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. At the first meeting on 12 December there is nothing in the minutes or in the evidence which is really to the point. At the second meeting on 23 January the minutes note that Alderman Ryan had made an apology and then it is recorded that: "At this stage his Worship advised that Alderman Ryan had tendered his apology for his inability to attend the meeting." The first argument which it would be convenient to consider at this point is that an apology given in these circumstances is equivalent to leave of absence; at least if the minutes do not record that any member of the Council expressed his or her dissent, or in any other way repudiated the expression of contrition which is, I suppose, what an apology conveys. For my own part I find that a very difficult proposition to accept. An apology is one thing, leave of absence is another. 2 UNREPORTED JUDGMENTS I would have thought that an apology was the necessary prerequisite to having the question of leave of absence considered. Without an apology the absence of the member might very well pass unnoticed or at least without anyone coming forward as an auxiliary to propose that leave of absence be granted. There is evidence that at least during much of 1989 it was or had become the practice of the Council formally to record resolutions granting leave of absence. Moreover, and it seems to me that this evidence is of relevance, the extracts from the minutes annexed to the affidavit made by Mr Stromborg indicated that leave had previously been granted to Alderman Ryan himself, and indeed had been refused at one meeting although the resolution declining to grant leave appears to have been rescinded at the same meeting. Moreover in the same resolution a request was included that Alderman Ryan comply with the Local Government Act. In the circumstances I infer that that exhortation relates to absences from meetings. I cannot, of course, express any view - and I do not endeavour to do so - whether any absences were justified or not; whether the business that kept Alderman Ryan away from the Council was of greater importance than the duties that he would discharge there. Questions of that kind are not before us. I mention these matters merely because it cannot be said that on 12 December 1989 Alderman Ryan was wholly unaware that his absence from Council might require the formal grant of leave if he were to be out of the danger which the provisions in s35 pose. So we come to the meeting of 6 February and as Dr Woods QC, for the appellant very frankly points out, it is upon the transactions of that meeting that his case primarily depends. I am afraid that I will have to go through part of the meeting in detail because what occurred is not absolutely clear cut although I think it becomes plain upon a little analysis. The relevant part of the minutes commences by the Mayor advising the meeting that Alderman Ryan had tendered an apology for his inability to attend the meeting. A motion was then moved in these terms, "That apologies be accepted and leave of absence granted to Alderman Ryan for the meeting of 6 February 1990". That was the current meeting. Then an amendment was moved, "That the information be noted'. Then it seems a further amendment was foreshadowed and this is in two parts: "(1) That apologies be accepted and leave of absence granted to Alderman Ryan for the meeting of 6 February 1990. (2) That the matter be deferred for two weeks and Alderman Ryan be advised of Council's intention not to grant further leave of absence." The minutes record that the amendment was put and was declared carried "to become a motion." That was I imagine on the voices, and there followed a request for a 'division' which may have been by a show of hands or some other means but at all events some such procedure having been followed the amendment was declared carried. That 'amendment' was, "That the information be noted" and it ought forthwith to have been put as the motion. However, what happened was that the foreshadowed amendment was put as an amendment, having been seconded by another alderman. That was voted on, a division having been called was declared lost, and then "the motion" was put and was, it seems to me quite clearly, a motion which at least included, "That the information be noted". It was certainly not what was described as the foreshadowed amendment. That motion was carried. URJ RYAN v HEILER (Samuels JA) 3 Then a somewhat strange procedure ensued because the minutes record that the motion was "recommitted" and the motion, set out in full, was "that the Motion for Reference Item, 'Leave of Absence - Alderman Ryan' of 6 February 1990 be recommitted for further consideration." The minutes then note, "At this stage the following motion was before the Chair, that the information be noted" and that motion, a division having been called, was declared lost. In my view when one traces through what occurred and despite the procedural solecism that the motion "That the information be noted" was hardly an amendment, upon which it is unnecessary to pronounce, the upshot ultimately was that that