Mauger v Wingecarribee Shire Council

1. [1]

   The Plaintiff seeks declarations that certain decisions of the Defendant to refer complaints about the Plaintiff to a conduct review committee/reviewer and the adoption of resolutions by the Defendant as a result of the reports of the committee/reviewer be held to be made without jurisdiction. The complaints made and the resolutions adopted occurred during the time the Plaintiff was a councillor of the Defendant. He was not re-elected as a councillor on 8 September 2012.

2. [2]

   The relief sought is said to be in the nature of judicial review. However, principally because the Plaintiff is no longer a councillor he does not seek certiorari. Rather the declarations are sought, in effect, to clear his name and his reputation. Although the Amended Summons claims damages and interest the Plaintiff abandoned these claims.

3. [3]

   There were two sets of complaints. The first concerned building material deposited on land owned by the Plaintiff within the Council’s area. The complaint arose out of an investigation by the Regional Illegal Dumping Squad. A complaint was made to the General Manager of the Council in May 2010 and the General Manager referred that complaint to a Conduct Review Committee on 26 May 2010 purportedly in accordance with the Local Government Code of Conduct. I will refer to this matter as the Dumping Complaint.

4. [4]

   The Dumping Complaint involved the following matter:

5. [5]

   A draft report by a Conduct Review Committee was sent to the Plaintiff for comment. Lengthy correspondence then ensued between solicitors acting for the Plaintiff and the Committee. Paragraph 49 of the final report dated 27 April 2012 found that the Plaintiff’s conduct in relation to the depositing of waste material on his land and in approaching the Defendant’s employees (the road gang) without the Defendant’s consent was inappropriate, that such conduct was in breach of clause 6.1 and 6.2 of the Code, and recommended that the Plaintiff be censured for misconduct and that the finding ought to be published.

6. [6]

   The second set of complaints arise from matters raised by the Mayor at the time, Mr Duncan Gair. There were five matters as follows:

7. [7]

   The Mayor’s Complaint was referred to a Sole Reviewer, Ms Esther McKay, in October 2010.

8. [8]

   A report prepared by the Sole Reviewer on 25 August 2011 found that, save for the significantly higher travel expenses claim, each of the other four complaints was sustained as a breach of the Code of Conduct or breaches of the Local Government Act 1993 (NSW). The report said at paragraph 128:

9. [9]

   On 23 November 2011 the Council adopted and implemented the recommendations of the Sole Reviewer.

10. [10]

    The Plaintiff commenced these proceedings on 21 August 2012.

11. [11]

    The Plaintiff claims that both the investigations and the subsequent reports were invalid because:

Legislative provisions

1. [12]

   Chapter 14 of the Local Government Act is entitled “Honesty and disclosure of interests”. It relevantly provides:

2. [13]

   Schedule 9 to the Act is the Dictionary and in that Dictionary function is defined as including “a power, authority and duty”.

3. [14]

   Section 232 explains what the role of a councillor is. That section provides:

4. [15]

   The Code of Conduct relevantly provides:

The dumping complaint

1. [16]

   This complaint concerned the transportation to, and depositing of, waste onto a property known as “Karingal”, Fountaindale Road, Robertson which was owned by the Plaintiff. The events took place in 2007. What appears to have happened is that on 26 March 2007 the Plaintiff approached council staff who were performing preparation work for the re-sheeting of Fountaindale Road. The Council staff were removing excess material from the table drains. The Plaintiff asked if he could have the material as he had some erosion problems on or near the back of his dam. One of the Council staff, Noel O’Maley raised the issue with Darren James, the works engineer of the Council, who gave his permission for the materials to be placed on the property. The materials were then loaded onto two trucks and approximately 20 loads of eight tonnes each of waste were transported to and deposited on the Plaintiff’s property.

2. [17]

   On 6 June 2007 the Plaintiff was served with a Notice under s 91 of the Protection of the Environment Operations Act 1997 (NSW) to take clean-up action relating to the material on his land.

3. [18]

   A report from Vince Emmerick of the Regional Illegal Dumping Squad (RIDS) of 17 February 2010 said that where material is to be stored on private land it is necessary for Council approval to be obtained. The report went on to say that documentation was never lodged and approval was never given. RIDS was a joint venture of three Councils, Shoalhaven, Wingecarribee and Eurobodalla together with the Department of Environment, Climate Change and Water (NSW) and the Sydney Catchment Authority.

4. [19]

   As a result of the material and reports from RIDS the matter was referred by the General Manager of the Council to the Council’s Conduct Review Committee for investigation and report. On 26 July 2010 the Chair of the Committee wrote to the Plaintiff. The letter, amongst other things, set out the details of the complaint as follows:

5. [20]

   Worthington and Reading, solicitors acting for the Plaintiff, responded to that letter. Their response was not in evidence. However, the Committee in turn responded to the solicitors and in the course of doing so said this:

6. [21]

   On 12 August 2010, the solicitors responded to the Committee’s letter, saying (inter alia):

7. [22]

   The Plaintiff submitted that the Plaintiff’s actions could not be said to amount to a failure to provide leadership to the community or a failure to exercise a reasonable degree of care. What the Plaintiff did was done in a private capacity as a landowner and not as a result of his election as a councillor. In that way, there was no complaint of a breach of the Code within the meaning of cl 11.1 and therefore nothing that could lawfully have been put before the Review Committee.

8. [23]

   The Plaintiff submitted that the conduct alleged amounted to possible breaches of the Protection of the Environment Operations Act and the request he made to the road gang to dump the material on his land. Neither of those matters related to the carrying out of his functions as a council official under the Local Government Act. Accordingly, the jurisdiction for referral of the matter was entirely lacking.

9. [24]

   The Plaintiff also relied on the asserted failure by the General Manager to consider the matters in cl 13.1 of the Code evidenced by his emails to the Committee.

10. [25]

    On 26 May 2010 the General Manager sent an email to three members of the Committee which said this:

11. [26]

    The Plaintiff submitted that that email identified the only one matter of concern to the General Manager, that is, the number of issues regarding staff. The Plaintiff accepted that such a concern could fall within a number of sub-paragraphs within cl 13.1.

12. [27]

    The Plaintiff submitted that, because the General Manager identified the issues regarding staff, it could be safely inferred that this was his sole consideration. The Plaintiff submitted that if there was a failure at any step along the way by the General Manager the entire process failed and the referral and report of the Committee was thereby invalidated. This was so even if the Review Committee had regard to the matters in cl 13.1. That was because the General Manager’s power to refer was conditioned upon compliance with cl 13.1.

13. [28]

    The Plaintiff’s third grievance about the Dumping Complaint is that the General Manager did not afford procedural fairness to the Plaintiff. The first time the Plaintiff became aware of the Committee’s involvement was when he received the letter of 26 July 2010 ([19] above).

14. [29]

    The Defendant submitted that a determination that a complaint amounted to breach of the Code was a factual finding that went to the merits of the matter and was a decision for the Committee to make.

15. [30]

    The Defendant denied that the General Manager failed to comply with cl 13.1 of the Code. The Defendant submitted, however, that, even if there was non-compliance, that would not make the reference nor the Committee’s determination invalid. Reference was made to Project Blue Sky v Aba [1998] HCA 81; (1998) 194 CLR 355 at [91] – [92].

16. [31]

    The Defendant submitted that the Plaintiff was not denied procedural fairness as a result of any failure on the General Manager’s part to refer the complaint to the Plaintiff before sending it to the Committee. This is because there was no duty to observe procedural fairness when initiating an enquiry. Further, the General Manager’s decision lacked the essential quality of finality in the decision-making process. The Committee did accord procedural fairness to the Plaintiff before reaching its conclusions.

Consideration

1. [32]

   The report from the Conduct Review Committee was detailed and thorough. Significant matters relating to the jurisdictional issue entitling the Committee to investigate and report are these.

2. [33]

   At paragraph 15, having recited the factual history leading up to 2009, the Committee noted the concerns of the Ranger Services Manager of Shoalhaven City Council who investigated the matter for RIDS. The relevant concerns were these:

3. [34]

   At paragraph 32 the Committee decided that the complaints before the Committee against the Plaintiff “distilled down” to the following issues:

4. [35]

   Issues (c), (d) and (e) were arguably issues that fell within cl 6.1 of the Code.

