Australia: Inside track: Local Government: Councillor expelled by the mayor for calling him a clown

Last Updated: 12 September 2019
Article by Peter Holt and Rosie Donnelly

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.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions