Sydney City Council v. Reid
(1994) 34 NSWLR 506(1994) 84 LGERA 381
(Judgment by: POWELL J) Court:
Judges:
Kirby P
Meagher J
Powell J
Judgment date: 21 September 1994
Judgment by:
POWELL J
I have read, in draft, the judgment which has been prepared by Kirby P. I agree with his Honour's conclusion that an employee of a local council is not to be regarded as being a person "in the service of the Crown", and with his reasons for so concluding.
As that conclusion is sufficient for the disposition of this appeal, I would wish to reserve, for another day, the question of the construction proper to be given to a privative clause, such as s 340(5) of the Local Government Act 1993 when appearing in a context such as is provided by Pt 2 of Chapter 11 of the Local Government Act . I must, however, say that I consider decidedly odd the suggestion that although proposed appointments to senior staff positions are to be advertised, State-wide, so that persons appointed to such positions may well not come from within a council's service; although those appointed to such positions are to hold those positions pursuant to fixed term contracts; although such questions as the appointment to, removal from office, the termination of employment, and the terms and conditions of employment, of a member of the senior staff are not to constitute "an industrial matter" for the purposes of the Industrial Relations Act 1991 , and although a council's decision to appoint a person to a senior staff position is not to be subject to judicial review, nonetheless, if an employee of a council were to be regarded as being "in the service of the Crown", a decision to appoint a person to a senior staff position would be subject to challenge, and liable to be over-ruled, upon a form of administrative review.
I agree with orders proposed by Kirby P for the disposition of this appeal.