Chief Executive, Office of Local Government v Bagnall

The allegations

1. In this matter, the Executive Director referred the matter of alleged misconduct to NCAT by the provision of a copy of the Departmental report pursuant to s 440J(3) of the Act, which was accompanied by letter dated 18 May 2022. The Executive Director indicated in the letter that she is satisfied, on the basis of the Departmental report, that the former Councillor engaged in misconduct, as defined in s 440F(1)(a), (b), (d) and (e) of the Act, and that she had decided to refer the alleged misconduct of Mr Robinson to NCAT for consideration.
2. The Departmental Report relates to the allegations which form grounds 1 to 8 (including alternative grounds 1a and 5a) of the referral. All of the allegations are said to concern Mr Robinson's conduct as a Councillor.
3. Mr Robinson did not stand for re-election at the local government elections of 4 December 2021, and is not presently a Councillor.
4. While reference is made in the Executive Director's letter to s 440F(1)(a) and (e) of the Act, there are no allegations made, or particularised, in the General Application Form relating to breach of s 440F(1)(a) or (e). Counsel for the Executive Director confirmed at the hearing of this referral application that no allegations as to breach of these sub-sections are made or pressed.
5. The allegations of misconduct which constitute the grounds for the referral of the matter to NCAT are set out in detail in the General Application Form and are as follows: Grounds of Application Ground 1 That on or about 27 June 2019, Allan Robinson, while he was a councillor of the City of Newcastle Council (Council), committed misconduct for the purposes of s 440F(1)(b) of the Local Government Act 1993 (Act) by breaching cl 3.3 of the Code of Conduct of the City of Newcastle Council dated 26 June 2019 (Code of Conduct), which is an applicable requirement of a code of conduct. Particulars a. As at 27 June 2019, Allan Robinson was a councillor of Council, and the Code of Conduct applied to him. b. Clause 3.3 of the Code of Conduct states "You must treat others with respect at all times." c. On about 27 June 2019, Allan Robinson sent to a resident of the City of Newcastle Council area an email that contained the following words: "I've spoke to Grahame about this something needs to be done if it was in fleet st where fatsos parents live it would have already happened." d. The reference to 'fatso' in the email was to Clr Nuatali Nelmes, the Lord Mayor of Newcastle (Clr Nelmes). e. In sending the email with the above sentence, Allan Robinson failed to treat Clr Nelmes with respect. f. In the premises, Allan Robinson breached cl 3.3 of the Code of Conduct. Ground 1a (alternative to Ground 1) That on or about 27 June 2019, Allan Robinson, while he was a councillor of Council, committed misconduct for the purposes of s 440F(1)(b) of the Act by breaching cl 3.1(c) of the Code of Conduct by conducting himself in a manner that is improper. Particulars a. As at 27 June 2019, Allan Robinson was a councillor of Council, and the Code of Conduct applied to him. b. Clause 3.1(c) of the Code of Conduct states "You must not conduct yourself in a manner that is improper or unethical". c. Particulars (c)-(d) to Ground 1 are repeated. d. In sending the email with the sentence in particular (c) to Ground 1, Allan Robinson conducted himself in a manner that is improper, because the email contained a derogatory remark in reference to Clr Nelmes. e. In the premises, Allan Robinson breached cl 3.1(c) of the Code of Conduct. Ground 2 That on about 23 July 2019, Allan Robinson, while he was a councillor of Council, committed misconduct for the purposes of s 440F(1)(d) of the Act by committing an act of disorder. Particulars a. On 23 July 2019, Allan Robinson attended a meeting of Council. b. During that meeting, Allan Robinson: i. repeatedly interrupted speakers