Levenstrath Community Association Incorporated v Council of the Shire of Nymboida [1999] NSWSC 989

Levenstrath Community Association Incorporated v Council of the Shire of Nymboida [1999] NSWSC 989

Local Government Act 1993, s 368 determines the number whose presence is necessary for a quorum but does not clearly provide that councillors disqualified by pecuniary interest from participating in consideration or voting are to be counted towards the number present. The Act did not displace the common law rule that a quorum must consist of persons competent to transact and vote on the business, so disqualified councillors could not be counted towards the quorum for DA 123.

Jurisdiction
Australia
Judgment Date
29 September 1999
Procedural Posture
Local Government Declaratory Proceeding / Judgment After Hearing
Outcome
Plaintiff entitled to a declaration that councillors disqualified from participating and voting at a Council meeting cannot be counted towards a quorum.
Legal Topics
['disqualification of Councillors for Pecuniary Interest' 'whether Disqualified Councillors May Be Counted Towards Quorum' 'construction of Local Government Act 1993, S 368' 'common Law Quorum Rule']
['local Government' 'statutory Interpretation' 'meetings and Quorum'] ['disqualification of Councillors for Pecuniary Interest' 'whether Disqualified Councillors May Be Counted Towards Quorum' 'construction of Local Government Act 1993, S 368' 'common Law Quorum Rule']

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Procedural Posture

Local Government Declaratory Proceeding / Judgment After Hearing

Legal Issues

  1. 1 ['Whether councillors who have disclosed a pecuniary interest in a development application and are disqualified from participating in consideration or voting can, if present at the meeting, be counted as part of the quorum under the Local Government Act 1993.' 'Whether Local Government Act 1993, s 368 displaces the common law rule that persons disqualified from participating or voting cannot be counted towards a quorum.']

Ratio Decidendi

Local Government Act 1993, s 368 determines the number whose presence is necessary for a quorum but does not clearly provide that councillors disqualified by pecuniary interest from participating in consideration or voting are to be counted towards the number present. The Act did not displace the common law rule that a quorum must consist of persons competent to transact and vote on the business, so disqualified councillors could not be counted towards the quorum for DA 123.

Court Disposition

Plaintiff entitled to a declaration that councillors disqualified from participating and voting at a Council meeting cannot be counted towards a quorum.

Orders

  • ['Declaration that councillors who are disqualified from participating and voting at a Council meeting cannot be counted towards a quorum.' 'Short minutes may be brought in to give effect to the declaration and seek any other necessary orders.' 'Costs to be dealt with when short minutes are brought in.']