Barrak v City of Parramatta Council

PAYNE JA: I have read the judgment of White JA in draft. I agree with the orders his Honour proposes and, save in the limited respects addressed below, with his Honour’s reasons.

This case provides a disheartening insight into the recent activities of the elected representatives of Parramatta City Council. As White JA explains, this case essentially involved a dispute between personalities that should never have led to litigation. Discretionary factors tending against the grant of relief will loom large in cases such as this. The intransigence of parties about matters of no demonstrated public interest will often provide a powerful reason to decline relief. In this case, however, the orders proposed by White JA provide a framework for the Council to move on. I join in those orders, including the orders as to costs, in the expectation that the belligerent and uncompromising stance of the parties about what took place at meetings in February and March 2019 will now be resolved.

Mr Barrak’s conduct at the meeting on 20 February 2019 in describing the Mayor as a “clown” was clearly insulting. His failure to apologise warranted expulsion from Council meetings on 25 February, 6, 11 and 25 March and 8 April. I agree with White JA that an insult offered, even if the insult is given as a result of provocation, is nevertheless an insult. For that reason I do not agree that the Court should conclude that Mr Barrack’s insult was provoked by the language and behaviour of the Mayor. It is true that the Council and the Mayor did not engage in an exchange of affidavit evidence challenging Mr Barrack’s version of events at the 20 February 2019 meeting. The issue raised by Mr Barrack, however, was an irrelevant one. I would not draw any inference adverse to the Council or the Mayor by reason of their failure to lead evidence about an irrelevant issue.

WHITE JA: This is an appeal from orders of the Land and Environment Court (Moore J) dismissing the appellant’s summons with costs.

In September 2017 the appellant, Mr Benjamin Barrak, was elected as a councillor of the City of Parramatta Council (“the Council”) representing the Dundas ward. In late 2018 and early 2019 an issue arose before the Council concerning the possible termination of employment of its Chief Executive Officer, a Mr Mark Stapleton.

On 4 February 2019, the Council met in closed session to consider a report of a barrister, Ms Jane Seymour, into allegations that had been made against Mr Stapleton. Reports of Ms Seymour were provided to councillors at the meeting. The Council passed a resolution that notes taken by councillors during the closed session were to be retained by the Council at the conclusion of the meeting. Mr Adam Dansie, a solicitor from “Local Government New South Wales”, was present as a consultant to advise on any employment issues that might arise.

The issue was further dealt with in a closed session of the Council on 11 February 2019, which was adjourned to 20 February 2019. The minutes of the meeting of 20 February 2019 record, and the primary judge found (Judgment [162]), that on that day Mr Barrak was expelled from the chamber by the Mayor for refusing to apologise for making derogatory and offensive comments. The minutes also record that he refused to return confidential papers provided to him during the closed session.

The primary judge found (Judgment [163]) that the Mayor, as distinct from the Council by resolution, did not have the power to expel Mr Barrak from the meeting and that finding is not challenged. This was because the Council had not passed a resolution authorising the Mayor to expel a councillor for acts of disorder as required by s 10(2)(b) of the Local Government Act 1993 (NSW).

On 25 February 2019, the Mayor tabled a proposed minute of resolution whose purpose was to call on Mr Barrak to apologise unreservedly for what were called his acts of disorder at the meeting on 20 February 2019. The resolution recommended by the Mayor was:

A further minute was tabled by the Mayor recommending that Mr Barrak be removed from his positions on Council committees.

The minutes of the meeting of 25 February 2019 record that an expanded resolution was proposed by the Mayor at the meeting of 25 February as follows:

Mr Barrak did not offer the apologies sought. The resolution was passed. He was expelled from the meeting. On the resumption of the meeting the Council resolved that he be removed from his position on three council committees.

At the next meeting on 6 March 2019 Mr Barrak was expelled for refusing to apologise unreservedly for:

At subsequent meetings held on 11 and 25 March 2019 and 8 April 2019 Mr Barrak was expelled from meetings of the Council for failing to apologise for what were described as the acts of disorder set out in the Council’s resolution of 25 February 2019.

Mr Barrak contended that he was not required to tender the apologies sought and that the resolutions of the Council at its meeting of 25 February 2019 and subsequent meetings expelling him from each meeting and requiring him to return documents were invalid. He also challenged the resolution of 25 February 2019 removing him from council committees.

On 27 March 2019 Mr Barrak commenced proceedings in the Land and Environment Court seeking, amongst other relief, the following declarations:

The matter was heard expeditiously in the Land and Environment Court. The hearing commenced on 17 April 2019. On 29 April 2019 the primary judge dismissed the summons with costs (Barrak v Parramatta City Council [2019] NSWLEC 59).

At the invitation of the Council the primary judge made an order on 18 April 2019 under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) prohibiting the publication or disclosure of the contents of affidavits sworn by Mr Barrak and Mr Ian Woodward which concerned Mr Stapleton or which recounted the events of closed sessions of Council. Whatever justification there might have been for that order when it was made, the Council accepted that there was no justification for its continuance by the time the appeal was heard. This Court dissolved the order without opposition from either party. Accordingly, this judgment describes the evidence as to what passed at closed sessions of the Council in greater detail than the primary judge thought he could disclose.

On 11 February 2019 Mr Stapleton obtained an ex parte injunction from a judge of the Equity Division (Kunc J) restraining the Council from terminating his employment until seven days after the determination of proceedings he had commenced or until further order of the Court.

At a meeting of the Council on 11 February 2019 councillors were provided with an oral report of Mr Stapleton’s application for an interim injunction and the meeting was adjourned to Wednesday, 20 February 2019. Mr Dansie was again present at the meeting on 11 February 2019.

On 18 February 2019 the interim injunction restraining the Council from terminating Mr Stapleton’s employment was dissolved (Stapleton v City of Parramatta Council [2019] NSWSC 123). The duty judge, Kunc J, gave four reasons for dissolving the injunction. First, his Honour found that the evidence did not disclose any imminent threat to terminate Mr Stapleton’s employment and that whatever process was currently being engaged in between the parties consequent upon Ms Seymour’s report appeared to be continuing. His Honour found that there was no proven basis on which he could find that there was a risk of imminent termination (at [17]).

A second and related reason was that there was no evidence before his Honour that would enable him to find that the Council had departed from its stated intention to negotiate with Mr Stapleton (at [18]).

The third reason was that there was no evidence that Mr Stapleton’s contract of employment would be terminated wrongfully. The contract could be terminated by the Council’s giving 38 weeks’ written notice or making a termination payment equivalent to 38 weeks’ remuneration (at [19]).

The fourth reason was that in any event the Court would not grant specific performance of a contract of employment and if Mr Stapleton’s contract of employment were terminated wrongfully, damages would be an adequate remedy (at [23]).