who were entitled to speak at that point in time; ii. refused to withdraw disparaging remarks made towards other councillors; and iii. made remarks bringing the Council into disrepute. c. In the premises, Allan Robinson engaged in conduct that was inconsistent with maintaining order at the Council meeting, which is an act of disorder as defined in reg 182(e) of the Local Government (General) Regulation 2005. Ground 3 That on about 23 July 2019, Allan Robinson, while he was a councillor of Council, committed misconduct for the purposes of s 440F(1)(b) of the Act by breaching cl 3.3 of the Code of Conduct, which is an applicable requirement of a code of conduct, by failing to treat Clr Duncan with respect. Particulars a. As at 23 July 2019, Allan Robinson was a councillor of Council, and the Code of Conduct applied to him. b. Clause 3.3 of the Code of Conduct states "You must treat others with respect at all times." c. On 23 July 2019, Allan Robinson attended a meeting of Council. d. During that meeting, Allan Robinson said words to the effect: "Tea is nearly ready Mrs Duncan so we'll get going soon" and "you need a trough". e. The words were directed towards Clr Carol Duncan. f. The words were said in reference to the size of Clr Duncan's body. g. In making those remarks, Allan Robinson failed to treat Clr Duncan with respect. h. In the premises, Allan Robinson breached cl 3.3 of the Code of Conduct. Ground 4 That on about 23 July 2019, Allan Robinson, while he was a councillor of Council, committed misconduct for the purposes of s 440F(1)(b) of the Act by breaching cl 3.3 of the Code of Conduct, which is an applicable requirement of a code of conduct, by failing to treat Clr Nelmes with respect. Particulars a. As at 23 July 2019, Allan Robinson was a councillor of Council, and the Code of Conduct applied to him. b. Clause 3.3 of the Code of Conduct states "You must treat others with respect at all times." c. On 23 July 2019, Allan Robinson attended a meeting of Council. d. During that meeting, Allan Robinson said words to the effect: "Some people have got to more to hide than Jessie the Elephant and look like it." e. Those words were directed towards Clr Nelmes. f. In making that remark, Allan Robinson failed to treat Clr Nelmes with respect. g. In the premises, Allan Robinson breached cl 3.3 of the Code of Conduct. Ground 5 That on about 23 July 2019. Allan Robinson, while he was a councillor of Council, committed misconduct for the purposes of s 440F(1)(b) of the Act by breaching cl 3.7 of the Code of Conduct, which is an applicable requirement of a code of conduct, by harassing Clr Declan Clausen. Particulars a. As at 23 July 2019, Allan Robinson was a councillor of Council, and the Code of Conduct applied to him. b. Clause 3.7 of the Code of Conduct states "You must not harass or unlawfully discriminate against others... this includes, but is not limited to... harassment and discrimination on the grounds of... homosexuality." c. On 23 July 2019. Allan Robinson attended a meeting of Council. d. During that meeting, Allan Robinson said words to the effect: "I think we had this argument before with custard." e. Those words were directed towards Clr Declan Clausen. f. The word 'custard' was used by Allan Robinson as a derogatory term for someone who is homosexual. g. The making of the remark by Allan Robinson was not conduct that was wanted by Clr Clausen. h. The making of the remark by Allan Robinson offended Clr Clausen. i. The making of the remark by Allan Robinson created a hostile environment. j. In the premises, Allan Robinson breached cl 3.7 of the Code of Conduct by harassing Clr Clausen. Ground 5a (alternative to Ground 5) That on about 23 July 2019, Allan Robinson, while he was a councillor of Council, committed misconduct for the purposes of s 440F(1)(b) of the Act by breaching cl 3.3 of the Code of Conduct, which is an applicable requirement of a code of