Justice John Robson on Monday afternoon ruled the Office of Local Government’s interim report released in July had failed to observe the requirements of procedural fairness,but rejected the council’s argument that the government had acted unreasonably.
City of Liverpool Mayor Ned Mannoun says the ruling was a “one-one draw” with the state government.Dominic Lorrimer
Liverpool Council launched the legal bid in the Land and Environment Court in late July after a 50-page investigative report undertaken by the Office of Local Government contained allegations of widespread dysfunction,nepotistic hiring policies and concerns over Mayor Ned Mannoun’s involvement in planning matters.
As he gave the council seven days to show cause why it should not be suspended and the election deferred,Local Government Minister Ron Hoenig said the issues laid bare in the interim report were deeply troubling,saying the “people of Liverpool are also entitled to a council that is not dysfunctional”.
Mannoun the report as full of errors and politically motivated,saying the state Labor government was seeking to remove Liverpool ratepayers’ right to a democratic election.
Robson dismissed several orders brought by the council,finding neither Hoenig nor OLG secretary Brett Whitworth displayed apprehended or actual bias in the decision to publish the interim report. The decision to declare the report a legal nullity did not undermine the establishment of a public inquiry to consider the allegations,as it “continues to exist in fact”,he found.
A truck outside the Liverpool City Council building the day the interim report was released in July.Dion Georgopoulos
“I find that,first,[the] Council has not discharged its onus to prove that the first respondent relied solely upon the contents of the Interim Report in appointing the public inquiry;second,that the first respondent did not consider any irrelevant considerations in making this decision;and third,that the first respondent’s decision was not attended by legal unreasonableness,” Robson wrote.
In a statement,Hoenig said the legal challenge had been “largely unsuccessful”. He left the door open for proceeding with the suspension and deferring the election,giving the council until Thursday to respond to the initial show-cause notice.
“As minister,I was provided with information by the Office of Local Government concerning widespread dysfunction and maladministration within the council. I don’t need to revisit these concerns,” he said.
Mannoun said the judgment delivered a “one-one draw” with the state government. The acknowledgment the report denied staff natural justice opened the door for up to 10 different defamation proceedings to be brought against the government,he said.
With three days to consider an appeal,and responding to questions about the potential for the council to be suspended,Mannoun said postal votes for the September 14 poll had already begun to flow in,and the council had already spent $1.6 million on the election.
A decision on costs was going to be handed down in the coming weeks,but it could be a blow to the council’s coffers. A confidential report handed to councillors in mid-August stated the council had incurred $300,000 in legal fees,double the amount estimated before the matter commenced.
In his judgment,Robson said the council had enjoyed “limited success” in the proceedings as he directed the parties to file submissions within 21 days.
Throughout the three-day hearing in the Land and Environment Court in early August,Liverpool Council’s barrister,Tim Robertson SC,argued the illegitimacy of the OLG’s interim report meant any action taken by the government thereafter was unlawful.
“That it’s manifestly unreasonable for any decision-maker,political or bureaucratic,to make a decision that has cascading consequences on the basis of a report such as this,which is incomplete and has those red flags,” he said on August 12.
While conceding the OLG’s interim report was legally invalid because of the lack of procedural fairness afforded to those named within it,the government’s barrister,Naomi Sharp SC,said the report’s status was immaterial in relation to the broader question of the extraordinary powers afforded to Hoenig under the Local Government Act.
Considering the “wealth of information” published about the council before the interim report was handed down demonstrated it was a “council in disarray”,Sharp argued,including allegations of during the OLG’s investigation and former chief executive John Ajaka’searlier this year.
Consequently,the decision to suspend the council and establish the public inquiry was appropriate,regardless of the status of the report.
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