Coppock v Department of Planning and Environment - [2021] NSWCATOD 18 - NSWCATOD 2020 case summary — Zoe

NSWNSWCATOD

Coppock v Department of Planning and Environment

[2021] NSWCATOD 18

NCAT Occupational|2020-11-18

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Court

NCAT Occupational

Decision date

2020-11-18

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Original judgment source is linked above.

Judgment (18 paragraphs)

[1]

REASONS FOR DECISION

Mr Stuart Coppock, a councillor of Willoughby City Council, has appealed under s 440L of the Local Government Act 1993 (the LG Act) against orders made on 28 February 2020 under s 440I of the LG Act by the Deputy Secretary, Local Government Planning and Policy.
In a Statement of Reasons for undertaking disciplinary action against Clr Coppock the Deputy Secretary stated his findings that having considered a departmental report prepared under s 440H of the LG Act, he was satisfied that Clr Coppock had engaged in misconduct within the meaning of s 440F of the LG Act, and that disciplinary action was warranted under s 440I of the LG Act. The Deputy Secretary stated that he had determined that Clr Coppock: 1. Be reprimanded pursuant to s440I(2)(b) of the LG Act; 2. Pursuant to s440I(2)(e) of the LG Act, undertake training with respect to his rights and obligations as a councillor when interacting with Council staff, within 3 months of the date of the decision; and 3. Pursuant to s 440I(2)(h) of the LG Act, suspend Clr Coppock's right to right to be paid any fee or other remuneration to which he would otherwise be entitled as the holder of civic office for a period of 2 months (without suspending him from civic office for that period) commencing on 1 April 2020 and ending on 31 May 2020.
A stay of that part of the decision that requires Clr Coppock to undergo training was granted by consent, pending determination of the appeal or until further order of the Tribunal.
In an Amended Application filed 17 August 2020 Clr Coppock seeks to have set aside the decision that he engaged in misconduct within the meaning of s 440F of the LG Act, and the disciplinary action taken under s 440I of the LG Act; and an order for costs.

[2]

Background

The background to the appeal was summarised in Coppock v Secretary, Department of Planning and Environment [2020] NSWCATOD 89 (Coppock No 1): 11. Clr Coppock was first elected to Council in September 1999. An allegation was made that on 18 October 2017 he telephoned Mr Mark Fisher, a Council Development Enforcement Officer, in relation to a site inspection of premises in Naremburn, and requested Mr Fisher not to proceed with any enforcement action flowing from the inspection. In January 2018 the Council's Acting Governance Manager instructed Enterprise Risk Solutions to conduct an investigation in relation to the allegation. 12. On 18 April 2018 Dr Mark Loves, the conduct reviewer, provided a Report of an Investigation into Alleged Misconduct Involving Clr Coppock. Dr Loves had interviewed the council officer, Mr Fisher, and had a written submission and a statement from Clr Coppock in which he denied trying to influence any council officer. Dr Loves found that the allegation was substantiated, and that Clr Coppock's conduct was in breach of cll 5.8, 6.2(b) and (c) and 6.7(g) of the Council's Code of Conduct, and in breach of the Council's Access to Information and Interaction with Staff Policy. Dr Loves recommended that the findings of inappropriate conduct be made public, and that Clr Coppock be formally censured for the breach under s 440G of the LG Act. 13. Dr Loves provided a Supplementary Report dated 18 May 2018, responding to two statutory declarations including one by Clr Coppock, referred by the Council at its meeting on 14 May 2018. The Supplementary Report confirmed the conclusions reached in the Report of 18 April 2018. At its meeting of 28 May 2018, the Council resolved: That Council: 1. Note the findings of the Conduct Reviewer. 2. That Council does not adopt the recommendations of the Conduct Reviewer. 3. That Council's reason for not adopting the recommendations was that Council does not accept the finding of the Conduct Reviewer due to the differing perceptions of the participants in the conversation. 4. Make public Council's resolutions as above, following the closed part of this meeting, pursuant to clause 253 of the Local Government (General) Regulation 2005. 15. By letter dated 4 June 2018 the Council, pursuant to cl 8.59 of the Procedures for the Administration of the Model Code of Conduct, notified the respondent that Council had not accepted the recommendations of the conduct reviewer, and the terms of the resolution of 28 May 2018. 16. On 4 October 2018 the DCE authorised preparation of a departmental report into Clr Coppock's conduct. A further authorisation was made on 8 February 2019. The Departmental Report under Section 440H of the Local Government Act 1993 issued in July 2019 … … 17. At Part 3, headed "The Conduct Reviewer's Investigation and Report", the departmental report referred to the investigation conducted by Dr Loves and his report and supplementary report. The departmental report referred to the evidence as to the telephone call of 18 October 2017, and to the Council's policies and procedures. At para 47 the departmental report noted that the versions provided by Mr Fisher and Clr Coppock as to the content of the telephone conversation differed, and concluded that Mr Fisher's version was considered to be more probably correct, stating five reasons for that conclusion. The departmental report concluded that the evidence supported a finding that Clr Coppock telephoned Mr Fisher to discuss an enforcement matter, and that in the course of the discussion with Mr Fisher, Clr Coppock requested Mr Fisher not to issue an infringement notice to the owner. 18. The departmental report concluded that Clr Coppock had contravened cll 3.1(a), (c) and (d), 5.8 and 6.2(b) and (c) of the Council's Code of Conduct, and the failure to comply with the Councillors' Access to Information and Interaction with Staff Policy and those clauses of the Code of Conduct and s 440(5) of the Act constituted misconduct as defined in s 440F of the LG Act. The departmental report concluded that the finding of misconduct warranted disciplinary action by the Deputy Secretary.
Clr Coppock challenged the power of the respondent to take disciplinary action, contending that the report on which that was based was not a "departmental report" envisaged by s 440H(6) of the LG Act, which provides that the preparation of a departmental report is a precondition to a decision by the Department Chief Executive (DCE) to take disciplinary action against a councillor.
In Coppock No 1, for reasons provided in that decision, I concluded that in an external appeal to the Tribunal under s 440L of the LG Act, as an appeal de novo which encompasses both the underlying finding of misconduct and the appropriate disciplinary response, it is sufficient if there is in fact a departmental report. If the underlying findings are contested, the Tribunal is required to make findings based on the evidence before it. The Tribunal is required to determine whether the alleged misconduct is proven and if so, what is the appropriate disciplinary response.

