New South Wales. Court of Appeal. Ku-ring-gai Council v Garry West as delegate of the Acting Director-General,. Office o
Judgment Summary Supreme Court New South Wales Court of Appeal Ku-ring-gai Council v Garry West as delegate of the Acting Director-General, Office of Local Government [2017] NSWCA 54 Basten JA, Macfarlan JA, Sackville AJA The Court of Appeal has allowed an appeal by Ku-ring-gai Council (“the Council”) against a New South Wales Government proposal to amalgamate the Ku-ring-gai local government area with part of the Hornsby Shire local government area north of the M2 motorway. Mr Garry West, in his position as delegate, was required to examine and report on the government’s amalgamation proposal, which had been referred by the Minister for Local Government. In composing his report, the delegate placed reliance on certain KPMG studies said to underpin the financial assessment of the proposal. However, due to a government public interest immunity claim, he was given access to only some of the relevant documents. On the delegate recommending to the Minister that the proposal should go ahead, the Council commenced proceedings seeking to have the delegate’s report set aside. The main issues on appeal were whether: first, whether the proposal involved the amalgamation of two or more local government areas; second, whether the delegate failed to take account of a mandatory consideration under the statute, namely the impacts of the excision of Hornsby Shire south of the M2 motorway, and if so, whether the delegate’s report should be set aside; third, whether the primary judge erred in upholding the government’s claim of public interest immunity over the withheld KPMG documents; fourth, whether the delegate failed to fulfil his statutory function under the statute, of considering the proposal having regard to its financial advantages and disadvantages, without access to the withheld KPMG documents; fifth, whether the Council was denied procedural fairness in that the delegate had relied in his report on the KPMG documents which were not made available; and sixth, whether the primary judge erred in finding that the delegate had given “reasonable public notice” of the holding of an inquiry into the proposal. On the first issue, the Court found that the proposal did not involve the amalgamation of two or more local government areas. On the second issue, the Court found that the delegate did fail to take account of the mandatory consideration, and that his report should be set aside. On the third issue, the Court found, by majority, that the primary judge did err in upholding the government’s public interest immunity claim over the KPMG documents. On the fourth issue, the Court found, by majority, that the delegate did fail to fulfil his statutory function absent the KPMG documents. This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
On the fifth issue, the Court found, by majority, that the Council had been denied procedural fairness. On the sixth issue, the Court found that the statutory requirement of public notice had been satisfied.
This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
