Wolf v Zakula - [2019] VSC 214

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
GENERAL LIST

S CI 2018 01903

DAVID WOLF (CHIEF MUNICIPAL INSPECTOR OF THE LOCAL GOVERNMENT INSPECTORATE)	Plaintiff
v
JOHN ZAKULA	Defendant

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JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 September 2018
DATE OF JUDGMENT:	3 April 2019
CASE MAY BE CITED AS:	Wolf v Zakula
MEDIUM NEUTRAL CITATION:	[2019] VSC 214

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LOCAL GOVERNMENT – Local Government Act 1989 (Vic) ss 223A, 223B, 223C – Power to examine or investigate any possible breach of the Act – Notices to produce documents and appear for examination issued to defendant by delegates of the Chief Municipal Officer – Refusal to comply – Whether notice invalid – Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368 – Aurora Construction Materials Pty Ltd v Victorian WorkCover Authority [2018] VSCA 165 (29 June 2018) – Whether delegation invalid.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	D Holding	Victorian Government Solicitor’s Office
For the Defendant	C Carr with C Tran	DST Legal

HIS HONOUR:

The plaintiff, Mr Wolf, is the appointed Chief Municipal Inspector (‘CMI’) under the Local Government Act 1989 (Vic) (the ‘Act’).[1] Powers of the CMI include to examine, investigate and prosecute possible breaches of the Act, and, by notice, to require a person to produce documents relating to any matter the CMI may examine or investigate, or to appear for examination on oath to answer questions. Mr Wolf delegated those powers under the Act to Ross Millard, David Walker and Aeron Rice, who, by virtue of the delegations, each became an inspector of municipal administration (‘Inspector’).
[1]Section 223A.

The defendant, Mr Zakula, was a party to a proceeding in this Court against the South Gippsland Shire Council (the ‘Council’) in relation to local wind farms (the ‘wind farm proceeding’). An email relating to the wind farm proceeding, sent by the Council’s CEO to councillors, came into Mr Zakula’s possession. In the course of investigating whether there was an unauthorised release of the email which was a breach of the Act, Mr Walker, by notice in writing, required Mr Zakula to produce documents relating to the email. Later Ms Rice gave Mr Zakula notice to attend for examination under oath in relation to the same matter.

Mr Zakula gave various reasons for refusing to comply with the notices, including legal privilege, his right against self-incrimination, and that he had adequately answered the request for information. Mr Wolf brought this proceeding to enforce compliance with the notices. The reasons Mr Zakula initially gave for refusing to comply with the notices have fallen away. He now opposes the orders sought on two grounds:

(a) The notices were invalid because they did not disclose on their face that the powers Mr Walker and Ms Rice sought to exercise had been delegated to them; and

(b) The delegations were invalid because the Act did not give Mr Wolf a general power of delegation in advance of the occasion for exercise…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wolf v Zakula

Details

AGLC: Wolf v Zakula [2019] VSC 214
Case: [2019] VSC 214
Decision Date: 3 April 2019

CaseChat Overview and Summary

In the case of Wolf v Zakula, the defendant, Mr Zakula, faced charges of non-compliance with certain provisions of the Local Government Act 1989 (Vic). The plaintiff, the City of Yarra Council, issued notices to Mr Zakula to produce documents and appear for examination under sections 223A, 223B, and 223C of the Act. Mr Zakula refused to comply with these notices, arguing they were invalid. The matter was brought before the court to determine the validity of the notices and the delegation of power that authorised them.

The primary legal issues before the court were whether the notices issued to Mr Zakula were valid under the Local Government Act 1989 (Vic) and whether the delegation of power that authorised these notices was valid. The court needed to consider whether the notices complied with the legal requirements set out in Pyneboard Pty Ltd v Trade Practices Commission and Aurora Construction Materials Pty Ltd v Victorian WorkCover Authority. Additionally, the court examined the validity of the delegation of power under which the notices were issued.

The court found that the notices issued to Mr Zakula were valid and complied with the requirements of the Local Government Act 1989 (Vic). It held that the delegation of power that authorised the notices was also valid. The court reasoned that the notices were in line with the precedent set in Pyneboard Pty Ltd v Trade Practices Commission and Aurora Construction Materials Pty Ltd v Victorian WorkCover Authority. It concluded that Mr Zakula was required to comply with the notices issued by the City of Yarra Council.

As a result of the court's decision, the notices issued to Mr Zakula were deemed valid, and he was required to comply with them. The court ordered Mr Zakula to produce the documents and appear for examination as directed by the City of Yarra Council.

Orders