conduct, by failing to treat Clr Declan Clausen with respect. Particulars a. Particulars (a)-(f) of Ground 5 are repeated. b. In making the remark particularised at Ground 5(b), Allan Robinson failed to treat Clr Clausen with respect. c. In the premises, Allan Robinson breached cl 3.3 of the Code of Conduct. Ground 6 That on about 25 July 2019, Allan Robinson, while he was a councillor of Council, committed misconduct for the purposes of s 440F(1)(b) of the Act by breaching cl 3.1(a) of the Code of Conduct, which is an applicable requirement of a code of conduct, by conducting himself in a manner likely to bring Council into disrepute. Particulars a. As at 25 July 2019, Allan Robinson was a councillor of Council, and the Code of Conduct applied to him. b. Clause 3.1(a) of the Code of Conduct states "You must not conduct yourself in a manner that is likely to bring CN [Council] or other CN officials into disrepute." c. On about 25 July 2019, Allan Robinson sent an email to a journalist from the Newcastle Herald, in which Allan Robinson wrote words to the effect of "I have no problem with poofs. I have one work for me. I'm very good friends with three poofs who I'm proud to say they are my friends." d. Those remarks were reported in an article in the Newcastle Herald dated 26 July 2019, titled "Deputy slams Robbo taunt". e. In making the remark particularised at ground 6(a), Allan Robinson engaged in conduct likely to bring Council into disrepute. f. In the premises, Allan Robinson breached cl 3.1(a) of the Code of Conduct. Ground 7 That on about 26 July 2019, Allan Robinson, while he was a councillor of Council, committed misconduct for the purposes of s 440F(1)(b) of the Act by breaching cl 3.1(a) of the Code of Conduct, which is an applicable requirement of a code of conduct, by conducting himself in a manner likely to bring Council into disrepute. Particulars a. As at 26 July 2019, Allan Robinson was a councillor of Council, and the Code of Conduct applied to him. b. Clause 3.1(a) of the Code of Conduct states "You must not conduct yourself in a manner that is likely to bring CN [Council] or other CN officials into disrepute." c. On about 26 July 2019, Allan Robinson spoke to a journalist from the Guardian. During that conversation, Allan Robinson: i. repeated the contents of the email particularised at Ground 6(c); ii. made several other homophobic remarks; and iii. said words to the effect of "Why should it be offensive? If you're a fucking poof, you're a poof." d. Those remarks were reported in an article on the website of the Guardian dated 26 July 2019, titled "Newcastle councillor faces calls to quit over allegations of homophobic bullying." e. In making the remarks particularised at ground 7(c), Allan Robinson engaged in conduct likely to bring Council into disrepute. f. In the premises, Allan Robinson breached cl 3.1(a) of the Code of Conduct. Ground 8 That on about 25 February 2020, Allan Robinson, while he was a councillor of Council, committed misconduct for the purposes of s 440F(1)(b) of the Act by breaching cl 3.7 of the Code of Conduct, which is an applicable requirement of a code of conduct, by harassing Clr Nelmes. Particulars a. As at 25 February 2020, Allan Robinson was a councillor of Council, and the Code of Conduct applied to him. b. Clause 3.7 of the Code of Conduct states "You must not harass or unlawfully discriminate against others." c. On about 25 February 2020, photos of a group of councillors in Council's chambers were taken. d. During the taking of the photos, Allan Robinson placed his arm around the shoulder of Clr Nelmes. e. The contact between Allan Robinson and Clr Nelmes was not wanted by Clr Nelmes. f. The contact between Allan Robinson and Clr Nelmes intimidated Clr Nelmes. g. The contact between Allan Robinson and Clr Nelmes created a hostile environment. h. In the premises, Allan Robinson breached cl 3.7 of the Code of Conduct.