[3]

Agreed Facts

The parties have provided a statement of Agreed Facts: Agreed Facts 1. Willoughby City Council is a 'council' for the purposes of the Local Government Act 1993 (NSW) (LG Act). 2. Stuart Coppock is a councillor, for the purposes of the LG Act, elected to Willoughby City Council. 3. Mr Coppock was first elected as a councillor in 1999 and has been an elected councillor since. 4. Mark Fisher was, as at 18 October 2017, a Development Enforcement Officer employed by the Council. 5. On 18 October 2017, Mr Fisher attended a premises located at 278 Willoughby Road Naremburn (Premises) for the purpose of conducting an inspection in relation to unauthorised building work. Mr Fisher met with Mr G Denarian who was carrying out works at the premises fitting out the premises for the purposes of conducting a café. The fit-out had not been authorised by Willoughby City Council. 6. The Premises were owned by Mark Lum. 7. Sometime prior to 2:25PM on 18 October 2017, Mr Lum contacted Mr Coppock in relation to Mr Fisher's inspection of the Premises. 8. In the afternoon of 18 October 2017, at or about 2:25PM: 8.1 Mr Coppock called the switchboard at Willoughby City Council and asked to be put through to Mr Fisher; 8.2 the operator on the switchboard put Mr Coppock through to Mr Fisher; 8.3 Mr Coppock and Mr Fisher had a telephone conversation. 9. As at 18 October 2017, Willoughby City Council had adopted and there was in force for the purposes of s 440(3) of the Local Government Act 1993 (NSW) the Willoughby City Council Code of Conduct (Code). The Code prescribed, relevantly, in respect to councillors: 9.1 at clause 3.1: General Conduct 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: (a) contravenes the Act… … (c) is improper or unethical; (d) is an abuse of power or otherwise amounts to misconduct. 9.2 at clause 5.8: Improper and undue influence You must not use your position to influence other Council officials in the performance of their public or professional duties to obtain a private benefit for yourself of for somebody else. 9.3 at clause 6.2: Obligations of councillors and administrators Councillors or administrators must not: … (b) in any public or private forum, direct or influence or attempt to direct or influence, any other member of the staff of the Council or a delegate of the Council in the exercise of the functions of the member or delegate; (c) contact a member of the staff of the Council on Council related business unless in accordance with the policy and procedures governing the interaction of councillors and Council staff that have been authorised by the Council and the general manager. 9.4 at clause 6.7: You must not engage in any of the following inappropriate interactions: … (g) Councillors and administrators directing or pressuring council staff in the performance of their work, or recommendations they should make. 10. As at 18 October 2017, the Councillors' Access to Information and their Interaction with Staff Policy applied and was a policy of the kind referred to in clause 6.2(c) of the Code. It provided, relevantly: Interaction between Councillors and Council staff • the General Manager is responsible to the Council for the performance and direction of all staff and day-to-day management of Council. Therefore, it is appropriate that all requests for information and approaches to staff outside the forum of a Council or committee meetings, be directed to the General Manager, Directors or person/s nominated by the General Manager • it is, however, appropriate for Councillors to contact other members of staff to obtain basic information not pertaining to matters before Council • only the General Manager, Directors and Branch Managers nominated by the General Manager can provide advice to Councillors … • for all but straightforward advice on administrative matters, Councillors should put their requests for information or advice in writing. Such requests should precisely detail the information or nature of the information sought. These written requests then form part of the council records and can be filed appropriately … • a Councillor, member of staff or delegate must not take advantage of their official position to improperly influence other Councillors, members of staff or delegates in the performance of their public or professional duties for the purpose of securing private benefit for themselves or for some other person. Inappropriate Interactions Under this policy, the following interactions are inappropriate: • Councillors approaching junior members of staff for information on sensitive or controversial matters

[5]

