Jeray v Blue Mountains City Council (No.3) [2010] NSWLEC 187

Land and Environment Court of New South Wales

CITATION : Jeray v Blue Mountains City Council (No.3) [2010] NSWLEC 187

APPLICANT PARTIES : Ivan Jeray RESPONDENT Blue Mountains City Council

FILE NUMBER(S) : 40517 of 2010

CORAM: Sheahan J

KEY ISSUES: PRACTICE AND PROCEDURE :- Notice to Produce - claim by Council that a certain document be kept confidential

Local Government Act 1993 LEGISLATION CITED: Local Government (General) Regulation 2005 Uniform Civil Procedure Rules 2005

CASES CITED: Wykanak v Rockdale City Council [2001] NSWLEC 65, 113 LGERA 335

DATES OF HEARING: 27 September 2010

EX TEMPORE JUDGMENT DATE : 27 September 2010

APPLICANT In person

LEGAL REPRESENTATIVES: RESPONDENT Mr I Hemmings, Barrister SOLICITORS Marsdens Law Group

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

Sheahan J

27 September 2010

40517 of 2010 Jeray v Blue Mountains City Council (No.3)

EXTEMPORE JUDGMENT 1 His Honour: Mr Jeray commenced these proceedings against the Council on 30 June 2010 and they concern mainly his access to Council files and documents. 2 As currently framed in an annexure to the Statement of Claim as filed, and of most relevance to today's hearing regarding access to a particular document for the purposes of the proceedings, Mr Jeray claims a breach of the words and spirit of various provisions of the Local Government Act 1993 ('LG Act') and the Local Government (General) Regulation 2005 ('the Regulation') in the Council's refusal to grant him access to a report and recommendations endorsed at Minute No.178 for the Council meeting of 27 April 2010. 3 I note for the record that at the commencement of today's hearing the parties reached agreement on Council's claims for client legal privilege in respect of some other documents. 4 Clause 243(3) of the Regulation provides that a recommendation made in a minute of the Mayor or in a report made by a Council employee is, so far as adopted by the Council, a resolution of the Council. However, I need not set out all other relevant provisions of the Act and Regulation. 5 Their clear legislative intent is for a Council's business to be as open, public, transparent, and accountable as possible. See discussion of the legislative regime by Bignold J in Wykanak v Rockdale City Council [2001] NSWLEC 65, 113 LGERA 335. 6 Mr Jeray's complaint in these proceedings is that the Council does not say in its published documents what it actually endorsed by Minute 178. 7 Part of the business at, and the documents for, the respondent Council's meeting of 27 April 2010 were closed to the public, pursuant to s 10A of the LG Act, which provides that the Council or a committee of the Council may close to the public so much of its meeting as deals with "personal matters concerning particular individuals (other than Councillors)" and any matters "affecting the security of the Council, Councillors, Council staff or Council property" (s 10A(1) and (2)(a), and perhaps also (2)(f)). 8 Departmental Circular 07-08 dated 11 April 2007 (Exhibit J1, p3) deals with Closed Council Meetings and, inter alia, provides as follows: " Resolutions made at a closed part of a council meeting or committee of council must be made public by the chairperson of the meeting as soon as practical after the closed part of the meeting has ended ... While discussions during a closed meeting must remain confidential, the resolution must allow the public to know what the council has decided during the closed part of the meeting, but without revealing confidential information. A recommendation such as 'Resolved as recommended in the report' does not adequately inform the public of the decision of the council". 9 Practice Note 16 regarding Meetings Practice was updated on 30 August 2009 by Circular 09/32 (Exhibit J1, p9ff). Section 7.2.4 (p14) deals in some detail with the contractual conditions of senior staff. It states that "the contractual conditions of senior staff is public information and should be presented in an open meeting", but notes that s 10A(2) of the Act allows Councils to close part of a meeting to discuss personnel matters concerning particular individuals. It contemplates that s 10A powers would be invoked by Council, and meetings closed, if the Council wishes to discuss "for example, the salaries of particular employees or consider the performance of the General Manager". Closing of a meeting, or part of a meeting, is discretionary, and Council should consider providing as much information as possible in open session. 10 In s 7.3.2 (Exhibit J1, p15) the Practice Note requires that resolutions or recommendations made at a closed part of a meeting must be made public as soon as practical after the closed part of the meeting concludes. Recommendations of a closed committee must be reported to the Council and the Council must ensure that a report of the proceedings is recorded in the Council's minutes. The Practice Note continues (p15): " While discussions in the closed part of a meeting remain confidential, the separate nature of a resolution or recommendation allows it to be made public immediately after the closed part of the meeting has ended. The resolution or recommendation could be phrased in such a way as to protect a person's identity or other confidential details (for example, stating an assessment number instead of the person's name or giving the general locality of land to be purchased instead of the precise address). This allows the public to know what the council or committee has decided at the closed part of the meeting without revealing confidential information. The minutes should record sufficient details of the resolution to indicate the nature of the decision. It is not sufficient, for example, to resolve to implement the committee's recommendation or the general manager's recommendation. More specific information is required". 