Armidale Regional Council v O’Connor [2020] NSWLEC 53

Land and Environment Court New South Wales

Medium Neutral Citation: Armidale Regional Council v O'Connor [2020] NSWLEC 53 Hearing dates: 11 May 2020 Date of orders: 11 May 2020 Decision date: 11 May 2020 Jurisdiction: Class 4 Before: Robson J Decision: See orders at [8] Catchwords: CIVIL PROCEDURE — Injunction — Urgent injunction sought to restrain councillors from voting on Council motion — Removal of Chief Executive Officer — Balance of convenience where Council meeting is imminent — Injunctive relief granted Category: Principal judgment Parties: Armidale Regional Council (First Applicant) Susan Law (Second Applicant) Margaret O'Connor (First Respondent) Debra O'Brien (Second Respondent) Jonathan Galletly (Third Respondent) Dorothy Robinson (Fourth Respondent) Ian Tiley (Fifth Respondent) Representation: Counsel: M Allars SC (Applicants) M Ball, solicitor (Respondents)

Solicitors: Lindsay Taylor Lawyers (Applicants) MBM Legal and Conveyancing (Respondents) File Number(s): 2020/00140210 Publication restriction: Nil

EX TEMPORE Judgment 1. In a draft summons and notice of motion provided to the Court at approximately 2.20pm this afternoon, Armidale Regional Council ('Council') and Susan Law, Council's General Manager and Chief Executive Officer ('CEO'), seek urgent interlocutory relief restraining the five respondents, who are councillors ('respondents'), from participating in, or voting on, Item 7 of an Extraordinary General Meeting of Council scheduled to commence at 4.00pm this afternoon which sought the removal of Ms Law from her position as CEO. The Court also received a draft affidavit of Matthew Dean Harker, the solicitor for the two applicants. 2. The matter has been convened in Court urgently and the hearing has been this afternoon conducted by audio visual link ('AVL') commencing at 2.45pm. Ms Allars, of senior counsel, appears, instructed by Mr M Harker and Ms S Puckeridge of Lindsay Taylor Lawyers, for Council and Ms Law. Mr M Ball, solicitor, from MBM Legal and Conveyancing appears for the respondents. 3. I note that Mr Ball has not had the opportunity to closely read the affidavit of Mr Harker relied upon by the applicants, nor has he seen the bundle of documents exhibited thereto. I have read closely the draft affidavit of Mr Harker and as the hearing has progressed this afternoon, the affirmed version of the affidavit of 11 May 2020 has been provided, as well as a copy of an extensive bundle of documents being exhibit MDH-1 to Mr Harker's affidavit. Due to the urgency of the matter, I have been unable to read, and have not been taken to, the material in the exhibit, although I note that Mr Harker details, at some length, the background to the present application. 4. Mr Ball provided considered submissions responding to various matters raised by Ms Allars, and I accept that he was somewhat constrained by, first, not having had the opportunity of conferring with his clients; and, second, not having had the opportunity to read closely the affidavit of Mr Harker nor the exhibit thereto. I note that Mr Ball has been involved generally in relation to the matters of concern for some short period time and brings knowledge of the background of the matter based upon that experience. 5. Having heard detailed submissions from Ms Allars, and having read Mr Harker's affidavit, noting that the relief relates to a meeting commencing at 4.00pm, I am minded to grant relief in the limited form which is styled "Short Minutes of Orders" prepared by the applicants. 6. In the circumstances, for the reasons that I will later give, noting the urgency of the matter in that the meeting is due to commence in approximately 20 minutes, I am satisfied that there is a serious question to be tried and, as an undertaking as to damages being proffered by Ms Law, that the balance of convenience favours the grant of limited injunctive relief, at least until 10.00am tomorrow. This is not without some concern or consideration given the matters before me and taking into account the matters raised by Mr Ball. 7. I am also conscious that the matter concerns serious allegations relating to the proper operation of a local government organisation and elected representatives which I have raised during the hearing. I also note that Council itself is the first applicant in the proceedings, although most of the submissions made on behalf of the applicants have been directed to the conduct relating to and emanating from Ms Law. 8. In the circumstances, I make the following orders: 1. The applicants' notice of motion filed on 11 May 2020 is heard instanter. 2. Pursuant to r 10.14(3) of the Uniform Civil Procedure Rules 2005 (NSW), the originating process is taken to have been served on the respondents on 11 May 2020. 3. Upon the second applicant by her solicitor and counsel giving to the Court the usual undertaking as to damages, the respondents are restrained until further order from attending and voting upon Item 7 at the extraordinary meeting of the first applicant, Armidale Regional Council, scheduled to be held on 4.00pm on 11 May 2020, or from attending and voting on any notice of motion revoking the second applicant's instrument of delegation from the first applicant. 4. The requirement for personal service of any documents on the respondents in these proceedings is dispensed with and service be effected by the applicants by sending a copy of these orders electronically to the email address of Mr M Ball of MBM Legal and Conveyancing. 5. A copy of these orders is to be served on Mr M Ball of MBM Legal and Conveyancing by 4.00pm on 11 May 2020 by electronic transmission. 6. Stand the matter over to the Duty Judge at 10.00am on 12 May 2020. 7. The parties have liberty to apply. 8. Reserve the question of costs.