De Luca v Warringah Shire Council [2011] NSWSC 1280

Supreme Court New South Wales

Medium Neutral Citation: De Luca v Warringah Shire Council [2011] NSWSC 1280 Hearing dates: 18/10/2011 Decision date: 18 October 2011 Jurisdiction: Common Law Before: Garling J Decision: (a) Application dismissed (b) Plaintiff to pay the Defendant's costs Catchwords: PRACTICE AND PROCEDURE - Application for interlocutory injunction - Injunction seeking to restrain local council from considering agenda item at meeting - Subject of agenda item was report of conduct complaint against councillor - No prima facie case made out by the plaintiff - At prima facie level the following were not made out - No unreasonable exercise of discretion finding that conduct was not trivial - Culture of council relevant to triviality - Relevant to consider publicity of conduct as council code of conduct requires harm be considered - No apprehension of bias by reviewer exploring alternate means of problem resolution - No actual bias merely due to disagreement between reviewer and applicant - No procedural error due to lack of early disclosure of and ability to cross-examine witnesses - No issue of principle

PRACTICE AND PROCEDURE - Application for interlocutory injunction - Injunction seeking to restrain local council from considering agenda item at meeting - Subject of agenda item was report of conduct complaint against councillor - Balance of convenience does not satisfy injunction - Sanction to be imposed on councillor subject to vote and council processes - Applicant will have opportunity to present submissions - Not satisfied appropriate to interrupt council's public duty - Any damage or harm to applicant remediable by other proceedings - No issue of principle Cases Cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 Briginshaw v Briginshaw (1938) 60 CLR 336 Elite Fleet Pty Ltd v Westpac Banking Corporation [2011] NSWSC 958 Category: Interlocutory applications Parties: Vincent De Luca (P) Warringah Shire Council (D) Representation: L D Robison (P) R Francois (D) Schreuder Partners (P) DLA Piper (D) File Number(s): 2011/332112 Publication restriction: Nil