Brinsmead v Commissioner Tweed Shire Council Public Inquiry [2007] NSWSC 246

Reported Decision : 152 LGERA 331

New South Wales Supreme Court

CITATION : Brinsmead v Commissioner Tweed Shire Council Public Inquiry [2007] NSWSC 246

HEARING DATE(S) : 7 February 2007

JUDGMENT DATE : 22 March 2007

JUDGMENT OF : Price J at 1

DECISION : 1. Declare that the findings, determinations, comments and recommendation made by the first defendant in the report furnished by him to the second defendant and entitled "Tweed Shire Council Public Inquiry Second Report" which are adverse to the plaintiff were made without procedural fairness. 2. Declare that on the true construction of s 740 of the Local Government Act 1993 the first defendant, in the course of making a report pursuant to that section is not and was not entitled to make any finding or determination that the plaintiff had engaged in criminal or professional misconduct. 3. Declare that the findings, determinations and recommendation made by the first defendant in the report furnished by him to the second defendant entitled "Tweed Shire Council Public Inquiry Second Report" as specified in the schedule annexed to this Judgment were without or in excess of jurisdiction, and are a nullity. 4. Order that the first defendant and second defendant pay the plaintiff's costs.

CATCHWORDS : Administrative law - declaratory relief - power of Commissioner of Inquiry to make findings of criminal or professional misconduct - procedural fairness - findings made and recommendation made in excess of power - declarations of denial of procedural fairness and nullity.

Local Courts Act 1982 s 27A, s 27B Local Government Act 1993 s 7, s 12A, s 12A(2) s 21, s 22, s 740, s 740(2), s 740(4), LEGISLATION CITED : Royal Commissions Act 1923 s 12A, s 13 Div 1 Pt 2, s 13 Div 2 Pt 2, s 14B, s 19, s 20, s 21, s 22 Independent Commission Against Corruption Act 1988 s 14(1), s 14(2), s 74(5) Interpretation Act 1987 s 33