The Council was represented at the hearing before Kunc J on 18 February 2019 by senior and junior counsel retained by Bartier Perry, solicitors acting for the Council.

The meeting of 20 February 2019 was also held in closed session. There was vigorous debate. A Mr Darren Gardner, solicitor with Bartier Perry, was present. Mr Barrak asserted that the Supreme Court had been misled into the belief that there was no imminent threat to terminate Mr Stapleton’s employment. In the course of that debate, Mr Barrak, on his evidence under provocation, called the Mayor a “clown”. Mr Barrak deposed that there was discussion to the following effect:

Mr Barrak deposed that after words were spoken by another councillor that were generally supportive of Mr Stapleton, there were the following exchanges:

On Mr Barrak’s evidence the Mayor did not expel him from the meeting, but he threatened expulsion and Mr Barrak then left. However, the minutes recorded that:

As discussed at [8] above, the primary judge found that Mr Barrak had been expelled from the meeting of 20 February 2019 by order of the Mayor, rather than by resolution of the Council (Judgment [111]). The primary judge found that the Mayor, as distinct from the Council, did not have the power to expel Mr Barrak from the meeting (Judgment [136], [153], [158]-[159], [161]-[164]).

The Council does not contest the primary judge’s finding that the Mayor, as distinct from the Council by resolution, did not have power to expel a councillor. Nor does it contest that Mr Barrak was expelled by the Mayor. It does say, by its notice of contention, that as the appellant was in the process of voluntarily absenting himself from the meeting in any event, that was a reason not to grant relief.

The minutes of the meeting of 20 February 2019 recorded that Mr Barrak had refused to return confidential papers provided to him during the closed session.

The primary judge found that the resolution to surrender notes was not passed before Mr Barrak’s expulsion, but was adopted after his expulsion (Judgment [87]. The primary judge noted that Mr Barrak acknowledged that he was requested to leave his notes and papers at the time he was walking out after having been expelled from the meeting (Judgment [88]).

The Mayor, Mr Wilson did not make an affidavit. In a letter to Mr Barrak dated 11 March 2019 he gave his version of what took place as follows:

A solicitor employed by the Council who was present at the meeting on 20 February 2019, Mr Ian Woodward, deposed:

Neither Mr Barrak nor Mr Woodward was cross-examined. The primary judge did not find it necessary to find whose evidence should be preferred. Mr Woodward did not corroborate the Mayor’s assertion that Mr Barrak had showed disrespect to Mr Gardner by not allowing him to brief the Council without interruption. Otherwise the points of difference are:

The Council did not adduce evidence to contradict Mr Barrak’s evidence that the Mayor made the statements about Mr Barrak and conducted himself in the way Mr Barrak deposed.

Because the meeting was held in closed session no video recording or transcript was taken.

The next Council meeting was held on 25 February 2019. The resolutions proposed and passed at that meeting are set out at [9] to [12] above.

Before the resolutions were passed Mr Barrak addressed the meeting at some length. Relevantly, he denied that on 20 February he had not complied with a direction from the Chair to leave confidential papers on the table because he had walked out and was halfway towards the back door when a resolution was proposed. He objected to the legality of such a resolution. Mr Barrak said that he drew a distinction between the Chair and its occupant, the Lord Mayor, Mr Wilson. He said he would be prepared to apologise wholeheartedly to the former (whatever that might mean), but not the latter. He said that he called the Mayor a clown because he had been badgered and interrupted and sought to expand on that. He said that he had lodged a code of conduct complaint against the Mayor, and repeated that his apology denoted respect for the Chair and not the Mayor. Although he had not finished what he wished to say, he was advised by the Mayor that his time for speaking had run out. The resolution put to the meeting quoted at [11] above was put and overwhelmingly passed.

The next Council meeting was held on 6 March 2019.

The minutes record that after the meeting was moved into closed session the Mayor asked Mr Barrak to apologise unreservedly for making offensive and derogatory comments and insulting the Mayor at the council meeting of 20 February 2019 and subsequently making offensive and defamatory comments to the media. The minutes record that Mr Barrak refused to apologise unreservedly as requested by the Mayor. The Council resolved that he be expelled from the meeting. The minutes record that Mr Barrak requested that it be noted that he wished to make a statement to the Chamber, but was not allowed to do so and that he was advised that he may be asked to apologise unreservedly at each subsequent Council meeting and if he refused to do so, might be expelled from that meeting. He was expelled from the Chamber.

Mr Barrak deposed that at the meeting on 6 March 2019 there were the following exchanges:

Mr Barrak deposed that when he arrived at the Council meeting on 25 March 2019 and whilst the meeting was in open session he was provided with a document entitled “Running Sheet for the Lord Mayor Council Meeting 25 March 2019”. That document (which repeated the words of an earlier running sheet provided in like circumstances at an earlier meeting on 11 March) stated:

Mr Barrak deposed that following the Mayor’s recital of that section an exchange to the following effect took place:

The minutes of the council meeting of 25 March 2019 record:

The events of 25 March 2019 were repeated on 8 April 2019.

Section 10 of the Local Government Act provides:

Division 4 of former Pt 10 of the Local Government (General) Regulation 2005 (“the Regulations”) included the following:

These clauses were repealed on 14 December 2018. The primary judge found that they continued to apply to the relevant meetings of the Council by reason of r 422 during a phasing-in period until 14 June 2019 (Judgment [59]-[60]. This was common ground.

Division 1 of Pt 2 of Ch 12 of the Local Government Act provides for a council’s adoption of a code of meeting practice. The Council adopted the January 2018 City of Parramatta Code of Meeting Practice (“the Code of Meeting Practice”), apparently on 11 December 2017. Clause 31 of the Code of Meeting Practice provided:

Clause 31(5)(e) is arguably wider than regulation 256(1)(e) by substituting disrespect for contempt. On the hearing of the appeal Mr Hall SC who appeared with Mr Nash for the Council accepted that by reason of s 10(3) of the Local Government Act it was only the regulations to which regard could be had for determining whether grounds for expulsion existed.

The Council relied upon the Code of Meeting Practice in support of its argument that the primary judge was wrong to have entertained Mr Barrak’s complaint and should have decided that the decision taken by the Chair of the meeting should not be the subject of scrutiny by the Land and Environment Court at all. This was because Parliament had provided alternative means by which a person could seek to prevent the abuse by the Chair of the powers given to the Chair of the meeting, rather than by seeking administrative review.

The primary judge rejected the Council’s submission that the Court did not have jurisdiction to entertain Mr Barrak’s complaints (Judgment [100]-[110]). In so deciding, the primary judge followed the decision of this Court in Styles v Wollondilly Shire Council [2002] NSWCA 67; (2002) 120 LGERA 172.

