Botany Bay City Council v The State of New South Wales [2016] NSWCA 243

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Botany Bay City Council v The State of New South Wales [2016] NSWCA 243 Hearing dates: 29 June 2016 Decision date: 02 September 2016 Before: Bathurst CJ at [1]; Ward JA at [2]; Sackville AJA at [3] Decision: (1) Refuse leave to the applicant to appeal on Grounds 10-12 and 14 in the draft Notice of Appeal.

(2) Grant leave to the applicant to appeal from the decision of Garling J delivered 9 June 2016 on Grounds 1-9 and 13 in the draft Notice of Appeal.

(3) Direct the applicant to file an Amended Notice of Appeal, limited to Grounds 1-9 and 13 in the draft Notice of Appeal, within 7 days.

(4) Dismiss the appeal.

(5) The applicant pay the respondent's costs of the application for leave to appeal and of the appeal. Catchwords: LOCAL GOVERNMENT – amalgamation of councils – Minister proposes amalgamation of two councils – proposal referred to a delegate of the Chief Executive for examination and report pursuant to s 218F(1) of the Local Government Act 1993 (NSW)(LG Act) – the delegate's report forwarded to the Local Government Boundaries Commission (Commission) for review and comment pursuant to s 218F(6) of the LG Act – Commission's review forwarded to the Minister – whether the delegate was obliged to alert one of the affected councils in advance that he proposed to give little weight to a "Community Poll" conducted by the council – whether the Commission misconstrued its functions under the LG Act by failing to consider independently the merits of the Minister's proposal as distinct from renewing the delegate's report – whether the Minister denied the affected council procedural fairness by allowing a limited time for further submissions before the Minister made a recommendation to the Governor. Legislation Cited: Local Government At 1993 (NSW), ss 7, 15, 16, 204, 206, 214, 218A, 218B, s 218D, s 218E, 218F, 260, 261, 262, 263, 264, 265, 745 Supreme Court Act 1970 (NSW), ss 75A, 101(2)(r) Cases Cited: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; 225 CLR 88 Botany Bay City Council v Minister for Local Government [2016] NSWLEC 35 Botany Bay City Council v Minister for Local Government [2016] NSWCA 74; 214 LGERA 173 Botany Bay City Council v State of New South Wales [2016] NSWSC 583 Brettingham-Moore v St Leonards Corporation [1969] HCA 40; 121 CLR 509 Kioa v West [1985] HCA 81; 159 CLR 550 Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; 239 CLR 531 Minister for Local Government v South Sydney City Council [2002] NSWCA 288; 55 NSWLR 381 SZBEL v The Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; 228 CLR 152 Category: Principal judgment Parties: Botany Bay City Council (Applicant) State of New South Wales (Respondent) Representation: Counsel: Mr M Robinson SC / Mr C Jackson (Applicant) Mr JK Kirk SC / Mr J Hutton / Ms M Ellicot (Respondent)