Legislation

The relevant provisions in Part 1 of Chapter 14 of the LG Act are as follows. Section 439 imposes a general duty on a councillor to "act honestly and exercise a reasonable degree of care and diligence in carrying out his or her functions" under the LG Act or any other Act. Section 440 provides for codes of conduct: 440 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. ... (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) A council's adopted code has no effect to the extent that it is inconsistent with the model code as in force for the time being. (5) Councillors, members of staff and delegates of a council 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 (b) the model code as in force for the time being, to the extent that - (i) the council has not adopted a code of conduct, or (ii) the adopted code is inconsistent with the model code, or (iii) the model code contains provisions or requirements not included in the adopted code. (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. (7) A council must, within 12 months after each ordinary election, review its adopted code and make such adjustments as it considers appropriate and as are consistent with this section. …
The applicable code of conduct is the Willoughby City Council Code of Conduct (March 2013 edition amended by Council 22 February 2016; ex R2, pp A32-A43). For the purposes of cl 6.2(c) of the Code of Conduct, the applicable policy and procedures document is the Councillors' Access to Information and their Interaction with Staff Policy (ex R2, pp A134-A140).
Part 1 Div 3 of Chapter 14 of the LG Act is headed "Misconduct". The term "misconduct" is defined in s 440F: 440F Definitions (1) In this Chapter - 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, (c) a failure by a councillor to comply with an order issued by the Departmental Chief Executive under this Division, (d) an act of disorder committed by the councillor at a meeting of the council or a committee of the council, (e) an act or omission of the councillor intended by the councillor to prevent the proper or effective functioning of the council or a committee of the council. (2) For the purposes of determining whether a person has engaged in misconduct, the person does not breach a provision of a code of conduct that requires the disclosure of a pecuniary interest if the person did not know and could not reasonably be expected to have known that the matter under consideration at a meeting was a matter in which the person had a pecuniary interest. (3) A reference in this Division to misconduct includes a reference to misconduct that consists of an omission or failure to do something.
The disciplinary actions that may be taken in dealing with misconduct by a Councillor are specified in s 440G for action taken by a council, limited to a formal censure; by the DCE, as specified in s 440I; or by the Tribunal on referral from the DCE under s 440J, as specified in s 482A of the LG Act.
Section 440I provides: 440I Departmental Chief Executive may take disciplinary action for misconduct (1) The Departmental Chief Executive may take disciplinary action against a councillor if the Departmental Chief Executive is satisfied that - (a) the councillor has engaged in misconduct (whether on the basis of a departmental report or a report by the Ombudsman or Independent Commission Against Corruption), and (b) disciplinary action is warranted. (2) The Departmental Chief Executive may take one or more of the following actions (and any such action is disciplinary action) - (a) counsel the councillor, (b) reprimand the councillor, (c) by order, direct the councillor to cease engaging in the misconduct, (d) by order, direct the councillor to apologise for the misconduct in the manner specified in the order, (e) by order, direct the councillor to undertake training, (f) by order, direct the councillor to participate in mediation, (g) by order, suspend the councillor from civic office for a period not exceeding 3 months, (h) by order, 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 3 months (without suspending the councillor from civic office for that period).
Section 440L confers a right for a councillor against whom disciplinary action is taken by the DCE to appeal to the Tribunal: 440L Appeals against disciplinary action (1) A councillor against whom disciplinary action (other than disciplinary action comprised only of counselling or reprimanding) is taken by the Departmental Chief Executive may appeal to the Civil and Administrative Tribunal against the decision of the Departmental Chief Executive to take disciplinary action. Note - An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013. (2) An appeal must be made within 28 days after the day on which the councillor is notified of the Departmental Chief Executive's decision to take disciplinary action against the councillor. (3) The Tribunal may stay any decision made by the Departmental Chief Executive until such time as the Tribunal determines the appeal. (3A) If the Tribunal stays a decision for suspension of a councillor for misconduct that has resulted or will result in disqualification from civic office under section 275(1A), the disqualification ceases to have effect or does not take effect (as the case requires) until such time as the appeal is finally determined or withdrawn. (4) On hearing the appeal, the Tribunal may - (a) confirm the decision, or (b) amend the decision, or (c) set aside the decision and substitute a new decision. (5) If a decision is amended or substituted, the decision as amended or substituted has effect as if it had been made in that form by the Departmental Chief Executive. (6) If the Tribunal sets aside a decision to suspend a councillor, any fee or other remuneration, or expenses, withheld under the suspension is payable to the councillor and any disqualification that resulted from the suspension ceases to have effect. (7) (Repealed)
As noted above, an appeal under s 440L is an external appeal for the purposes of the Tribunal's external appeal jurisdiction under s 31 of the Civil and Administrative Tribunal Act 2013. It is an appeal de novo, in which the Tribunal is required to determine on the basis of the evidence before it whether the alleged misconduct is proven, and it so, what is the appropriate disciplinary response. The powers of the Tribunal on hearing the appeal are to confirm the decision, to amend the decision, or to set aside the decision and substitute a new decision: LG Act, s 440L(4).

[6]

Evidence

Clr Coppock relies on the following evidence: 1. Affidavit of Stuart Coppock sworn 3 September 2020 (ex A1); 2. Affidavit of Stuart Coppock affirmed 6 November 2020 (ex A2).
Annexed to the affidavit of 3 September 2020 are: 1. Statutory declaration of Stuart Coppock 12 May 2018 (Annexure A); 2. Unsigned statement Stuart Coppock 12 February 2018 (Annexure B).
The respondent relies on the following: 1. Statement Mark Fisher 15 October 2020, annexing transcript of his interview with Dr M Loves (ex R1); 2. Departmental Report with annexures (ex R2).
The hearing was held by audio-visual link in accordance with the Tribunal's COVID-19 arrangements. Clr Coppock, Mr Fisher, and Mr Mark Taylor gave oral evidence. While technical issues prevented counsel for the respondent accessing a visual link, he was able to participate in the hearing including cross examination of Clr Coppock. Further technical issues meant that Mr Taylor gave his evidence by telephone.
The Tribunal is not bound by the rules of evidence in these proceedings. The standard of proof is the civil standard on the balance of probabilities. In considering the evidence and making its findings the Tribunal is required to have regard to the gravity of the allegations made and to the seriousness of the consequences if they are made out. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-450 the High Court held: The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

[7]

Telephone conversation 18 October 2017

It is not in dispute that at 2.15pm on 18 October 2017 Clr Coppock phoned the Council switchboard and was transferred to Mr Fisher's extension, and a conversation ensued lasting 9 minutes (ex R2, pp A202-A204). The central issue of fact is whether the evidence of Mr Fisher, or that of Clr Coppock, as to the content of that telephone conversation should be accepted. It was not part of either party's case that either Clr Coppock or Mr Fisher were consciously misleading the Tribunal. The question is, having regard to the totality of the evidence, which account is the more reliable.
Clr Coppock submits that Mr Fisher's account should not be accepted, for the following reasons: 1. Clr Coppock made no attempt to conceal the telephone call, having contacted Mr Fisher by the Council switchboard, and having encouraged Mr Fisher to raise the matter with his manager, Mr Taylor; 2. The evidence of Mr Lum, the owner of the premises, shows that he did not request Clr Coppock to influence Mr Fisher not to issue an infringement notice or take other enforcement action, but simply asked Clr Coppock to find out what was occurring; 3. There is no evidence of any pre-existing relationship between Mr Lum and Clr Coppock of any significance, and so no apparent motive on the part of Clr Coppock; 4. There is no evidence that Clr Coppock would obtain any benefit or have any interest in making the alleged request; 5. Mr Fisher's file note dated 18 October 2017 as to the conversation was not prepared contemporaneously, as the evidence suggests it was compiled close to the date it was entered in the Council system on 6 November 2017; 6. Mr Fisher's reliance on his interview with Dr Loves is problematic, as he was asked a series of leading questions by Dr Loves and the account is riddled with inconsistencies; and 7. Because of the inherent improbability of the conduct alleged, its seriousness and the gravity of the consequences if the conduct is established.
The respondent submits that the account of Mr Fisher should be preferred to that of Clr Coppock, for the following reasons: 1. Mr Fisher was cognisant that Clr Coppock had crossed a line in the telephone conversation, and acted on that by immediately reporting his concerns about the conversation to his manager Mr Taylor on 18 October 2017; 2. The absence of any personal interest in Mr Fisher making a report to his manager in relation to the conversation; 3. The evidence of Mr Fisher and Mr Taylor in the recorded interviews on 25 January 2018 is materially consistent as to Mr Fisher's verbal report and the preparation of a file note; 4. The file note prepared by Mr Fisher and dated 18 October 2017 should be accepted as a contemporaneous or near contemporaneous record; 5. Mr Fisher's version of the conversation given in the interview on 25 January 2018 is consistent with the version in the file note; and 6. The earliest time Clr Coppock placed in writing his evidence as to the conversation was four months after the conversation.

[8]

Clr Coppock's evidence

Clr Coppock's evidence as to the telephone conversation was provided in his statement dated 12 February 2018 (ex A1, annexure B), statutory declaration of 12 May 2018 (ex A1, annexure A), affidavit sworn 3 September 2020 (ex A1), and in oral evidence at the Tribunal hearing.
Clr Coppock was invited in an email on 22 January 2018 to an interview with the conduct reviewer, and with a follow up SMS text on 23 January 2018. He responded advising that he would not be attending the interview and the matter had been referred to his solicitor. On 13 February 2018, in a letter addressed to Dr Loves, Clr Coppock's lawyer provided a statement made by Clr Coppock explaining the events. That unsigned statement, headed "Recollection and explanation of events surrounding allegation of seeking to influence an Officer of Willoughby City Council resulting in an alleged breach of Council's Code of Conduct", is dated 12 February 2018 (Annexure B to Clr Coppock's affidavit of 3 September 2020).
In that document Clr Coppock stated that on a date sometime in late October 2017 he received a telephone call from Mr Mark Lum, who identified himself as the former owner of Monthien Thai Restaurant in Naremburn. He had not seen him since the restaurant was closed other than on one occasion in the street. He spoke briefly with Mr Lum on 6 February, the first conversation since the telephone conversations last year.
Mr Lum said that a Council Officer had attended the shop and ordered cessation of work that was being carried out by his new tenant. He asked if he knew who the officer was and whether he had a contact number. In that initial conversation he obtained the impression that Mr Lum was not really aware why the officer had told the tenant to stop work, and he clearly needed to talk to the Council officer as an owner. After the initial conversation with Mr Lum, he called Council. He could not recall if he went through the switchboard or called the number provided by Mr Lum. After explaining that all three compliance officers had the first name "Mark" and he would have difficulty identifying those officers visually and by their voices, Clr Coppock stated: In October 2017 I told the Mark to whom I spoke that I had received a telephone call from Lum the property owner. The Mark to whom I spoke was very friendly and happy to outline the details to me. As I noted above Lum had informed me of most of the details of the matter. The Mark to whom I was speaking confirmed quickly that the issue was illegal work; not an uncommon occurrence which councillors come across and are asked to advise in relation to. He also confirmed what I knew from my telephone call from Lum. I asked him if he would be happy to call Lum as owner and I gave him Lum's mobile number which I had written down. I recall as discussing whether it was better for the Mark to whom I was speaking to call Lum or Lum to call him. The outcome of this discussion was I was given a name and a mobile number to provide to Lum to have him call that person. I no longer have this piece of paper with these details. I do recall that at the end of the conversation I said words to the effect: "I am not telling you how to do your job or interfering with where things might end up but a conversation with the owner might be a good idea". I repeated this comment in similar words, as I clearly understood in my own mind before my conversation with the Council officer that illegal/unapproved works appeared to have been done and this was an offence that Council could prosecute….
Clr Coppock stated that he had made many calls to staff over 18 years as a Councillor including Deputy Mayor, it is a major part of the job and all Councillors do it. He did not in any way suggest to anyone else that no prosecution should occur, and on the contrary said in effect "You need to do your job". To suggest to a Council officer that asking that a conversation with a property owner might take place was dictating that a prosecution not occur is nonsense.
In oral evidence Clr Coppock was asked about the statement dated 12 February 2018. He did not accept that he considered at the time the possibility that the works might be unauthorised, based on his recollection. He had no apprehension that the works might be unauthorised. It was a surprise, in the context of the call to Mr Fisher, to discover that it related to unauthorised works. He knew some sort of penalty was possible, but unlikely given the way that Council operates.
Clr Coppock provided a statutory declaration dated 12 May 2018 (Annexure A to the affidavit of 3 September 2020), after the draft report of the conduct investigation was provided to him on 13 March 2018. In that statutory declaration Clr Coppock stated that on 18 October 2017 he received a telephone call from a concerned resident seeking his assistance, and telling him that his new tenant had been stopped from doing fit out works in his property, and continued: 6. then called Mark Fisher at Council and said that I knew Mark and that he was a 'good bloke' and a 'long time Naremburn person' and that he was concerned about what had happened and could he please call him to explain the issue to him. Mark told me there were probably unapproved works including the installation of a toilet. The words 'infringement notice' or 'penalty notice' or 'fine' were not used by either of us. I finished the conversation by saying words to the effect, 'I am not telling you how to do your job. You do what you have to do.' Mark Fisher was friendly and helpful as I have always found him to be. He made no criticism whatsoever of the fact that I had called him. We both knew it was a routine call. He offered me a number to give to Mark to call. … 8. In the Final Report of Dr Loves it is claimed that I sought directly or indirectly to influence Mark Fisher into not issuing an 'Infringement Notice'. That is simply incorrect. There was no attempt to influence and the suggested words were not used by either of us.
In oral evidence Clr Coppock stated that this statutory declaration was written for Council, and not for the investigation, and that critical things were covered in it. The statement in para 6 that "we both knew…" was his impression, and he did not recall Mr Fisher using those words.
In his affidavit sworn on 3 September 2020 (ex A1) Clr Coppock recounted at para 16 his conversation with Mr Fisher, having called the Council switchboard and asked for him. Clr Coppock stated that he told Mr Fisher he had been contacted by Mr Lum, who "wants to know why you stopped work going on? Can you please call him?". Para 16 continues: Fisher: There is a toilet which has been constructed where the doorway used to be. On hearing Mr Fisher say this, I apprehended a potentially serious problem. Coppock: So, this is illegal works? Mark Fisher did not respond to my comment. So I continued with the conversation with the objective to terminate it as quickly as possible. Coppock: I was requested by Mark to ask you to call, will you please do that? Fisher: Yes. Coppock: You have to do whatever you have to do, if really that means a fine or whatever, so be it. I was asked by Mark to have you call him so he can work out what you were doing or what is going on. I think you should speak to your boss [deletion] about this request. … I then gave Mr Fisher the mobile number Mr Lum had given me. Fisher: I will give him a call. Coppock: OK, I will tell him that. I want to make it very clear that I am not telling you what to do. I repeat that I am not telling you what to do. I made this comment as I was concerned that I had found myself in a conversation with a public officer where illegal works or unauthorised works might be involved. It has always been my understanding that directions, express or implied, to do anything concerning compliance or enforcement measures or the exercise of statutory discretion had to be avoided as a matter of good corporate governance and even possible statutory breach. Fisher: OK. …
In oral evidence it was put to Clr Coppock that he could not have been surprised that the issue related to unauthorised works. Clr Coppock disagreed.
Clr Coppock was taken in oral evidence to the Councillors' Access to Information and their Interaction with Staff Policy (ex R2, pA134 ff), and said he is familiar with its general terms but not the precise words. He would normally call the General Manager or the Director, however he did not call them at the time as he was having personal issues with the General Manager and the Director was new. He would call staff, mostly in the Planning section, and it was not frequent for him to call someone in Compliance. Taken to the transcript of the interview and Mr Taylor's comment at A115 that there was a protocol for Councillor contact with staff and contact had to be through senior staff, and asked whether that was how Council operated, Clr Coppock said not in October 2017, but it does now. In re-examination Clr Coppock stated that he had discussions with people many times, mainly by ringing the Planning section; those conversations had taken place as long as he had been on Council. If it was serious, he would ring the General Manager. A request for a phone call was standard. In 2017 things started to change, and now he would speak to one officer, or maybe two.
In response to questions about Mr Fisher's statements in his interview with Dr Loves, Clr Coppock stated that he agreed with parts of that record, but not all. He denied that he said "they not be penalised" (A103), or that he had said that he would withdraw and rescind the request if needed (A105), or that contact from a Councillor was not routine.
Clr Coppock disputed the record of the telephone conversation in Mr Fisher's file note dated 18 October 2017 (A218-219). He denied that he was told "of an unauthorised shop fitout for café use", or that he requested that a penalty infringement notice not be issued.

