Loder v Narrabri Shire Council [2020] NSWLEC 109
The Applicant, Ms Ann Loder, commenced proceedings in Class 4 of the Land and Environment Court’s jurisdiction, seeking a declaration that her civic office as a councillor on Narrabri Shire Council had not become ‘vacant’ under the Local Government Act 1993 (NSW) (LG Act). The dispute between the parties arose following the Applicant’s illness and subsequent absence from three consecutive ordinary Council meetings, due to ongoing medical treatment and recovery.
At issue in the matter was the operation of s 234(1)(d) of the LG Act which provides for the vacation of a civic office if the holder of that office is absent from three consecutive ordinary meetings of the council without prior “leave” of the council, or leave granted by the council at any of the meetings concerned.
The Court ultimately held that while a request for leave of absence need not be in writing, proffering an apology to a council meeting (even if this is accepted by resolution) without more to alert a council that what is being sought is a leave of absence, is not compliant with s 234(1)(d). Councillors must appreciate that they are being asked to grant a leave of absence at each and every relevant meetings.
Background
There was no dispute between the parties that the Court had jurisdiction because there were “alleged” breaches of the LG Act, caused by Council’s actions in not treating the Applicant as an elected Councillor under that Act (see s674(1) of the LG Act which provides that a person may bring proceedings for an order to restrain or remedy a breach of the LG Act).
The judgment sets out historic legislative material that provides a background to s234 of the LG Act, including second reading speeches and explanatory notes. In terms of evidence before the Court, the parties relied on affidavit evidence prepared by the Applicant, other Councillors and staff members of the Council. The parties also referred the Court to historical and current Local Government Codes of Meeting Practice, “Councillor Guides” and Meetings Practice Notes.
The Applicant’s submissions were:
1. The Applicant had informed Councillors of her diagnoses of a serious illness in February 2020, at a time when she was a Councillor.
2. Due to her illness, the Applicant did not attend ordinary Council meetings on 25 February 2020, 24 March 2020 and 28 April 2020. There was no dispute that the Applicant had tendered her apologies for not being in a position to attend each of these meetings, and that the apologies were accepted by resolutions passed at each of the three Council meetings.
3. Section 234(1)(d) requires “leave” of the Council to be given for an “absence” from a Council meeting. At [59] the judgment notes:
“Whilst it is plain that the requisite leave can be granted at an ordinary Council meeting, the section is silent as to how leave is granted either prior to or at a meeting. Subsection (2) makes it plain that a councillor does not need to apply in person at the meeting for a leave of absence and a council may grant leave in the absence of a councillor.”
4. The Applicant made submissions regarding statutory construction, to the effect that “historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text”. The Applicant submitted that the OLG Model Code and 2019 Council Code had no role to play in the construction of s234(1)(d) of the LG Act. Furthermore, the second reading speeches cannot be used to construe this section.
5. The Applicant referred to various cases and in summary, at [68] submitted:
“The LG Act makes clear that resolutions of councils at meetings are important and relevant: ss 371 and 377. Section 234 does not say that an application for a leave of absence must be made in writing. How leave is sought is entirely at large. The Applicant’s emails and telephone calls to council officers before each of the three ordinary Council meetings, together with the formal resolutions of the Council to accept her apologies, were effectively the grant of a leave of absence…. At [69] “Applying a purposive construction to s 234 suggests that the section expects that leave is granted by way of a formal decision of the Council by way of a resolution. If Parliament had intended for an application to be in writing, it would have said so. Statutory construction must start with the text itself. Extrinsic materials cannot displace the clear meaning of the text, per Alcan.”
The Council submitted:
1. The Applicant was aware from very early in her tenure of the Council’s requirement for an application for a leave of absence to be made formally and in writing.
2. The proper construction of s 234(1)(d) is that the process of obtaining a leave of absence is a formal one, requiring an application. At [73]
“…The legislation expressly contemplates that there must be a formal decision to grant a leave of absence to the holder of a civic office, which is a function which may not be delegated. Unless there is a formal decision of the Council granting a leave of absence either prior to or at any of the relevant meetings, a civic office becomes vacant if the holder is absent from three consecutive ordinary meetings of the Council.”
