and more than twelve months of litigation.
(b) the rejection at meetings of apologies for non-attendance, and motions for leave of absence, in respect of Styles and Hall (see examples throughout Exhibit A2 ).
(c) the failure of Taylor to explain to Styles his decision to suppress documents, his failure to draw Reg 41 to Styles’ attention in regard to that decision, and the almost off-handed way in which the Worthington letter was provided to her shortly afterwards (par 119 above).
(d) the apparent failure to place before Council some of Styles’ formally and appropriately raised concerns about important Council business, such as the accuracy of its minutes (par 117 above).
(e) the summary disposal of Styles’ notices of motion during her enforced absence from meetings (pars 128-9 above).
(f) the inflammatory nature of the totally unnecessary decision to release publicly the extraordinary minutes of the closed session of 8 February 1999 (par 127 above). The accuracy of those minutes had been formally and promptly challenged by the person most likely to be damaged by their public release (par 117 above), and, while s 664(1A) would seem to permit the release “ in full ” of those minutes, cl 48(3) of the MP Code precludes it.
249. Councils have every right to carry censure or expulsion motions, and the like, in the appropriate circumstances. However, notice and openness, consistent with the whole scheme of the LG Act and other elements of the regulatory environment, would seem to be desirable, and minutes of official proceedings should be accurate, impersonal, and non-argumentative.
250. Provisions like s 374, s 703 and s 729 (pars 25, 37 and 24 above respectively) are in the LG Act to protect the public interest, and preclude elected councils from being diverted into protracted argument and untimely litigation; I do not think that the public would believe/accept that they are there to be used as weapons or shields in personal or official disputes that may arise within councils from time to time.
251. As Mr McKenzie observed during argument (T 11.2.00 p 10 L10-13):
… democracy is made up of difficult and sometimes intractable people and some of them have been some of our finest representatives.
Orders
252. The applicant having been totally unsuccessful in these proceedings, her class 4 application should be dismissed.
253. Prima facie she should also be ordered to pay the Council’s costs on a party/party basis.
254. Mr Wilson specifically asked me to reserve the question of costs, as Council may wish to seek an order for indemnity costs for at least some parts of the proceedings.
255. In those circumstances, I will order the applicant to pay Council’s costs on a party/party basis, but stay that order for 21 days from today to allow time for the Council to file a Notice of Motion seeking its vacation in favour of some other order as to costs, if it so decides.
256. The formal orders of the court will, therefore, be:
1. Application dismissed.
2. Applicant ordered to pay Respondent’s costs on a party/party basis.
3. Order 2 stayed for 21 days.
4. The exhibits may be returned.
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