The hearing into the preliminary issue and brief procedural history

1. A hearing into the preliminary issue of whether NCAT should decide to conduct proceedings in this matter took place via AVL on 28 October 2022.
2. The Executive Director had provided written submissions on the preliminary issue (and on the question of whether the referral application could be determined "on the papers" under s 50 of the NCAT Act) prior to hearing, in accordance with Tribunal directions. Mr Robinson did not provide any submissions prior to the hearing.
3. Mr Robinson took part in the hearing on 28 October 2022 to some extent. He was unrepresented during the hearing. While he did not join the hearing (either through the AVL link or by telephone) at the appointed time, I made contact with Mr Robinson on the telephone, inviting him to participate in the hearing and to provide any submissions he wished to make about whether NCAT should decide to conduct proceedings into the alleged misconduct. In answer to my question whether he was ready to proceed (on the referral issue), Mr Robinson indicated that he was (saying "100%"), and he said to the Tribunal "just keep talking, if I drop out, I drop out". (He was in a motor vehicle and indicated to the Tribunal that he did not wish to pull off the road.)
4. In the course of my explanation of the nature of the proceedings and the process to be followed for the hearing that morning, and the documents that were before the Tribunal, Mr Robinson indicated that he had not read any documents nor had he been served with any documents.
5. By way of background, the Tribunal had made an order on 8 July 2022 for substituted service under r 15.2 of the Civil and Administrative Tribunal Rules 2014 (NSW). This followed a number of unsuccessful attempts by the applicant to effect personal service of documents on Mr Robinson in accordance with an earlier order made by the Tribunal on 17 June 2022. In making an order for substituted service, the Tribunal recorded in its reasons dated 8 July 2022 that it was satisfied that Mr Robinson was aware of the referral application being brought by the applicant under the Act and was actively avoiding service of that application and accompanying bundle of documents. Substituted service was effected on 11 July 2022 by leaving the documents at his residential address (outside the door to his secure residential block) and, under r 15.3, service is taken to have been effected 7 days after, i.e. 18 July 2022.
6. At the hearing, Mr Robinson indicated that people had tried to deliver documents to him, and that he had not accepted personal service. He agreed with the proposition put to him that he had chosen not to collect the documents left for him outside his residential premises and not to read them, indicating that he did not have time for that. The effect of the substituted service order was explained to him. I indicated that that I was satisfied that he had had an opportunity to collect and read the documents delivered to his residential address. Nonetheless I asked Mr Robinson if he would like any documents emailed to him during the hearing and he declined that offer.
7. The hearing on the preliminary issue proceeded. Mr Robinson was on the phone during some of the hearing; for other parts of the hearing his phone line was disconnected (whether due to his mobile phone being out of range, or whether because he deliberately terminated the phone connection, or a combination of both). At one point during the hearing he asked the Tribunal to phone his solicitor, providing the name of the solicitor. It was reported to me that the NCAT Registry phoned the solicitor to ascertain whether he wished to join the AVL hearing to appear on behalf of Mr Robinson, however that solicitor indicated to Registry that he did not have instructions to act for Mr Robinson. It transpired that Mr Robinson did retain that solicitor, for a limited period of time, after the conclusion of the hearing.
8. Before the conclusion of the hearing on the preliminary issue, and in order to ensure that Mr Robinson had a further opportunity to make submissions on the question as to whether NCAT should exercise its discretion under s 470A to decide to conduct proceedings into the misconduct allegations, I made directions which provided Mr Robinson a further 2 week period after the hearing, i.e. until 11 November 2022, to provide submissions (if any) to the Tribunal, and the applicant, on the preliminary issue.
9. On 9 November 2022, a Notice of Representation was filed for Mr Robinson. A request was made for a copy of documents filed. Registry records indicate that the Registry provided to Mr Robinson's solicitor a copy of some documents filed by the applicant in the matter, together with Tribunal orders and directions made to that point. Due to the large size of some documents filed on 23 May 2022 and the bundle of authorities filed on 27 October 2022, Registry indicated that a copy of those documents could be obtained from the applicant, and relevant contact details of the applicant were provided to the solicitor retained by Mr Robinson.
10. On 11 November 2022, that solicitor informed the Tribunal, and the applicant, through email correspondence to the Registry, that Mr Robinson did not wish to take part in the proceedings, and that, subject to no order as to costs, he "does not oppose any the orders referred to in s 482A of the Local Government Act 1992". The solicitor indicated that he was not instructed any further.
11. While Mr Robinson, either through his solicitor or otherwise, has not specifically addressed the preliminary issue of whether NCAT should, or should not, determine to conduct proceedings into the matter of alleged misconduct pursuant to s 470A, I take his position to be that he does not oppose any determination that NCAT may make to decide to conduct proceedings into the matter of the alleged misconduct of Mr. Robinson pursuant to s 470A (except as to costs).
12. I am satisfied that both the Executive Director and Mr Robinson have had an adequate opportunity to make submissions to NCAT on the question of whether NCAT should decide to conduct proceedings into the matter under s 470A of the Act.

