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 EX TEMPORE Judgment 1The applicant, Mr Vincent De Luca, seeks an order until further order that the respondent, Warringah Shire Council, be restrained from considering an item which is on its Agenda for its meeting tonight. The meeting is due to commence at 6pm, namely in 25 minutes time. 2The Agenda item is number 7.3 and is conveniently referred to as "Code of Conduct - Report by Sole Conduct Reviewer - Complaint of Behaviour" and refers to a report which has been provided to the Council by Mr Peter Givorshner, a sole conduct reviewer, into a complaint made against Mr De Luca concerning an alleged breach of the Council's Code of Conduct. 3The applicant offers the usual undertaking as to damages. 4The matter has been referred to me by the Duty Judge of the Common Law Division because he is unable to hear it, as he knows well one of the individuals connected to the proceedings. 5For reasons which do not need to be elaborated upon, the matter did not commence to be heard until 2.30pm this afternoon and it was heard on an urgent basis. No written pleadings have been filed. The need for a timely decision necessarily means that the reasons for my decision are both inelegant and truncated. I also note that since 4pm there has been no court reporter present to take a transcript of what occurred. Interlocutory Injunctions - Legal Principles 6It is important to bear in mind the legal principles which apply to the Court's decision on an application such as this. They can be most conveniently found in a decision of the High Court of Australia: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57. In the joint decision of Gummow and Hayne JJ, between [65] and [72], the Court reviewed the proper basis upon which an interlocutory injunction ought to be granted. 7Their Honours quote with approval an earlier decision of the High Court in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 where at 622-623 in the judgment of the four members of the Court it said that there were two main enquiries on such an application and continued: "The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief... The second enquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted." 8Gummow and Hayne JJ go on to say at [65] this in O'Neill : "By using the phrase 'prima facie' case, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed, it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial." 9It was in this sense that the Court in Beecham Group Ltd was referring to the notion of a prima facie case, as is apparent from an observation to that effect by Kitto J in the course of argument. 10With the reference to the first enquiry, the Court in Beecham Group Ltd continued in a statement of central importance to this appeal, at 622: "How strong the probability needs to be depends, no doubt, upon on the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the orders he seeks." 11There are many decisions of single judges of this Court which summarise those principles. I do not have the time to outline in this judgment all of those decisions. I note the following matters about the exercise of the power which the Court undoubtedly has. 12First, the power to grant an interlocutory injunction is a discretionary remedy and it must appear that it is just and convenient that the order should be made. The discretion is not because of what the High Court has said in O'Neill . 13Second, it is not my function to conduct a preliminary trial of the action, nor would I if called upon, resolve any conflict in evidence. However, it is necessary before proceeding to identify the legal rights which are to be determined at the trial and in respect of which final relief is sought. 14In summary the typical description of the Court's task is this, and I quote from Brereton J in Elite Fleet Pty Ltd v Westpac Banking Corporation [2011] NSWSC 958 at [9]: "On an application such as the present for an interlocutory injunction, issues are first, whether the applicant establishes a serious question to be tried for final relief; secondly, whether the balance of convenience favours the grant or the withholding of interlocutory relief, having regard to the strength of the serious question; and thirdly, general discretionary considerations, including any questions of delay and the like." Facts 15It will be necessary just to recount some very brief facts. In February 2011 complaint was made to the General Manager of Warringah Council alleging that Mr De Luca had breached the Council's Code of Conduct in his capacity as an elected councillor. The complaint was made in relation to behaviour at a Council meeting in February 2011 and concerned alleged remarks made by Mr De Luca to Councillor Falinski. 