De Luca v Simpson and Anor [2012] NSWSC 960

Supreme Court New South Wales

Medium Neutral Citation: De Luca v Simpson and Anor [2012] NSWSC 960 Hearing dates: 26 July 2011 Decision date: 22 August 2012 Before: Johnson J Decision: The Plaintiff's Summons is dismissed. The parties will be heard on the question of costs. Catchwords: ADMINISTRATIVE LAW - judicial review - Plaintiff a councillor on Warringah Council - Plaintiff also works as Secretary/Research Assistant for Member of Legislative Council - MLC places questions on notice in Legislative Council that are strongly critical of Council - Council meets to consider MLC's questions - debate in Council leading to resolution critical of MLC - Plaintiff does not declare conflict of interest - Plaintiff participates in debate and strongly defends MLC - complaint made against Plaintiff of breach of Code of Conduct - Conduct Reviewer appointed by Council to investigate - Conduct Reviewer provides report adverse to Plaintiff - Plaintiff brings proceedings for prerogative relief to set aside report - claim of error of law on face of record and failure to have regard to mandatory consideration - claim of apprehended bias on part of Conduct Reviewer by way of prejudgment - meaning of non-pecuniary conflict of interest - construction of Code of Conduct and Code of Meeting Practice - error of law not established - no failure to have regard to mandatory consideration - apprehended bias not established - proceedings dismissed Legislation Cited: Supreme Court Act 1970 Local Government Act 1993 Court Suppression and Non-Publication Orders Act 2010 Constitution Act 1902 Industrial Relations Act 1996 Local Government (General) Regulation 2005 Cases Cited: Holly v Director of Public Works (1988) 14 NSWLR 140 Bale v Crown in Right of the State of New South Wales (Attorney-General's Department) [2000] NSWIRComm 248; 106 IR 354 Sneddon v The Speaker of the Legislative Assembly [2011] NSWSC 508; 208 IR 255 Allianz Australia Insurance Limited v Crazzi [2006] NSWSC 1090; 68 NSWLR 266 Nichols v Singleton Council [2011] NSWSC 1517 Roos v Director of Public Prosecutions (1994) 34 NSWLR 254 Craig v South Australia [1995] HCA 58; 184 CLR 163 Hanna v Department of Immigration Multicultural and Indigenous Affairs [2004] NSWCA 275 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Attorney-General for New South Wales v Quin [1990] HCA 21; 170 CLR 1 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 Abebe v Commonwealth of Australia [1999] HCA 14; 197 CLR 510 Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135 Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24 Cross v McHugh [1974] 1 NSWLR 500 Saville v Health Care Complaints Commission [2006] NSWCA 298 Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 Minister of Immigration and Citizenship v SZNPG [2010] FCAFC 51; 115 ALD 303 Barbosa v Di Meglio [1999] NSWCA 307 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; 122 CLR 546 McGovern v Ku-ring-Gail Council [2008] NSWCA 209; 72 NSWLR 504 Nufarm Australia Limited v Dow AgroSciences Australia Limited and Anor (No. 2) [2011] FCA 757; 282 ALR 24 Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 Re Refuge Review Tribunal; Ex parte H [2001] HCA 28; 179 ALR 425 Re Refugee Tribunal; Ex part Aala [2000] HCA 57; 204 CLR 82 Texts Cited: --- Category: Principal judgment Parties: Vincent De Luca (Plaintiff) Annette Simpson (First Defendant) Warringah Council (Second Defendant) Representation: Counsel: Mr CD Jackson (Plaintiff) Ms R Francois (Defendants) Solicitors: Schreuder Partners (Plaintiff) DLA Piper Australia (Defendants) File Number(s): 2011/212768 Publication restriction: ---