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Inside track: Local Government

09 September 2019

#Local Government

Peter Holt

Published by Peter Holt

Inside track: Local Government

Acts of disorder – The Court of Appeal rules on the case of a councillor expelled by the mayor for calling him a “clown”

In Barrak v City of Parramatta Council [2019] NSWCA 213, a councillor was expelled by the City of Parramatta Council’s (Council) Mayor for acts of disorder consisting of calling the mayor a “clown” and alleging that the Council’s solicitor had misled the Supreme Court in proceedings brought by its then Chief Executive Officer, to restrain the Council from dismissing him.  

The Mayor threatened to expel the councillor from the meeting, at which point the councillor absented himself. As he was doing so, the Mayor directed that the councillor leave the chamber and return certain confidential papers and handwritten notes (Confidential Papers) taken at the meeting. A hurried motion was also moved requiring councillors present at the meeting to return the Confidential Papers. The councillor left with them still in hand.

By the Council’s next meeting, a resolution was passed that the councillor apologise for his “acts of disorder” and return the Confidential Papers. After the councillor refused to abide by the resolution, the councillor was expelled by resolution from the meeting and stripped of his position on the Council’s committees.

The councillor sought relief in respect of the expulsions and argued that:

  • return of the confidential papers was unlawful
  • his conduct at the meeting did not constitute an act of disorder
  • his subsequent expulsions and removal from committees were also unlawful.

The councillor sought relief in the Land and Environment Court (LEC) in relation to his expulsions and removal from committees. The LEC declined to give any declarations and dismissed the summons and ordered the councillor to pay the Council’s costs. In response to this, the councillor commenced an action in the NSW Court of Appeal (Court of Appeal) seeking a review of the LEC’s decision.

The principal issues on appeal included:

  • if there were other avenues for redress available to the councillor and whether it was inappropriate for the LEC to entertain the councillor’s complaint
  • the characterisation of an act as an “act of disorder” (a defined term and necessary precondition to the exercise of the power of expulsion) and whether it was a fact to be determined by a court, or whether it depended only on that opinion being formed
  • whether the description of the mayor as a “clown” and the accusations made against the external solicitor constituted acts of disorder
  • whether removal from various committees of the Council was valid
  • whether the primary judge erred in ordering the councillor to pay the Council’s costs.

Did the Mayor act contrary to the statutory requirements and were the expulsions lawful?

Division 4 of former Part 10 of the Local Government (General) Regulation 2005 (LG Regulations) states that a judgment as to whether a councillor has committed an act of disorder must initially be made by the Chair of the meeting of the Council, or of the committee, in order for that immediate decision to be taken at the meeting to deal with the point of order.  

The primary judge considered that the Mayor’s decision, namely that the councillor had by his use of language committed an act of disorder, was within power and not unreasonable.

Conversely, the councillor stated that the question of whether he had committed an act of disorder within the meaning of the LG Regulations did not depend upon the view of the Lord Mayor, but whether as a matter of fact his conduct fell within the scope of the LG Regulations.

In this regard, the Court of Appeal held the question of whether a councillor has committed an act of disorder within the meaning of the LG Regulation must be decided at the meeting. It need not be decided by the Chair of the meeting alone. The power of expulsion depends upon a resolution of the meeting, unless the Council has by resolution authorised the person presiding at the meeting to exercise the power of expulsion.

Ultimately, the Court of Appeal partly allowed the appeal, holding firstly that the jurisdiction of the LEC was properly invoked and that the councillor was afforded procedural fairness in relation to his removal from committees.

However, most of his expulsions were unlawful insofar as the comments relating to disparaging the solicitor acting for the Council were not an act of disorder, as there were no evidence causing disorder and the solicitor was not a councillor.

In relation to the expulsions for the failure to return the Confidential Papers, the Court of Appeal found that this did in fact constitute an act of disorder and the Confidential Papers were required to be returned. However, the Council had not required that the councillor apologise for it (this being a necessary requirement for the valid exercise of the expulsion power.)

Also, by majority, the Court of Appeal found that the expulsion in relation to the use of the word “clown” to describe the Mayor was valid as the word was an insult, notwithstanding whether it was factual or provoked.  Accordingly, declarations were made and the parties were ordered to bear their own costs.

View the full decision.

AuthorsPeter Holt & Rosie Donnelly

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Environmental Planning and Assessment Act 1979 (NSW), s.121B(1)(b)
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Legal Profession Uniform Law Act 2014 (NSW), s.194
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NSW

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Sunland No. 35 Pty Ltd v Camden Council [2019] NSWLEC 1391
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Queensland

Southern Downs Regional Council v Queensland Services Industrial Union of Employees & Anor [2019] QIRC 118
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Legislation

Victoria

Essential Services Commission Amendment (Governance, Procedural and Administrative Improvements) Act 2019
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NSW

Regulations and other miscellaneous instruments
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Environmental Planning and Assessment Amendment (Project EnergyConnect (SA to NSW Electricity Interconnector)) Order 2019 (2019-439) — published LW 30 August 2019

National Parks and Wildlife Regulation 2019 (2019-408) — published LW 23 August 2019

Protection of the Environment Operations (Underground Petroleum Storage Systems) Regulation 2019 (2019-411) — published LW 23 August 2019

Environmental Planning Instruments

State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) Amendment 2019 (2019-438) — published LW 30 August 2019

State Environmental Planning Policy (Vegetation in Non-Rural Areas) Amendment 2019 (2019-417) — published LW 23 August 2019

Queensland

Subordinate legislation as made – 23 August 2019

No 158 Rural and Regional Adjustment (Farming in Reef Catchments Rebate Scheme) Amendment Regulation 2019

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

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