Chief Executive, Office of Local Government v Bagnall

NCAT Occupational|2018-02-01

Background

These proceedings involve an unfortunate incident ("the Incident") which occurred shortly after a Council Meeting of Tweed Shire Council on 17 September 2015. The Incident involved Mr Gary Bagnall, the newly appointed Deputy Mayor and immediate past Mayor of the Council, the Respondent in these proceedings, and another Councillor, Ms Carolyn Byrne, sometimes referred to as Clr Byrne in these reasons.
The Incident seems to have had its genesis in a long-running series of disputes between Mr Bagnall and Ms Byrne concerning various Council matters.
On 18 September 2015 Ms Byrne lodged a criminal complaint with the NSW Police in respect of the Incident, applied to the Court for an Apprehended Violence Order ("AVO") and lodged a code of conduct complaint, all of which were against Mr Bagnall.
In respect of the criminal complaint, Police brought proceedings against Mr Bagnall for an offence of common assault and an offence of intimidation with intent to cause fear, both in relation to Ms Byrne. Mr Bagnall pleaded guilty to the offence of intimidation and the charge of assault was withdrawn. Without proceeding to a conviction, the Court found the offence of intimidation proved and dismissed the charge pursuant to the provisions of s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
An AVO was granted against Mr Bagnall by the Court on 23 November 2015. The AVO expired on 24 November 2016.
A conduct reviewer was engaged in respect of the code of conduct complaint. The reviewer's report, which made findings adverse to Mr Bagnall, was submitted to the Council which was unable to consider the matter as it could not form a quorum. The Council's Complaints Coordinator referred the matter to the Office of Local Government ("OLG") on 22 April 2016.
On 5 May 2016 the Acting Chief Executive of OLG ("the Chief Executive") approved the preparation of a departmental report concerning Mr Bagnall's conduct in respect of the Incident. The departmental report concluded at [42], "Mr Bagnall has engaged in misconduct in breach of [specified subclauses of clause 3.1] and clause 3.3 of the Council's adopted code of conduct" and at [43] a "failure to comply with a council's code of conduct is a breach of the Act: section 440 (5) (a)".

The Application

The Chief Executive brought the Application under s 440J of the Act. The orders sought by the Chief Executive are: 1. An order pursuant to s.482A(2)(c1) of the Local Government Act 1993 that the respondent be disqualified from civic office. 2. Such other order as the Tribunal sees fit.
The grounds for the Application and their particulars are: Ground 1 On 17 September 2015, after a meeting of Tweed Shire Council (Council), the respondent engaged in conduct amounting to misconduct in that it was a breach of clause 3.1(c) of the Tweed Shire Council Code of Conduct (Code of Conduct). Particulars a. In the Council chamber, following the meeting, the respondent said to Councillor Carolyn Byrne words to the effect of one or more of the following phrases: i. "I don't have to talk to you"; ii. "If you want to know, ask him" (pointing at the general manager, Troy Green); iii. "Don't talk to me again": iv. "Don't waste your breath"; v. "Don't speak to me, woman"; vi. "I don't like you": vii. "I haven't got the time to talk to you"; viii. "Don't you understand that, you stupid cow"; ix. "Fuck off' x. "No one will believe you, no one heard anything"; xi. "No one saw anything". b. The respondent's body language, manner, tone and/or demeanour when he said words to the effect of one or more of the phrases set out in particular (a) was: i. rude; and/or ii. aggressive; and/or iii. intimidating; and/or iv. threatening. c. Taking the respondent's conduct as a whole, it was improper. Ground 2 Further or in the alternative to Ground 1, on 17 September 2015, after a meeting of Council, the respondent engaged in conduct amounting to misconduct in that it was a breach of clause 3.1(e) of the Code of Conduct. Particulars a. The applicant repeats particulars (a) and (b) of Ground 1. b. Taking the respondent's conduct as a whole, it comprised or involved verbal abuse. c. Further or in the alternative to particular (b), taking the respondent's conduct as a whole, it comprised or involved intimidation. Ground 3 Further or in the alternative to Grounds 1 and 2, on 17 September 2015, after a meeting of Council, the respondent engaged in conduct amounting to misconduct in that it was a breach of clause 3.3 of the Code of Conduct. Particulars a. The applicant repeats particulars (a) and (b) of Ground 1. b. Taking the respondent's conduct as a whole, it was disrespectful.

Misconduct under the Act

Chapter 14 of the Act, ss 439 to 490C, relevantly includes provisions concerning conduct and, as appropriate, misconduct of councillors.
Sections 440F to 440Q relevantly deal with issues of alleged or actual misconduct. Those issues include the meaning of "misconduct", investigations and reports, disciplinary action including by a council or by the Chief Executive, appeals against disciplinary action and other related matters.
Sections 460 to 486A include making and investigation of complaints and proceedings before NCAT in relation to various types of misconduct. Section 465 requires the Chief Executive to notify the Tribunal of a decision to investigate a complaint or to refer a complaint for investigation to an authority. Section 468 requires the Chief Executive to present a report to the Tribunal of investigations carried out by the Chief Executive.
In respect of reports concerning allegations of misconduct, s 470A authorises the Tribunal to decide to conduct proceedings into a complaint in respect of which it has received and considered a report under s 438HA or 440J. After considering the report, the Tribunal may, pursuant to s 470B(1), determine the proceedings without a hearing if: (a) the Departmental Chief Executive and the councillor to whom the report relates have agreed that the proceedings may be determined without a hearing, and (b) there are no material facts in dispute between the Departmental Chief Executive and the councillor, and (c) in the opinion of the Tribunal, public interest considerations do not require a hearing.
Section 482A empowers the Tribunal to impose certain penalties in respect of misconduct matters. These are dealt with below.
Section 440F relevantly provides: (1) In this Division:"misconduct" of a councillor means any of the following: (a) a contravention by the councillor of this Act or the regulations, (b) a failure by the councillor to comply with an applicable requirement of a code of conduct under section 440, … (3) A reference in this Division to misconduct includes a reference to misconduct that consists of an omission or failure to do something.
In respect of s 440F(1)(b), codes of conduct are relevantly described in s 440 as follows: Codes of conduct (1) The regulations may prescribe a model code of conduct (the "model code") applicable to councillors, members of staff of councils and delegates of councils. (2) Without limiting what may be included in the model code, the model code may: (a) relate to any conduct (whether by way of act or omission) of a councillor … in carrying out his or her functions that is likely to bring the council or holders of civic office into disrepute, and (b) in particular, contain provisions for or with respect to conduct specified in Schedule 6A. (3) A council must adopt a code of conduct (the "adopted code") that incorporates the provisions of the model code. The adopted code may include provisions that supplement the model code. (4) … (5) Councillors … must comply with the applicable provisions of: (a) the council's adopted code, except to the extent of any inconsistency with the model code as in force for the time being, and … (6) A provision of a council's adopted code is not inconsistent with the model code merely because the provision makes a requirement of the model code more onerous for persons required to observe the requirement. …
Relevantly Schedule 6A, referred to in s 440(2)(b) provides: Schedule 6A Code of conduct (Section 440) 1 Conduct that contravenes all or specified provisions of this Act or the regulations in all or specified circumstances … 5 Action causing, comprising or involving any of the following: (a) intimidation, harassment or verbal abuse

