Clough v Breen

NCAT Occupational|2022-10-24|Before: Ms P

REASONS FOR DECISION

By letter dated 3 August 2022 and received by the Tribunal on 9 August 2022, together with a General Application Form, the Executive Director, Local Government ('the Executive Director'), under delegation from the Departmental Chief Executive (the Secretary, Department of Environment and Planning ('the Secretary')), referred to the Tribunal allegations of misconduct against Mr Hindi in the course of his term as a councillor on Georges River Council ('the Council').
The Executive Director provided two volumes of material with the letter of referral.
The referral was made under s 440J(2)(b) and s 440N(3) of the Local Government Act 1993 (NSW) ('the Act').
Under s 470A(1) and (2) of the Act, after considering a report presented to it under s 440J of the Act, the Tribunal may decide to conduct proceedings into the matter, or may decide not to conduct proceedings into the matter. This decision deals with that preliminary issue.

Statutory Provisions

The Act provides, in s 440J: 440J Alternatives to disciplinary action by the Departmental Chief Executive (1) The Departmental Chief Executive may before, during or after an investigation into an allegation of misconduct by a councillor decide to take no further action against the councillor, if satisfied that no further action is warranted. (2) The Departmental Chief Executive may, instead of taking disciplinary action against a councillor - (a) refer the matter to the council concerned with recommendations as to how the council might resolve the matter, by alternative dispute resolution or otherwise, or (b) refer the matter to the Civil and Administrative Tribunal for consideration. (3) A matter is referred to the Tribunal under this section by means of a report presented to the Tribunal by the Departmental Chief Executive. A report may contain or be accompanied by such material and observations as the Departmental Chief Executive thinks fit. (4) The Departmental Chief Executive is to notify the councillor concerned of any decision to refer the matter to the Tribunal. (5) The regulations may make provision for or with respect to the reference of matters to the Tribunal under this section.

Hearing

Both parties provided the Tribunal with written submissions in relation to the question of whether the Tribunal should decide to conduct proceedings into the matter.
An oral hearing via AVL took place on 24 October 2022.