first 'amendment' was lost. Most importantly for present purposes at no stage was any motion put and carried which granted leave of absence from that meeting on 6 February to Alderman Ryan. What the "recommittal" of the motion means I am uncertain about, save that CL35 of Ordinance 1 which deals with procedure at meetings of municipal city councils does make provision for rescinding or altering resolutions. It may be, therefore, that recommittal was a way of invoking a procedure of that kind. I should add that there is a reference in Alderman Stromborg's evidence which suggests that there was a procedure involving what was called "recommittal" which was, it seems, not uncommonly adopted by Council. Dr Woods fairly recognised that there was great difficulty in his identifying in the material any formal motion, or resolution rather, granting leave of absence. Hence he then put that Council's intention or the intention, in fact, of the meeting to grant leave of absence could fairly be inferred from the record of the proceedings taken with the evidence of Alderman Stromborg. I find great difficulty in accepting that submission. In essence it is that if you count heads and trace those voting through the substance of the various motions put before the meeting it is possible to infer that a motion seeking leave of absence for Alderman Ryan would probably have been carried. It is, however, going a good deal further than I would care to venture, to support a proposition that one can not only speculate as to the subject matter of the motion and of the resolution, but conjecture also as to the identity of those who might have voted for and against it. As I suggested during argument it is at least the theory of the democratic process of local government that motions are discussed, and that it is possible that a member of the Council might be influenced in the way he or she finally votes by the arguments advanced when some initiative is placed before the meeting. It seems to me, therefore, impossible to determine with any degree of intellectual satisfaction that members of the Council would probably have voted in certain ways upon a motion which, in fact, was never placed before them. It is true, of course, as Dr Woods rightly says, that there were, as one might say, tangential approaches to motions seeking leave of absence but no such motion was squarely put to the Council and certainly no vote was ever taken upon one. It may be that this is an unfortunate result but that again is not a matter to which the Court can have regard. To my mind this section is clear enough and it is plain also that no leave was formally granted. The consequence is that s35(e) is satisfied. During the course of the argument Dr Woods sought leave to amend his grounds of appeal by adding a further ground in these terms: 4 UNREPORTED JUDGMENTS "That the learned judge erred in law in failing to hold that the Chairman of the meeting of 6 February 1990 failed to permit the original motion for leave of absence for the meeting of 6 February 1990 to be properly dealt with whereby the actual absence from that meeting of the appellant could not be regarded as absence without leave." There are, if I may say so, some difficulties with the form of that ground, and indeed whether it would sustain the proposition which it asserts even if the facts upon which it depends were established. However, Mr McClellan QC for the respondent objected to it on the basis that the point had never been debated below, and that if it had been put before the learned judge there might very well have been evidence which could have been called to deal with it. We were of the opinion that that objection was sound, and we took account also of the fact that this appeal has been expedited because the next meeting of Council takes place tomorrow and there were various good reasons why the matter should be determined before then. So for those reasons we declined to allow that additional ground to be argued. I may finally say that as appears from these reasons I agree in substance with what the learned judge concluded below; and had it not been for the importance of the matter it might have been sufficient merely to express that view. In my judgment the appeal should therefore be dismissed with costs. Mahoney JA I desire to add certain comments in relation to what took place on 6 February 1990. First I think the Court should act upon the basis that the minutes accurately record what was done or not done by the Council on that date. There may be circumstances, there no doubt are, in which a court may go behind the minutes kept by a council under the Local Government Act of what has been done at a meeting. Reference has been made to matters, in the affidavit and other evidence to which counsel have referred, to suggest that the minutes are not accurate. However, I see nothing in such matters which would lead the Court to conclude that in this case the minutes do not accurately set forth what then occurred. Secondly, I do not think that the procedure and the events as recorded in the minutes indicate any relevant misunderstanding by Council or by those who