The primary judge concluded that the Mayor was entitled to conclude that Mr Barrak’s description of him as a “clown” was an act of disorder (Judgment [127]-[134]). He concluded, consistently with the minutes of the meeting of 20 February (and the Mayor’s letter of 11 March 2019 428.C) that Mr Barrak was purportedly expelled from the meeting of 20 February by the Mayor and not by resolution of the Council. He rejected the Council’s reliance on Mr Barrak’s affidavit evidence as demonstrating that he left the chamber without being expelled (Judgment [161]). The primary judge held that in the absence of a resolution of the Council authorising him to do so, the Mayor did not have the power to expel Mr Barrak and that his purported expulsion was invalid (Judgment [164]).

The minutes state that it was resolved at the 20 February meeting:

The primary judge found that this resolution was not passed until after Mr Barrak had been expelled from the meeting. He held that it was open to the Council to pass the resolution (Judgment [179]).

The primary judge appears to have accepted that at the meeting on 20 February Mr Barrak accused Mr Gardner or other of the Council’s legal representatives of having misled Kunc J at the hearing on 18 February (Judgment [202], [205] and [206]). Mr Barrak submits that that finding was not open as Mr Barrak’s comments were directed at the instructions given by the Council to its legal representatives and were not a personal attack on the lawyers. He also submits that in any event such an attack could not constitute an act of disorder as defined in r 256 of the Regulations.

The primary judge held that the Council could not lawfully require Mr Barrak to apologise to the Chair and councillors for not complying with the direction from the Chair at the meeting of 20 February to leave confidential papers at the table in the room or for not complying with Council’s resolution of 20 February 2019 to return confidential papers, including written notes to the Acting CEO, for the Council’s records prior to leaving the Chamber (Mayoral Minute (a)(i) and (ii) of 25 February) (Judgment [217]). The Council does not challenge these findings.

The primary judge held that Mr Barrak could be required to apologise unreservedly for insulting the Mayor at the meeting on 20 February and to apologise to Mr Gardner, for making inappropriate comments including that Mr Gardner and the legal team had misled the Court. He held that the Council could also, by subsequent resolution, lawfully require Mr Barrak to return the confidential papers, including written notes of the meeting of 20 February 2019 to the Acting CEO (Item (c)) (Judgment [218]). The primary judge found that Mr Barrak’s failure to comply with such a resolution constituted a fresh act of disorder on 25 February (Judgment [224]).

The primary judge found that there was a proper basis for expelling Mr Barrak from the meeting of 25 February for failure to apologise for the acts of disorder falling within (a)(iii) and (b) of the Lord Mayoral Minute (Judgment [223]).

The primary judge found that there was no basis to set aside the Council’s resolution that Mr Barrak be removed from Council committees. The constitution of committees of the Council was a matter entirely for it (Judgment [235], [236] and [241]).

The primary judge held that the expulsion from the meetings of 6, 11 and 25 March, and 8 April 2019 were all justified for Mr Barrak’s failure to apologise in respect of the matter in (a)(iii) and (b) of the minute of 25 February and for Mr Barrak’s failing to return the papers as required by the resolution of 25 February (Judgment [248]-[250]).

The primary judge declined to make a declaration.

There were 21 grounds of appeal. The Council filed a notice of contention. In substance the issues raised by the notice of appeal and the notice of contention are:

Section 374(e) of the Local Government Act provides that proceedings of a meeting of a council or a council committee are not invalidated because of a failure to comply with a code of meeting practice.

Section 20(1)(d) of the Land and Environment Court Act 1979 (NSW) confers on the Land and Environment Court Class 4 jurisdiction to hear and dispose of proceedings under ss 673 and 674 of the Local Government Act.

Section 674(1) of the Local Government Act provides that any person may bring proceedings in the Land and Environment Court for an order for remedy or restrain a breach of the Act. Section 676(1) provides:

On appeal, the Council contended that whilst it accepted that the Land and Environment Court had jurisdiction to deal with Mr Barrak’s application, the Court was not required to do so and ought not to have done so. It submitted that it was not Parliament’s intention that any breach of the Act of the type complained of in the present case would attract any supervisory jurisdiction of the Land and Environment Court such that an act done in breach of the Local Government Act, Regulations or Code of Meeting Practice would lead to invalidity.

No question arises in this case of the validity of any act done by the Council insofar as that may affect third parties. It is the resolutions expelling Mr Barrak from meetings of the Council and from committees of the Council whose validity is impugned. The validity of the resolutions expelling him from Council meetings is not impugned because they are said to be a contravention of the Code of Meeting Practice, but because it is contended that the expulsions were contrary to s 10(3) of the Act. Nor does the challenge to his expulsion from committees depend upon the Code of Meeting Practice. Mr Barrak’s expulsion was effective, even if it were invalid.

The Council submitted that in applying Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 it should be concluded that non-compliance with the statutory requirement would not affect the validity of an administrative decision. That question does not arise. There is no relevant administrative decision in question, in the sense of a decision of the Council as decision-maker affecting a third party.

The Council submitted that for the Court to entertain the complaint would require it to enter into the political arena and assume the role of the Council’s chair, in this case the Mayor, to adjudicate what was essentially a political dispute. I do not agree. Depending upon the answer to issue 3 identified above, the function of the Court is either to determine whether the councillor’s conduct constituted an act or acts of disorder within the meaning of r 256, or whether it was open to the Mayor reasonably so to conclude. Both are typical judicial decisions that require no adjudication on any political dispute.

The Council then submitted that there were other avenues of redress, being the oversight and supervision of councillors under Pt 2 Div 6 of Ch 9 and Ch 14 of the Local Government Act. The Council submitted that its Code of Conduct (this is to be distinguished from the Code of Meeting Practice) itself had a complaints and dispute resolution procedure, including appeals to NCAT. As noted above, Mr Barrak said at the meeting of 25 February that he had commenced such a complaint.

Division 6 of Pt 2 of Ch 9 deals with the power of the Governor to dismiss a council or declare it to be non-functioning and to appoint an administrator. Manifestly, that is not a realistic alternative mode of determining the complaint.

Although the Council submitted that Ch 14 provided means of oversight and supervision by means other than a court challenge and that relevant provisions were contained in codes made pursuant to powers provided by the Local Government Act, no relevant part of any code was identified. The Code of Meeting Practice that was in evidence contains no such provision.

It may be assumed that the Parramatta City Council has adopted a Code of Conduct pursuant to s 440 of the Local Government Act (which is in Ch 14). That code was not in evidence, or, if it were, it was not included in the appeal books.