5. [36]

   The Committee’s findings were set out in paragraph 37. The Committee relevantly found that no development consent for the depositing of building and other waste on his property had been issued by the Council. It found that the Plaintiff improperly approached members of the road gang working in Fountaindale Road to have table drain ways placed on his property. The Committee was satisfied that no Council consent had been given for that activity and that the Plaintiff exercised improper influence over them. The Committee was unable to verify the exercise of improper influence by a staff member upon other staff members in relation to the matter. The Committee also ascertained that two clean-up notices issued to the Plaintiff had not been finalised.

6. [37]

   At paragraph 42 the Committee was satisfied that the General Manager complied with the complaint handling requirements by establishing the Committee in accordance with the Code and referring the complaint to the Committee in accordance with cl 12.9(d) of the Code. The Committee then set out its options under cl 12.19 of the Code.

7. [38]

   The report of the Committee then contained the following:

8. [39]

   In its recommendation the Committee set out the provisions of cl 14.9 as to the actions it could take. It then concluded:

9. [40]

   On the basis of the material available to the General Manager it was open to him to refer the matter to a review committee for breaches of the Code. It was not his responsibility to determine if there had been breaches of the Code. His obligations were set out in cl 13.1 of the Code. There was prima facie evidence of a breach of the Code of Conduct and the subject matter of the complaint related to conduct that was associated with the carrying out of the functions of the Plaintiff as a councillor.

10. [41]

    The Defendant’s submission that the findings of the Committee were factual findings should be accepted. It is not this Court’s function to review the merits of the matter. The enquiry was within the jurisdiction of the Committee as some of the findings clearly demonstrate. A finding that the Plaintiff improperly approached Council officers and exercised improper influence over them is related to his position as a councillor and the carrying out of his functions. The behaviour was improper or unethical and involves an abuse of power. The Plaintiff was able to achieve the result he desired by reason of his being a councillor.

11. [42]

    Moreover, s 232 of the Act emphasises the need of a councillor to provide leadership and guidance to the community. By acting in the way found by the Committee in his dealings with the Council employees and by having the waste deposited on his property without a development application the Plaintiff demonstrated a failure to act as s 232 requires.

12. [43]

    The Plaintiff’s allegation that the process was somehow invalidated by the asserted failure of the General Manager to identify the matters in cl 13.1 of the Code that he took into account must be rejected. The email to the members of the Committee of 26 May 2010 (at [25] above) provides no support for the Plaintiff’s submission. The email makes references to the reports that form the basis for the referral. The fact that the General Manager made a passing reference to staff issues and the way of dealing with them is no indication that other matters in cl 13.1 were not taken into account. Indeed, the material in the reports must have been matters that the General Manager had regard to for him to have expressed a view that staff issues were involved.

13. [44]

    As far as procedural fairness was concerned, the Plaintiff drew attention to what was said in Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 578 and 593-594. The judgment of Mason CJ, Dawson, Toohey and Gaudron JJ said (at 578):

14. [45]

    There is no proper analogy with what was being discussed in Ainsworth. There was no requirement in the present case for the General Manager to do otherwise than have regard to the matters in cl 13.1 and, if appropriate, send the matter to the Committee. He was, as it were, a gatekeeper with minimal obligations compared with the responsibilities of the Committee. It was the Committee alone which had the responsibility of making enquiries, hearing the parties, reporting on the matter and making recommendations.

15. [46]

    The Plaintiff pointed to the judgment of the Privy Council in Rees v Crane [1994] 2 AC 173. In that matter the Chief Justice of the High Court of Trinidad and Tobago, after receiving complaints about the Plaintiff who was a judge of the court, decided not to include him on the roster of judges who were to sit in Court for the following term. The Chief Justice notified the Judicial and Legal Service Commission of that decision and the Commission agreed with the decision. At the time the judge was on leave and was not notified of the decision or the intention of the Chief Justice to refer it to the Commission. No notice was given to the judge before the Commission’s agreement with the decision.

16. [47]

    The judgment of the Privy Council said this (at 194):

17. [48]

    The position in that case was different because the judge had effectively been suspended before he was given notice of the Commission’s decision. In the present case the Committee had made no determination.

18. [49]

    The Plaintiff quite properly took me to the decision of Schmidt J in Nichols v Singleton Council (No 2) [2011] NSWSC 1517. That was a decision dealing with a referral by the general manager of a council pursuant to cl 12.8 of the Code. Schmidt J said:

19. [50]

    The Plaintiff submitted that I should not follow Nichols because it is clearly wrong. I do not consider that Nichols is wrong. Nothing in the Code suggests that there is any obligation on the General Manager to alert the person, the subject of the complaint, before a referral. Indeed, the presence in the Code of cl 14.7 imposing specific duties on the Committee but not the General Manager with regard to procedural fairness, provides strong support for the view to which Schmidt J came.

20. [51]

    In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 McHugh J said at 146:

21. [52]

    In my opinion, there was no requirement on the General Manager to give notice to the Plaintiff before establishing the Committee and referring the issue to the Committee. The Committee afforded procedural fairness to the Plaintiff.

22. [53]

    No basis is shown for any challenge to the procedures in relation to the Dumping Complaint. The Review Committee had jurisdiction to deal with the matter and there was no denial of procedural fairness to the Plaintiff.

The Mayor’s Complaint

1. [54]

   The Plaintiff complains first that these five matters were dealt with in the first instance by the Acting General Manager of the Council, Mr Brearley, who decided that no action needed to be taken on them except in respect of allegation 3 where the Acting General Manager suggested an apology from the Plaintiff to the Mayor would be in order. However, when the new General Manager, Jason Gordon, was appointed, he decided the matters needed to be referred to a sole reviewer. The history is as follows.

2. [55]

   On 31 July 2009 the Mayor, Duncan Gair, sent a memorandum to the Acting General Manager Michael Brearley about the five matters set out at [6] above.

3. [56]

   On the same day the Acting General Manager sent an email to Barry Paul who was the Director of Corporate Services. He attached the memo from the Mayor and asked Mr Paul to arrange for his staff to collate information on those five matters. Mr Paul was then asked to prepare a confidential report to the Mayor, copied to the Acting General Manager, that advised on each of the issues suitable for submission to ICAC.

4. [57]

   On 6 August 2009 Mr Paul sent a confidential memo to the Acting General Manager.

5. [58]

   On 10 August 2009 the Acting General Manager sent a confidential memo to the Mayor in these terms:

6. [59]

   There is a memorandum from the Mayor to the Acting General Manager of 28 August 2009 entitled “Request for referral of matter to the Department of Local Government”:

7. [60]

   It is not clear, as the Plaintiff accepts, that this memorandum is a direct response to the memo to the Mayor from the Acting General Manager. Some references in this memo suggest that it is not a reference to the Mayor’s earlier complaints. The first paragraph refers to “this matter” when the Mayor had raised five allegations. What this memo does show, however, is that relations had deteriorated between the Mayor and the Plaintiff with allegations against the Mayor having also been made by the Plaintiff.

8. [61]

   The Acting General Manager wrote to the Director General of the Department of Local Government on 2 September 2009 as follows:

9. [62]

   The Deputy Director General replied on 21 October 2009 saying, in substance, that the matter should be dealt with under the Code in the first instance.

10. [63]

    Matters then fell strangely silent for some 8 months, at least as far as mention was made in any Council documents, concerning the disputes between the Plaintiff and the Mayor.

11. [64]

    On 21 June 2010 the Plaintiff wrote to the new General Manager, Mr Gordon, in these terms:

12. [65]

    It is not entirely clear what letter the Plaintiff is referring to. However, since he refers to the allegations having hung over him for a long period, it seems likely that the allegations are those contained in the memorandum from the Mayor to the Acting General Manager on 31 July 2009.