3. There is a distinct difference between an application for leave of absence and an ‘apology’: at [75]
“Whereas a leave of absence is a formal process that requires an application and a decision to grant leave pursuant to the application, an apology (and its acceptance) find no reflection at all in the statutory scheme. The making and acceptance of an apology does not constitute a grant of leave within the meaning of s 234(1)(d) of the LG Act.”
4. Finally, at [78]: “The OLG Model Code adopted by the Council in the 2019 Council Code cannot be dismissed lightly. It is not simply delegated legislation. Rather, compliance is mandatory under s 360(5) of the LG Act which requires that a council must conduct its meetings in accordance with the code of meeting practice adopted by it. Construing ss 234(1)(d) and 360(5) harmoniously makes clear that the acceptance of an apology is insufficient to amount to a grant of a leave of absence.
Court’s decision
The Court noted that the word “leave” as referred to in section 234(1) of the LG Act is undefined. The Court further noted that “leave” and “leave of absence” are not ambiguous or vague, and their ordinary meanings can be readily applied and understood. In short, at [89] the Court stated:
“The definitions of “leave” and “leave of absence” do not have the same meaning as “apology”. Their meanings do not suggest they are interchangeable.”
The Court considered the changes in the statutory scheme over time regarding a Councillor’s “leave of absence” from a meeting, and noted as follows at [91]-[92]:
“The LG Act requires a resolution of a council that a leave of absence be granted, given the provisions of s 377(1)(r). This suggests that a council must be aware that it is considering a leave of absence in passing the necessary resolution. In other words, that the Council was granting a leave of absence by inference, as the Applicant’s case requires, does not reflect the express obligation confirmed by s 377(1)(r).
That a conscious decision of a council is necessary to grant a leave of absence is highly desirable in the interests of certainty of administration, for the overarching policy objectives referred to in [80] above. The evidence of Mr Todd summarised at [48] above is to the effect that Council meetings are conducted on the basis that apologies and leave of absence requests are considered separately. If a leave of absence was applied for, a separate report was prepared for the Council’s consideration and decision. This approach confirms that “leave” or “leave of absence” and “apology” are not interchangeable in how the Council conducts its affairs.”
The Court held that resolving to accept an apology is not, by inference, the granting of a leave of absence – if that is not what the Councillors understood they were doing. In the present case, the Councillors had not granted leave of absence.
The Court also stated that it was arguable that section 360 of the LG Act, clause 232 of the LG Regulation and the OLG Model Code are a “statutory scheme enforced by s 360” and concluded that:
“Compliance with its adopted code is an express obligation imposed on a council under the LG Act. For that reason it is probably unnecessary to further construe the scheme. As the Council submitted s 234(1)(d) and s 360 together with the OLG Model Code / 2019 Council Code can and should be read and applied in a complementary way.”
The Court also made further comments on construing the two sections of the LG Act by reference to the LG Regulation and the OLG Model Code, and concluded at [102] that these:
“…should be read holistically. The OLG Model Code does inform the application of the plain words in s 234(1)(d) that without an approved leave of absence a councillor’s office becomes vacant if three consecutive council meetings are missed in stating that an acceptance of an apology by a council does not suffice as a leave of absence.”
In relation to the form of application for a leave of absence, the Court agreed [at 105] that a:
“formal application is not necessarily required as no manner of application is specified in these subsections or elsewhere. For example, no express mandatory requirement exists that an application for a leave of absence be in writing as the Applicant identified.”
This did not change the Court’s conclusion that:
“Section 234(1)(d) requires a communication that a leave of absence is sought to enable a council to comprehend that is what it is being asked to determine. Proffering an apology to a council meeting which is accepted by resolution without more to alert a council that what is being sought is a leave of absence is not compliant with s 234(1)(d).”
The Applicant’s claim for a declaration that her civic office as a councillor on Narrabri Shire Council had not become ‘vacant’ was dismissed by the Court.
A copy of the judgment can be accessed in the following link:
https://www.caselaw.nsw.gov.au/decision/173c2842cd8f6f04ec978d2b
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