The allegations

Two Departmental Reports were provided to the Tribunal as part of the referral. The first Departmental Report, dated April 2022 ('the April Report') relates to the allegations which form grounds 2, 3, 4, 5 and 6 of the referral. The second Departmental Report, dated June 2022 ('the June Report') relates to the allegations which form grounds 1 and 1b of the referral. All of the allegations concern Mr Hindi's conduct at a Council meeting on 24 May 2021.
Mr Hindi attended the meeting on 24 May 2021 in his capacity as a Councillor. Mr Hindi did not stand for re-election at the local government elections of 4 December 2021, and is not presently a Councillor.
The allegations of misconduct which constitute the grounds for the referral of the matter to the Tribunal are set out in detail in the General Application Form and are as follows: Grounds for Application Ground 1 That on or about 24 May 2021, Con Hindi, while he was a councillor of Georges River Council (Council), committed misconduct for the purposes of s 440F(1)(b) of the Act by breaching cl 3.1(g) of the Georges River Council Code of Conduct (Code of Conduct), which is an applicable requirement of a code of conduct, by harassing Ms Jenny Ware. Particulars a. As at 24 May 2021, Con Hindi was a councillor of Council. b. During a meeting of Council, Ms Ware, the Legal Services Director, was responding to a question concerning whether Council had external counsel on retainer concerning an investigation by the Independent Commission Against Corruption. c. While Ms Ware was addressing the question, Con Hindi said words to the following effect: ''She can't - she's silting on your lap, it's too far for her". d. When Con Hindi said those words, he gesticulated towards the Mayor of Council, and Ms Ware. e. The words said by Con Hindi were directed towards the Mayor and Ms Ware. f The words said by Con Hindi were not wanted by Ms Ware. g. The words said by Con Hindi caused Ms Ware to be offended and humiliated. h. The words said by Con Hindi created a hostile environment. i. In the premises, Con Hindi engaged in harassment as defined in cl 3.7 of the Code of Conduct j. In the premises, Con Hindi committed misconduct for the purposes of s 440F(1)(b) of the Act. Ground 1b (alternative to Ground 1) That on or about 24 May 2021, Con Hindi, while he was a councillor of Georges River Council (Council), committed misconduct for the purposes of s 440F(1)(d) of the Act by committing an act of disorder. Particulars a. Particulars (a)-(e) of Ground 1 are repeated. b. The words said by Con Hindi were an unfavourable personal remark towards the Mayor and Ms Ware. c. Further or in the alternative to (b), the words said by Con Hindi were inconsistent with maintaining order at the Council meeting. d. In the premises, Con Hindi committed an act of disorder for the purposes of reg 182 of the Local Government (General) Regulation 2005 (Regulation). c. In the premises, Con Hindi committed misconduct for the purposes of s 440F(1)(d) of the Act. Ground 2 That on or about 24 May 2021, Con Hindi, while he was a councillor of Council, committed misconduct for the purposes of s 440F(1)(d) of the Act. Particulars a. As at 24 May 2021, Con Hindi was a councillor of Council. b. During the Council meeting on 24 May 2021, Council considered a procedural motion, moved by Councillor Tegg, to bring forward certain matters for immediate consideration. c. During consideration of the procedural motion, Con Hindi said words to the following effect: ''I know why the game is being played. We know why it's being played. Because somebody does not want to expose someone else for leaking information"." d. The words said by Con Hindi are an allegation that the procedural motion was put by Councillor Tegg in order to avoid exposing someone else for leaking information. e. The words said by Con Hindi are an imputation of an improper motive towards Councillor Tegg. f. In the premises, Con Hindi committed an act of disorder for the purposes of reg 182(d) of the Regulation. g. In the premises, Con Hindi committed misconduct for the purposes of s 440F(1)(d) of the Act. Ground 3 That on or about 24 May 2021, Con Hindi, while he was a councillor of Council, committed misconduct for the pu1poses of s 440F(1)(d) of the Act. Particulars a. As at 24 May 2021, Con Hindi was a councillor of Council. b. During the Council meeting on 24 May 2021, Con Hindi asked a question, through the Mayor as chair of the Council meeting, enquiring why a motion on the Council agenda did not refer to the names of two councillors, when another item did include the names of Con Hindi and Clr Vince Badalati. c. While the General Manager was answering the question, Con Hindi interjected and said words to the following effect: "Oh! Oh! So that wasn't because we hate... No, the answer is not what I got. The answer is telling me there's hatred here for me and Vince [Clr Vince Badalati]. [...] Because they're trying to hide the fact that there is a hatred here. There is a vendetta that is happening against me and Councillor Badalati that's happening and we're trying to protect other people." d. The words said by Con Hindi were an allegation that the decision by the General Manager to include the names of Con Hindi and Vince Badalati on the Council agenda was motivated by the General Manager's hatred of Con Hindi and Vince Badalati. e. The words said by Con Hindi are an imputation of an improper motive towards the General Manager of Council. f. In the premises, Con Hindi committed an act of disorder for the purposes of reg 182(d) of the Regulation. g. In the premises, Con Hindi committed misconduct for the purposes of s 440F(1)(d) of the Act. Ground 4 That on or about 24 May 2021, Con Hindi, while he was a councillor of Council, committed misconduct for the purposes of s 440F(1)(b) of the Act by contravening cl 9.11 of Council's Code of Conduct (Code). Particulars a. As at 24 May 2021, Con Hindi was a councillor of Council. b. During the Council meeting on 24 May 2021, Council was considering the issue of legal costs incurred by Council. c. During the consideration of that issue, Con Hindi said words to the following effect "I wanted to tell them who leaked the section 111 report to the major newspaper, which is nobody other than the General Manager. [...] And I will not withdraw that. I'm happy to be sued for defamation [...] Because nobody else, and it's there and it's in writing. Nobody else but Ms Connolly [the General Manager of Council]. [...] Leaking confidential information is a criminal offence and you are condoning that tonight because I will show you the evidence. I will show you the proof, from the newspaper. [...] We can disclose the name of two councillors where ICAC clearly said it to the St George leader, said it to everybody, that we do not disclose names, we only say there's an ongoing investigation, but the General Manager chose to put it in the public [...] A person that's sitting up there on a half million dollars that has actually been leaking things to the newspaper, right? [...] You have chosen to link the prelim investigation with that one to get it out to the public because of your hatred towards two people. [...] The question is here, leaking confidential information, which is illegal, which is against the Local Government Act, which is against the Code of Conduct, which is a criminal offence lo leak confidential information, right, to leak it to a major newspaper ... And it says clearly here, you're not allowed to disclose anything. Section 11, to do with ICAC, an investigation, but the General Manager did. She leaked it to the Herald. [...] Mate, half a million dollars someone gets paid to leak information. I'll tell you, that information being leaked, and it is leaked, and it is there and I am happy to be sued. d. The words above amount to allegations that the General Manager of Council had improperly disclosed information concerning an ICAC investigation lo the media. e. The allegation is an allegation that the General Manager had contravened cl 3.1(c) of the Code by engaging in improper conduct. f. By making the allegation against the General Manager, Con Hindi contravened cl 9.11 of the Code, by making an allegation of breach of the Code otherwise than by making a complaint under the Procedures for Administration of the Code of Conduct. Ground 5 That on or about 24 May 2021, Con Hindi, while he was a councillor of Council, committed misconduct for the purposes of s 440F(1)(d) of the Act. Particulars a. As at 24 May 2021, Con Hindi was a councillor of Council. b. During the Council meeting on 24 May 2021, Council was considering the issue of legal costs incurred by Council. c. During the consideration of that issue, Con Hindi said words to the following effect: "We cannot disclose a cost of a Code of Conduct publicly but we can disclose the name of two councillors where ICAC clearly said it to the St George Leader, said it to say to everybody, that we do not disclose names, we only just say there's an ongoing investigation, but the General Manager chose to put it in the public. That's fine. That is her prerogative 'cause of her hatred towards me." d. The words said by Con Hindi were an allegation that the General Manager disclosed information about an ongoing ICAC investigation concerning Con Hindi to the media, and that this was motivated by the General Manager's hatred of Con Hindi and Vince Badalati. e. The words said by Con Hindi are an imputation of an improper motive towards the General Manager of Council. f. In the premises, Con Hindi committed an act of disorder for the purposes of reg 182(d) of the Regulation. g. In the premises, Con Hindi committed misconduct for the purposes of s 440F(1)(d) of the Act. Ground 6 That on or about 24 May 2021, Con Hindi, while he was a councillor of Council, committed misconduct for the purposes of s 440F(1)(b) of the Act by contravening c 9.11 of the Code. Particulars a. As at 24 May 2021, Con Hindi was a councillor of Council. b. During the Council meeting on 24 May 202I, Council was considering a motion to prohibit the use of mobile phones by councillors during Council meetings, in order to prevent councillors from being improperly influenced during meetings. c. During the consideration of that motion, Con Hindi said words to the following effect: "So it has happened in this Council. It's been happening for the past three years. It has happened to me on more than one occasion. It probably happened to me three times and I've got them, stored, where people are trying to influence my votes, trying to make me change my vote... [...] Yeah, clarification. I'm not talking about Councillors texting each other, I'm talking about a third party I said here. [...] Third parties, we're talking about inside here, not third parties outside. I'm talking from here, that's third party. [...] Councillor Katris I understand is concerned that I was talking about not Councillors texting that. Third party is General Manager. That's what the third party is. Yes I've got the evidence. Would you like to see it? [...] Well I was being pressured to withdraw my motion." d. The words said by Con Hindi were an allegation that the General Manager had texted Con Hindi during Council meetings to influence his vote. e. The allegation is an allegation that the General Manager had contravened cl 3.1(c) of the Code by engaging in improper conduct. f. By making the allegation against the General Manager, Con Hindi contravened cl 9.11 of the Code, by making an allegation of breach of the Code otherwise than by making a complaint under the Procedures for Administration of the Code of Conduct.
The documents provided include a transcript of the video recording of the Council meeting of 24 May 2021, and the statements alleged to have been made by Mr Hindi are all in the transcript.

The Executive Director's submissions

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 the Tribunal.
The Executive Director submitted that the Act gives the Tribunal little guidance as to how the discretion to commence proceedings or not should be exercised, or what factors should be considered. The seriousness of the conduct alleged is one factor (see Deputy Secretary, Local Government, Planning and Policy v Garrard [2021] NSWCATOD 75 at [48]). It was submitted that the allegations in this matter are quite serious.
A further factor is whether the material before the Tribunal establishes a prima facie case of misconduct under the Act in relation to the former Councillor.
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.
It was further submitted that neither the making of any apology nor the prospect that a less serious penalty, such as a reprimand, might be the outcome of proceedings in the Tribunal, could be grounds upon which the Tribunal could decide not to conduct proceedings.

The Respondent's submissions

The respondent submitted that there was a six month period subsequent to the meeting of 24 May 2021 during which he was still a Councillor and the Executive Director had power, under the Act, to conduct disciplinary action herself, but did not do so. The respondent argued that this was inconsistent with the applicant's claim in this matter that the seriousness of his conduct was such that it would be inappropriate for the applicant to do nothing.
The respondent submitted that the Executive Director's decision to refer the matter was a result of the application's delay. The Framework for Managing Councillor Misconduct Allegations provides, as a key principle, for timeliness and specifically to finalise matters within 6 months. The respondent submitted that the purpose of the referral was to remedy the applicant's delay. The respondent said that this was unfair to him. It was not in the public interest that the referral power be used in this way. It would not promote public confidence in government. It would be inconsistent with the objects of the Tribunal under the Civil and Administrative Tribunal Act 2013 (NSW) ('the CAT Act') and the purpose of the Act.
The respondent submitted that, on a scale from minor to serious, the conduct, alleged in this matter, viewed objectively, is at the lower end of the scale. The alleged conduct constitutes "defensive comments made emotionally in the heat of the moment which were withdrawn or apologised for at the time and subsequently".
The respondent submitted that, viewed in context, there is little to be gained by further examining the matter.
The respondent submitted that the Act provides that the Tribunal must consider the report referred to it under s 470A(1) of the Act, and the Tribunal then has the discretion as to whether or not to conduct proceedings into the matter.
The Tribunal is bound to act in accordance with its objects, set out in s 3 of the CAT Act. The Tribunal 'may also be guided' by the purpose of the Act.
The respondent submitted that the Tribunal should consider the matters suggested by the applicant when deciding whether to conduct proceedings, and should also consider the objects of the CAT Act.
The respondent offered to resolve the matter by making certain undertakings and taking other, specified, steps, but reserved his position in the event that the Tribunal decided to conduct proceedings.
The respondent alleged that the applicant has already taken disciplinary action against him in relation to grounds 2 to 5.

The Executive Director's submissions in reply

The Executive Director submitted that s 3 of the CAT Act relates only to proceedings which are already before the Tribunal and is of no assistance in relation to the exercise of the Tribunal's discretion under s 470A of the Act.
Attachment 17 to the Departmental Report dated June 2022 shows that the disciplinary investigation commenced on 31 August 2021, whilst Mr Hindi was a councillor. The investigation process included giving Mr Hindi a right to respond to the Departmental Reports, once they have been compiled. The process takes time, and was simply not completed before Mr Hindi's term as a councillor ended. These circumstances are not something that the Tribunal should take into account in relation to the decision as to whether the conduct proceedings into this matter. Any suggestion of delay is denied.
The applicant submitted that it was not, as the respondent suggested, for the Tribunal to consider "whether there is conduct which warrants action". That is a matter for the Tribunal to decide if it conducts proceedings. Likewise, the question of what, if any, disciplinary orders are warranted is a question for the Tribunal if it conducts proceedings, and is not a factor to be considered at this stage.
The applicant refuted the allegation that disciplinary action had already been taken in relation to allegations 2 to 5. The applicant said that disciplinary action had been taken in relation to statements made by Mr Hindi at the Council meeting of 26 April 2021; a separate Council meeting and separate allegations from those the subject of this matter.
The applicant submitted that the undertaking and other steps suggested by way of an informal resolution of this matter would not have the specific and general deterrent effect that disciplinary action under the Act "is required to generate". The undertaking may also be unenforceable.

Consideration

The factors relevant to the question of whether to conduct proceedings under the Act can be formulated by reference to similar threshold requirements, such as the requirement for leave to proceed with litigation, in other legislation (see, for example Rushleigh Services Pty Ltd v Forge Group Limited (In Liquidation) (Receivers and Managers Appointed) [2018] FCA 26, Mr D and Ms P [2020] NSWCA 174 and Clough v Breen [2020] NSWSC 653). In relation to the question of whether to conduct proceedings under the Act, those factors are: 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.
These factors are to be considered in light of the objects of the Act (see s 7(e) of the Act) and the guiding principle of the CAT Act (see s 36(1) of the CAT Act).

Reasonably Arguable case

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.
It is plain, on the face of the comments alleged, that they are capable of constituting misconduct if proven.
On the basis of the material before me, the Executive Director has a reasonably arguable case.

Seriousness of the conduct

It would not be consistent with either the objects of the Act or the guiding principle of the CAT Act for the Tribunal (or the Executive Director) to deal with misconduct which is trivial or trifling. The alleged misconduct in this matter, however, cannot be characterised as trivial or trifling. The allegations are not the most serious imaginable allegations against a Councillor, but they are quite serious.
The respondent submitted that the conduct alleged against him does not 'warrant action'. I take that to be a submission that the conduct, if proven, is not sufficiently serious to be the subject of proceedings conducted by the Tribunal. I reject that submission.
It was suggested, on behalf of the respondent, that the applicant ought to refer to the Tribunal only those matters which require disciplinary action which is stronger than the action which could be taken by the Council or the Executive Director, or those matters in which the allegations or misconduct are 'unique' (the example was given of Office of Local Government v Shelley [2018] NSWCATOD 103, in which the allegations involved the use of social media).
There is no warrant in the Act for limiting the kinds of misconduct in relation to which a referral to the Tribunal may be made in the manner suggested by the respondent.

Other circumstances

There is no evidence before me of any circumstance which would render the conduct of proceedings contrary to the public interest.
The respondent submitted that the time taken to investigate the matter and refer it to the Tribunal was so long that unfairness to him would result were the Tribunal to commence proceedings. The nature of that unfairness was not particularised.
It is evident from document 17, provided with the June Report, that the investigation into at least some of the allegations the subject of this matter had begun prior to 31 August 2021. Mr Hindi was then a sitting Councillor. His term ended on 4 December 2021.
The referral in this matter was received by the Tribunal on 9 August 2022.
Both the April Report and the June Report comprise voluminous documents contained in an arch lever file.
The Framework for Managing Councillor Misconduct Allegations (2013), which was referred to in the respondent's written submissions, is a policy document. The time frames set out within it are not, and are not expressed to be, binding. They are a guide or an aspiration.
In all of the circumstances, I do not consider that the time taken for the investigation was unreasonable. It would not be reasonable to expect a properly conducted investigation to have been completed by 4 December 2021. Once an investigation is complete in relation to allegations of misconduct, the Executive Director is required by the Act, and by the rules of procedural fairness, to make a series of decisions and take a series of steps, prior to deciding whether to refer the matter to the Tribunal. The respondent's submissions significantly underestimate the amount of time this process can reasonably take, particularly during a pandemic. There is no basis for the submission that the matter was referred to the Tribunal to 'remedy' a delay by the applicant, and I reject that submission. There is no basis for the submission that the referral to the Tribunal has been made in a manner which is unfair to the respondent, and I reject that submission also.
I accept that there could possibly be cases where the delay in the conduct of the investigation into allegations of misconduct by a councillor, and the steps and decision which follow the completion of the investigation prior to a referral to the Tribunal, are so egregious that the Tribunal should not conduct proceedings into the allegations. I accept that, if it can be shown that the investigation, or the decisions which follow the completion of the investigation, are infected with malice, then that would be a relevant factor in the decision as to whether the Tribunal should conduct proceedings. Neither egregious delay nor malice in the conduct of the investigation or the decision making leading to the referral to the Tribunal has been established in this matter.
The respondent's offer to 'settle' would not meet the objectives of general and specific deterrence, and would not adequately address the concerns of the people affected by the alleged misconduct. Likewise, the respondent's offer to apologise, and his past apologies, do not meet those objectives and concerns.
The respondent asserted that disciplinary action had already been taken against him in relation to allegations 2 to 5. No evidence was put forward to support that assertion. The applicant denied the assertion and suggested that it may be a reference to disciplinary action taken against the respondent in relation to comments made by him at the Council meeting of 26 April 2021. The present matter relates to the Council meeting of 24 May 2021. Given the absence of any evidence of other disciplinary action taken in relation to the allegations of misconduct in the meeting of 24 May 2021, I reject the respondent's assertion. Had it been established that the allegations the subject of this matter had already been the subject of disciplinary action under the Act, that would have been a relevant factor in the decision as to whether the Tribunal should conduct proceedings.

Conclusion and Orders

The applicant has established an arguable case of misconduct against the respondent. The misconduct alleged is sufficiently serious to warrant the conduct of proceedings by the Tribunal. No circumstances have been established which make the conduct of proceedings unfair to the respondent, or which render the conduct of proceedings contrary to the public interest.
I make the following orders: 1. The Tribunal determines that it will conduct proceedings into this matter. 2. The matter is listed for a directions hearing on Tuesday 13 December 2022 at 9:30am via AVL.

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: 22 November 2022

At a glance

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Judgment (13 paragraphs)

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Legislation Cited (2)

Cases Cited (5)

Cited By (2)