Barrak v City of Parramatta Council [2019] NSWLEC 59

Land and Environment Court New South Wales

Medium Neutral Citation: Barrak v City of Parramatta Council [2019] NSWLEC 59 Hearing dates: 17 and 18 April 2019 Date of orders: 29 April 2019 Decision date: 29 April 2019 Jurisdiction: Class 4 Before: Moore J Decision: (1) The summons is dismissed; (2) Redacted versions (omitting confidential material) of the affidavits read in these proceedings are to be retained on the Court file to be available if the Registrar grants access to the file; (3) The unredacted versions of the affidavits read in these proceedings are to be retained in a sealed envelope on the Court file and no access is permitted to those affidavits without further order of the Court; (4) The exhibits are returned; and (5) The Applicant is to pay the Respondent's costs as agreed or assessed. Catchwords: LOCAL GOVERNMENT - closed council meeting - councillor expelled by Lord Mayor - expulsion was for committing act of disorder (for calling the Lord Mayor a "clown") - was conduct disorderly - conduct disorderly - was expulsion by Lord Mayor without resolution of council valid - expulsion invalid - no utility in bare declaration - no relief granted LOCAL GOVERNMENT - closed council meeting - councillor makes comments about external legal advisers - were comments an act of disorder - comments a breach of cl 256(1)(e) of the Local Government (General) Regulation 2005 and thus an act of disorder LOCAL GOVERNMENT - closed council meeting - meeting dealing with personnel matter - resolution that councillors return confidential papers and notes - was resolution valid - resolution valid LOCAL GOVERNMENT - council meeting - resolution that councillor apologise for words said at previous meeting and for failure to return confidential papers and notes – were elements concerning failure to return confidential papers and notes acts of disorder - - those elements not acts of disorder – three valid elements in resolution were acts of disorder - councillor declines to apologise or return confidential papers and notes - councillor expelled for not doing so - was expulsion valid - expulsion valid LOCAL GOVERNMENT - council meeting - resolution that councillor be removed from committees - resolution adopted after councillor had been expelled from meeting - was councillor required to be afforded procedural fairness and natural justice before removal - removal part of political process of council and no procedural unfairness or denial of natural justice before removal - removal also sanctioned by s 47 of Interpretation Act 1987 - removal from committees valid LOCAL GOVERNMENT - council meetings - councillor expelled by resolutions of council for ongoing failure to apologise for original act of disorder - power to reactivate requirement for apology remains ongoing - expulsions from subsequent meetings valid COSTS - limited success by Applicant not sufficient to depart from presumption that costs follow the event - Applicant to pay Respondent's costs on ordinary basis Legislation Cited: Bill of Rights 1688 (Chapter 2 1 Will and Mar Sess 2) Civil Procedure Act 2005, s 98(1) Environmental Planning and Assessment Act 1979 Evidence Act 1995, s 69 Interpretation Act 1987, s 47 Local Government Act 1993, ss 10, 10A, 23, 360, 375,490A, 674 and 676 Local Government Amendment (Governance and Planning) Act 2016 Local Government (City of Parramatta and Cumberland) Proclamation 2016 Local Government (General) Regulation 2005, cll 182, 233, 256 and 422 Local Government (Meetings) Regulation 1999 Uniform Civil Procedure Rules 2005, r 42.1 Cases Cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 DeBattista v Minister for Planning and Environment [2018] NSWLEC 202 Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180 James v Surf Road Nominees (No 2) [2005] NSWCA 296 Latoudis v Casey (1990) 170 CLR 534 Lynette Mary Styles v Wollondilly Shire Council (2002) 120 LGERA 172; [2002] NSWCA 67 McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 221 CLR 30; [2004] HCA 63 Porter v Hornsby Shire Council (1989) 69 LGRA 101 Ryde City Council v Echt & Anor (2000) 107 LGERA 317; [2000] NSWCA 108 Stapleton v City of Parramatta Council [2019] NSWSC 123 Styles v Wollondilly Shire Council [2001] NSWLEC 18 Sze Tu v Lowe (No 2) [2015] NSWCA 91 Truth about Motorways Pty Limited v Macquarie Infrastructure Investment Management Limited (2000) 200 CLR 591; [2000] HCA 11 Category: Principal judgment Parties: Benjamin Barrak (Applicant) City of Parramatta Council (Respondent) Representation: Counsel: Mr M Green SC/Mr D Thomas, barrister (Applicant) Mr M Hall SC/Mr S Nash, barrister (Respondent