Proceedings before the Tribunal

In these reasons, unless stated to the contrary: 1. All references to legislative provisions are to provisions of the Act. 2. "Chief Executive" means the Departmental Chief Executive of the Office of Local Government. 3. "Office of Local Government" means the "Department" or "Department of Local Government" in accordance with the Act. 4. "Code" means Tweed Shire Council's Model Code of Conduct adopted 21 March 2013 copies of which were received by the Tribunal from the Chief Executive on several occasions including 6 March 2017 and 26 April 2017. 5. All references to paragraphs of written submissions by the Chief Executive are to paragraphs of AS.
The Acting Chief Executive referred the matter to the Tribunal on 16 November 2016 for consideration pursuant to s 440J(2)(b) of the Local Government Act 1993 ("the Act") together with an Application for Disciplinary Findings and Orders. On 6 March 2017 the Chief Executive filed an amended application dated 2 March 2017 ("the Application") with the Tribunal.
On 18 January 2017 the Tribunal determined pursuant to s 470A(1) to conduct proceedings into the matter.
Mr Bagnall raised a preliminary issue as to whether the Tribunal had jurisdiction to consider the Application. On 5 July 2017 the Tribunal held that it had jurisdiction to hear the substantive matter raised by the Chief Executive. The Tribunal also made directions as to the filing and service of evidence and submissions by the parties.

Directions hearing of 13 December 2017

In the course of a directions hearing on 13 December 2017, the parties agreed: 1. In determining the proceedings, the Tribunal may have regard to: 1. The statement of agreed facts ("Agreed Facts") signed by the parties on 6 December 2016. 2. The evidence of witnesses whose statements were already filed with the Tribunal and the identification of whose statements is agreed by the parties (Witness Statements). 1. To the extent that any witness' statement conflicts with the Agreed Facts, the Agreed Facts take precedence. 2. At [9] in the Agreed Facts, the words "At the conclusion of the meeting" mean "shortly after the conclusion of the meeting". 3. The Applicant is not relying on any allegation that 1. Mr Bagnall raised his fist to Ms Byrne; 2. Mr Bagnall's chest touched Ms Byrne's scarf. 1. The Applicant will provide no medical evidence.
On 13 December 2017, pursuant to a joint application by the parties, I determined pursuant to s 470B that the matter be determined without a hearing. I also made orders by consent concerning the filing of material including a statement of agreed facts, an agreed list of witnesses' statements and closing submissions.

Material before the Tribunal

The material placed before the Tribunal by the parties relevantly comprised: 1. The Application. 2. An agreed statement of facts signed by the parties on 6 December 2017 (the Agreed Facts). 3. An agreed list of witnesses' statements signed by the parties, dated 18 December 2017 and filed 5 January 2018 ("list of witnesses' statements"). This list comprises 21 documents, some with attachments, from 20 persons. 4. An affidavit made by Christopher Gerard Mr Rowe on 28 September 2017. 5. The Applicant's written submissions dated 30 August 2017 filed 1 September 2017 ("AS") and the Applicant's written closing submissions dated 18 December 2017 and filed 5 January 2018 ("ACS"). 6. Copy of the Code. 7. Misconduct Departmental Report under s 440J of the Act in respect of Mr Bagnall dated November 2016 received 21 November 2016 with attachments (the "Report"). 8. Documents from Mr Bagnall under cover of letter dated 31 October 2017, filed 2 November 2017. This bundle included a 21-page document headed "Written response on behalf of the Respondent". Part of that response comprised written submissions ("RS"). Other parts of that response comprised evidence of Mr Bagnall. Also attached were Council minutes, statements, including statutory declarations and file notes by lay witnesses and certificates by several medical practitioners. 9. Documents from Mr Bagnall under cover of undated Tribunal form "Reply to application for disciplinary findings Occupational Division" letter dated 31 October 2017, filed 2 November 2017. This bundle comprised a document headed "Closing submissions on behalf of the Respondent" dated 25 January 2017 ("RCS") and an attached email chain between several persons, statements from whom are included in the list of witnesses' statements.

Agreed facts

After the introductory paragraph, the Agreed Facts are as follows: Background 2 Mr Bagnall was elected as a Councillor of Tweed Shire Council on 8 September 2012. 3 Councillor Bagnall served as Mayor of the Council between 18 September 2014 and 17 September 2015. 4 Ms Byrne was a Councillor at the relevant times. 5 Mr Bagnall and Ms Byrne held a political difference in relation to a loan to the Terranora Tennis Club that the Council had approved by resolution. 6 The loan was required to be approved by Clr Bagnall in his capacity as Mayor. Council Meeting on 17 September 2015 7 A General Council meeting was held in Council Chambers on 17 September 2015. 8. The Council meeting concluded at 8:35pm. 9. At the conclusion of the meeting, Cir Byrne asked CIr Bagnall if he had signed off on the loan to the Terranora Tennis Club, 10. Cir Bagnall responded to CIr Byrne in a raised voice with words to the effect: i. "I don't have to talk to you"; ii. It you want to know, ask him (pointing at Mr Green, General Manager); iii. "Don't talk to me again"; iv. "Don't waste your breath"; v. "Don't speak to me"; vi. "I don't like you"; and vii. "I haven't got the time to talk to you". 11. CIr Bagnall commenced to leave the Council Chamber. The seating required him to pass CIr Byrne to exit. 12. As he passed CIr Byrne, CIr Bagnall said to her words to the effect: "You cow". 13. CIr Bagnall re-entered the Council Chamber shortly afterwards and gave the key to the Mayoral vehicle to the newly-elected mayor, CIr Milne. CIr Byrne was either seated or standing behind her chair. 14. After giving the key to CIr Milne, CIr Bagnall moved quickly towards Cir Byrne and stood very close to her person, 15. CIr Bagnall then said to CIr Byrne, "Fuck off. 16. Mayor Milne, the General Manager, and other staff began calling in a loud voice words to the effect: "Gary, Gary, Gary." 17. CIr Bagnall then exited the room. As he was doing so, CIr Byrne said she would ask for witness statements from those present 18. CIr Bagnal! said words to the effect: i. "No one will believe you, no one heard anything"; and ii. " No one saw anything". 19. In engaging in the conduct, including making the statements in question, set out in paragraphs 10 to 18 inclusive, CIr Bagnall by his body language, manner, tone and demeanour was rude, aggressive, intimidating and/or threatening to CIr Byrne.

Was there misconduct by Mr Bagnall as alleged by the Grounds in the Application?

Grounds 1 and 2 of the Application

Grounds 1 and 2 both allege that on 17 September 2015 "after a meeting of [the] Council" Mr Bagnall engaged in conduct amounting to misconduct in breach of, respectively, clauses 3.1(c) and 3.1(e) of the Code.
The Particulars alleged in support of the Grounds are set out at [9] above.
None of the particulars assert, nor is there any evidence before the Tribunal, that, Mr Bagnall was, at any time after the relevant Council meeting carrying out any of his functions as a Council official nor is there any assertion, nor any evidence that there was any requirement at any relevant time after the meeting that Mr Bagnall should have been carrying out any such functions.
The Code is in evidence. Relevantly it includes the following: 1. Part 1, the introduction, states that the Model Code is made for the purposes of s 440 and councillors must comply with the applicable provisions of the Code in carrying out their functions as Council officials. 2. Part 2 - the purpose of the Code is to set out the minimum requirements of conduct for Council officials in carrying out their functions. 3. Part 3 sets out the general conduct obligations. The preamble to clause 3.1 states: You must not conduct yourself in carrying out your functions in a manner that is likely to bring the Council or holders of civic office into disrepute. Specifically, you must not act in a way that: (emphasis added)
The Chief Executive's submissions in AS, after outlining the statutory background of the Act concerning misconduct by councillors and the powers of the Tribunal, included: 23. The applicant relies on the following clauses of the Code: a. clause 3.1: general obligation on a councillor to not conduct themselves in a manner likely to bring the Council or holders of civic office into disrepute; b. clause 3.1(e): obligation not to act in a way that "causes, comprises or involves intimidation, harassment or verbal abuse' (sic); and c. clause 3.3: requirement to treat others with respect at all times. Particulars of Grounds 1 to 3. 24. Each of Grounds 1 to 3 concerns the breach of a distinct clause of the Code, but the same set of particulars is relied upon in relation to each ground. 25. Accordingly, it is useful to consider whether the particulars are established, as a matter of fact, before turning to the question of misconduct. This should not obscure that, in relation to each of the grounds, the Applicant relies upon the conduct of Mr Bagnall taken as a whole.
The Chief Executive then makes submissions concerning the background and sources of evidentiary material in the Report.
Much of the extracted clauses of AS are not exceptional. However, I am concerned with the contents of [23 a. and b.] The authority in AS for those paragraphs is the Report at Schedule 2, page 20. The Report is in evidence.
Page 20 of the Report is headed SCHEDULE 2 - COUNCIL POLICIES AND PROCEDURES. Paragraph 57 on that page relevantly states: 57 The relevant sections of the code that relate to this matter are: Clause 3.1 "You must not conduct yourself in carrying out your functions in a manner that is likely to bring the Council or holders of civic office into disrepute. Specifically, you must not act in a way that: (emphasis added) contravenes the Act, associated regulations, council's relevant administrative requirements and policies is detrimental to the pursuit of the charter of a council is improper or unethical is an abuse of power or otherwise amounts to misconduct causes, comprises or involves intimidation, harassment or verbal abuse" Clause 3.3 "You must treat others with respect at all times."
I observe that the above excerpts from clauses 3.1 and 3.3 accurately reflect relevant parts of clause 3.1 and the whole of clause 3.3 of the Code adopted by the Council.
I do not dispute that conduct of a councillor "in a manner likely to bring the Council or holders of civic office into disrepute" or acting in a way that "causes, comprises or involves intimidation harassment or verbal abuse" as stated at [23 a. and b.] may well evidence a form of misconduct.
However, [23 a. and b.] in AS do not accurately reflect the condition precedent in the preamble to clause 3.1 of either the Code or its reproduction at page 20 of the Report.
In AS the Chief Executive relied on the decision in Office of Local Government v Ticehurst [2016] NSWCATOD 122 (Ticehurst No 1). In that matter, which concerned language used by a councillor to the sitting Mayor during a suspension of a council meeting, the Tribunal received in evidence the relevant investigation report and its annexures together with a recording of the council meeting.
The Chief Executive submitted: 85 In [Ticehurst No 1] the Tribunal held: I accept the submission of the applicant that in 2016 in Australian civil society, calling someone a "bitch", but particularly a woman in a position of authority, is rude, disrespectful, and when used in or at a time proximate to a Council meeting (as here), is likely to bring the Council and holders of civic office into disrepute. It was thus improper, involved misconduct, and constituted verbal abuse. It also involved a failure to treat the Mayor with appropriate respect. Thus, the Code of Conduct was breached: cll 3.1(c), 3.1(d), 3.1(e) and 3.3. 86. In that matter, Councillor Ticehurst had also directed a second remark to the Mayor: "I hope you choke on your sandwich'. In relation to that remark, the Tribunal concluded: Although I find it amounts to verbal abuse contrary to cl 3.1(e), it is much lower on the scale of offensiveness than the "bitch" remark, made twice. Thus there is misconduct, as found, under s 440F(1). 87. Mr Bagnall's conduct in the present case is of a similar nature to that of Councillor Ticehurst's, and much more similar to Councillor Ticehurst's conduct in calling the Mayor a "bitch' than to the second remark in question in that case.
I observe that the wording of the preamble to clause 3.1 in Ticehurst is identical to the wording of the preamble in clause 3.1 of the Code adopted by Tweed Shire Council.
However, I note with respect that the Tribunal as constituted in Ticehurst did not expressly deal with the words "in carrying out your functions" in the preamble to clause 3.1 of the code in that matter.
Those words are used in clauses 3.1 and 3.2 of the Code, but not in clause 3.3 (the subject of Ground 3, which is dealt with below), all of which are found in the Code under the subheading "General conduct". The Chief Executive made no submissions concerning the relevance or importance of those words in clause 3.1. I am not bound by the decision in Ticehurst No 1 and, with respect to the learned Senior Member who constituted the Tribunal in that matter, in my opinion the words "in carrying out your functions" should be given their usual meaning where they appear in the Code.
Grounds 1 and 2 allege that after a Council meeting Mr Bagnall engaged in specific conduct amounting to misconduct in that it breached respectively clause 3.1(c) and further or in the alternative clause 3.1(e) of the Code. No particulars are provided nor is any allegation made nor has any evidence been brought to the attention of the Tribunal that at any relevant time Mr Bagnall was engaged in "carrying out [any relevant] function".
Indeed, the relevant words found in the preamble to clause 3.1, were not included at AS in [23] even though a correct reference was given as to the source of the relevant provisions of the Code from the Report and that source, page 20, correctly included the words missing from AS.
Having regard to the above analysis, I reject Grounds 1 and 2 of the Application.
I find that the failure to include those additional words in the Chief Executive's Application and submissions is particularly disappointing, in that, for the purpose of these proceedings, the Chief Executive is the Model Litigant with the responsibilities pertaining to that role.