13. [66]

    On 28 June 2010 the General Manager wrote to the Plaintiff in these terms:

14. [67]

    On 12 July 2010 the Plaintiff wrote to the General Manager saying:

15. [68]

    On 22 August 2010 the Plaintiff wrote again to the General Manager in these terms:

16. [69]

    On 25 August 2010 the General Manager wrote to the Plaintiff saying that he had written to ICAC as requested but ICAC had determined not to take any action because there were no allegations of corrupt conduct and the matter could be dealt with under the Code of Conduct. The letter concluded by saying:

17. [70]

    On 7 September 2010 the General Manager wrote to the Mayor saying:

18. [71]

    On 27 September 2010 the new General Manager, Mr Gordon, forwarded an email to Esther McKay who appears to have been retained by him as a sole reviewer in respect of an unrelated matter. The email said this:

19. [72]

    Then on 5 October 2010 Mr Gordon sent a letter to Ms McKay saying that he would like to engage her as sole reviewer of an alleged Code of Conduct matter between the Plaintiff and the Mayor.

20. [73]

    Letters from the sole reviewer to the Plaintiff and the Mayor both dated 29 October 2010 show that the sole reviewer was investigating complaints made by each of them against the other. As far as the Mayor’s complaints were concerned, it is clear that what was referred to the sole reviewer were the same five matters set out at [6] above. Those five matters are identified in paragraph 1 of the report of the Conduct Review Committee of 25 August 2011.

21. [74]

    The Plaintiff submitted, first, that the General Manager had no power to refer those five matters to the sole reviewer because a proper analysis of the Code demonstrated that the power to do so was in September 2010 lacking. The General Manager was functus officio. Alternatively, it would be unreasonable to refer matters that had been resolved by different means under the Code.

22. [75]

    Secondly, the Plaintiff submitted that procedural fairness had not been accorded to the Plaintiff in the way that the sole reviewer went about her task. Certainly, the Plaintiff was notified that the five matters had been referred to her and was given the opportunity to respond to them. The complaint is, however, that, as her report demonstrates in the summary of the steps she took, after the draft report was provided the reviewer spoke with a number of persons identified in paragraphs 33, 34, 35, 36 and 37 of her final report but did not again speak to the Plaintiff nor provide him with information she had obtained during the course of those discussions.

23. [76]

    The Plaintiff submitted that the final report makes clear that the sole reviewer made use of the information she obtained from her discussions with the various persons identified without further reference to the Plaintiff. The relevant paragraphs in the report are 88 to 94. The Plaintiff made reference to Kioa v West (1985) 159 CLR 550 and VEAL v The Minister for Immigration [2005] HCA 72; (2005) 225 CLR 88 at 95.

24. [77]

    The third challenge to the Mayor’s Complaint and to the report is based on the failure of the sole reviewer to comply with cl 14.9 of the Code.

25. [78]

    At paragraph 127 of the final report the sole reviewer noted that cl 14.9 of the Code of Conduct provided that on making a finding of a breach of the Code the sole reviewer might make recommendations to Council that it take any of the six actions set out in the first part of cl 14.9, and she listed those. Thereafter, the sole reviewer at paragraph 128 said this:

26. [79]

    The Plaintiff complained that, nowhere did the sole reviewer make any reference to the second part of cl 14.9, requiring her to have regard to the 15 matters enumerated before making any recommendations identified in the first part of cl 14.9.

27. [80]

    The Plaintiff’s fourth complaint related to the sole reviewer’s finding at paragraph 120 of the report as follows:

28. [81]

    The Plaintiff says that no such complaint appeared in Councillor Gair’s memorandum which started the whole matter rolling and that cl 14.1 of the Code limited the jurisdiction of the sole reviewer to the matters contained in the complaint. This was also said to be a matter involving a denial of procedural fairness.

29. [82]

    The Defendant submitted that the Acting General Manager was not functus officio. In exercising a statutory power or function the decision-maker may retain sufficient statutory power to return to a decision from time to time: Parkes Rural Distributions Pty Ltd v Glasson (1986) 7 NSWLR 332 at 335-336; Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 218. Reference was also made to s 48 of the Interpretation Act 1987 (NSW) which refers to the fact that a function conferred on any person may be exercised “from time to time as occasion requires”.

30. [83]

    The Defendant submitted that the referral to the sole reviewer was occasioned by the Plaintiff’s complaint again the Mayor, which complaint re-enlivened the investigation of the complaint against the Plaintiff. In any event, the Defendant submitted, the Plaintiff requested the matter to be determined in accordance with cl 12 of the Code.

