Anderson Vs Council’s banning order: round one

By David Heilpern

Mayoral candidate John Anderson’s attempt to overturn Council’s banning order in the Land and Environment Court (LEC) in Sydney last Friday failed in its first round. Both parties employed Senior Counsels for the hearing.

In May 2021, police took out AVO against Anderson (also known as Fast Buck$), and charged him with intimidation. The alleged victim and person in need of protection is Greens Council candidate and current councillor, Sarah Ndaiye. 

He has since been charged with breaching that AVO, and those three matters are meandering their way through the criminal law system with a hearing set for next year. The immediate catalyst for the charges and AVO was Anderson’s conduct at a Council meeting earlier this year.

Separate to the criminal proceedings, councillors unanimously passed a motion directing the General Manager to ensure Anderson was forbidden from attending, and the General Manager issued a banning notice. The ultimate challenge to that notice is working its way through the LEC.

In Friday’s preliminary skirmish, Anderson was seeking interim orders lifting the banning direction, despite the fact that the matter is not due to be heard until well into next year. This means that Anderson bore the onus of satisfying the court that there was a serious issue to be tried, and that the “balance of convenience” favoured lifting the prohibition from attending meetings in the meantime.

There was agreement all round that there was a serious issue to be tried. This is because section 10 of the Local Government Act provides that council meetings shall be open to the public, and that “everyone is entitled to attend”. But there are exceptions, such as expulsion, and there is other relevant legislation in favour of Council, including the Inclosed Lands Protection Act, the AVO legislation and work health and safety provisions. No doubt those issues will be fleshed out in exquisite detail in the final hearing.

However, Anderson faltered on the balance of convenience test, where Justice Nicola Pain accepted Council’s arguments that he could attend meetings by remote access, and could view all business papers by arrangement at his solicitors office. The court also accepted that the criminal matters, AVO and bail issues mitigated against lifting the order on an interim basis. Further, the court found that there was insufficient prejudice or hardship against Mr Anderson in all those circumstances and the application for interim relief was dismissed.

The court made a costs order against Mr Anderson, meaning he has to pay Council’s and his own costs. Given the firepower on both sides, his bill would total many tens of thousands of dollars. Fast bucks indeed for round one in what could be lengthy and expensive proceedings.

A final observation – if Cr Ndaiye is re-elected and a final apprehended violence order is made in the Local Court, it is hard to see how the Land and Environment Court proceedings will remain relevant regarding Council meetings. The banning order would be usurped by the AVO. I was asked the other day what would happen if they were both elected. Well, that can be answered in just three simple words. I don’t know.

David Heilpern has described himself as a ‘trainee legal reporter’ but in fact is a retired magistrate.