[9]

Mr Fisher's evidence

Mr Fisher was interviewed by Dr Loves, the conduct reviewer, on 28 January 2018, and the interview was transcribed (ex R2, pp A96-A108). In his statement of 15 October 2020, annexing a copy of the transcript of the interview, Mr Fisher stated that he provided a true account of the conversation and events shortly after to the best of his recollection, and the transcript is to his recollection a true account and record of the interview.
The transcript records that Mr Fisher stated that his functions as a Development Enforcement Officer are to carry out enforcement procedures for unauthorised building works or unauthorised use of premises, and to investigate building sites not operating in accordance with consent. A complaint to Council about unauthorised work is reported to the Compliance section, and a Customer Service Request (CSR) is created and allocated to one of the development enforcement officers who investigate and try and determine if it is exempt development or development that needs approval. As far as he was aware councillors are not allowed to be involved in the process of council's administration staff, that is up to the General Manager. There is a written policy regarding council interference. He had been doing the job for 17 years, he had been contacted by councillors but he would treat that as he would any other resident.
Mr Fisher stated that the purpose of the site inspection on 18 October 2017 was unauthorised building work. He had received a CSR from his team leader. The site inspection was conducted in the presence of a Mr Denarian (as transcribed) who was carrying out works at the premises. Mr Fisher described the nature of those works as "a fit-out of the cafe, for a café in the front section of the building" (A99). The fit-out was not approved by Council, which was a requirement for food preparation areas. There had been approval under a development consent in 1987 for commercial use as a milkbar and shop and the existing shop fitout was removed in May 2017. The site inspection revealed that the premises had been divided into two occupancies. His inspection did not include the rear area, as "the owner wasn't there and it was locked" (A100). A new toilet had been installed for the proposed café "and it closed off the actual access from the café to the front, to the rear residential section of the premises" (A100). Mr Fisher was asked if he recalled who the property owner was, and stated "Mr and Mrs Lum, I believe".
Dr Loves stated that he had been advised that Mr Fisher told Mr Denarian that the café fit-out and the toilet required Council approval, and that he advised him that a building certificate application could be submitted to Council for assessment for the works carried out so far with no guarantee that a building certificate would be approved. Mr Fisher agreed. Mr Fisher said he was at the premises for probably half an hour or so.
Mr Fisher was asked about the telephone call from Clr Coppock. In response to a question whether he had had any calls from him before or any reason to talk to him, Mr Fisher said that he remembered a call some years before "in regard to our procedures" but could not remember what it was for, "it was maybe just about process". He did an investigation of a building site next to his property once and spoke to him at home "because of the very, very low section of the fence and he was concerned about a water issue from their side".
Mr Fisher was asked what Clr Coppock had said, "exact words as far as you can recall". The following passage is recorded at A103-A104: MF: There was one word I can't remember what he used but he virtually said that - ML: So how did he introduce himself initially? MF: He said it's Clr Coppock, I've been contacted by the owners Mr and Mrs Lum, the owners of the subject premises. He said that they had been in the area for a long time, they were good people, he wanted to know what was going on and then he asked whether, that they not be penalised because they're good people and they'd been in the area a long time and had some previous restaurant, Wontin Thai or something, and that's when I said well maybe I'm not the person you should be talking to. It should be maybe my manager and he said a particular word which is, virtually said, you know, that he had no objections or he didn't mind if you spoke to my manager, speak to Mark about this phone call. ML: He asked you to do that? MF: Yeah, yeah, which I would have done anyway. ML: Now I'm informed that you advised him that you had been in the premises because of an unauthorised shop fit-out for the café, is that correct? MF: Yes. ML: And Clr Coppock requested you not to issue a penalty infringement to the owner because he was a good bloke? MF: Something like that. ML: Had been in the area for a long time, is that correct? MF: Yes.
After some questioning about the restaurant, the following is recorded at A104-A107: ML: How did you feel when you realised it was him on the phone? MF: I didn't mind speaking to him as like a resident and explaining the situation, but as soon as he said I shouldn't issue an infringement notice, that I knew was, I believe, crossing the line, yeah, ML: Did you feel intimidated at all? MF: No. ML: No? MF: No, councillors don't intimidate me. ML: Why do you think he contacted you, what was he trying to achieve? MF: I think he was acting on his role as a councillor for the people who owned the building, Mr and Mrs Lum. They've probably requested that he, you know, we don't want to abide, whatever, and he was doing that as a councillor. ML: Was it your view that you felt that he was trying to influence you? MF: Probably, yes, yep. ML: And what gave you that impression? MF: Well, when he said they're nice people, they've been here a long time, not to issue an infringement, that's when I thought he was trying to make sure that they didn't get any penalties, I suppose. ML: And you say that he used his formal title, Clr Coppock? MF: I believe so. ML: Not Stuart? MF: No, no. ML: No? MF: No. ML: And you told him that you're not the officer he should be contacting, he should be talking to the compliance manager, Mark Taylor, is that correct? MF: Yes. ML: Now I'm informed that Clr Coppock advised you to speak with the compliance manager about your conversation, is that correct? MF: Yeah, after I said that I believe he's talking to the wrong person. ML: And said that he would withdraw and rescind the request if needed, is that correct? MF: Look, I can't remember that exactly but something to the words of that effect, yes. ML: Did Clr Coppock, as far as you're aware, rescind the request at any time, that is the request to you to not issue an infringement? MF: Not, well he said he would rescind it if there was an issue. But I don't think he said I'll rescind it, don't worry about it. I don't think he said that. ML: Rescinding is not the point, the damage is already done? MF: Yes. ML: If you're going to be influenced but being contacted by a councillor, surely that would have already occurred? MF: Yes. ML: True? MF: Yes. ML: Do you agree with that? MF: Yes. ML: Has he been in contact with you again since that call? MF: No. ML: Now I'm informed that you reported it to your manager Mark Taylor, is that correct? MF: Yes. ML: Why did you report to him? MF: Because I thought Clr Coppock overstepped a line in requesting that an infringement not be issued. ML: When and where did you do this? MF: Straight after the phone call in Mark Taylor's office, [location] ML: What advice did he give you? MF: He said to make a note of it, put it in a note and provide him with a copy of that. ML: And did you do that note? MF: Yes, straight away. ML: Is that the copy of the file note there dated the 18th of October 2017? MF: Yes. ML: Now what's happened since that time, what action has been taken? MF: I contacted the owner in regard to inspecting the rear residential section of the premises. I met with them the following day, I believe. We stood on the back deck, there's a little deck and a sliding door that allows you entrance. I spoke to them about the situation, about notices of draft orders, they can lodge building certificates, there could be penalties. They need to seek professional advice from a consultant town planner on the situation and that's what I told them. …
In oral evidence Mr Fisher was questioned as to the references in the transcript at A103 to "Mr and Mrs Lum, the owners" and "they", whereas Mr Lum is the owner. Mr Fisher stated that he recalled Clr Coppock saying "Mr Lum" and that the owner was "a good bloke". He was questioned as to the use of the term "request", and the reference at A104 to Clr Coppock saying "I shouldn't issue an infringement notice". Mr Fisher's recollection was that the word was "don't".
Mr Fisher was also questioned about the file note dated 18 October 2017 (ex R2, A218-219). That document summarises the inspection undertaken on 18 October 2017, which took place at 11.15am with Mr Denirjian who was carrying out the works. Mr Fisher summarised the prior approved use, and the removal of the existing fit out in May 2017. The inspection revealed that the premises had been divided into two occupancies, with access to the rear area enclosed and a new toilet installed, for use of the proposed café within the front area. The file note continues: I advised Mr Denirjian the café fit out and toilet required prior Council Consent. Further, I advised Mr Denirjian that a Building Certificate Application can be submitted to Council for assessment for the works carried out so far, however, there was no guarantee that Building Certificate would be approved as the works for each certificate are assessed on there own merit. Note: Also today, I received a telephone call from Clr Coppock at 2.25pm-2.30pm in regarding to the above inspection. Clr Coppock advised he had been contacted by the owner of the subject premises Mark ? in regard to my inspection. Clr Coppock wanted to know what was happening at the premises. I advised of an unauthorised shop fit out for café use. He requested that I not issue a penalty infringement to the owner, who is a good bloke and has been in the area for a long time and owned the Montien Thai Restaurant for years. I informed him I am not the officer he should be contacting, he should contact the Compliance Manager, Mark Taylor. Clr Coppock advised I should speak with the Compliance Manager about our conversation and will withdraw/rescind the request if needed.
The file note includes four photographs of the café fit out, and one photograph of the rear of the café and the new toilet.
In oral evidence Mr Fisher stated that it is his practice to record an investigation in the Council's ECM system as soon as possible. He would not upload it as soon as possible. He prepared the file note of 18 October 2017 straight away. Asked why he would take until 6 November 2017 to upload the file note, as recorded in Council documents (discussed below), Mr Fisher said that there may be several documents to upload such as photographs. He maintained that he completed the file note on 18 October. The note stays in the system until it is uploaded.
Mr Fisher maintained that he told Mr Taylor that Clr Coppock asked him not to issue an infringement. He maintained that Clr Coppock described Mr Lum as a "good bloke". He could not recall Clr Coppock asking him to call the owner. He explained to Clr Coppock the work being carried out, procedures, and that a café fitout needed development consent, and the process.