31. [84]

    The Defendant submitted that the Plaintiff was not denied procedural fairness. The Defendant submitted that there was no evidence from the Plaintiff to say that he was not given the opportunity to respond to matters in the report, and that, in any event, the parts of the report complained about were not of any moment. Reference was made to Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37]. The Defendant submitted further that the Plaintiff had the opportunity to respond at the Council meeting on 14 September 2011 where the Report was discussed.

32. [85]

    The Defendant submitted that if an error of law was established it would need to be shown that the error had a bearing on the outcome of the matter or relief, which is discretionary, will not be granted.

Consideration

1. [86]

   Section 48 of the Interpretation Act 1987 provides:

2. [87]

   The definition of instrument in the Interpretation Act is circular. Section 3(1) provides:

3. [88]

   In Kurtovic Gummow J construed the Commonwealth equivalent of s 48 as meaning that a power to make a deportation order exercisable from time to time meant that an order made could be revoked or revived whether on the same facts as before or otherwise.

4. [89]

   In Parkes Rural Distributions Glass JA construed the equivalent of s 48 of the Interpretation Act in the old Interpretation Act 1897 (NSW), s 32 as meaning that the donee of a power (in that case to issue a certificate of an amount owing) was never functus officio.

5. [90]

   The Plaintiff submitted that, whether s 48 applied depended upon a proper construction of the Code itself. The Code demonstrated an intention, especially by the terms of clauses 12.9 and 13.2, that once a course had been taken by the General Manager the decision was final. The Plaintiff relied upon what was said in Brennan v New South Wales Land and Housing Corporation; New South Wales Land and Housing Corporation v Brennan [2011] NSWCA 298; (2011 83 NSWLR 23 at [54] where it is suggested that there needs to be shown inconsistency between provisions of the Code and the Act to demonstrate a contrary intention for the purpose of s 5 of the Interpretation Act.

6. [91]

   I do not consider that the doctrine of functus officio has any application to the powers of the General Manager contained in clause 12.8 of the Code. Any doubt about what s 48 of the Interpretation Act and it earlier equivalent provision means must be regarded as settled by both Parkes Rural Distributions and Kurtovic. The Court of Appeal in Brennan was dealing with essentially competing provisions for service, one in the Regulation and one in the Interpretation Act. In the present matter there are no competing provisions. There is no inconsistency between the Code and the Interpretation Act. The task is to discern if anything in the Code means that s 48 does not apply. I do not consider that what appears in clauses 12.9 and 13.2 means that, if a final resolution of a complaint has not been achieved by a different course taken by the General Manager, there is no power to refer the matter to a committee/reviewer.

7. [92]

   That is not to say that any subsequent referral could not be held to be outside power in a given situation. The referral in the present case did not come about as a result of a simple change of heart by the General Manager nor even from a view that the previous Acting General Manager had erred in taking a different course under the Code. There were two significant matters.

8. [93]

   The first is that the Mayor’s complaint was referred to the Review Committee in different circumstances from its first consideration by the then Acting General Manager. I have already made reference to the obvious deterioration in relations between the Mayor and the Plaintiff with claims and counter claims being made between them. What had not come about from the previous approach was any resolution of the matters. Further, the Plaintiff had made allegations against the Mayor.

9. [94]

   Secondly, and not unconnected with the first matter is the fact that the Plaintiff himself wanted the issues between himself and the Mayor dealt with by an outside body. The letter written by the Plaintiff to the General Manager on 21 June 2010 makes that clear. Both ICAC and the Department declined to act and both suggested that the appropriate course was a resolution under the provisions of the Code.

10. [95]

    It is of some significance that when the draft report was provided to the Plaintiff for response on 21 June 2011 no complaint was made by his solicitors, who responded on his behalf on 28 July 2011, that the Mayor’s Complaint should not have been referred to the sole reviewer. Nor was complaint made at any other time, including when the Plaintiff was first interviewed by the sole reviewer on 8 February 2011, until the Plaintiff filed a Notice of Motion on 7 January 2013 to amend the proceedings to raise this matter.