16The Council appointed Mr Givorshner as a sole conduct reviewer to investigate into, and report to it on, the complaint. The Code of Conduct for councillors, members of staff and delegates of council of the Warringah Council permitted such a sole reviewer to engage in the task in which Mr Givorshner did. In so doing, he was required to accord procedural fairness and, in due course, make findings of fact and recommendations as to what action, if any, the Council should take. 17The Charter of the Conduct Review Committee, and of any sole conduct reviewer, reflected the Code. 18Mr Givorshner has produced a final report, the date of which I must confess is unclear, but was made available publicly on the Council's website on 14 October 2011. He sets out the process which he followed and the evidence he obtained from his enquiries and from individuals who were relevantly concerned with events. He provides an analysis of the evidence and then, having declared that he was applying the standard of proof in accordance with Briginshaw v Briginshaw (1983) 60 CLR 336, states he was satisfied as to certain matters adverse to Mr De Luca. 19At paragraph 29 Mr Givorshner said: "I find that an exchange between Cr De Luca and Cr Falinski took place at the Council meeting on Tuesday 2 February 2011, in which Cr Falinski said to Cr De Luca words to the effect 'you are keeping me from my daughter', to which Cr De Luca replied in words to the effect, 'She's better off without you'. I reject the version of this exchange advanced by Cr De Luca." 20Mr Givorshner determined that this was an intemperate and spiteful remark made in the course of a fairly chaotic and heated meeting and that in the context in which it occurred, the remarks amounted to behaviours which in a very real way manifested breaches of clauses 6.2 and 6.4 of the Code of Conduct. 21He noted that the incident received extensive coverage in the Manly Daily and that the fact of that coverage clearly brought the Council into disrepute. He went on to discuss matters which he was required to consider under clause 14.9 of the Conduct of Conduct and concluded by making his recommendation that Mr De Luca be censured for misbehaviour and that he be required to apologise to Councillor Falinski. I note that both of these being recommendations are available under the Code. Applicant's Submissions 22Mr De Luca contended that he was entitled to administrative relief which would result in the report of Mr Givorshner being quashed by this Court. He asserted in his submissions that the report disclosed a number of errors of law and that those errors could be identified in six separate ways. 23The first was that Mr Givorshner should have, but did not, determine that the conduct involved was trivial and that further, in determining that it was not trivial, he fell into error. It followed, he submitted, that the whole of Mr Givorshner's report and finding and recommendations would constitute an unreasonable exercise of his discretion having regard to the Wednesbury principle to be found in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. 24I do not accept this. I do not think that anyone could regard the conduct as trivial. The remark that was made was, on any basis, a personal one. Mr Givorshner's characterisation of it as intemperate seems to me to be precisely correct. This is not the sort of remark which one elected member of a council ought to make to another. 25I see no basis for asserting, at least at a prima facie level, on the basis of the evidence presently before this Court, that there was an error of law in Mr Givorshner not finding that the conduct was trivial and rather making a finding that it was not. His conclusion was, in light of the surrounding facts and circumstances, well open to him, 26The second proposition which grounded the claim for relief, was that in paragraph 34 of his report, Mr Givorshner had taken into account and relied upon, a matter which was wholly irrelevant to his task. 27Paragraph 34 refers to some remarks in Mr Givorshner's report that relate to the nature of working relationships at Warringah Council at the relevant time. He draws those conclusions from the audiovisual recording and transcript of the meeting of 2 February 2011 with which he was provided, together with the evidence recording the Mayor's remarks to the meeting in which the Mayor chastised councillors for the manner in which they were conducting themselves. Mr Givorshner says that the existence of this culture was confirmed by all witness to whom he spoke, including Mr De Luca. 28The relevance of that description and conclusion was found in Mr Givorshner's report to relate to the fact and his conclusion as to whether a single, inappropriate, spiteful and intemperate remark was trivial or not. In my view it is entirely correct and not open to criticism for the reviewer to have had regard to the surrounding circumstances arising from the evidence with which he was presented when considering whether or not a remark, which in one circumstance might be trivial, is not in another. 29I am not satisfied that there is any prima facie case of error made out with respect to this argument. 30The third proposition advanced was that the contents of Mr Givorshner's report in paragraph 37 in which he says the following: "It is significant that the incident received extensive coverage in the Manly Daily, which clearly brought the council into disrepute." is a wholly irrelevant matter to be taken into account, as Mr De Luca was not capable of influencing the coverage published in the Manly Daily nor did the evidence disclose that Mr De Luca caused that report in any way to be published. 31I accept that the evidence does not suggest in the slightest that Mr De Luca caused that report to be published. In fact it is entirely unclear what the connection was between the events of the Council meeting on 2 February 2011 and the report that was published. 32However, clause 14.9(j) of the Code of Conduct requires the sole conduct reviewer to have regard to the harm or potential harm to the reputation of local government and of the council arising from the conduct. 33I am well satisfied that in considering that mandatory issue, it was open to the reviewer to have regard to what publicity appeared in the press. 