It may be taken that the Council adopted a Code of Conduct that incorporated the provisions of the model code prescribed by the regulations (s 440(1) and (3)). The prescribed Model Code of Conduct for Local Councils in NSW contains no presently relevant provisions. The Procedures for the Administration of the Model Code of Conduct prescribed for the administration of the Model Code include provision for dealing with allegations of breach of the Code of Conduct being referred to the general manager and if not resolved, provide for the possibility of the complaint being considered by a complaints co-ordinator and a complaints reviewer with possible reference to the Office of Local Government. We were not referred to any provisions of this document that might suggest its application to a breach by the Mayor of the Code of Meeting Practice.

Mr Barrak might have made a complaint under cl 3.1 of the Model Code of Conduct that the Mayor had acted contrary to statutory requirements, or improperly, or had abused his power or his conduct constituted harassment in breach of cl 3.1 of the Code. Any resolution of that complaint through the Procedures for the Administration of the Model Code of Conduct would not resolve the question of the validity of Mr Barrak’s expulsion from council meetings. Nor would any disciplinary action that might be taken by the Departmental Chief Executive under s 440I of the Local Government Act against the Mayor resolve that question.

Section 440H of the Act provides that the Departmental Chief Executive may conduct an investigation for the purposes of determining whether a councillor has engaged in misconduct. That investigation may be conducted on the Departmental Chief Executive’s own initiative, or on a referral by a general manager of a council of an allegation of misconduct by a councillor, or where the council by a resolution has referred an allegation of misconduct by a councillor to the Departmental Chief Executive.

The Council adduced no evidence that any such referral to the Departmental Chief Executive had been made. If the Procedures for the Administration of the Model Code of Conduct could have been engaged for an alleged breach by the Mayor of the Code of Meeting Practice, as to which no argument was addressed, the Council adduced no evidence as to what had happened to Mr Barrak’s code of conduct complaint.

As noted above, the primary judge applied Styles v Wollondilly Shire Council [2001] NSWLEC 18 and on appeal Styles v Wollondilly Shire Council [2002] NSWCA 67; (2002) 120 LGERA 172. There the councillor was expelled for insulting words at a meeting of the council (she called the Mayor a “bloody bitch” and a “liar”). The council passed a resolution requiring her to apologise for acts of disorder. She refused to do so and was excluded from participating in council meetings until she did apologise.

Ms Styles sought declaratory relief in the Land and Environment Court, including a declaration that she did not breach the council’s code of conduct policy and a declaration that her expulsion from council meetings for her refusal to apologise was unlawful. Her application was entertained by the Land and Environment Court but dismissed. Her appeal was also dismissed.

Although it does not appear that the present issue was raised, no doubt was expressed either in the reasons of the primary judge (Sheahan J), nor in the reasons of the Court of Appeal that it was appropriate that the Land and Environment Court entertain her complaint.

The primary judge was correct to entertain Mr Barrak’s complaint. The Land and Environment Court’s jurisdiction was properly invoked. Mr Barrak asserted that he had been expelled from meetings in contravention of s 10(3) of the Local Government Act. Courts are called on frequently to adjudicate on the validity of resolutions adopted at meetings of companies and voluntary associations, including as to the validity of steps taken in relation to the conduct of meetings which are not closely prescribed by statute or regulation, but depend upon the interpretation of the constitution of the relevant body, or the rules of common law in relation to the conduct of meetings. It may be for this reason that Joske’s Law and Procedure at Meetings in Australia is in its 11th edition (E S Magner, Joske’s law and procedure at meetings in Australia (Thomson Reuters (Professional), 11th ed, 2012).

I discern no legislative intent that the Court should not adjudicate upon whether there has been a breach of the Act where the breach arises from the conduct of a meeting of a council. The width of conferral of jurisdiction on the Land and Environment Court and the statutory prescription of the circumstances in which a councillor can be expelled indicate that the jurisdiction of the Land and Environment Court was properly invoked and that the primary judge was correct in exercising that jurisdiction.

By its notice of contention the Council submitted that the Court would decline to order any relief in relation to Mr Barrak’s expulsion from the 20 February 2019 meeting because he withdrew from the meeting in any event.

I do not understand the Council’s notice of contention to challenge the primary judge’s conclusion that Mr Barrack was expelled from the meeting of 20 February by the Mayor. The primary judge relied upon the minutes of the meeting that refer to his having been expelled by the Mayor and by the fact that whilst Mr Barrak disputed some aspects of those minutes, he did not dispute that aspect.

There was no error in that finding. The validity of the expulsion on 20 February 2019 is largely academic. It relates only to the question of whether the primary judge ought to have made a declaration about the validity of that expulsion. That might be relevant to the question of what costs order should have been made in the Land and Environment Court.

The expulsion of Mr Barrak from subsequent meetings of the Council did not depend upon the validity of his expulsion from the meeting on 20 February 2019. The validity of his expulsion from subsequent meetings depends (in part) upon whether he had committed acts of disorder at the meeting of 20 February 2019 for which he could be required to apologise, failing which he could be excluded from the subsequent meetings.

The fact that on his evidence, Mr Barrak was in the process of withdrawing from the meeting, is not a reason for withholding relief as to the validity of his expulsion from other meetings or from membership of committees. It is but one factor to consider in relation to Mr Barrak’s challenge to the costs order made by the primary judge. Also relevant in that regard are the events leading up to his withdrawal.

The primary judge considered that the relevant question was whether the Mayor’s decision that Mr Barrak had by his use of language committed an act of disorder was within power and not infected by manifest unreasonableness (Judgment [115]).

Mr Barrak challenged that conclusion. He submitted that the question of whether he had committed an act of disorder within the meaning of r 256 did not depend upon the view of the Lord Mayor, but whether as a matter of fact his conduct fell within any of the paragraphs of r 256.

Regulation 256 is quoted at [48] above. A judgment as to whether a councillor has committed an act of disorder falling within that regulation must initially be made by the Chair of the meeting of the Council, or of the committee as the case might be, in order that immediate decision be taken at the meeting to deal with the point of order. That might indicate that words should be implied in the chapeau to r 256(1) that the chapeau is to be read as if it provided “a councillor commits an act of disorder if the councillor, at a meeting of a council or a committee of a council, in the opinion of the chair of the meeting ...”.

The purpose and context of r 256 does not require any such implication. The question of whether a councillor has committed an act of disorder within the meaning of r 256 must be decided at the meeting. It need not be decided by the Chair of the meeting alone. The power of expulsion depends upon a resolution of the meeting, unless the Council has by resolution authorised the person presiding at the meeting to exercise the power of expulsion. If the application of the regulation depends upon the formation of an opinion, then that opinion may be the collective opinion of the meeting rather than the person presiding.