11. [96]

    There was no error in the referral by the General Manager in September 2010. He did not lack jurisdiction to do so and his referral was not unreasonable in the changed circumstances.

12. [97]

    In the final report the sole reviewer set out at paragraphs 20-37 the details of the enquiries that she made. It is not necessary to set out all of these enquiries. It is sufficient to note that, after what is recorded at paragraph 32, she spoke on 9 May 2011 with a staff member of the Department of Local Government), the sole reviewer sent her draft report to the Plaintiff for comment. Thereafter her final report detailed the following:

13. [98]

    Having made those enquiries, and without further reference to the Plaintiff, the sole reviewer produced her report on 25 August 2011.

14. [99]

    In addition to the chronology provided by the sole reviewer the report shows that the sole reviewer made further enquiries after the Plaintiff’s response to the draft report was received on 28 July 2011. The report reads:

15. [100]

    It is necessary to look at the conclusions in the Report to see how that course played out.

Allegation 1

1. [101]

   This was the allegation about expenses incurred for attending the dinner at Condoblin. Paragraphs 86-88 of the report dealt with this matter. Paragraph 88 suggests that the first enquiries made with the Manager of Administration and Governance were made before the Plaintiff had the opportunity to respond. What appears to be his response is contained in that paragraph. Paragraph 89 then reads:

2. [102]

   After further discussion the sole reviewer found the complaint sustained. In circumstances where the chronology shows clearly that the reviewer met with the WSC Manager of Administration and Governance on 9 August 2011 (item 36 of the report) a failure to afford procedural fairness to the Plaintiff cannot be excluded. The sole reviewer does not identify whether she used any information obtained from that Manager after the draft report was sent to the Plaintiff in determining this complaint.

3. [103]

   I have had regard to the judgment of Gleeson CJ in Lam at [37] – [38]. If the sole reviewer obtained further information from that Manager after receiving the Plaintiff’s response to the draft report the Plaintiff could well have had an expectation and reliance that she would alert him to that information so that he could respond to it. It is impossible to say that any information is of “no moment” as the Defendant submitted because the sole reviewer does not identify what, if any, further information she obtained and relied upon to find the allegation sustained.

4. [104]

   It is no answer for the Defendant to say that this report was before the Council for discussion and the Plaintiff was present. The Plaintiff did not know, as the Court and the parties still do not know, whether and what further information was used and relied upon by the sole reviewer.

5. [105]

   The Plaintiff was denied procedural fairness in relation to this allegation.

Allegation 2

1. [106]

   This allegation was not found to be sustained.

Allegation 3

1. [107]

   This allegation was that the Plaintiff had inappropriately approached and interacted with Council staff on a number of occasions. The discussion by the sole reviewer in her report at paragraphs 103-111 does not provide any indication that any of the conferences with persons identified in paragraphs 33-37 of the report had anything to do with this particular enquiry. No specific complaint was made by the Plaintiff in submissions regarding these paragraphs. In the circumstances, the Plaintiff does not show that he was denied procedural fairness in relation to the investigation of that allegation.

Allegation 4

1. [108]

   This was the allegation that the Plaintiff referred to the Mayor as a “maggot” during a dinner after a Council meeting.

2. [109]

   The sole reviewer found this allegation sustained on the basis of an admission by the Plaintiff that he did refer to the Mayor as a “maggot” and that he “might have to cop a slap over the wrist or apologise for it”. That finding was consistent with the finding of the Acting General Manager when the Mayor’s complaint was first considered.

3. [110]

   The Plaintiff does not show he was denied procedural fairness in relation to this allegation.

Allegation 5

1. [111]

   This complaint relates to the booking by the Plaintiff of the WSC theatrette for a meeting on 19 June 2009.

2. [112]

   The Plaintiff’s complaint about this matter arises from the conclusion of the reviewer at paragraph 120 of her report where she says:

3. [113]

   As noted earlier, the Plaintiff submitted that no complaint of deceptive behaviour appeared in the Mayor’s memorandum which commenced the investigation and resulted in the referral to the sole reviewer. The Plaintiff submitted that clause 14.1 of the Code limited the jurisdiction of the sole reviewer to the matters in the original complaint.