11 The Practice Note goes on to say that information appropriate to be made public should be made public in an adequate and prompt matter (p16): " The latest time for informing the public of resolutions or recommendations made in the closed part of a meeting would be when the minutes containing the resolutions or recommendations are made available for public inspection (s.12 of the Act). Any person is entitled to inspect minutes containing resolutions or recommendations from the closed parts of meetings. While a council cannot keep its decisions or recommendations confidential, it should be possible to discuss matters in the minutes in such a way as not to reveal confidential details". 12 Mr Jeray issued to Council a Notice to Produce on 13 July 2010. What remains before the court for adjudication today is item 4 of that notice, requiring production of "a copy of the complete report that was noted and endorsed at minute no. 178 for the Council meeting of 27 April 2010, including the recommendations of the report". (In his email exchange with Council in June he claimed he wanted only the recommendations). 13 In his affidavit of 24 September (par 9) Mr Jeray gives the following undertaking: " I give an undertaking that I will not reveal the information within or distribute copies of the alleged confidential records should the Court grant me access to the alleged confidential records that have been produced to the Court by Blue Mountains City Council for case no. 2010/40517. Copies of the alleged confidential records will only be utilised by me to properly prepare my documentation and evidence for case no. 2010/40517 ". 14 In the published minutes of the Council meeting of 27 April 2010 (as extracted in Exhibit J1, at pp20-21), Minute No.155 occurs at p5, and Minutes 177 and 178 at p20, of the 22 pages of "confirmed minutes" of the meeting. 15 In Minute 155 Council unanimously resolved: " 1. That item S2 in the Confidential Business Paper be deferred for consideration until all other business of this meeting has been concluded; and 2. That the Council close part of the Council Meeting for consideration of Item MM2 in the Confidential Business Paper 'General Managers Annual Performance Review 2008-09' pursuant to the provisions of Section 10A(2)(a) of the Local Government Act 1993, as the report contains, and discussion is likely to involve: (a) Personnel matters concerning particular individuals (other than councillors)." 16 In Minute 177 Council unanimously resolved to move into confidential session. 17 In Minute 178 Council unanimously resolved to "note and endorse" the report in mayoral minute MM2 (referred to in 155). 18 A further (unrelated) confidential item was dealt with at Minute 179 and the meeting was reopened at Minute 180. 19 The Council presses its claim for the confidentiality of that "report" mentioned in Minute 178, but asked the court to examine it before ruling. 20 Its substantive contents cover a little more than two A4 pages. It concerns the requirements of the performance agreement between the Council and its then General Manager. Without trespassing on Council's confidentiality, I note that the report deals with the necessary annual review of the General Manager's performance for the year 2008-2009, the agreed conclusion of the review on 5 February 2010, a performance reward payment, and the principles to apply when making a performance agreement for any new General Manager. 21 Clearly the Council believes that these are personnel matters appropriately kept confidential, and the court considers that there is nothing presented to the court today which would indicate that the Council has in any way acted contrary to the words or the spirit of the relevant provisions of the LG Act, as explained in the departmental circulars, etc. Whether Mr Jeray wants the whole report or only its recommendations makes no difference to that conclusion. 22 The Council concedes, however, that documents which might be kept confidential by Council pursuant to the provisions of that Act, may still appropriately be required to be produced in response to a Notice to Produce in class 4 proceedings before this court. 23 Uniform Civil Procedure Rules 2005 rules 21.9-21.10 would allow Mr Jeray to evade Council's claim of confidentiality and insist on access to the relevant minute/report if it "could, or contains material that could, rationally affect the assessment of the probability of the existence of [a relevant fact in issue] (otherwise than by relating solely to the credibility of a witness), regardless of whether the document … would be admissible in evidence". 24 Mr Jeray bears the onus of establishing such provenance for the performance review, and has not done so. 25 I uphold the council's confidentiality claim in respect of Item 4 in the Notice to Produce dated 13 July 2010. 26 Now that the parties have settled their dispute about privilege alleged to attach to other documents sought by Mr Jeray before he could file his points of claim, it should be possible for him to agree to a revision of the timetable set by Pepper J on 9 July 2010. For that purpose I confirm the relisting of the matter before the list judge on Friday 8 October 2010. 27 The costs of today's proceedings will be costs in the cause, and Exhibit J1 can be returned to the applicant. 28 I will publish these reasons within 24 hours.