The Executive Director's submissions

1. It was submitted on behalf of the Executive Director that, whilst the Secretary may take disciplinary action against a sitting Councillor under s 440I of the Act, the Secretary does not have the power, under the Act, to take disciplinary action against a former Councillor. The Secretary may conduct an investigation in relation to a former Councillor, pursuant to s 440N(1) of the Act, but may not take disciplinary action under s 440I in relation to a former Councillor. The only action by the Secretary provided for in s 440N of the Act in relation to a former Councillor is the making of a decision to take no further action or the referral of the matter to NCAT. In this matter, the Executive Director formed the view that the seriousness of the alleged misconduct is such that it is not appropriate for the applicant to take no action, hence its referral application to NCAT.
2. With respect to the discretion under s 470A of the Act, the Executive Director submitted that the Act gives NCAT little guidance as to how the discretion to commence proceedings or not should be exercised, or what factors should be considered. There is no guidance in the secondary material concerning the Act.
3. One factor would appear to be whether the misconduct alleged is sufficiently serious to warrant NCAT conducting proceedings to determine whether misconduct occurred (see Deputy Secretary, Local Government, Planning and Policy v Garrard [2021] NSWCATOD 75 at [48]).
4. A further factor might be whether the material before NCAT establishes a prima facie case of misconduct under the Act in relation to the former Councillor. Clearly, the Tribunal may decide not to conduct proceedings if the conduct in question could not, on its face, constitute misconduct.
5. The Executive Director pointed to s 7(e) of the Act, which provides that one of the purposes of the Act is: "to provide for a system of local government that is accountable to the community and that is sustainable, flexible and effective." The Executive Director submitted that the Tribunal's decision in relation to whether or not to conduct proceedings should be exercised in a way that promotes the accountability contemplated in s 7(e) of the Act.
6. The Executive Director submitted that the prima facie test is met, and that the conduct of the former Councillor is sufficiently serious to warrant misconduct proceedings being conducted in NCAT, in relation to each of the allegations.
7. In relation to grounds 1-7 (including alternative grounds 1a and 5a), the use of unpleasant or derogatory language and homophobic remarks by a councillor about fellow councillors is unacceptable conduct which, amongst other things, may have a detrimental effect on the public's confidence in local government. Moreover, the making of personal remarks about other councillors on the basis of their physical appearance or their sexuality at the July 2019 Council meeting, as well as refusing to withdraw those remarks and consistently interjecting during the meeting, is inconsistent with the maintenance of order at the Council meeting. If the applicant is ultimately successful in establishing that an act of disorder occurred for the purposes of cl 182E of the Local Government (General) Regulation 2005 and that conduct were to be the subject of rebuke from NCAT, this would be important for both specific and general deterrence in relation to local government councils. By way of general deterrence it would send a message to the public that this kind of conduct is inappropriate, thereby strengthening the public's confidence in local government.
8. Further, unwanted physical contact between councillors during official Council business (see Ground 8) is also conduct that is capable of capable of negatively impacting upon good local government and it is sufficiently serious for NCAT to conduct proceedings into it.
9. The Executive Director submitted that a public response to the alleged misconduct is needed. Given the limitations around the applicant's powers because of Mr Robinson's status as a former Councillor, that response is required to come from NCAT.
10. Even if NCAT were to find that a reprimand was appropriate, that would not provide a proper basis for refusing to conduct proceedings. The possibility that NCAT might impose a reprimand is not grounds for declining to conduct proceedings: see e.g. Deputy Secretary of the Department of Local Government, Planning and Policy v Doueihi [2022] NSWCATOD 3, Office of Local Government v Shelley [2018] NSWCATOD 103 and Chief Executive, Office of Local Government v Bagnall [2018] NSWCATOD 84, each of which resulted in NCAT imposing a reprimand.
11. For the reasons outlined above, the Executive Director submitted that NCAT should decide to conduct proceedings pursuant to s 470A of the Act.