[10]

Mr Taylor's evidence

Mr Mark Taylor, Manager of the Compliance Unit, was interviewed by Dr Loves on 28 January 2018, and the interview was transcribed (ex R2, pp A110-A125). Mr Taylor provided Dr Loves with a copy of the Council policy on Unauthorised Building Work Enforcement and Prosecution, ratified on 4 June 2012, which he described as providing guidance for Council officers to investigate allegations or complaints, and the discretion conferred on officers based on the degree of unauthorised activity. When he was appointed to his role as Manager of the Compliance Unit in February 2001 one of his initial tasks in addition to creating the Compliance Unit was to write a policy for unauthorised building works, specifically enforcement prosecution. Asked whether there was any facility under the policy for Councillors to make recommendations to Council officers in regard to prosecutions or issuing of infringements, Mr Taylor said no, and that they had tried to separate the obviously political from the Council staff, and also within Council as well. Council tries to separate out the regulatory functions from the approvals team.
Mr Taylor was asked about Mr Fisher's inspection of the premises at Naremburn. He understood from Mr Fisher's investigation inquiries that he considered the matter to be minor, and under the policy he could probably have issued a penalty notice. He believed that a notice would probably have been served a day or two, maybe a bit later. Formal applications to Council in response would go to the Planning Unit. In minor matters they would rather people put their resources into remedying the situation rather than having someone pay a substantial fine and then find the resources to do the remedy. It is a discretionary thing for the officer.
Asked whether Councillors are allowed to interfere with the process, for instance lobbying Council staff to not issue an infringement notice, Mr Taylor said no. If there was to be any contact or enquiry made by a Councillor into the enforcement process it would at the very least go to the General Manager or the Director, but certainly not himself or his staff. Mr Taylor thought there was a protocol regarding Councillor contact with staff, which he would have to check to establish where that was documented, and said that the way they had functioned for many years was that Councillor contact must be through the senior staff, that is the General Manager and Directors. Councillors normally after they are elected meet with the senior staff and cover issues such as the Code of Conduct and protocols for contact with Council, so they are made aware of appropriate behaviours and interactions. Ordinarily interaction is coordinated through Director level.
Mr Taylor said that a Councillor contacting a development enforcement officer of that level is "most extraordinary, unusual" (A116). Typically he would have expected that particular inquiry to go to the Director at first instance, the Director would contact him to ascertain the facts of the matter and then he would speak with Mr Fisher, obtain the facts, the CSR number, address and the status of the investigation, and then give that back to the Director, who would relay that to the Councillor.
Mr Taylor was asked about the events of 18 October 2017. He recalled the afternoon because he was in his office working "when Mark Fisher presented at my office door and asked if he could speak with me for a moment". He could not recall the time specifically, but it was certainly mid to late afternoon. The transcript records (at A119-A120): MT: …My recollection was that it was immediately after he'd received the phone call from Clr Coppock so I didn't check the time but Mark's recorded in his notes that it was around 2.25, 2.30 and that's consistent with my memory. So I invited Mark to come in and speak to me and he explained he'd just had a phone call from Clr Coppock. I was surprised at that and I asked him what it was about. It's at that point he explained to me it was in relation to an inspection he'd done that day at …Naremburn. He went on to explain that he was investigating alleged unauthorised building works for a café type premises there and that Clr Coppock had conveyed to him, in a matter of words, that the owner was a good bloke and that, in essence he would appreciate it if a Penalty Notice or fine wouldn't be issued. That was the substance of what was conveyed. I indicated to Mr Fisher that I believed that that was not an appropriate contact for a councillor to be making to staff and I requested Mr Fisher to record the essence of that conversation in his notes for his inspection record of this particular investigation. That's what Mark Fisher went back to his work station and subsequently did. ML: And that resulted in this file note which was dated 18th of October, is that correct? MT: I'm looking at the file note dated the 18th of October last year of Mark Fisher and that's what I recall. ML: That's the document produced? MT: That's it. ML: What did you do on receiving this information from Mr Fisher? MT: I made a mental note of it and it was my intention to speak with my director during our regular meetings and convey that information. But to be honest, I forgot to do that and it didn't occur.
Mr Taylor was questioned about the background to the conduct review investigation, and about aspects of what Mr Fisher told him about the owner of the premises. At A122-A123 the following is recorded: ML: What advice did you give Mark Fisher after he reported the matters to you? MT: My recollection of that conversation was that he should immediately make a file note concerning that contact, and this was the early stages of Mark's investigation so it wasn't fully developed at that point as to what the outcomes would even be. But I indicated to him that, well at least my recollection is that I indicated to him that he should continue with his investigation and if his findings led to the establishment of an offence, then he should deal with it in accordance with the policy and in accordance with his knowledge and experience. If that led to the need to issue a Penalty Notice, then I would support that finding, and similarly, if he felt a Notice of Draft Order was necessary, then I would also support that. So in essence, I said look, don't let, you know, Clr Coppock influence you one way or the other, just be guided by the facts and the findings and be consistent in terms of your application of council's policy. And I have to say Mark, as with all his colleagues, that's pretty much what they do. ML: Can you think of any circumstance where it would be appropriate for a councillor to contact a Compliance Officer at Mr Fisher's level? MT: No. ML: Even just to find out what was occurring with a particular job? MT: No, no. I mean for a great number of years now, in fact for all of my time here and I've been compliance manager for eighteen years and I've been with council for twenty years, it's never been appropriate for a councillor to contact staff below team level out of the blue like that. Contact with staff at Mark's level or a team leader might ordinarily occur during circumstances of ward council inspection or a public meeting, that's where it's an appropriate forum for that interaction to occur. But the protocol, as I've indicated previously, is that councillors should be making their enquiries with the general manager or director.
Mr Taylor gave oral evidence at the hearing. He was unable to recall detail of his conversation with Mr Fisher on 18 October 2017, or when he first saw Mr Fisher's file note, which he thought was likely before his interview with Dr Loves. He could not recall if he was shown it on 18 October. He was satisfied the content of the file note is consistent with his memory. He could not recall the precise words used, but recalled some points including that Mr Fisher had been contacted by Clr Coppock, which surprised him; what the matter was about; that the owner was a good bloke; and that he asked that a fine not be imposed. He regards Mr Fisher as a solid, reliable officer. Mr Taylor said he should have reported the matter to his Director; it was not the case that it was not something to be concerned about, he failed to report it. He would normally meet with the Director every two weeks, and he made a mental note but got busy and it slipped his mind.

