Reported Decision : 120 LGERA 172 New South Wales Court of Appeal CITATION : Lynette Mary Styles v Wollondilly Shire Council [2002] NSWCA 67 FILE NUMBER(S) : CA 40152/01 HEARING DATE(S) : 19 February 2002 JUDGMENT DATE : 13 March 2002 PARTIES : Lynette Mary Styles (Appellant) Wollondilly Shire Council (Respondent) JUDGMENT OF : Sheller JA at 1; Stein JA at 2; McClellan J at 60 LOWER COURT JURISDICTION : Land & Environment Court LOWER COURT LEC 40153/01 FILE NUMBER(S) : LOWER COURT Sheahan J JUDICIAL OFFICER : COUNSEL : J McKenzie (Appellant) D Wilson (Respondent) SOLICITORS : Johnson & Sendall (Appellant) Marsdens Lawyers (Respondent) CATCHWORDS : LOCAL GOVERNMENT - confidentiality of documents - disclosure to the public - meetings - conduct of meetings - expulsion of councillor from meetings of council and its committee - code of conduct - utility of appeal - D LEGISLATION CITED : Local Government Act 1993 (NSW) Local Government (Meetings) Regulation Hacienda Apartments Pty Ltd v Vago (Unreported, Supreme Court, Young J, 19 May 1988) CASES CITED: Jarvis v Queanbeyan City Council [2002] NSWCA 20 Regis Towers Real Estate Pty Ltd v The Owners of Strata Plan 56443 [2002] NSWCA 40 Sankey v Whitlam (1978) 142 CLR 1 DECISION : 1. Appeal dismissed. 2. Costs reserved. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40152/01 LEC 40153/01 SHELLER JA STEIN JA McCLELLAN J Wednesday, 13 March 2002 Lynette Mary STYLES v WOLLONDILLY SHIRE COUNCIL This appeal arose from the dismissal of an application by the appellant, Lynette Mary Styles ('Mrs Styles'), in the Land and Environment Court. In those proceedings Sheahan J dismissed her application for declaratory relief brought under Class 4 of that court's jurisdiction. Mrs Styles was elected as a Councillor of the respondent, Wollondilly Shire Council ('the Council'), on 18 September 1995. She acted as a Councillor until 11 September 1999 at which time she was not re-elected to office. The factual background concerned a series of events that took place in the Council and which ' came to a head' at a Council meeting on 8 February 1999. It was during this meeting that the Council censured the appellant for acting in contravention of the Council's Code of Conduct. Mrs Styles then called the Mayor a 'bloody bitch' and a 'liar'. Thereafter, the Council passed a resolution requiring her to apologise for her acts of disorder. The apology was not forthcoming and the appellant was excluded from participating in Council meetings until she actually did apologise during the meeting of 26 July 1999. On Appeal the appellant sought the following declaratory relief against the respondent: (1) A declaration that the applicant did not breach the respondent's code of conduct policy as resolved by Council at the closed committee meeting of the Whole of the Council on 8 February 1999. (2) A declaration that the application did not breach s 664 of the Local Government Act 1993 as alleged in a confidential report to the respondent on 8 February 1999. (3) A declaration that the expulsion of the applicant from the ordinary meetings of the respondent between 22 February 1999 and 12 July 1999 was unlawful and contrary to the applicant's entitlement to attend and participate in those meetings. (4) A declaration that the respondent acted unlawfully in adjourning the meeting of 15 June 1999 to enable members of the NSW Police Force to attend at a later time to forcibly expel the applicant. The appellant sought 'damages' but no injunctive relief. She sought the same relief in the Court of Appeal. Held on the appeal, per Stein JA, Sheller JA and McClellan J agreeing: (1) The appellant is not entitled to any of the declaratory relief sought; (2) The General Manager's memorandum was clearly marked 'confidential'. The appellant breached the Council's Code of Conduct by releasing the memorandum to the press in order to gain an improper advantage for herself; (3) The General Manager did not allege that the appellant had breached s 664 of the Local Government Act ; (4) There was nothing unlawful about the expulsions from the ordinary meetings of the respondent between 22 February 1999 and 12 July 1999; (5) There was nothing unlawful in the Council adjourning the 15 June 1999 meeting when the appellant refused to leave the meeting and police assistance could not be obtained; (6) The appellant's submissions have little merit and she was primarily responsible for the events which occurred. Prima facie , and assuming breach by the respondent, the court should not exercise its discretion in the appellant's favour; and (7) The proceedings in the Court of Appeal have little utility. Orders: (1) Appeal dismissed. (2) Costs reserved. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40152/01 LEC 40153/01 SHELLER JA STEIN JA McCLELLAN J Wednesday, 13 March 2002 Lynette Mary STYLES v WOLLONDILLY SHIRE COUNCIL Judgment 1 SHELLER JA: I agree with Stein JA. 2 STEIN JA: This appeal arose from the dismissal of an application brought by the appellant, Lynette Mary Styles, in the Land and Environment Court. On 1 March 2001 Sheahan J gave judgment dismissing her application for declaratory relief brought under Class 4 of that court's jurisdiction. 3 The declaratory relief which the appellant sought against the respondent, the Wollondilly Shire Council, was as follows: (i) A declaration of (sic) the applicant did not breach the respondent's code of conduct policy as resolved by Council at the closed committee meeting of the whole of the Council on the 8th February, 1999. (ii) A declaration that the applicant did not breach section 664 of the Local Government Act 1993 as alleged in a confidential report to the respondent on the 8th of February 1999. (iii)A declaration that the expulsion of the applicant from the ordinary meetings of the respondent between the 22nd of February, 1999 and the 12th of July, 1999 was unlawful and contrary to the applicant's entitlement to attend and participate in those meetings. (iv) A declaration that the respondent acted unlawfully in adjourning the meeting of the 15th of June, 1999 to enable members of the NSW Police Force to attend at a later time to forcibly expel the applicant. 4 The appellant also sought 'damages' but no injunctive relief. She seeks the same relief in the Court of Appeal. Summary of facts 5 Mrs Styles was elected as a Councillor of the respondent Council in 1995. His Honour characterised the Council as having a fair amount of disharmony within it. Councillor Styles and a certain Councillor Hall had had significant differences which resulted in public unpleasantness at meetings and at least two sets of court proceedings. Mrs Styles also had differences with the Mayor, Councillor Towndrow, going back to 1995. They were not on speaking terms and the appellant had written to the General Manager, Mr Taylor, expressing her lack of confidence in the Mayor. 6 In September 1998 Councillor Hall ceased attending Council meetings because of stress from, according to her solicitor, 'things which have happened at the Council and outside the Council between herself and other Councillors'. 7 On 12 January 1999 Hall's solicitor, Mr Worthington, wrote to the General Manager indicating that his client proposed returning to Council meetings in late January. The letter made a number of allegations including sexual harassment by a Councillor and assault by other Councillors. Proceedings were threatened if 'there be any further harassment' of Hall. 8 On 19 January 1999 the General Manager sent to all Councillors a memorandum marked 'confidential'. It said: I recently received correspondence from solicitors representing Cr Hall who advised that Cr Hall will be attending the January 1999 Council meeting and that should any further harassment occur with Cr Hall, then action will be taken immediately against the responsible parties. The advice indicates that it is not intended to intimidate, and merely requests that Cr Hall's rights be respected and she be treated fairly and properly. I have responded to the solicitor – and this is an internal confidential matter. 9 The appellant received this memorandum by fax and with it came a copy of a letter on Council letterhead, headed 'draft' but signed by the General Manager. The letter was not marked 'confidential'. It was in the following terms: Dear Mr Worthington, CR JENNY HALL Thank you for your letter of 12 January 1999 and I note the contents and issues raised. If it is your client's claim that this Council has either contributed to or is in any way responsible or liable for sexual harassment or assault as alleged, such claim is strenuously denied. 10 The appellant asked for a copy of Worthington's letter of 12 January 1999. The General Manager said that it was deemed confidential and that is why his confidential memorandum had summarised the matter and brought it to Councillors' attention. He added that he believed that the letter should not be released. 11 The reaction of the appellant was to write to the General Manager on 25 January 1999 complaining at length about his failure to supply the letter. She said that she would seek it under Freedom of Information legislation. 12 On the next day (26 January 1999) the appellant met with a journalist, Andrea Kuhn, who on 28 January 1999 published in a newspaper called the District Reporter the contents of the January 19 memorandum and the draft copy letter from the General Manager to Worthington. 13 The article included some comments made by the appellant which indicated that 'she was happy to be named as the source'. A similar article was published in the Illawarra Mercury on 30 January 1999. 