Ground 3 of the Application

Ground 3 of the Application alleges that Mr Bagnall engaged in conduct amounting to misconduct in that it was a breach of clause 3.3 of the Code.
Clause 3.3 states "You must treat others with respect at all times". Unlike clause 3.1 there is no condition precedent that the provision only applies to a holder of civic office while the person is carrying out his or her functions. The requirement is that the provision applies "at all times".
The Agreed Facts include at [19] the concession by Mr Bagnall: In engaging in the conduct, including making the statements in question, set out in paragraphs 10 to 18 inclusive, CIr Bagnall by his body language, manner, tone and demeanour was rude, aggressive, intimidating and/or threatening to CIr Byrne.
There is also evidence of several apologies, some more fulsome than others, made by Mr Bagnall to Ms Byrne.
Having regard to the material before me, I find that Mr Bagnall breached clause 3.3 of the Code in that he did not treat Ms Byrne, with respect at all times. Accordingly Ground 3 of the Application is made out.

Consideration of penalty - powers of the Tribunal

The Chief Executive referred to certain court and tribunal decisions in making submissions in relation to appropriate orders of the Tribunal as well as medical evidence, testimonials, Mr Bagnall's admissions and his remorse generally.
The Chief Executive referred on several occasions to the decisions of Senior Member Dr J Renwick SC in Ticehurst No 1 and Office of Local Government v Councillor Ticehurst of Lithgow City Council (No 2) [2016] NSWCATOD 162 ("Ticehurst No 2").
At page 20 in RS, Mr Bagnall responded to the Chief Executive's references to Ticehurst No 1, by submitting that the Chief Executive: … stated that, "Mr Bagnall's conduct is similar in character to that of Councillor Ticehurst and similar principles apply also to the termination of an appropriate consequential order." However, what the Applicant does not say about this widely publicized case, was that it was Cr Ticehurst's seventh suspension and it triggered an automatic disqualification from holding office for five years under new 'three strikes' laws introduced by the Baird government. As I have not been suspended once in the past, the recommendation that I should be suspended for 5 years for an apparent offense is unjustified and unfair …
In Ticehurst No 1 and Ticehurst No 2, the Chief Executive alleged several contraventions by then Councillor Martin Ticehurst (Mr Ticehurst) of Lithgow City Council's code of conduct including, at [9(1)] in Ticehurst No 1, swearing: at the Mayor, calling her twice, a "bitch", and also threatening her by saying "I hope you choke on your sandwich" (Ground 1);
In his submissions as to appropriate orders which the Tribunal could make, the Chief Executive submitted at [96] that Mr Bagnall "contemptuously refused to answer a question asked in public by another councillor with whom he had a political disagreement of a matter of public record". However, disregarding the inflammatory use of the word "contemptuously" the Chief Executive provides no evidence that Mr Bagnall had any duty or responsibility to answer the question, nor that any other person present at the time was not a more appropriate person to whom the question should and could have been addressed, nor that it would not have been appropriate for Ms Byrne to have asked the question during the course of the recently concluded council meeting.
Mr Bagnall asserted that he had not previously been suspended.
Section 482A(3) provides: (3) In determining which action, if any, to take against a councillor, the Tribunal may take into account any previous incidents of misconduct by the councillor, any disciplinary action previously taken against the councillor and any other relevant matters.
Accordingly, the Tribunal's decision in Office of Local Government v Councillor Bagnall [2014] NSWCATOD 122 may be taken into account. The reasons for decision, in that matter, indicate that at [33] the Tribunal agreed with the conclusion of the Chief Executive that despite proved misconduct a suspension was not warranted and the Tribunal ordered that Mr Bagnall be reprimanded. The conduct complained of concerned communications by Mr Bagnall with certain persons in respect of an enquiry into allegations that Mr Bagnall in the company of another councillor was observed climbing over a gate leaving property owned by the Council. The Tribunal said at [29] that it seemed to be unarguable that at the least a councillor would be acting improperly or unethically by engaging in the relevant conversations even if, as the Tribunal accepted, Mr Bagnall was not acting maliciously and intended no harm. I also observe that in relation to the relevant context of the matter, the Tribunal also held at [26] "there is much to be said for [Mr Bagnall's] claim that the Council reacted somewhat disproportionately to a very trivial matter" (emphasis added).
Having regard to the provisions of s 482A(3), I have had regard to the decision referred to in the immediately preceding paragraph.