However, it would be difficult if not impossible to assess the reasonableness of the collective opinion of a meeting which may well be divided on factional lines, if the grounds for possible expulsion depended upon the opinion of the meeting. In my view, neither words to the effect “in the opinion of the person presiding at the meeting” nor “in the opinion of the meeting” can be implied into r 256. The question arising under r 256 rather is whether as a matter of fact (to be determined by the Court where necessary) a councillor has committed an act of disorder as described.

On 8 March 2019 Mr Barrak asked the Mayor to provide particulars of the matters said to have constituted his offensive comments on 20 and 25 February 2019 and the conduct which was said to have constituted a breach of cl 31 of the Code of Meeting Practice. The relevant part of the Mayor’s reply is set out at [33] above.

No specific complaint was made by the Council of Mr Barrak’s assertion (according to his evidence) that on 20 February 2019 he said that he did not want to be part of a “Kangaroo Court”. On 6 March 2019 Mr Barrak stated that he had so described the meeting on 20 February 2019 over which the Mayor presided. The Council did not rely upon the use of these words as being an act of disorder within the meaning of r 256 (compare R v Peter John O’Dea (1983) 10 A Crim R 240 at 249).

The three alleged acts of disorder were Mr Barrak’s calling the Mayor a clown, his allegedly insulting Mr Gardner, and his refusal to return documents.

Given the conclusion above that it is a matter of fact capable of determination by a court whether an act is an act of disorder within the meaning of r 256, it falls next to determine whether the above three alleged acts of disorder did answer the description in r 256.

As to calling the Mayor a clown, whether that was said once or four times, Mr Barrak submitted that the use of that expression did not cause any disorder at the meeting. Counsel for Mr Barrak submitted that whether or not the use of that expression was an insult or a personal reflection on the Mayor, it was not an act of disorder unless it led to disorder at the meeting.

That is not an available interpretation of r 256. Sub-regulations 256(1)(a)-(d) specify matters, any of which constitutes an act of disorder. Sub-regulation 256(1)(e) is a catch-all that covers anything done at a meeting that is inconsistent with maintaining order at the meeting. If a councillor commits an act falling within r 256(1)(a)-(d) that will be an act of disorder, whether or not it is inconsistent with maintaining order at the meeting. Insulting another councillor, or making personal reflections on, or imputing improper motives to, another councillor is an act of disorder under r 256(1)(d) without the need for any further enquiry as to whether that act is inconsistent with maintaining order at the meeting.

Mr Barrak submitted that his description of the Mayor as a clown was fully justified by the Mayor’s conduct towards him. He submitted that it was a proper characterisation of the way in which the Mayor was behaving. In other words that the description was essentially true, or in any event, he was goaded into or provoked by the Mayor’s behaviour towards him.

One of the ordinary meanings of “clown” is that the person is coarse, ill-bred or a boor, or plays the fool (Macquarie Dictionary).

Mr Barrak had sought to raise a serious question as to whether the Court might have been misled as to one of the grounds upon which it refused Mr Stapleton’s application for an interlocutory injunction by its not being informed that the Council intended to terminate Mr Stapleton’s employment. Whilst Mr Gardner provided an explanation as to why that information was apparently not conveyed to the Court, and whilst the decision of Kunc J did not depend upon an assumption that there was no imminent threat to terminate Mr Stapleton’s employment, the issue raised by Mr Barrak was serious and warranted serious attention. The Mayor’s comments as deposed to by Mr Barrak, and which were not disputed by the Council, were flippant and insulting of Mr Barrak. They implied that Mr Barrak had himself been guilty of misleading a court. The Council did not seek to justify the Mayor’s comments.

Mr Barrak submitted that the Mayor was behaving like a clown and the use of that word was a fair characterisation of his behaviour. Mr Barrak submitted that as it was an accurate rendering of what was going on it was not an insult. This does not follow.

In R v Peter John O’Dea the applicant was convicted of an offence of wilfully insulting a Royal Commission contrary to s 6O(1) of the Royal Commissions Act 1902 (Cth). A submission that the applicant was not insulting because he spoke only the truth was rejected. Davies J said (at 249):

In Thurley v Hayes (1920) 27 CLR 548 the High Court restored the conviction of a man charged with using insulting words calculated to provoke a breach of the peace. The words in question were “[y]ou are sponging on the Government and you waste public money and I will – well report you.” Those words were spoken to a returned soldier. The High Court held (at 550):

Although the issue does not appear to have been raised, it is noteworthy that there was no suggestion that the words would not be insulting if they were true.

There is nothing in the language or context of r 256 to suggest that para 256(1)(d) is not engaged if the insult, personal reflection or imputation of improper motive is true. Rather, the regulation addresses the need for councillors to act with decorum so that order at a meeting is maintained. A construction of the regulation that permitted the making of insults, personal reflections or the imputation of improper motives if they were true, would not be conducive to attaining that objective. To the contrary, if the truth or falsity of such statements could be ventilated, before the meeting could resolve that a councillor be expelled, argument about the truth or falsity of the comment would be likely to exacerbate disorder.

Clearly, to describe a person as a clown is to insult the person. It is an insult even if it is also a fair characterisation of the person’s behaviour. Mr Barrak could have made his point without using insulting words. He could have said that the Mayor was not taking his complaint seriously and was belittling and insulting him.

The Mayor’s power to require a councillor to apologise under r 256(2) arose because Mr Barrak insulted and made personal reflections on the Mayor. The apparent fact that the insult was the result of provocation did not mean that there was no insult. The power of the Mayor to require an apology, and the power of the councillors to expel Mr Barrak for the absence of an apology, was engaged.

The second act of disorder for which Mr Barrak was required to apologise was his having allegedly accused Mr Gardner of misrepresenting the Council’s position and having made comments of a derogatory nature about Mr Gardner and having acted disrespectfully towards him by not allowing him to brief the Council.

The Council led no evidence as to what words were used by Mr Barrak that accused Mr Gardner of misrepresenting the Council’s position or were of a derogatory nature, or were disrespectful, or which prevented Mr Gardner from briefing the Council without interruption.

The words used by Mr Barrak as deposed to by him do not admit of that construction. Rather, his complaint was that the Council (not Mr Gardner or his firm or barristers briefed to represent the Council) had misled the Court. At least inferentially, this was by the instructions given to the lawyers retained to act for the Council.

