The respondents will enquire of the original complainants as to whether they desire to be made parties to the proceedings and act as contradictors. If they do it is contemplated they will make application for joinder at the adjourned directions hearing [listed for 15 April 2011].

1. At the directions hearing on 15 April 2011 the tribunal gave Cr David Ellis and Cr Stephen Mayne leave to intervene, and made orders for the filing and service of material in support of any application for joinder. The matter was listed for an administrative mention on 3 June 2011. Following the receipt of the parties' submissions and correspondence from Mr Chuah's solicitors, the matters was listed for a directions hearing to consider whether Cr Ellis and Cr Mayne should be joined.

1. Mr R Waters of Counsel spoke to the joint submissions filed on behalf of the respondents and Cr Mayne. He indicated the respondents were proposing to take a Hardiman-style position and were seeking leave not to actively participate in this matter, whilst reserving their right to be heard should a costs order be sought against them. Further, they and Cr Mayne submit it is appropriate that Cr Mayne be joined as a contradictor contingent upon the respondents being granted leave to withdraw from active participation in this proceeding so that Cr Mayne would, in effect, replace the first and second respondents.
2. Cr Ellis represents himself. He filed lengthy written submissions to which he spoke at the directions hearing. Cr Ellis sought to be joined as a party and opposed the application by the respondents to be excused from active participation in the proceeding. Further, he objected to the hearing proceeding by way of a hearing de novo.
3. Written submissions were also filed on behalf of Mr Chuah who did not oppose the joinder of Cr Mayne and Cr Ellis as contradictors nor consider that the Panel should play an active role, noting its Reasons for Determination clearly set out their views and reasons.
4. At the directions hearing on 8 July 2011, after hearing from all parties, I joined Cr Ellis and Cr Mayne as parties as, having been the original complainants, they are clearly in the best position to participate as contradictors. I also explained to Cr Ellis that in exercising its review jurisdiction under s51 of the VCAT Act the tribunal does not consider whether the original decision-maker, in this case the Panel, made the right decision. Rather, the tribunal has all the powers of the original decision-maker and must make the correct and preferable decision, on the basis of the information it has before it at the time it makes its decision, not simply the information that was before the decision-maker at the time it made its decision.
5. I reserved my ruling on the application by the Panel to be excused from active participation in the proceeding.
6. I raised with Mr Waters whether the Panel would be content with me noting on the orders that they had adopted a Hardiman-style position and did not propose to participate. He said they wished to proceed with the application being concerned to protect themselves from criticism for not actively participating in light of the comments by the Victorian Court of Appeal in Macedon Ranges Shire Council v Romsey Hotel Pty Ltd[1] where the Court of Appeal stated:
   1. Active participation by the primary decision-maker is of particular importance if the person seeking review of the decision did not appear before the decision-maker,[2] or if there would otherwise be no contradictor, as is often the case. But the fact that there is (as there was in the present case) a contradictor apart from the primary decision-maker does not preclude the decision-maker from playing an active role in the review proceeding, nor does it in any way diminish the appropriateness of the decision-maker playing such a role.

1. Under s81B of the LG Act a Council, a Councillor or a group of Councillors may make application for a Councillor Conduct Panel to make a finding of misconduct against a Councillor, or to authorise an application to VCAT for a finding of serious misconduct. Any application by a Councillor or group of Councillors must be lodged with the CCP Registrar who under s81A is a member of Council staff appointed in writing by the Chief Executive Officer to be the Councillor Conduct Panel Registrar for the Council. A Councillor Conduct Panel will then be established by the Municipal Association of Victoria in accordance with the process set out in Schedule 5 to the LG Act to hear and determine the complaint. Under clause 13 members of a Councillor Conduct Panel are not personally liable for any acts or omissions done in good faith in the performance of their functions.
2. Section 81I provides:

(1) A Councillor Conduct Panel must not make a determination under section 81J until it has conducted a hearing.

(2) The following applies to a hearing of a Councillor Conduct Panel -

(a) the proceedings must be conducted with as little formality and technicality as the requirements of this Act and the proper consideration of the matter permit;

(b) there is no right to representation at the hearing except if the Panel considers that a party requires representation to ensure that the hearing is conducted fairly;

(c) the proceedings must not be open to the public;

(d) if the hearing is based on an application made by Council or group of Councillors, the appointed representative must represent the Council or group of Councillors at the hearing;

(e) the Panel is not bound by rules of evidence but may inform itself in any way it thinks fit;

(f) the Panel is bound by the rules of natural justice;

(g) the procedure of a Panel is otherwise in its discretion.

(3) At the hearing of an application, the Councillor Conduct Panel must provide the respondent with an opportunity to be heard.

1. I accept the submission on behalf of the Panel that the Court of Appeal, when referring to the primary decision-maker, was referring to a statutory body with responsibility for a statutory scheme.
2. The comments by the Court of Appeal in Romsey, referred to above, followed the failure of the Victorian Commission for Gambling Regulation - a statutory body with statutory responsibility for the administration of gambling in the State of Victoria - to actively participate in the Appeal. After referring to the role of the Transport Accident Commission ('TAC') in assisting the tribunal in an application for review by a disappointed claimant as discussed by the Court in Transport Accident Commission v Bausch[3] the Court stated at [31]:

Part of the rationale for such participation is that the decision-maker has a unique contribution to make to the review. The decision-maker is the repository of the powers and responsibilities conferred on it by the legislative scheme under which it made the relevant decision. As administrator of that scheme, the decision-maker has experience, knowledge, and expertise possessed neither by the Tribunal nor by any adversary party appearing in the review proceeding. The decision-maker is the only party to the review proceeding whose participation is governed - exclusively - by the aims and objectives of the statutory scheme. [emphasis added]

1. A Councillor Conduct Panel does not have a responsibility for the administration of a statutory scheme regulating the conduct of councillors in the state of Victoria, and as such its participation is not governed - exclusively - by the aims and objectives of the statutory scheme. A specific and separate Councillor Conduct Panel is established to adjudicate a complaint/s against a councillor as and when they arise. Under s81I(2)(f) it is bound by the rules of natural justice.
2. In my view, particularly in circumstances where there are two contradictors, it would be inappropriate for the Panel, to call evidence, and cross-examine witnesses from whom it has heard sworn evidence about which it has made findings of fact leading to the determination which is the subject of this application for review.
3. In Coastal Estates Pty Ltd v Bass Coast SC & Ors[4] Dwyer DP made the following observations in a Postcript which are apt:

POSTSCRIPT: THE ROLE OF THE PANEL IN PROCEEDINGS BEFORE THE TRIBUNAL UNDER S 39

1. Although only touched upon briefly at the hearing before me, I consider it appropriate to comment on the role of the panel in proceedings before the Tribunal under s 39 of the Planning and Environment Act 1987.
2. In the case before me, the panel was represented by counsel (albeit in conjunction with the Minister) and thus participated in arguments and submissions on its behalf. Some of these arguments were strongly put, and in an adversarial manner. Moreover, on its behalf, its instructing solicitors had prepared and filed an affidavit by the panel chair. Objection was taken to some arguably opinion evidence in that affidavit and, as a result, an amended affidavit was filed deposing only to material background facts. The panel chair was nonetheless exposed to the potential to be called and cross-examined although, ultimately and by agreement of the parties, this did not eventuate.
3. This is not an approach I would seek to encourage. I am reminded of the oft-quoted dicta in R v Australian Broadcasting Tribunal; ex parte Hardiman[5] to this effect. Ordinarily, a body required to accord natural justice, whose decision (or recommendation) is subject to challenge, should abide the decision of the reviewing court or tribunal. This is certainly the case where there are others able to act as contradictors - here the Minister and planning authority. If the panel becomes a protagonist in its own cause, it endangers its impartiality, particularly in subsequent proceedings if the complaint against it is upheld, but perhaps also in future panel hearings involving the same parties.

1. Section 39(4) entitles the panel (or sometimes the Chief Panel Member on its behalf) to make a submission to the Tribunal. That will often be appropriate where there is no recording or transcript of the panel hearing, or where it is necessary to place appropriate background facts before the Tribunal that may not otherwise have been apparent, or material that may not have been available from the other parties. In my view, it is not an invitation to the panel to 'defend' its position, particularly where other contradictors exist to test or oppose the applicant's case. I agree with the sentiments in Hardiman that the presentation of a case by the panel before the Tribunal should be exceptional and, where it occurs, should ordinarily be limited to submissions going to the powers and procedures of the panel. [emphasis added]
2. Although I am of the view that it is appropriate for the Panel to adopt a _Hardiman-_style position in circumstances where the third and fourth respondents can act as contradictors, I am not persuaded it should be granted leave not to participate in the proceeding. The appropriate course is for the tribunal to note the position taken by the Panel. It may be that during the course of the proceeding the tribunal will wish to seek submissions or assistance from the Panel as to its procedures, or for reasons which are currently unknown, the Panel may seek to be heard.
3. Accordingly, the application by the Panel for leave to withdraw from active participation in this proceeding is refused, but I will note it has taken a Hardiman-style position subject to reserving liberty to be heard should an order for costs be sought against the panel members.

[1] [2008] VSCA 45; (2008) 19 VR 422

[2] As in McDonald v Guardianship & Administration Board [1993] VicRp 36; [1993] 1 VR 521, 532-3.

[3] [1998] 4 VR 249.

[4] [2010] VCAT 1807

[5] (1980) 144 CLR 13, 35-6 per Gibbs, Stephen, Mason, Aickin & Wilson JJ