The Applicant's Submissions

Section 482A empowers the Tribunal to take certain action as follows: (2) The Tribunal may, if it finds that the behaviour concerned warrants action under this section: (a) counsel the councillor, or (b) reprimand the councillor, or (c) suspend the councillor from civic office for a period not exceeding 6 months, or (c1) disqualify the councillor from holding civic office for a period not exceeding 5 years, or (d) suspend the councillor's right to be paid any fee or other remuneration, to which the councillor would otherwise be entitled as the holder of the civic office, in respect of a period not exceeding 6 months (without suspending the councillor from civic office for that period). (3) In determining which action, if any, to take against a councillor, the Tribunal may take into account any previous incidents of misconduct by the councillor, any disciplinary action previously taken against the councillor and any other relevant matters. (4) In this section, "councillor" includes a former councillor.
There is no dispute that, as Mr Bagnall is no longer a councillor, the Tribunal is not empowered to take action under s 482A (c) or (d).
The remaining alternatives for the Tribunal are to counsel Mr Bagnall, reprimand him, or disqualify him from holding civic office for a period not exceeding 5 years.
Mr Bagnall has informed the Tribunal that he does not intend again seeking civic office. He has given no undertaking to that effect. I note that no evidence has been brought to my attention as to when the next local government elections are to be held in any local government area in which Mr Bagnall may be eligible to stand for election.
No submissions were made by either party as to the appropriateness of Mr Bagnall being counselled.
The Chief Executive has sought an order that Mr Bagnall be disqualified from civic office pursuant to s 482A(2)(c1). That provision empowers the Tribunal to disqualify Mr Bagnall for a period of up to 5 years. The Chief Executive made no submission as to the period for which any disqualification order should apply.
The longest effective disqualification or suspension order made in the various decisions referred to by the Chief Executive was a suspension for a period of five months in Ticehurst No. 2. The effect of that order was that the councillor concerned was, by operation of law, disqualified from holding civic office for five years.
Although some aspects of the particulars of the misconduct which gave rise to the suspension order in Ticehurst No. 2 are similar to Mr Bagnall's acknowledged misconduct, other aspects are substantially different. Mr Bagnall made apologies orally and in writing, submitted evidence to the Tribunal and showed some remorse. On the other hand, in the Ticehurst decisions the Tribunal found that Mr Ticehurst not only failed to treat the Mayor with appropriate respect, he failed to apologise to the Mayor, acted in a manner which was aggressive, rude, intimidating and embarrassing to a member of the public and had been previously suspended for periods of up to 4 months on six previous occasions, four of which had occurred in the calendar year immediately prior to the breaches dealt with in the Ticehurst decisions. Mr Ticehurst's penalty was a suspension for a period of five months and the Tribunal stated that it did not take into account the consequence of that order to the effect that by operation of law, the practical effect of the 5-month suspension was to impose a 5-year disqualification, Ticehurst No. 2 at [9].
Even if Mr Bagnall was disqualified from holding civic office for a period of five months, there is no certainty that it would have any practical effect on him resuming public office as there is no evidence before the Tribunal as to when the next relevant elections will be held.
I have also had regard to the Chief Executive's submission at [104] that "it is desirable that the Tribunal makes decisions which are broadly consistent, that provide the necessary specific and general deterrence and is (sic) seen to be reflective of the seriousness of the conduct". I accept that submission on the basis that it applies having regard to all relevant facts including the matters referred to in s 482A(3).

