Supreme Court New South Wales Medium Neutral Citation: Ryde City Council v Petch; ICAC v Ryde City Council [2012] NSWSC 1246 Hearing dates: 28 September 2012 Decision date: 28 September 2012 Jurisdiction: Common Law - Administrative Law Before: Schmidt J Decision: Matter Number 249917 of 2012 1. The amended notice of motion filed 24 September 2012 be dismissed with costs reserved. 2. The order made by this Honourable Court on 24 September 2012 extending restraining orders made by this Honourable Court on 14 August 2012 be discharged. 3. That the proceedings be stood over before the Registrar on Friday 26 October 2012. Matter Number 302411 of 2012 Upon the undertaking that it will not take any action that would terminate the employment of Mr John Neish, General Manager of the defendant, until the plaintiff notifies the defendant in writing that ICAC has concluded its investigations numbered E12/1191 and E12/1627, the Court orders that: 1. The plaintiff has leave to file in Court the summons dated 28 September 2012. 2. The summons be returnable instanter. 3. Rule 6.1(i) be dispensed with in relation to the defendant. 4. The summons be dismissed with no order as to costs. 5. A copy of the summons and these orders be served on the defendant forthwith. 6. These orders be entered forthwith. Catchwords: LOCAL GOVERNMENT - consent orders Legislation Cited: Public Interest Disclosure Act 1994 Uniform Civil Procedure Rules 2005 Cases Cited: Kalyk v Whelan (Young J, unreported, 31 July 1985) Category: Interlocutory applications Parties: Matter Number 249917 of 2012 Ryde City Council (Plaintiff) Ivan John Petch (First Defendant) Terrence William Perram (Second Defendant) Victor Joseph Tagg (Third Defendant) Jeff Salverstro-Martin (Fourth Defendant) Michael Butterworth (Fifth Defendant) Justin Li (Sixth Defendant) Matter Number 302411 of 2012 Independent Commission Against Corruption (Plaintiff) Ryde City Council (Defendant) Representation: Counsel: Mr C Leggat SC and Mr S Nash (Plaintiff) Mr K Oliver (First to Sixth Defendants) Mr P Herzfeld (Independent Commission Against Corruption) Solicitors: HWL Ebsworth Lawyers (Plaintiff) AJL Legal (First to Sixth Defendants) IV Knight, Crown Solicitor (Independent Commission Against Corruption) File Number(s): 2012/249917 2012/302411 Publication restriction: None EXTEMPORE Judgment 1Two proceedings are before the Court today, the first brought by Ryde City Council against various of its councillors, in which orders were made by her Honour McCallum J under the Public Interest Disclosure Act 1994. Earlier this week the parties were before me to argue various things which were in dispute. The Council at that time was seeking an extension of her Honour's orders, as well as further restraints, the effect of which would be to ensure that certain people could not take steps which would have the result that the employment of Mr John Neish, the general manager of Ryde City Council, could be terminated prior to an investigation currently being pursued by the Independent Commission Against Corruption as the result of protected disclosures which Mr Neish has made, being concluded. 2At the time when that matter was ready to be listed for delivery of judgment, there were two developments. The first was an approach from the parties to the proceedings which the Council had brought, to advise that a settlement had been reached in those proceedings. The second was advice to my associate by the Independent Commission Against Corruption, that there would be an approach to me, sitting as duty judge, for further injunctive relief in relation to Mr Neish's employment. 3Both matters have come into the list this morning. During the course of the morning discussions ensued between the various parties, which has resulted in an agreement being reached as to consent orders to be made in both sets of proceedings, the second set of proceedings having been commenced today with the filing in court by the Independent Commission Against Corruption of a summons by which orders under s 27 of the Independent Commission Against Corruption Act 1988 restraining the Council from taking action to terminate the employment of Mr Neish were sought. 4The parties ask that by consent certain orders be made, although the Council has drawn to attention a judgment given by his Honour Young J in Kalyk v Whelan (unreported, 31 July 1985) where his Honour discussed the circumstances in which the Court might refuse to make consent orders which the parties seek. 5There is no question of the Court's powers to refuse to make such orders, given the provisions of Pt 36.1A of the Uniform Civil Procedure Rules 2005. 6In considering the parties' application for the making of consent orders in the Council proceedings, one of the matters that requires consideration is that judgment on the matters over which the Council and certain of its councillors joined issue when they were here earlier this week, was yesterday ready to be delivered. Also to be considered is the form of the orders which the parties seek that the Court now make by consent. 7The orders which are sought are as follows: "1. The amended notice of motion filed 24 September 2012 be dismissed with costs reserved. 2. The order made by this Honourable Court on 24 September 2012 extending restraining orders made by this Honourable Court on 14 August 2012 be discharged. 3. That the proceedings be stood over before the Registrar on Friday 26 October 2012." 8Also to be considered are the orders which are sought in the ICAC proceedings. They are: "Upon the undertaking that it will not take any action that would terminate the employment of Mr John Neish, General Manager of the defendant, until the plaintiff notifies the defendant in writing that ICAC has concluded its investigations numbered E12/1191 and E12/1627, the Court orders that: 1. The plaintiff has leave to file in Court the summons dated 28 September 2012. 2. The summons be returnable instanter. 3. Rule 6.1(i) be dispensed with in relation to the defendant. 4. The summons be dismissed with no order as to costs. 5. A copy of the summons and these orders be served on the defendant forthwith. 6. These orders be entered forthwith." 9In the circumstances which are now before the Court, having in mind the agreement which has been reached in the ICAC proceedings, which will have the effect that Mr Neish's appointment as general manager of the Council will not be terminated prior to the conclusion of the ICAC investigation, I take the view that the consent orders which are sought in the Council proceedings should be made, rather than the judgment which is ready to be given in the proceedings being delivered. 10In reaching that conclusion I make it plain that but for the agreement reached in the ICAC proceedings, I would have refused to make the consent orders which the parties have sought in the Council proceedings and would have instead delivered the judgment and made the orders which I had concluded ought to be made in the circumstances which had arisen for determination in those proceedings. 11I am quite firmly of the view that the public interest would have required that course and that in the circumstances, the discretion which arises under Pt 36.1A of the Rules would have had to be exercised, by a refusal of the consent orders which the parties to the Council proceedings proposed. 12Nevertheless, having in mind that Mr Neish's employment is now to be protected by agreement until the ICAC investigation into the disclosures it is investigating has been concluded, I am satisfied that the appropriate course in all the circumstance is to make the consent orders which the parties have proposed, rather than delivering the judgment which would otherwise have needed to be delivered. 13For those reasons, I make in each case the orders earlier referred to. That brings to a conclusion the ICAC proceedings and I do not need to stand that over to another date, but the proceedings brought by the Council will stand over to the Registrar's list on 26 October 2012. ********** 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: 17 October 2012