Stapleton v City of Parramatta Council [2019] NSWSC 123

Supreme Court New South Wales

Medium Neutral Citation: Stapleton v City of Parramatta Council [2019] NSWSC 123 Hearing dates: 18 February 2019 Date of orders: 19 February 2019 Decision date: 18 February 2019 Jurisdiction: Equity Before: Kunc J Decision: Application for interlocutory relief dismissed with indemnity costs payable forthwith Catchwords: EMPLOYMENT LAW - the contract of service and rights, duties and liabilities as between employer and employee - duration and termination of employment – interlocutory application to restrain termination – no prima facie case of threatened breach Category: Procedural and other rulings Parties: Mark Stapleton (Plaintiff) City of Parramatta Council (Defendant) Representation: Counsel: J.P. Redmond (Plaintiff) A. Moses SC and D. Tang (Defendant)

Solicitors: BC Law Group (Plaintiff) Bartier Perry (Defendant) File Number(s): 2019/45920 Publication restriction: No

EX TEMPORE Judgment (REVISED)

Summary 1. The plaintiff ("Mr Stapleton") is the Chief Executive Officer of the City of Parramatta Council (the "Council"), although currently he is suspended from that position on full pay. The defendant is the Council. 2. Mr J P Redmond of Counsel appeared for Mr Stapleton. Mr A Moses of Senior Counsel appeared with Ms D Tang of Counsel for the Council. 3. On 11 February 2019, I granted Mr Stapleton leave to file in Court a summons. The interlocutory relief in that summons which was pressed before me today was: "3. THAT the defendant is prevented from terminating the employment of Mark Stapleton as CEO of the City of Parramatta until 7 days after determination of these proceedings or until further order of this Court, whichever is the earlier. 4. THAT the plaintiff makes the usual undertaking as to damages in respect of Order 3 above. 5. THAT the Defendant shall: (a) Within 48 hours make available for collection by the Plaintiff's solicitors: (i) A copy of all documents utilised by Council at its extraordinary meeting on 7 September 2018 where the motion to suspend my client on full pay was passed pending a review by Ms Jane Seymour; and (ii) A copy of all documents utilised by Council at its extraordinary meeting on 4 February 2019 where the motion to negotiate with my client was passed, including the reports and documents produced by Ms Jane Seymour. (b) Within 48 hours, provide unhindered access to the plaintiff to his email account at the city of Parramatta for the purposes of printing any documents which the plaintiff intends to utilise as evidence within these proceedings; (c) Within 48 hours from the time that a request is made in writing by the Plaintiff's solicitors, provide to the plaintiff any documents, whether confidential or otherwise, as may be requested provided that such documents are required to be utilised in these proceedings." 1. That interim relief was sought in aid of this final relief: "10. Declaration that the resolutions of the Council of the City of Parramatta made at its Extraordinary Meetings of 7 September 2018 and 4 February 2018 (sic) are unlawful and /or are null and void, such that the plaintiff may continue his employment as CEO of the City of Parramatta pursuant to the Contract of Employment dated 27 June 2018. 11. THAT the defendant is to provide to the plaintiff specific performance of the Contract of Employment dated 27 June 2018 until its conclusion on 9 January 2021, such that unless pursuant to Court Order, the defendant is prevented from terminating the employment of Mark Stapleton as CEO of the City of Parramatta and such is to run its full term until its conclusion on 9 January 2021. 12. THAT as employer, the defendant is to pay the plaintiff's reasonable legal costs of these proceedings as and when they fall due." 1. It is important to state that the argument which has taken place before me today was on limited issues and limited evidence. The only question which the Court had to determine today was whether Mr Stapleton was entitled to the interim relief which he sought today. Nothing in this judgment is to be taken as a final adjudication or prediction of the outcome in relation to the issues between the parties as they may ultimately be litigated. Nevertheless, for the reasons which follow, the Court is not satisfied that there is a serious question to be tried in respect of the issues advanced on behalf of Mr Stapleton today.