14 The General Manager raised the issue of 'Confidentiality of Council Issues' in a report which was before the Council at its meeting on 8 February 1999. The full text of the report is set out in his Honour's judgment. Mr Taylor attached copies of the newspaper articles and correspondence and drew attention to the Council's Code of Conduct and to s 664 of the Local Government Act 1993 (the Act). He said that it was important that the principles in the Code be maintained. He ended his report by seeking Council's guidance. The report made no recommendation. 15 When the Council met on 8 February 1999, it was closed to the public when the item raised by the General Manager regarding confidentiality was reached. The Council then went into a Committee of the Whole. The appellant voted against this occurring. 16 A motion was put that the appellant be censured for releasing the information in the General Manager's confidential memorandum dated 19 January 1999 contrary to Council's adopted Code of Conduct. The motion included other matters, which are fully set out in his Honour's judgment, but unnecessary to here recite. The appellant remained silent on the motion. While one Councillor was speaking the appellant interrupted, according to the minutes, in a manner derogatory of that Councillor and of the Mayor and other Councillors. She was called to order. 17 The appellant then said 'Shut Up Towndrow [the Mayor], you're a bloody bitch, a bitch, you're a liar, liar, liar'. 18 The Mayor repeatedly called her to order but the appellant continued to call the Mayor 'a liar'. 19 The meeting then carried the censure motion against the appellant, whose name was recorded as voting against the resolution. Another Councillor immediately moved that the appellant 'apologise to the Mayor for her acts of disorder repeatedly calling the Mayor a liar and a bloody bitch and if Councillor Styles does not apologise then she be expelled from this meeting'. The motion was carried and the Committee of the Whole dissolved. The open Council meeting then reconvened. At the reconvened meeting the resolutions passed at the Committee of the Whole were resubmitted and carried. The appellant was asked to apologise to the Mayor but she refused. The Mayor asked her to leave the meeting but she refused. The minutes indicate that there being no further business, the meeting was closed. 20 The next meeting of Council was on 22 February 1999. The resolution of 8 February 1999 that the appellant apologise for 'her acts of disorder repeatedly calling the Mayor a liar' etc was reactivated. The Mayor was asked if the appellant had apologised to her and she answered in the negative. The appellant was then twice given the opportunity to apologise but declined. It was then resolved that since the appellant had not apologised, she be expelled from the meeting. The Mayor asked the appellant to leave but she refused. Twice more she was asked to leave but declined. Some time later the appellant was escorted from the meeting by police. 21 Similar occurrences happened at subsequent meetings of the Council on 8 March, 22 March, 12 April, 27 April, 10 May, 21 June, 28 June and 12 July 1999. Sometimes the appellant left the meeting after having been asked to do so. Often she did not leave until the police removed her. On one occasion (15 June 1999) she refused to leave and the meeting had to be adjourned to a later date. At no point of time did Councillor Styles apologise. 22 Although legal proceedings were threatened by the appellant in March 1999, they were not commenced until 15 July 1999. On 26 July 1999 she unsuccessfully applied for interlocutory relief. The appellant later attended the Council meeting that evening. The minutes record the following: Resolved on the motion of Crs Kuiper and Auchtrelonie that Council reaffirm Resolution No 107/99 of 8 February 1999 to expel Cr Styles from the meeting for acts of disorder. Cr Kuiper asked the Mayor if she had received an apology. The Mayor advised that she had not received an apology. The General Manager advised that he had not received an apology. The Mayor asked Cr Styles if she wished to comment. Cr Styles responded: 'Cr Lynette Styles offers an unreserved apology to the Chairperson of the Committee of the Whole held on 8 February 1999 for calling the Chair, Councillor Towndrow, 'a liar and a bloody bitch' in a closed committee. I apologise for the delay in offering this apology and I assure you this will not happen again. I hope we can let bygones be bygones and get on with representing our constituents for the sake of good local government'. Resolved on the motion of Crs Appel and Banasik that the apology of Cr Styles be accepted. Cr Styles advised that she would provide a written apology. The Mayor thanked Cr Styles for the apology. 