In any event, no comment disparaging of Mr Gardner could be an act of disorder within the meaning of r 256(1)(d) as Mr Gardner was not a councillor. Nor does the evidence show that anything said by Mr Barrak was inconsistent with the maintenance of order at the meeting (r 256(1)(e)). As the Council did not give any evidence of words said by Mr Barrak that prevented or interrupted Mr Gardner’s briefing the Council, there was no evidence that anything was done inconsistent with maintaining order. Nor could anything said by Mr Barrak have been likely to bring the Council into contempt. This is partly because the meeting was held in closed session. It was also because according to the only evidence of what was said, Mr Barrak did not disparage Mr Gardner. Insofar as the resolution adopted on 25 February 2019 and at subsequent meetings required an apology to Mr Gardner, there was not a proper basis for the resolution.

The resolution of the meeting of 25 February 2019 included that Mr Barrak be called upon to apologise unreservedly for not complying with the direction from the Chair at the Council meeting of 20 February 2019 to leave the confidential papers at the table in the room and for not complying with the Council resolution of 20 February 2019 to return confidential papers, including written notes, to the acting CEO for Council prior to leaving the chamber.

As noted above, the primary judge found that no such direction had been given, nor resolution made, before Mr Barrak had been purportedly expelled from the meeting. Accordingly, there was no basis for requiring him to apologise for not complying with the direction and resolution. However, on 25 February the Council again resolved that Mr Barrak return those confidential papers, including written notes to the acting CEO of the Council. Mr Barrak has not complied with that resolution. Nor at the commencement of subsequent meetings did he express any willingness to do so. To the contrary, he rejected the Council’s entitlement to require him to deliver his personal notes of the meeting of 20 February.

The primary judge found that Mr Barrak’s failure to return documents as required by para (c) of the Council’s resolution of 25 February 2019 constituted a fresh act of disorder (Judgment [224]). The primary judge held that although two bases of complaint proposing an act of disorder were “irrelevant” (namely, those referred to in recommendation (a)(i) and (ii) of the Lord Mayor’s minute), that did not affect the validity of Mr Barrak’s expulsion from the meeting of 25 February 2019 and subsequent meetings insofar as that was based upon his refusal to hand over the confidential papers for the meeting of 20 February and his notes for that meeting (Judgment [229]).

Notwithstanding the position taken by Mr Barrak at Council meetings, neither before the primary judge nor on appeal did he contest the right of the Council to require the return of confidential papers provided to him for the meeting of 20 February 2019. Nor could there be any objection to a Council resolution that he provide to the Acting CEO the notes that he took at that meeting. Mr Woodward deposed that at the meeting of 4 February 2019 each councillor put his or her copy of Mr Stapleton’s report and any notes that had been taken at the meeting into their personally addressed envelope. These were secured in a locked cabinet.

Where litigation was pending as it was in February 2019 it made good sense for the Council to secure documents that might be required to be produced later on discovery. No submissions were advanced before this Court to seek to justify Mr Barrak’s opposition to being required to deliver confidential papers provided to him for the meeting of 20 February 2019 or any notes taken by him at the meeting. That requirement did not deprive him of access to his notes if required. Nor did it give other councillors access to his notes. The resolution of 25 February 2019 that was repeated at later meetings that Mr Barrak return the confidential papers for the meeting of 20 February 2019, including written notes, to the Acting CEO was not invalid.

Mr Barrak contended that nonetheless his refusal to abide by the resolution was not an act of disorder within the meaning of r 256 of the Regulations. I do not agree. Defiance of the resolution of the Council was inconsistent with the maintenance of order at the meeting and was an act of disorder within para 256(1)(e). In Joske’s Law and Procedure at Meetings in Australia, the learned author says (at [6.35]) that:

The primary judge was correct to conclude that Mr Barrak’s refusal to return documents in accordance with the resolution of 25 February 2019 was an act of disorder.

However, the power of expulsion under r 256(3) is not engaged merely by a councillor’s committing an act of disorder, but rather by the councillor’s failure to comply with a requirement of the chairperson made under r 256(2), that is, in this case, failing to retract and apologise for an act of disorder under r 256(1)(d) or (e).

Whilst Mr Barrak’s failure to return documents, as required by the resolution of 25 February 2019, was an act of disorder, no subsequent requirement was made that he retract his refusal and apologise for his refusal to comply with the requirement of the resolution of 25 February.

The requirement for an unreserved apology made before the meetings of 11 and 25 March and 8 April 2019 was for the acts of disorder individually itemised and set out in the resolution of 25 February 2019 (see [43] above). The requirement for the return of documents contained in para (c) of that resolution (see [11] above) was not an act of disorder itemised or set out in the resolution. At the meeting of 6 March 2019 Mr Barrak was expelled for insulting the Mayor and for statements to the media (the latter was not a valid ground for expulsion). There was no evidence he was asked to apologise for refusing to return documents as required by para (c) of the resolution of 25 February 2019 and to retract that refusal.

For these reasons the Council was not entitled to expel Mr Barrak for not apologising unreservedly for the matters in para (a)(i) and (ii) of the resolution of 25 February 2019 quoted at [10] above. This conclusion was also reached by the primary judge.

Nor was the Council entitled to require Mr Barrak to apologise unreservedly to Mr Gardner (para (b) of the resolution). This conclusion is contrary to that reached by the primary judge.

The Council was entitled to require Mr Barrak to apologise unreservedly for insulting the Mayor who was chairing the meeting on 20 February 2019 (resolution (a)(iii)). It was entitled to require Mr Barrak to return confidential papers, including written notes for the meeting of 20 February 2019 (resolution (c)). It was entitled to require him to retract his refusal and to apologise for it, but did not do so.

Thus the Council was entitled to resolve that if Mr Barrak did not apologise unreservedly for the item noted in (a)(iii), he be expelled from the meeting.

This conclusion differs from that of the primary judge insofar as it concerns paras (b) and (c) of the resolution.

For the reasons I have given, I do not agree with the primary judge that whether Mr Barrak committed an act or acts of disorder within r 256(1) depends upon the opinion formed by the Mayor and whether that opinion was reasonable. If I am wrong, I would conclude that the Mayor’s opinion was reasonable in so far as it related to para (a)(iii) and (c) of the resolution of 25 February 2019, but not in so far as it related to para (b) of the resolution. As to para (b) the opinion was unreasonable because Mr Gardner was not a councillor and nothing said to or about him affected the order of the meeting.

Mr Barrak submitted that the primary judge erred by addressing only the question whether the Mayor’s determination that he had committed an act of disorder was valid. He submitted that the primary judge should have gone on to consider whether the Mayor’s discretion as chairperson to require an apology and the resolutions of the Council of 25 February 2019 and subsequently expelling him from Council meetings for failing to apologise were vitiated by legal unreasonableness.