34I am not satisfied that any prima facie basis for relief on this basis has been made out. 35The fourth proposition advanced on the part of Mr De Luca was that there had been an error of process by Mr Givorshner which is demonstrated in paragraph 10 of his report. The alleged procedural error was that Mr Givorshner engaged in a mediation, or what had in effect been a mediation, when it was not his task so to do. Mr De Luca contended that as a consequence a reasonable observer would apprehend that Mr Givorshner was biased against Mr De Luca, arising from the process in which he engaged. 36I am satisfied that the Code of Conduct and the reviewer's Charter requires a reviewer to engage in a process of the kind that Mr Givorshner did at an initial stage, that is, to explore and determine whether the matter was capable of being resolved by alternate means. What occurred and is recorded in paragraphs 9 and 10 of Mr Givorshner's report is nothing more or less than him putting into place what he is meant to do. 37In particular, I note that he makes it plain that he engaged in the process, at a time when he had not formed a view as to whether or not the complaint was established. No reasonable observer in accordance with the authorities and principles by which I am bound, could possibly reach the conclusion that there was any apprehension of bias on the part of Mr Givorshner, because he engaged in a process which was part of his mandate. 38The fifth complaint was that there was evidence and would be evidence which demonstrated a prima facie case of actual bias on the part of Mr Givorshner. I do not have the time to recount all that is involved in this proposition. It is sufficient for me to say at this point that the mere fact of itself and without more, that there was a disagreement between the sole conduct reviewer and Mr De Luca, which may have been initiated by the reviewer (if I accept Mr De Luca's case in it's entirety), is quite insufficient to demonstrate any form of actual bias. 39The making of a complaint of actual bias is a very serious and significant one, and is one on the authorities which is not to be made lightly. I regret to say that is what has occurred here. 40I am not satisfied that there is any prima facie basis for a finding of actual bias. 41The final proposition relied upon by Mr De Luca is that there was a lack of procedural fairness accorded to him in the course of the inquiry. He puts two complaints as the basis for that. 42The first is that no cross-examination of witnesses was permitted. The second is the identity of the witnesses was not disclosed until later on in the hearing, rather than at the earliest possible opportunity. 43It is clear that Mr Givorshner was obliged to accord Mr De Luca procedural fairness. The ordinary rules of procedural fairness do not require a person engaged in an inquiry to permit cross-examination of witnesses. There is no authority for that proposition which was brought to my attention, and I know of none independently. 44As well, any complaint about cross-examination of witnesses was not made until recent times. Even if there were a basis for asserting that cross-examination was required, I would hold that Mr De Luca has waived any entitlement to insist upon that. 45The second matter raised was the identity of the witnesses were not disclosed at the earliest opportunity, but were disclosed later. I am not satisfied that what occurred resulted in any lack of procedural fairness. On the contrary, I think that Mr De Luca was accorded every aspect of procedural fairness. 46I should make it clear that in expressing my view about the six matters to which I have just referred, I do not intend to express the sort of finding which would be made by a court after a final hearing, but rather to express the satisfaction which I have reached in accordance with the principles which the High Court has articulated in the cases to which I have earlier referred. My findings go no further than those which I am obliged to make. 47As well, even if I were satisfied that there was a prima facie case which would be argued for administrative relief with respect to the report of Mr Givorshner, I would not be satisfied that the balance of convenience would favour an injunction of the kind sought. 48There are a number of reasons for this, but principal amongst them is that the sanction to be imposed on Mr De Luca is one that is imposed upon a vote taken by his fellow councillors. At that debate which precedes that vote, he will have every opportunity to put all arguments that he wishes in support of his position and contrary to any motion moved adversely to him. 49I am not satisfied that a vote of the Council would result in any damage or harm to Mr De Luca which could not in due course be remedied by other proceedings in this Court and accordingly, I am not satisfied that it would be right or just where a council is engaged in the discharge of its public duty, for this Court to interrupt those processes. 50In summary, I am satisfied to the extent that is appropriate, that Mr De Luca has not made out a prima facie case for relief. And I am further satisfied that the balance of convenience does not favour the grant of the injunction sought. 51Accordingly: (a)I dismiss the plaintiff's application for an interlocutory injunction. (b)I order the plaintiff to pay the defendant's costs of today's proceedings. ********** 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. Decision last updated: 16 April 2012