23 Following the acceptance of her apology the appellant participated in Council meetings until the Council ceased to exist in September 1999. The appellant stood for re-election at the elections held on 11 September 1999 but was unsuccessful. 24 His Honour summarised some of the appellant's evidence. He noted that she freely admitted using the abusive words to the Mayor at the Committee of the Whole on 8 February 1999. She said that she 'meant' them and believed them to describe the Mayor. However, she believed that she was 'ambushed'. She said that she had refused to apologise because she believed she had done nothing wrong. 25 His Honour noted that the appellant, having failed to gain interim relief, 'carefully crafted the words of her apology, so that it referred only to the second element of that resolution, [the act of disorder], and sounded sincere'. It is apparent that the reason that the appellant apologised was solely to enable her to vote on a rescission motion on 26 July which related to one of her constituents. 26 The four declarations sought by the appellant have been set out in my introduction. 27 Although declaration (iii) does not refer to the 'act of disorder' resolution of 8 February 1999, counsel for the appellant, Mr J McKenzie, informed the court that the relief was intended to encompass that resolution. 28 It seems to me that the best way to proceed to deal with the appellant's case is to consider the arguments put by the appellant in relation to each declaration seriatim. Declaration (i) 29 First the appellant submits that the General Manager's memorandum of 19 January 1999 was not correctly designated as confidential. This submission is accompanied by the assertion that the letter from Mr Worthington to the General Manager dated 12 January 1999 could not have been confidential. This is said to be so because the letter could not have been confidential in Councillor Hall's hands since it was written by her solicitor on her behalf. 30 I see no substance in the submission. Just because Councillor Hall was entitled, as the client, to see the letter her solicitor sent to the General Manager, says nothing to whether the letter should or could have been deemed by the General Manager to be designated 'confidential'. Bearing in mind the contents of the letter, there was in my opinion ample reason for the General Manager not to give the appellant a copy of it, nor to any other Councillor. On the contrary, it was proper for him to refer the matter to the Council for it to consider. 31 The General Manager's memorandum was very clearly marked 'confidential' and also made a reference to 'this is an internal confidential matter' in its closing words. 32 I can see no reason why it was not open to the General Manager to deem the memorandum confidential. That confidence would also be accorded to the 'draft' letter which was faxed to the Councillors (including the appellant) along with the memorandum. 33 The fact that Councillor Hall could, if she chose, publicise her solicitor's letter is completely beside the point. 34 The concept of 'confidential council information' is dealt with by Council's Code of Conduct adopted in December 1998. Sheahan J found that the appellant breached section 2(1) (a) and (c) of the Code. These sub clauses provide as follows: (a) Councillors and staff shall not use confidential Council information to gain improper advantage for themselves or for any other person or body; in ways which are inconsistent with their obligation to act impartially: or to improperly cause harm or detriment to any person, body or Council. … (c) Councillors and Council staff should not use confidential information in ways: (i) which are an abuse of their privileged position; or (ii) which are inconsistent with their obligation to act impartially. 35 The appellant submits that there was no evidence to support his Honour's conclusion. Mr McKenzie submits that the appellant was doing no more than making the public aware, in the public interest, that there was a problem in the governance of the Council. 36 For my part I have no difficulty with his Honour's finding of breach of the code. The appellant was using confidential Council information to gain an improper advantage for herself when she leaked the confidential information and draft letter to the press. She was using the confidential information to improperly cause harm to the Council. In doing what she did, the appellant abused her privileged position as a Councillor. 37 His Honour was correct to refuse the first declaration. Declaration (ii) 38 In my view, this declaration misconceives the facts. The General Manager did not allege that the appellant had breached s 664 of the Act in his report to the Council on 8 February 1999. The section makes it an offence for a person to disclose any information obtained in connection with the administration of the Act unless it qualifies under any of five situations set out in subsection (1). 