Medical evidence

Mr Bagnall places reliance on medical evidence comprising certificates by three doctors and a nurse who administered his medication.
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]
The Chief Executive made submissions in relation to the medical evidence at [17] to [21] and [23] to [27] of ASC.
I accept the unchallenged medical evidence presented on behalf of Mr Bagnall. That evidence does not detract from my finding of misconduct which Mr Bagnall has conceded and apologised for.
The Agreed Facts clearly indicate at [10], and I find, that Mr Bagnall initially tried to divert post-meeting questions from Ms Byrne by referring her to the General Manager and informing her that he did not wish to speak with her. However, the additional words he acknowledged using at [12] and [15] in the Agreed Facts should not have been used irrespective of his medical condition. Those words were not in any sense appropriate irrespective of the antagonistic relationship which had developed over time between Ms Byrne and Mr Bagnall.
Mr Bagnall also conceded at [19] in the Agreed Facts that he "by his body language, manner, tone and demeanour was rude, aggressive, intimidating and/or threatening to CIr Byrne." This does not indicate to me acts which were primarily caused by any relevant medical condition although his condition may have been a contributing factor to his behaviour.

Remorse generally

The Chief Executive submits at [28] to [31] in ACS that Mr Bagnall's remorse was limited, he does not accept responsibility for his conduct, he seeks to place responsibility on others or on the circumstances, and in so doing he demonstrates a lack of remorse for his actions.
I note the Chief Executive's submissions as referred to in the immediately preceding paragraph. However, having regard to the material before me and the fact that Mr Bagnall did not have the benefit of legal assistance I would not expect him to draft his submissions and statements in a manner in which they would be drafted by a lawyer. The fact that Mr Bagnall has sought to explain the context in which the relevant events occurred does not of itself indicate any lack of remorse for his actions.
Mr Bagnall's apologies may not have been made as soon as they might. However, they were made and I accept them at face value. I also acknowledge Mr Bagnall's substantial admissions, including at [19], in the Agreed Facts.
I reject the Chief Executive's submissions to the contrary in respect of remorse.

Testimonial evidence

I note the Chief Executive's submissions at [32] to [38] in respect of testimonial evidence and the case law referred to in those paragraphs.
I do not expect character evidence from lay persons supporting a self-represented respondent to be drafted as if prepared by a lawyer. Nor do I necessarily expect that those testimonials will be brought up to date to have regard to events occurring after the initial character evidence was given.
However, to the extent that the character evidence reflects the direct knowledge of those witnesses in respect of Mr Bagnall, and as appropriate, in respect of the Incident, I do not disregard the evidence entirely.

Order

Having regard to the material before me and my above findings, the correct and preferable decision of the Tribunal is: 1. Mr Bagnall is reprimanded for misconduct pursuant to s 482A(2) of the Local Government Act 1993.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 May 2018

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Judgment (17 paragraphs)

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