prepared the minutes of what then took place. I think properly read it is easy to understand what the Council thought it was doing and what it in fact did. I say this because criticism was directed to the Council and/or the Mayor, Mr Stromborg with a view to suggesting that procedurally the meeting was not properly conducted subject to one possible matter. I do not think that that criticism is justified. The possible matter to which I refer is this. As Samuels JA has indicated there was moved by Alderman Lovelee and Alderman Blake an amendment to the original motion of Aldermen Parker and Buchanan. Whether the amendment moved was in truth an amendment or whether it was a new motion might be the subject of question. However, it is not necessary to determine that because the Mayor apparently took the amendment to be in truth an amendment and the meeting was conducted upon that basis. As was pointed out during argument, no motion of dissent was moved, within Ordinance 1 under the Local Government Act or otherwise. I therefore do not think that the matter is to be dealt with upon the basis that the minutes disclose that there was at the meeting confusion of the kind referred to. The third matter to which I refer is that the motion for recommittal of the resolution had been passed. Whether the motion for recommittal was intended to come within CL35 of Ordinance | need not be determined. The fact is that the URJ RYAN v HEILER (Meagher JA) 5 motion for the recommittal was carried. There was then reconsideration of the motion, that motion being, "That the information be noted." That motion was, of course, the original motion tendered by the amendment to which I have referred. The minutes show that the motion was then put and lost. Whether this means that the motion, "That the information be noted" which was originally carried was then decided in another way need not again be determined. What Mr Ryan has to establish is, at the least, that there was, in fact, a motion passed giving him leave of absence in respect of the particular meeting. That was the matter to which essentially the argument was directed. Whatever took place the net result was that no such motion was passed. In these circumstances, whatever be the propriety of a motion for recommittal as distinct from a motion for rescinding or altering a previous resolution, in the present case nothing took place which assists Mr Ryan's case. The fourth matter to which I would refer is this. The present appeal assumes the possibility of a grant of leave of absence being given in respect of the earlier meeting and given after the meeting had been held and concluded. Whether it is possible to grant leave of absence at that time is a matter which has not been argued and therefore the Court has not been required to pass upon it. I should add this. Reference was made in argument to the question whether it may be inferred in favour of Mr Ryan from what happened at the meeting of 6 February 1990 that the majority of aldermen and so the Council was of the view that leave should be granted and that, if that can be inferred, that is of assistance to him in relation to s35 of the Local Government Act, 1919. The view has been expressed that a body such as the Council acts and perhaps may only act by formal resolution. I say "perhaps" because there are no doubt circumstances in which a corporate body such as a council can be committed to the exercise even of a statutory power otherwise than by a formal resolution. If argument for Mr Ryan in this case were to succeed, at least in the terms at one stage it was put, namely, that an inference as to the intention of Council may be drawn from what took place at its meeting, it would have been necessary for Council to grapple with that question. However, I do not think that that point is raised. I agree with the orders, therefore, which have been composed. Meagher JA With some regret I also agree. In the course of the appeal counsel for the appellant, Mr Woods QC, categorised what happened at the Council meeting on 6 February as being confused. I must say I think that is a perfectly accurate description. The source of confusion seems to be twofold: (1) One was the treating as an amendment something which plainly was not an amendment; and (2) The other was adopting the curious procedure of recommitting a motion which had already been carried, without it ever having been rescinded. I do hope the affairs of Bankstown City Council are not always conducted in the same procedural confusion as that exhibited in the meeting of 6 February. However, that does not avail the appellant, because whatever confusion took place the fact remains that there was never any grant of a leave of absence. I therefore agree. Appeal dismissed with costs. Counsel for the Appellant: G Woods QC with JM Harris Solicitors for the Appellant: Needs, Chan and Monahan 6 UNREPORTED JUDGMENTS Counsel for the 1st, 2nd and 3rd Respondents: P McClellan QC and M Cashion Solicitors for the 1st, 2nd and 3rd Respondents: Thurlow Fisher Counsel for the 4th Respondent: Submitting appearance Solicitors for the 4th Respondent: State Crown Solicitor.