It may be accepted that because r 256(2) and (3) confer in general terms discretionary powers on the chairperson and the councillors attending the meeting, that there are some constraints on the exercise of those powers which may broadly be described as “the legal standard of reasonableness”. What that standard is depends on the scope, purpose and real object of the provision having regard to the nature of the power conferred (Minister for Immigration v Li (2013) 249 CLR 332; [2013] HCA 18 at [67] per Hayne, Kiefel and Bell JJ). The power in question is for the internal regulation of meetings of councils and council committees with the object of maintaining order to promote the effective and efficient conduct of business. The context is very different from other exercises of statutory power affecting substantive rights, property or liberty of third parties. It is also relevant that the powers are conferred on a political body that may be comprised of different factions or parties, and that those present will have themselves seen or heard the act of disorder that triggered the potential exercise of power and can be expected to make an immediate decision.

I doubt that the applicable legal standard of reasonableness would go beyond a requirement that the powers be exercised in good faith and that the decision reached be one which “a sensible authority acting with due appreciation of its responsibilities” could make (Minister for Immigration v Li at [71]). It is unnecessary to decide this question finally.

Although the Mayor, in considering the exercise of his power to require an apology, might have reflected on his own behaviour, and the councillors, in considering whether to expel Mr Barrak in the absence of an apology, might be expected to take account of the provocation offered, it cannot be said that by any standard the exercise of their powers was unreasonable. Decorum had to be maintained. The insulting words should have been withdrawn immediately and an apology offered.

Mr Barrak deposed that when he arrived at the meeting of 25 February 2019 he was presented with two Lord Mayoral Minutes. The second Lord Mayoral Minute was to call on the Council to remove Mr Barrak from positions he held on council committees.

The primary judge held that Mr Barrak was not entitled to be heard on whether he should be removed from committees of the Council. The primary judge held that the Council had complete control of the constitution and membership of its own committees. There was no adopted policy or practice which gave rise to any particular obligation to provide procedural fairness. The appointment of members of committee was a political process (Judgment [235] and [236]). The primary judge concluded that the appointment of Mr Barrak to committees was part of the Council’s political processes (Judgment [239]) and there was no obligation to provide procedural fairness (Judgment [241]).

It is unnecessary to decide this question. Mr Barrak had the opportunity to make submissions on whether he should not be removed from his position on Council committees, even if he were expelled from Council meetings because he would not apologise for acts of disorder alleged against him.

Although the primary judge found that the Council was not entitled to require that Mr Barrak apologise for the matters referred to in para (a)(i) and (ii) of the resolution passed on 25 February 2019, and found that Mr Barrak’s expulsion from the meeting on 20 February 2019 was unauthorised, he declined to grant any declaratory or other relief.

There was no error in that conclusion because none of the claims for relief claimed in those paragraphs of the summons in the Land and Environment Court that were pressed covered the limited extent to which Mr Barrak succeeded in the Land and Environment Court.

The primary judge’s conclusion that the resolution passed on 20 February 2019 did not affect Mr Barrak because the resolution was passed after he had been expelled from that meeting could have resulted in a declaration, not in the terms of para 3 of the summons, but in terms that the resolution passed on that day did not bind Mr Barrak because it was passed after he had been purportedly expelled from the meeting. That was not a declaration sought.

I consider that on appeal Mr Barrak should have wider success. Nonetheless, the extent of that success does not justify the making of any of the declarations sought in paras 3-7 of the summons. To the contrary, each of the declarations and orders sought in paras 3-7 of the summons should be dismissed.

Nonetheless, in my view it is appropriate for this court to make declarations as to what the Council could lawfully require by way of apology or conduct from Mr Barrak and what it could not. Although the primary judge was not in error in not making more limited declarations than had been sought in the summons, had more limited declarations been sought, they should have been made. The making of such declarations should provide a framework that will allow the Council to move on. Mr Barrak can make his apology to the Mayor knowing that by so doing he is not acknowledging that the Mayor’s conduct was justified.

The primary judge ordered Mr Barrak to pay the Council’s costs of the proceedings in the Land and Environment Court. In my view, on appeal both parties have had a measure of success and failure and I consider that in the Land and Environment Court Mr Barrak should have had some further measure of success than he in fact enjoyed, but not such a measure of success as would have resulted in the declarations and orders sought.

This is a most unfortunate case. Its trigger was Mr Barrak’s use of insulting words towards the Mayor on 20 February 2019, describing him as a clown. On the evidence, the use of those insulting words was provoked by the Mayor’s goading words and behaviour. The constituents of the Parramatta City Council were entitled to expect that reasonable behaviour of both parties would have resolved the dispute without the need for any litigation. In the litigation that ensued both parties have had a measure of success and failure.

In my view the primary judge’s order that Mr Barrak pay the Council’s costs should be set aside. This is partly because, if sought, Mr Barrak was entitled to a declaration, not in the precise terms sought in para 3 of the summons, but to the effect that the resolution passed on 20 February 2019 did not require him to return his papers and notes (albeit that the resolution of 25 February 2019 did require him to do so). It is also partly because Mr Barrak has established on appeal that the Council was not entitled to require him to provide an apology to Mr Gardner and was not entitled to expel him for not delivering documents as required by the resolution of 25 February 2019 without first having required a retraction and apology. It is also because the court should recognise that his insult that gave rise to the proceedings was provoked by the language and behaviour of the Mayor.

Mr Barrak did use insulting words towards the Lord Mayor and they were not justified because he was provoked. He was wrong in refusing to apologise. There was no question of high principle. Rather, there was a dispute between personalities that should never have led to litigation.

In my view the appropriate order is that each party pay his and its own costs of the proceedings before the Land and Environment Court and on appeal.

For these reasons I propose the following orders and declarations:

McCALLUM JA: I have had the benefit of reading the judgment of White JA in draft. With one exception, I agree with his conclusions, for the reasons his Honour has stated. Specifically:

As noted by White JA, the three alleged acts of disorder relied upon by the Council were Mr Barrak’s calling the Mayor a clown, his alleged conduct towards the solicitor, Mr Gardner, and his refusal to return the confidential papers. My conclusions on those matters are as follows:

The matter on which I respectfully disagree with White and Payne JJA is the alleged insult to the Mayor. I do not agree that the Council was entitled to require Mr Barrak to apologise unreservedly for “making derogatory comments and insulting the Lord Mayor who was chairing the meeting” on 20 February 2019.

It follows that I do not agree that the Council could validly resolve on 25 February 2019 to expel Mr Barrak if he did not apologise unreservedly for the matters specified in the resolution (concerning the Mayor and Mr Gardner) and return the confidential papers. In light of the importance of determining this appeal promptly, and as the limited point on which I differ is by way of dissent, it is appropriate to state my reasons for reaching a different conclusion as to the alleged insult to the Mayor as briefly as the circumstances permit.

