Leichhardt Municipal Council v Minister for Local Government & anor. [2002] NSWSC 4

New South Wales Supreme Court

CITATION : Leichhardt Municipal Council v Minister for Local Government & anor. [2002] NSWSC 4 FILE NUMBER(S) : SC 30073/01 HEARING DATE(S) : 17 December 2001 JUDGMENT DATE : 20 December 2001

Leichhardt Municipal Council PARTIES : Minister for Local Government Local Government Boundaries Commission JUDGMENT OF : Sully J at 1

COUNSEL : B. J. Preston SC/Dr. S. Pritchard - Plaintiff J. Griffiths SC/S. Lloyd - Defendants SOLICITORS : Pike Pike and Fenwick - Plaintiff Crown Solicitor's Office - Defendants LEGISLATION CITED : Local Government Act 1993 NSW Commerce Act 1986 of New Zealand CASES CITED : Commerce Commission v Fletcher Challenge Limited (1989) 2 NZLR 554 DECISION : Amended summons dismissed; Costs reserved; Exhibits to remain in Court pending further order

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION 30073/01 SULLY J

Thursday 20 December, 2001

LEICHHARDT MUNICIPAL COUNCIL v MINISTER FOR LOCAL GOVERNMENT & 1 OR.

JUDGMENT

1 HIS HONOUR: By a summons filed on 4 December 2001, the Leichhardt Municipal Council as plaintiff seeks various declarations, orders and injunctions against two defendants: the first of them being the Minister for Local Government; and the second of them being the Local Government Boundaries Commission. I shall refer in what follows to these parties as, respectively, "the Council", "the Minister" and "the Commission".

2 The Council is a local governing authority for the purposes of the Local Government Act 1993 NSW, ("the Act"). It is a body corporate by statute section 220 of the Act. It has a wide range of functions, some of which are prescribed for it by the Act, and others of which are prescribed for it by other statutes. It performs those statutory functions in relation to a particular Local Government area constituted by a proclamation made by the Governor pursuant to power conferred by section 204 of the Act. 3 The Minister is the Minister of the Crown who is charged with the administration of the Act. The Commission is a body corporate so constituted by section 260 of the Act. Its functions are prescribed by section 263 of the Act. The provisions now relevant of section 263 are: "(2) For the purpose of exercising its functions, the Boundaries Commission: (a) may hold an inquiry if the Minister so approves, and (b) must hold an inquiry if the minister so directs, but may not hold an inquiry otherwise than as referred to in paragraph (a) or (b). (3) When considering any matter referred to it that relates to the boundaries of areas or the areas of operations of county councils, the Boundaries Commission is required to have regard to the following factors: (a) the financial advantages or disadvantages (including the economies or diseconomies of scale) of any relevant proposal to the residents and ratepayers of the areas concerned, (b) the community of interest and geographic cohesion in the existing areas and in any proposed new area, (c) the existing historical and traditional values in the existing areas and the impact of change on them, (d) the attitude of the residents and ratepayers of the areas concerned, (e) the requirements of the area concerned in relation to elected representation for residents and ratepayers at the local level, the desirable and appropriate relationship between elected representatives and ratepayers and residents and such other matters as it considers relevant in relation to the past and future patterns of elected representation for that area, (e1) the impact of any relevant proposal on the ability of the councils of the areas concerned to provide adequate, equitable and appropriate services and facilities, (e2) the impact of any relevant proposal on the employment of the staff by the Councils of the areas concerned, (e3) the impact of any relevant proposal on rural communities in the areas concerned, (e4) in the case of a proposal for the amalgamation of two or more areas, the desirability (or otherwise) of dividing the resulting area or areas into wards, (e5) in the case of a proposal for the amalgamation of two or more areas, the need to ensure that the opinions of each of the diverse communities of the resulting area or areas are effectively represented, (f) such other factors as it considers relevant to the provision of efficient and effective local government in the existing and proposed new areas. (5) The Boundaries Commission must allow members of the public to attend any inquiry held by the Commission under this section." 4 On 20 November 2001 the Minister signed an instrument bearing that date and expresses as follows: "LOCAL GOVERNMENT ACT 1993 ORDER REFERRAL OF BOUNDARY ALTERATION PROPOSAL TO THE LOCAL GOVERNMENT BOUNDARIES COMMISSION