Loder v Narrabri Shire Council [2020] NSWLEC 109

Loder v Narrabri Shire Council [2020] NSWLEC 109

The Applicant was absent from three consecutive ordinary Council meetings and had tendered apologies that were accepted by resolution, but she had not communicated that she sought leave of absence and the councillors were not asked to, and did not consciously, grant leave of absence. Under the statutory scheme, including ss 234, 360 and 377(1)(r) of the Local Government Act 1993 (NSW), an accepted apology is not the same as leave granted by the Council. The Applicant's civic office therefore became vacant by operation of s 234(1)(d), and the Council did not breach the Act by treating the position as vacant.

Jurisdiction
Australia
Judgment Date
07 August 2020
Procedural Posture
Class 4 Civil Enforcement Proceedings / Principal Judgment on Summons Dated 25 May 2020
Outcome
Summons dismissed; costs reserved.
Legal Topics
['vacancy in Civic Office' 'councillor Absence From Ordinary Council Meetings' 'leave of Absence' 'acceptance of Apologies' 'model Code of Meeting Practice' 'local Government Act 1993 (nsw) S 234(1)(d)']
['local Government Law' 'administrative Law' 'statutory Interpretation' 'civil Enforcement'] ['vacancy in Civic Office' 'councillor Absence From Ordinary Council Meetings' 'leave of Absence' 'acceptance of Apologies' 'model Code of Meeting Practice' 'local Government Act 1993 (nsw) S 234(1)(d)']

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Procedural Posture

Class 4 Civil Enforcement Proceedings / Principal Judgment on Summons Dated 25 May 2020

Legal Issues

  1. 1 ["Whether the Council's resolutions accepting the Applicant's apologies for non-attendance at three consecutive ordinary meetings constituted leave granted by the Council for the purposes of s 234(1)(d)(ii) of the Local Government Act 1993 (NSW)." "Whether the Applicant's civic office as councillor became vacant after she was absent from the ordinary Council meetings on 25 February 2020, 24 March 2020 and 28 April 2020." "Whether the Council breached the Local Government Act 1993 (NSW) by treating the Applicant's civic office as vacant and not providing councillor rights, notices, business papers, equipment or remuneration."]

Ratio Decidendi

The Applicant was absent from three consecutive ordinary Council meetings and had tendered apologies that were accepted by resolution, but she had not communicated that she sought leave of absence and the councillors were not asked to, and did not consciously, grant leave of absence. Under the statutory scheme, including ss 234, 360 and 377(1)(r) of the Local Government Act 1993 (NSW), an accepted apology is not the same as leave granted by the Council. The Applicant's civic office therefore became vacant by operation of s 234(1)(d), and the Council did not breach the Act by treating the position as vacant.

Court Disposition

Summons dismissed; costs reserved.

Orders

  • ['The summons dated 25 May 2020 is dismissed.' 'Costs are reserved.']