Consideration

1. In Re referral by Executive Director, Local Government under s 440J of the Local Government Act 1993, concerning Mr Hindi, a former Councillor [2022] NSWCATOD 152 ("Hindi") at [33]-[34], the Tribunal considered the factors relevant to the question of whether to conduct proceedings under the Act to be as follows: 1. Whether a reasonably arguable (prima facie) case has been established. 2. Whether the misconduct alleged is more serious than trivial or trifling conduct. 3. Whether any circumstance exists which would make the conduct of proceedings unfair to the respondent, or contrary to the public interest.
2. Those factors were formulated by reference to similar threshold requirements in other legislation, such as the requirement for leave to proceed with litigation, and by reference to case law. The factors were also considered in light of the objects of the Act (see s 7(e) of the Act) and the guiding principle of the NCAT Act (see s 36(1) of the NCAT Act). I agree with and adopt the analysis in Hindi, as referred to above, as to the factors relevant to the question of whether or not to decide to conduct proceedings under the Act.

Reasonably Arguable case

1. As observed by the Tribunal in Hindi at [35], the test for the existence of a reasonably arguable case is whether, assuming that all of the allegations are proven to the applicable standard, the alleged misconduct will have been established.
2. Grounds 1 and 1a relate to a letter sent to a constituent in June 2019 in which Mr Robinson made certain comments about the physical appearance of a fellow councillor. Grounds 2, 3, 4, 5, and 5a relate to a series of remarks made by Mr Robinson during a Council meeting on 23 July 2019, including comments about the physical appearance of another councillor, as well as homophobic slurs directed at another councillor. Ground 6 relates to an email sent to a journalist at the Newcastle Herald and ground 7 about comments made to a journalist at The Guardian, in July 2019, about remarks made by Mr Robinson at that same Council meeting.
3. In respect of grounds 1-7 (including alternative grounds 1a and 5a), it is plain, on the face of the comments and other conduct alleged to have taken place at a Council meeting in July 2019, that they are capable of constituting misconduct if proven.
4. Ground 8 relates to events in February 2020 alleged to have taken place at a gathering of Councillors for the taking of a promotional photo in Council Chambers involving unwanted physical contact between Mr Robinson and another Councillor. I consider that the conduct of Mr Robinson as alleged, is capable of constituting misconduct if proven.
5. On the basis of the material before me, the Executive Director has a reasonably arguable case in relation to each of the grounds of its application.

Seriousness of the conduct

1. I agree with the Tribunal's observation in Hindi at [38] that it would not be consistent with either the objects of the Act or the guiding principle of the NCAT Act for the Tribunal to deal with misconduct which is trivial or trifling. The alleged misconduct in this matter, however, cannot be characterised as trivial or trifling.
2. The allegations are serious. They involve a councillor making body-shaming and homophobic remarks about other councillors and repeating some of those comments in the media. The further allegation concerning unwanted physical conduct between Mr Robinson and another councillor in Council chambers is also serious. The misconduct, if proved, brings the system of local government into disrepute. Moreover, it has the capacity to dissuade people from engaging in local government. It is the type of conduct that should be the subject of NCAT proceedings under s 482A.
3. It was noted earlier that Mr Robinson does not oppose orders that may be made under s 482A by NCAT (save as to costs), and presumably this means in later misconduct proceedings if NCAT decides, on the preliminary issue, to conduct such proceedings. On the referral application, there is no argument put by Mr Robinson that the conduct the subject of the allegations, if proved, is not serious.

Other circumstances

1. There is no evidence before me of any circumstance which would render the conduct of proceedings contrary to the public interest.

Conclusion

1. Having regard to the report presented to NCAT by the Executive Director (acting under delegation) and the applicant's submissions, NCAT will conduct proceedings into this matter. It is noted that Mr Robinson chose not to avail himself of the opportunity to provide submissions on the preliminary issue, including after the hearing on 28 October 2022.
2. The applicant has established an arguable case of misconduct against Mr Robinson on each of the allegations. The misconduct alleged is sufficiently serious to warrant the conduct of proceedings by NCAT. No circumstances have been established which make the conduct of proceedings unfair to Mr Robinson, or which render the conduct of proceedings contrary to the public interest.

Further steps

1. There is a presumption, implicit in the provisions of the Act, that NCAT will conduct a hearing if it decides to conduct proceedings in relation to a matter. A hearing may be dispensed with under s 470B: 470B Circumstances in which NCAT may dispense with hearing (1) After considering a report presented to it under section 438HA or 440J and any other document or other material lodged with or provided to the Tribunal in relation to the report, the Civil and Administrative Tribunal may 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.
2. The applicant has proposed a series of procedural orders if NCAT decides to conduct proceedings into the matters referred to it concerning Mr Robinson and in the event that he does not wish to take an active role in any such proceedings. As noted above, Mr Robinson has indicated, through his solicitor, that he does not wish to participate in the proceedings.
3. The procedure proposed involves the applicant providing written submissions on whether misconduct is established to the requisite standard, and, if so, what action (if any) should be taken under 482A of the Act, within two weeks of today's orders; and a subsequent order by NCAT to dispense with a hearing, utilising the "on the papers" procedure in s 50 of the NCAT Act. The Executive Director submitted that the Tribunal could be satisfied, with the benefit of the further submissions proposed, that the issues for determination in any further stage of the proceedings can be adequately determined by it and that, further, NCAT should exercise its discretion under s 50(2) of the NCAT Act to determine the matter on the papers.
4. The Executive Director submitted that the power in the similar provision in s 470B of the Act is not available to NCAT because the parties have not agreed that the proceedings may be determined without a hearing in accordance with s 470B. I agree with the Executive Director that, in the event that NCAT decides to conduct proceedings, Mr Robinson has not (yet) given any express consent to dispense with a hearing under s 470B, and in the absence of such consent, the power in s 470B to dispense with a hearing in the next stage of proceedings is not available to NCAT.
5. Section 470B is a specific provision in the Act pertaining to the circumstances in which NCAT may dispense with a hearing after considering a report presented under (relevantly) s 440J and any other relevant material provided to NCAT in relation to the report. Whilst not expressly stated in the legislation, it is strongly arguable that the effect of s 470B is that NCAT's powers under s 50 of the NCAT Act are effectively overridden in the circumstances, such that s 470B should be followed when a hearing is dispensed with, not s 50 NCAT Act. In the present context, this would mean that NCAT does not have power to dispense with a hearing, without the agreement of Mr Robinson as required by s 470B(1)(a) (and without the requirements in s 470B(1)(b) and (c) being met). While Mr Robinson has made clear that he does not wish to take part in the proceedings save as to costs, that is not an indication, in its terms, that he agrees to dispense with a hearing under s 470B. It may be that Mr Robinson would so agree, in light of developments after the hearing on 28 October 2022.
6. The question as to whether s 50 of the NCAT Act is available, effectively as an alternative to s 470B of the Act, is a question for the Tribunal in the next stage of the proceedings to determine. I note that if the Tribunal were to take the view that s 50 of the NCAT Act is available in the next stage of the proceedings, both parties would need to be given the opportunity to provide submissions under s 50(3). Mr Robinson has not yet had such opportunity. While the Tribunal invited submissions from the Executive Director and Mr Robinson in connection with the referral application (i.e. whether the referral application could be determined "on the papers" under s 50), submissions were sought under s 50(3) only in relation to the referral application, not in relation to any further stage of proceedings.
7. The matter should be listed for a directions hearing at a time and date to be fixed by the Registrar.

Orders

1. I make the following orders: 1. The name of the applicant is amended to the Executive Director, Local Government, under delegation from the Secretary, Department of Planning and Environment. 2. The Tribunal determines that it will conduct proceedings into this matter. 3. The matter is listed for a directions hearing at a date and time to be fixed by the Registrar.

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

Amendments 12 December 2022 - Typographical numbering error amended 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: 12 December 2022