As a preliminary observation, it may be noted that the proposed resolution put a gloss on the language of r 256 in that part of the conduct for which Mr Barrak was required to apologise was “making derogatory comments” (presumably about the Mayor – the resolution was imprecise in that respect). The act of disorder specified in r 256(1)(d) is confined to conduct that “insults or makes personal reflections on or imputes improper motives to any other councillor”. The difference between a derogatory comment and an insult or a personal reflection may be minimal but it is important, where a power of this kind is invoked, to adhere to the language of the relevant instrument.

The notion of insult is peculiarly subjective and highly contextual. It is usually necessary to have regard not to the word used standing alone but to the context of the whole exchange. In the present case, that issue was addressed only in the evidence of Mr Barrak. As White JA has explained, he gave a sworn account in direct speech of the words said at the meeting of 20 February 2019 whereas the Mayor did not. Mr Woodward provided an affidavit confirming the account provided in the Mayor’s letter, relevantly confirming that, on 20 February 2019, he heard Mr Barrak say the things attributed to him in paragraphs 1, 2 and 4 of the letter in (including hearing him use the word “clown” four times). But that account provided no context. Paragraph 1 said “you insulted me, including repeatedly calling me a ‘clown’”. It referred to a direction to “stop making the derogatory comments and name-calling” but gave no specificity to that assertion. It is not clear whether it referred to anything beyond the use of the word “clown”. If it did, there is no evidence as to what was said.

Paragraph 2 related to Mr Gardner and is irrelevant for present purposes.

Paragraph 4 was similarly conclusory, and could in any event have referred to words said to Mr Gardner rather than to the Mayor:

In the circumstances, the Court was left to assess the important question of context by reference to the account given by Mr Barrak, which has been set out in full by White JA.

Justice White has noted that sub-regulation 256(1)(e) is a “catch-all” provision the determinant of which is inconsistency with maintaining order at the meeting (the regulation also refers to a likelihood of bringing the relevant council or committee into contempt). His Honour holds on that basis that an act falling within any of the other sub-regulations in r 256 will be an act of disorder whether or not it is inconsistent with maintaining order at the meeting, so that insulting or making personal reflections on another councillor or imputing improper motives to him or her is an act of disorder under r 256(1)(d) without the need for any further inquiry as to whether that act is inconsistent with maintaining order at the meeting. I would not construe the regulation in that way. In my respectful opinion, the whole of the regulation is directed in one way or another to the object of maintaining order at council meetings. An insult directed to another councillor could not amount to an act of disorder (triggering the significant power to require an unreserved apology) unless it was such as to fall within the proper characterisation of “an act of disorder”, that is, unless it was apt to cause disorder.

I respectfully agree with White JA’s rejection of the submission put by Mr Barrak that, whether or not calling the Mayor a clown was an insult or a personal reflection on him, it was not an act of disorder unless it (in fact) led to disorder at the meeting. An insult that was apt to have that effect would be enough. However, that is not to say that the purpose of maintaining order at the meeting is foreign or irrelevant to the proper construction of r 256(1)(d). In my view, the assessment as to whether an insult or personal reflection on another councillor is an act of disorder within the meaning of that regulation must necessarily be informed by the inquiry as to whether that act is inconsistent with maintaining order at the meeting or is calculated to disrupt the orderly conduct of the meeting.

Accordingly, the assessment whether a particular remark amounts to an insult within the meaning of r 256(1)(d) cannot be made by considering the impugned words shorn of context. An aspect of the consideration of the context in which an impugned remark was made is to consider the proportionality of the degree of disorder posed by the remark and the nature of the power exercised in order to curtail it. Regulation 256 addresses a broad range of conduct, from criminal acts such as assaults to a councillor’s choice of language. While it is no small thing to confront the Chair with a remark capable of being taken as an insult, it is equally no small thing for the Chair to exercise the power to require an unreserved apology (and so potentially trigger the power of expulsion).

In my view, the proper exercise of those powers must be directed not to the sensibilities of the particular councillor at whom the perceived insult was directed but to the object of maintaining order at the meeting. Insult in the presence of others has a remedy in defamation, a cause of action not infrequently invoked by local councillors. It may be noted that, in the context of an action for defamation, there is no power to order an apology. The proper exercise of the power of the Chair to require an apology under r 256 is directed to the question of orderliness of the meeting and requires an assessment of context and proportionality to that end.

For that reason, I would regard the exchange preceding Mr Barrak’s resort to calling the Mayor a clown to be of critical importance. In my view, the issue Mr Barrak was attempting to raise (whether the Council had knowingly misled the Court), while perhaps irrelevant to the debate at hand, was an important one. His question was susceptible of a simple answer. It appears the Council had not made any representation to Kunҫ J on the matter of its intention; his Honour’s remark simply recorded an absence of evidence. However, rather than favouring Mr Barrak with that simple explanation with the assistance of the solicitor present, the Mayor took the discussion down a path of ridiculing Mr Barrak. On the strength of the only direct evidence before this Court, he did not take the issue seriously; he insulted Mr Barrak by attributing him with a tendency himself to mislead courts; he exposed him to personal ridicule (accusing him of being “emotional” and “under a lot of pressure”) and he made it clear that he did not propose to entertain any different course:

It was undoubtedly inappropriate of Mr Barrak to deploy the term “clown” but the burden of his remark was that, in not taking an important issue seriously, directing personal insults at Mr Barrak and inviting others to laugh at his expense, the Mayor was reducing the debate to the atmosphere of a circus.

In context, I do not think Mr Barrak’s words “Lord Mayor, you are a clown” would have been taken by an objective observer to amount to an insult calculated to bring disorder to an otherwise orderly meeting. If anything, Mr Barrak would have been understood by an objective observer to be pleading to have an important issue considered by the Council in an orderly way. I am not persuaded that the single incidence of calling the Mayor a clown addressed in Mr Barrak’s evidence amounted to an act of disorder within the meaning of r 256(1)(d). As White JA has explained, there was evidence to suggest that he used the word more than once but no context was given to that assertion and it is impossible to assess.

As to the issue of costs, although I have reached a different conclusion from White JA as to an important issue, and notwithstanding the fact that my conclusion would see a different outcome as to whether Council was entitled to expel Mr Barrak from the meetings, I nonetheless agree with the order as to costs proposed by White JA. As his Honour has observed, Mr Barrak has offered no explanation for refusing to return the confidential papers after having been validly required to do so. It will be clear from this judgment that I do not share the view of either other member of the Court that this unfortunate case was triggered by Mr Barrak’s use of insulting words towards the Mayor. But the fact that this Court must resort to a discussion as to who started it is enough to explain my decision to join in the conclusion that neither party should have an order for costs.

For those reasons, I would join in the orders and declarations proposed by White JA except as follows: