Councillors and Officers
- Defamation (defence): A member of a Council sub-committee was being sued for defamatory comments allegedly made in his role on the Council sub-committee. Our client had the full support of the Council and the Council’s insurer and we secured a result which successfully aligned the needs of the Council and the Council sub-committee member. All were very pleased that the matter was able to resolve without a trial.
- Defamation (non-litigated): A Council was receiving numerous complaints from an individual who repeatedly threatened defamation proceedings. We were appointed and were able to convince the claimant that their claim was fundamentally flawed and that the claimant faced a significant costs exposure if they issued proceedings given the claim was statute barred and, in any event, the best the claimant could achieve was nominal damages which would result in further adverse costs orders.
Following the exchange of a couple of carefully worded letters, the claimant abandoned their claim after a couple of years of correspondence prior to our involvement.
- Defamation (defence): A Council and current and former staff members were named as defendants in defamation proceedings commenced in the Supreme Court of Victoria. The matter was emotionally charged and attracted media interest. The litigation was managed in a way that shielded all defendants from the media and the plaintiff.
- Defamation (claimant): A former Mayor brought an action in the County Court of Victoria in order to redress the hurt and humiliation he experienced from defamatory comments made on social media by a disgruntled constituent.
For a range of reasons, trial was seen as a last resort and so we successfully secured a settlement at the first mediation which included a reasonable settlement payment together with an appropriately worded apology by the publisher. The settlement was assisted by preventing the defendant from bring their own counterclaim which could have posed a significant impediment to resolution.
- Employment and Discrimination
- Discrimination and Human Rights: The Plaintiff was a resident of the Council’s municipal district. After attending Council meetings with “protest” signs, he was excluded from attending meetings for 12 months. He alleged that such exclusion amounted to discrimination on the basis of political belief or activity, and was also a breach of his human rights under the Charter.
Barry.Nilsson. attempted to resolve this matter for Council, which despite our best efforts ran to judgment due to a difficult plaintiff who refused to negotiate a settlement.
Council was appreciative of our assistance throughout the entire process. Our instructor from Council noted that:
"The service provided by you and the Barry.Nilsson. team has been very professional and highly regarded by me especially with the open advice and consultation in relation to direction and process. The advice provided has always been timely with the option for Council to set the direction. The pre-briefing process with witness statements and meetings with legal Counsel was most welcomed, as this was my first time in a VCAT and Human Rights proceeding. It’s been a pleasure getting to know you through this process and I welcome the opportunity to consult with you and the Barry.Nilsson. team on future matters with respect to governance, Councillor conduct etc.”
- Duty of Care: The Plaintiff alleged that as a result of the Council identifying her land as suitable for acquisition as a public space and by failing to take appropriate steps to acquire her land within a reasonable time, she had been prevented from freely dealing with her property and had suffered loss in the value of her land, by way of ‘planning blight’.
Barry.Nilsson. successfully argued that the duty of care alleged by the Plaintiff could not, and did not, exist at law and therefore had no real prospects of success. Barry.Nilsson. received very positive feedback.
- Bullying and Discrimination: The Applicants made allegations of bullying and discrimination against the CEO of Council. Barry.Nilsson. took over conduct of both matters and was able to quickly demonstrate our expertise in this area of law while at the same time implementing a clear strategy which focused on the interests of Council.
Through genuine collaboration with the Council, both matters resolved on favourable terms in a settlement agreement.
The CEO was incredibly grateful for Barry.Nilsson.’s assistance in navigating “the most challenging nine months of [his] career” and noted that:
“In late 2017 BN Law was appointed by our insurers as our legal representation in response to two very challenging HR matters that arose in our organisation as a result of the Federal Government’s same sex marriage vote in 2017. BN Law was not our existing legal representative when the matter first arose and I had considerable concern about the requirement to change representation when significant developments had already occurred and were being managed in accordance with other trusted legal advice. However, BN Law quickly demonstrated a strong appreciation for the situation and developed a clear and irreproachable process for working through each of the matters in a respectful and balanced way that ultimately reached a commercial settlement.”
- Bullying and Discrimination: A Councillor made allegations of bullying and discrimination against the CEO of Council. We assisted the CEO throughout the entire investigation process. Through discussions with the CEO, we were able to prepare relevant documentation to assist the investigator in reaching her findings The investigator found that all allegations against the CEO could not be substantiated.
The CEO was greatly appreciative of all of the support provided to him and thanked us throughout the entire process for keeping him appraised of the next steps and ensuring that his interests were protected.
- Investigations, inquiries and prosecutions
- Councillor Conduct Panel: We acted for a Councillor accused of serious misconduct under the Local Government Act (LGA), including bullying and failing to participate in the Council’s arbitration process. Our demonstrated understanding of both the LGA and the bullying jurisdiction resulted in the application being dismissed in its entirely.
The Councillor noted the “care and consideration” provided to him by Barry.Nilsson. in what was an incredibly difficult time for him.
- Ombudsman: A Council Officer was the subject of an investigation by the Ombudsman concerning a substantial number of allegations. With significant experience in workplace investigations, we were able to identify flaws in the investigator’s process and findings. Similarly, our knowledge of policies, procedures and local government laws allowed us to frame a response that refuted the allegations made, and demonstrated that those draft findings were unsustainable.
- Commission of Inquiry: We assisted a council the subject of a Commission of Inquiry. We provided advice about council’s obligations and rights and otherwise attended a number of interviews with key-stake holders with a view to protecting their interests.
- Independent Broad-based Anti-corruption Commission (IBAC): We act for a number of councillors the subject of a highly publicised investigation by IBAC into allegations of corrupt conduct involving councillors and property developers.
- Statutory liability
- Planning dispute: The Council levied various rates associated with a property which the property owner refused to pay. The matter was referred to the Council’s debt collector who then issued a rent demand to the property owner.
By way of response, the property owner issued an application at VCAT against the Council and its agent under the Australian Consumer Law (ACL) and Fair Trading Act 2012 (Vic)(FTA), Local Government Act 1989 (Vic)(LGA), Wrongs Act 1958 (Vic), Public Administration Act 2004 (Vic), National Consumer Credit Protection Act 2009 (Cth) and the Imperial Acts Application Act 1980 (Vic).
The Application made allegations and claims to the effect that:
- the Council and agent had harmed and damaged the character, honour, integrity and reputation of the Applicants and interfered with the privacy and property of the Applicants
- the Council and agent had used prohibited debt collection practices
- the Council had no power to issue the Rent Demand
- the purported power is judicial or quasijudicial in nature and is invalid. Further, the Rent Demand purports to be a notice issued by a Court and is invalid
- section 177 of the LGA is invalid against the Australian Constitution and Commonwealth Laws, and
- the levy and collection of rates and charges by local councils is invalid against the Australian Constitution and Commonwealth Laws.
Owing to the precedent value of the issue raised, being the validity of Council rates, it was determined that it would be necessary to run the matter to hearing so as to confirm the validity and ability of the Council to issue rates notices to its property owners.
The litigation was run efficiently and effectively with a clear line of communication and input from the Council. At the hearing, the Tribunal determined the matter in favour of the Council.
- Planning dispute: A self-represented property owner commenced proceedings in the Supreme Court of Victoria for the purpose of seeking an injunction to prevent Council from demolishing non-compliant buildings in accordance with a Building Order, which had previously been the subject of Magistrates’ Court and County Court proceedings.
The litigation arises out of a long history of dispute between the property owner and Council, which includes the property owner being incarcerated as a result of being found guilty of attempting to murder two Council Officers.
In light of past events, the litigation is being carefully managed with a view to attempting to achieve an amicable resolution between Council and the property owner.
- Planning dispute: Acted for a major Victorian City Council in a claim issued in the Supreme Court of Victoria by a residential and commercial property development company against it, and a number of Council officers. The claim arose from complex allegations of negligence and misfeasance concerning the Council’s design and development of major municipal infrastructure to service parcels of industrial land variously owned by the Council, the property developer, and other private interests, as well as the Council’s and officers’ conduct in response to related planning permit applications. The proceeding involved highly complex issues of indemnity and liability, was a matter of significant reputational importance to Council, and had a high profile in local media. A positive resolution of the claim was achieved at mediation, prior to trial. The proceeding was dismissed with no order as to costs.