39 The relevant portion of the General Manager's memorandum to Council for its meeting on 8 February 1999 was as follows: Further, the process of Section 664 of the Local Government Act also must be considered, regarding the use of information received while in Council. This is an issue that appears to warrant consideration by Council and or our governing authority. 40 That is plainly not an allegation that the appellant breached s 664 of the Act, nor does it imply such. Of itself, that is enough to refuse the declaration sought. However, there are many further reasons why his Honour was correct to refuse the relief. No proceedings have been brought against the appellant under the provision and furthermore the time for bringing them has well and truly expired. 41 Generally, and for very good and obvious public policy considerations, a court will not make a declaration that a person has not committed a criminal offence. Such declarations are confined to exceptional circumstances, Sankey v Whitlam (1978) 142 CLR 1 at 25 – 26. 42 Assuming, for the moment, that the occasion had arisen to make a declaration such as the appellant sought, his Honour must have been entitled, in the circumstances which existed, to refuse to do so in the exercise of the court's discretion. Declaration (iii) 43 This declaration concerned the expulsions themselves. The submission made on behalf of the appellant commences with a contention that the censure motion on 8 February 1999 regarding the appellant's breach of confidentiality was unlawful. I have already rejected this submission. The written submissions of counsel then blandly state that the 'impropriety' of the resolution and meeting 'led to disorder in the Committee of the Whole'. No doubt the appellant was angry at the censure motion but this does not excuse her appalling outburst, which doubtless caused disorder at the meeting, a situation which the appellant does not appear to dispute. 44 His Honour found that the appellant's words and actions at the meeting were clear breaches of cl 25 of the Local Government (Meetings) Regulation, as well as of certain provisions in the Code of Conduct. 45 Clause 24 allows the chairperson to call any Councillor to order. Clause 25(1) relevantly provides that a Councillor commits an act of disorder at a meeting of a Council or a Committee of a Council if he or she: (d) insults or makes personal reflections on … any other Councillor; or (e) says or does anything that is inconsistent with maintaining order at the meeting … 46 The appellant was undoubtedly guilty of a breach of cl 25(1) (d) and (e). What she said was, by any reasonable standard, insulting of the Mayor. Her outburst was completely inconsistent with the maintenance of order at the meeting. 47 The chairperson may require a Councillor to apologise without reservation for such an act of disorder, cl 25(2)(c). 48 Subsclause (3) provides: A councillor may as provided by section 10(2)(a) or (b) of the Act, be expelled from a meeting of a council for having failed to comply with a requirement under subclause (2). The expulsion of a councillor from the meeting for that reason does not prevent any other action from being taken against the councillor for the act of disorder concerned. 49 The Mayor was entitled to require the appellant to apologise on 8 February 1999 and, since she failed to comply, move to expel her from the meeting. However, this did not occur because, while the appellant refused to leave the meeting, the meeting closed soon thereafter without any expulsion taking place. 50 However, the appellant submits that that is where the matter should have finished. It is submitted that it was not open to be reactivated at subsequent meetings. The act of disorder of the 8 February 1999 and the requirement of an apology were, so it is submitted, at an end. I can see no merit or substance in this submission. It finds no support in the legislation nor in logic or principles of good governance. In my opinion, it was open to the Council to reactivate the matter at any subsequent meeting and to seek compliance with the requirement of an apology by the appellant. Failing that, it is my opinion that the Council was entitled to expel her from that meeting and, in the absence of her compliance, to have the police called to escort her from the meeting. 