RYAN v HEILER [1990] NSWCA 160

RYAN v HEILER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, MAHONEY and MEAGHER JJA 23 April 1990, 23 April 1990 [1990] NSWCA 160

LOCAL GOVERNMENT — occurrence of extraordinary vacancy in the office of member of a city council by reason of absence without leave under s35(3) of Local Government Act 1919 — "absent" means 'did not attend' and does not involve deliberation or intention — leave of absence, there being no formal grant, cannot be inferred from speculative vote upon hypothetical motion.

Samuels JA This appeal from a decision of Young J concerns the construction and operation of s35 of the Local Government Act, 1919 which was for present purposes amended in 1987. The precise provision in suit is this. The section provides:

"An extraordinary vacancy in a civil office shall occur if the person elected or appointed thereto -...

(e) is absent without leave of the Council upon three consecutive ordinary meetings of the Council."

The appellant, Mr Kevin James Ryan, is, or was until 6 February 1990, an elected alderman of the Council of the City of Bankstown. He did not attend three consecutive meetings of the Council being those which took place on 12 December 1989, 23 January 1990 and 6 February 1990.

The question which has to be resolved is whether on any of those occasions, so as to break up the sequence for which s35(e) provides, he received leave of absence from the Council. The construction of s35 has not really been considered before us and I take it that it is not disputed by the appellant that the word "absent" in paragraph (e) means 'did not attend' and has no other more complex meaning involving deliberation or questions of that kind.

The facts were fully debated before Young J who ultimately decided the matter contrary to the relief sought in the plaintiff's summons which prayed for declarations that the plaintiff, that is the present appellant, was still in office as an alderman of the Council.