4. [114]

   The fifth matter raised by the Mayor was:

5. [115]

   In the notes of interview between the sole reviewer and the Plaintiff, where his solicitor was present, the following exchange occurred:

6. [116]

   The issue of why the theatrette was booked, for whom or which group it was booked and the Plaintiff’s involvement were all matters to be determined by the Mayor’s complaint. The sole reviewer did not go outside the proper bounds of her enquiry contrary to clause 14.1 of the Code of Conduct.

7. [117]

   To the extent that it is alleged there was procedural unfairness to the Plaintiff relating to the finding of deceptive conduct, the questions asked of the Plaintiff by the reviewer as set out above clearly identified what was being suggested. Further, the draft report forwarded to the Plaintiff in June 2011 contained what is now paragraph 120 of the final report as paragraph 103 of the draft report in identical terms. The Plaintiff was clearly put on notice of the finding that was intended to be made and he was given the opportunity to respond to it. Indeed, solicitors acting on his behalf wrote to the sole reviewer on 28 July 2011 saying this:

8. [118]

   The letter makes clear that the Plaintiff knew that what was being suggested was that he had misled the booking office to avoid paying the fee. The Plaintiff was not denied procedural fairness in relation to that allegation or that finding.

9. [119]

   These errors are said to be (1) that the finding of deceptive behaviour in relation to allegation 5 went beyond the matters that should have been investigated; (2) that the sole reviewer did not comply with the second part of cl 14.9 of the Code; and (3) that the sole reviewer did not comply with cl 13.1 of the Code.

10. [120]

    The first of these errors has been dealt with when considering matters of procedural fairness.

11. [121]

    In relation to the second asserted error, the sole reviewer said at paragraph 128 of the report:

12. [122]

    That finding is a clear indication that the sole reviewer has not overlooked the second part of cl 14.9. It is not necessary for the sole reviewer to traverse each of the matters listed to say whether or not each is applicable and, if so, how it should impact on any recommendation. The conclusion that the breaches were serious, the identification of the parts of the Code and the Local Government Act that were breached (see paragraphs 98, 111, 115 and 120), and the recommendations made demonstrate that the sole reviewer had regard to any relevant matters in the second part of clause 14.9.

13. [123]

    As far as the third asserted error is concerned, in the light of what appears in paragraphs 98, 111, 115 and 120 of the Report, and in the absence of any additional submissions demonstrating how the sole reviewer failed to comply with cl 13.1, this allegation is rejected.

Conclusion

1. [124]

   The Plaintiff has been successful only in showing that he was denied procedural fairness in relation to allegation 2 of the Mayor’s Complaint. The Defendant submitted that the Court would, in its discretion, decline to make any declarations if error was established, by reason of the delay, the fact that the errors would have had little impact on the outcome of the reviews, and (on the error here found) that the Plaintiff had the opportunity to fix the matter when the report was discussed at the Council meeting when he was present.

2. [125]

   The Defendant referred to what was said by the joint judgment in Stead v State Government Insurance Office (1986) 161 CLR 141 at 145 that not every breach of the rules of natural justice invalidates a decision. In the present case the Plaintiff does not seek to quash or invalidate the decision, only to have it declared unlawful.

3. [126]

   The finding in relation to allegation 2 was not trivial. The findings were that the Plaintiff’s behaviour had breached ss 252, 253 and 254 of the Local Government Act. The findings were undoubtedly detrimental to the Plaintiff’s reputation.

4. [127]

   There was no undue delay. The Council’s resolution arising from the sole reviewer’s report was 16 November 2011. The Summons was filed on 21 August 2012 and the Notice of Motion to add the Mayor’s Complaint (which included allegation 2) was filed 7 January 2013. I accept that there was some delay in commencement of the proceedings and amending them but that delay should not disentitle the Plaintiff to a declaration in relation to allegation 2.

5. [128]

   I have already determined that the Plaintiff could not reasonably have dealt with the matter at the Council meeting.

6. [129]

   No errors of law are demonstrated.

7. [130]

   The parties should bring in Short Minutes to reflect these reasons. I will hear the parties on costs.