51 However, the appellant further submits that the resolution requiring her to apologise to the Mayor was unlawful since it was not moved by the chairperson (as required by the Code and cl 25(2)(a) of the Regulation) but by one of the other Councillors. A reading of the Regulation in question does not oblige the chairperson of the meeting to move the resolution requiring the apology. Sub-clause (2) says that the chairperson may require a Councillor to apologise for an act of disorder. It does not say that a resolution, such as moved by Councillor Voncina, can only be moved by the chairperson. In fact, at the reconvened Council meeting the chairperson did require the appellant to apologise. In any event, his Honour was correct to point to s 374(e) of the Local Government Act 1993 to the effect that a Council or Committee meeting is not invalidated by reason of a failure to comply with the code of meeting practice. In my view, if there was a non-compliance, which is by no means apparent, it did not invalidate the resolution. I note in passing that this particular argument did not appear to have been included in the extensive Notice of Grounds of Appeal. 52 Furthermore, I can see nothing unlawful in the action taken by the Council at each of the subsequent meetings after 8 February 1999 until 12 July 1999. At each relevant meeting the appellant was asked to apologise and she refused to do so. This was a breach of cl 25 on each occasion. It matters not that the original act of disorder happened at the meeting of the Committee of the Whole on 8 February 1999. 53 His Honour was entitled to refuse to make declaration (iii). There was nothing unlawful about the expulsions. Declaration (iv) 54 Counsel for the appellant relies on his written submissions with regard to this declaration which concerns the adjournment of the meeting of 15 June 1999. I have read and re-read the appellant's submissions, which run to 30 pages, but can find no reference to any argument concerning declaration (iv) although it is referred to in ground 18 of the Notice of Appeal. In any event, I can see nothing unlawful in Council's adjourning of the 15 June 1999 meeting when the appellant refused to leave the meeting and police assistance could not be obtained. Discretion 55 It follows that the appellant is not entitled to any of the declarations sought. In any event, the facts are such that, in the exercise of the court's discretion, relief should be refused. The appellant has little merit and was primarily responsible for the events which occurred. She went to the media and leaked documents which the General Manager had deemed confidential and before the Council could consider the matter. Her outburst at the meeting of 8 February 1999 was appalling and her refusal to apologise disgraceful. Her contrived apology, carefully crafted to sound sincere, was a sham and does her no credit. She has not been a member of the Council since September 1999 and the utility of the proceedings, as I will mention in a moment, is to say the least dubious. It is difficult to see why the court's discretion would be exercised in the appellant's favour. Damages 56 The appellant also sought damages, but in the circumstances which had transpired, no injunctive relief. The Council submits that the Land and Environment Court had no jurisdiction to award damages in the proceedings. Sheahan J so found. Interesting as the question might be, I stay from deciding it. The issue can no doubt await another day and a better vehicle than this appeal. Utility 57 At the trial, the respondent submitted that the proceedings were inutile. His Honour found that the proceedings had some utility because they involved points 'of some public importance'. His Honour did not indicate what these matters of public importance were. 58 The court will not normally entertain appeals which have no utility. Two recent examples are Jarvis v Queanbeyan City Council [2002] NSWCA 20 and Regis Towers Real Estate Pty Ltd v The Owners of Strata Plan 56443 [2002] NSWCA 40. Hacienda Apartments Pty Limited v Vago (Unreported, Supreme Court, Young J, 19 May 1988) discussed the authorities and principles to be applied when the subject matter of proceedings is spent. When a dispute concerns purely private rights, it will be rare for a court to consider that a declaration will have any utility. Here it is urged that there is a public interest aspect. At this distance from the heat of battle in the first half of 1999, it is difficult to discern. Nor are there any obvious matters of construction of legislation of general or continuing importance. In any event, the appellant has had a full hearing before the Land and Environment Court, where the issues were fully adjudicated on in a lengthy and thorough judgment. Although I have considered the substance of the appeal, I am firmly of the view that the proceedings in the Court of Appeal have little utility. 59 The appeal should be dismissed with costs reserved at the request of the respondent. 60 McCLELLAN J: I agree with Stein JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.