Warringah Council v Edmondson

Case [2001] NSWCA 1
CITATION: Warringah Council v Edmondson & Ors; Giltinan v Edmondson & Ors [2001] NSWCA 1
FILE NUMBER(S): CA 40952/99; 40989/99
HEARING DATE(S): 11/12/00
JUDGMENT DATE:
30 January 2001

PARTIES :
Warringah Council (Appellant) 40952/99
Robert Giltinan (Appellant) 40989/99
Mark Ronald Edmondson (First Respondent) 40952/99 & 40989/99
Owen Mark Southwood (Second Respondent) 40952/99 & 40989/99
JUDGMENT OF: Meagher JA at 1; Powell JA at 2; Fitzgerald JA at 3
LOWER COURT JURISDICTION : Land & Environment Court
LOWER COURT
FILE NUMBER(S) : 		40059/98
LOWER COURT
JUDICIAL OFFICER :		 Talbot J
COUNSEL: P. McClellan QC / A Galasso (Appellant) 40952/99
D. Wilson (Appellant) 40989/99
B. W. Davison SC / I. Hemmings (Respondents) 40952/99 & 40989/99
SOLICITORS: Wilshire Webb (Appellant) 40952/99
Terrence W Riley (Appellant) 40989/99
Hones Lawyers (Respondents) 40952/99 & 40989/99
CATCHWORDS: Local Government Act 1993 - tenders for tennis and squash courts - alleged breaches of s 45(2), 47(1)(c) and 55 - meaning of "adjoining" - operation of s 729 - "requirement as to the giving of notice" a "procedural requirement" - absence of procedural fairness a breach of the general law not the Act - D
LEGISLATION CITED: Local Government Act 1993
CASES CITED:
 Nix v Pittwater Council (1994) 84 LGERA 199
Hall v Jones (1942) 42 SR (NSW) 203
Transport Accident Commission v Treloar (1992) 1 VR 447
DCT v Mutton (1988) 79 ALR 508
DECISION: Appeals by the Council and Giltinan allowed with costs. Orders made by the Land and Environment Court set aside.


THE SUPREME COURT


OF NEW SOUTH WALES


COURT OF APPEAL


CA 40952/99


CA 40989/99


LEC 40059/98

MEAGHER JA


POWELL JA


FITZGERALD JA

TUESDAY 30 JANUARY 2001

WARRINGAH COUNCIL v EDMONDSON & Ors


GILTINAN v EDMONDSON & Ors

JUDGMENT



1   MEAGHER JA: I agree with Fitzgerald JA.

2   POWELL JA: I agree with Fitzgerald JA.

3   FITZGERALD JA: On or about 8 July 1997, one of the appellants, Warringah Council, invited tenders for the operation of its Tennis and Squash Court Facilities at District Park, North Manly. The respondents Mark Ronald Edmondson and Owen Mark Southwood lodged a joint tender. The other appellant Robert Giltinan lodged a competing tender. The Council accepted Giltinan’s tender on 18 November 1997. Subsequently, on 5 March 1998, the Council granted Giltinan a lease commencing on 15 November 1997.

4   Edmondson and Southwood sued the Council and Giltinan in the Land and Environment Court. On 23 November 1999, the Land and Environment Court declared that the tender process was conducted by the Council contrary to law and that the lease was void and of no effect. The lease was set aside and the Council was restrained from acting upon or otherwise giving effect to it. On 1 December 1999, the Council was ordered to pay Edmondson and Southwood’s costs of the proceedings in the Land and Environment Court but no costs order was made against Giltinan.

5 The Council and Giltinan have appealed. Although the proceedings have generally presented a more complex appearance, it emerged in the course of argument…

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AGLC
Warringah Council v Edmondson [2001] NSWCA 1
Case
[2001] NSWCA 1
Decision Date

CaseChat Overview and Summary

Warringah Council and Giltinan appealed to the Court of Appeal of New South Wales against decisions of the Land and Environment Court concerning tenders for the construction of tennis and squash courts. The dispute involved allegations by Edmondson that the Council had breached provisions of the *Local Government Act 1993* (NSW) in its tender process, specifically sections 45(2), 47(1)(c), and 55.

The primary legal issues before the Court of Appeal were the interpretation of the term "adjoining" within the context of the Act, the application and effect of section 729 of the Act, and whether a failure to provide procedural fairness constituted a breach of the Act itself or a breach of general law. The court was required to determine if the Council's actions in awarding the tender were lawful under the *Local Government Act 1993*.

The Court of Appeal found that the Land and Environment Court had erred in its interpretation of the relevant provisions. It held that the term "adjoining" in section 47(1)(c) did not apply to the circumstances of the tender. Furthermore, the court determined that the absence of procedural fairness, while a breach of general law, did not render the Council's actions unlawful under the *Local Government Act 1993*. Section 729 was interpreted to apply to procedural requirements mandated by the Act, not breaches of the general law. Consequently, the appeals by the Council and Giltinan were allowed, and the orders of the Land and Environment Court were set aside.

Orders

Orders of the court

Appeals by the Council and Giltinan allowed with costs. Orders made by the Land and Environment Court set aside.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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