[12]

Mr Fisher's file note dated 18 October 2017

The content of the file note dated 18 October 2017 is provided at [47] above. Further detail of that document and other Council records is provided in documents provided to Clr Coppock through requests made under the Government Information (Public Access) Act 2009 (GIPA Act), annexed to his affidavit of 6 November 2020 (ex A2).
The access request made on 1 August 2019 sought access to all computer records of the digital history of the file note dated 18 October 2017; all handwritten notes concerning the site inspection of 18 October 2017; all handwritten notes concerning the telephone call of 18 October 2017; and details of the movements of Mr Fisher in and out of the Council building on 18 October 2017.
In response, the Council provided a copy of a rough layout drawing of the premises made by Mr Fisher, and advised there were no handwritten notes, and that records of movements in and out of the Council building were not available. A printout of documents relating to the digital history of the file note was provided. Clr Coppock sought clarification, and on 14 October 2019 was provided with screenshots of the document properties with annotations, and was advised that no records had been found for documents or notes of any conversation between Mr Fisher and Mr Taylor on 18 October 2017 or later that concerned the telephone conversation with Mr Fisher. Clr Coppock sought further information concerning the document properties of the file note, and on 21 October 2019 was provided with a screen shot of the document properties of the file note that was created in Word and registered in the Council's filing system (ECM) on 6 November 2017, with comments.
The ECM record provided on 14 October 2019 confirms that the Word document "File note café inspection fitout - 278 Willoughby Rd Naremburn" was registered in the system at 9.01am on 6 November 2017, that Mr Fisher was the officer who registered it, and that there were no further modifications or revisions made to the document after it was registered.
The file reference number was CSR 456773. The Notes Summary for that file reference records that a complaint was made to Council on 17 October 2017 about building works, with construction happening for a while, and it looked like being converted to a café; and there were no applications on file. On that date Mr Fisher was requested to investigate, the request noting that "if works part of a food premises fitout approval is required". On 20 October 2017 Mr Fisher recorded "Attended premises unauthorised café fitout and division of premises. Rear area used as 3 bedroom, lounge, kitchen and laundry separate to front shop. An unauthorised toilet has been installed where access was from front to rear. Action to be instigated under EP& A Act 1979 - Notice and Order to be issued."
The Word document properties document provided on 21 October 2019 records that the file note is a two page document, last modified and created 6 November 2017 at 9.01am, and last printed 19 October 2017 8.30am. The annotation records that the date and time for last modified and created was the same time the file was registered in ECM.

[13]

Discussion and findings

It is not in dispute that Clr Coppock was contacted by Mr Lum, owner of the premises inspected by Mr Fisher, and that his telephone call to Mr Fisher followed. Clr Coppock submits that his evidence that he was not aware as to what was occurring at the premises until he discussed the matter with Mr Fisher is supported by the statutory declaration of Mr Lum, who stated that he did not request Clr Coppock to influence Mr Fisher not to issue an infringement notice or take any other action, and that he had no idea what occurred at his premises.
That proposition is not consistent with what is recorded in Mr Lum's statutory declaration, which was that he asked Clr Coppock to find out why the works had been stopped. It is not consistent with Clr Coppock's statement of 12 February 2018, that Mr Lum had said that a Council officer had attended the shop and ordered cessation of work being carried out by the tenant; or his statement in the statutory declaration of 12 May 2018 that Mr Lum told him that his new tenant had been stopped from doing fit out works on the property; or with the statement in his affidavit of 3 September 2020 that Mr Lum said "work was stopped", and when Clr Coppock asked what were the works he was talking about, said "Fit out works for the new tenant".
The Tribunal does not accept Clr Coppock's evidence that he had no apprehension at the time of Mr Lum's telephone call that the works might be unauthorised, or that it was a surprise when Mr Fisher told him that the inspection related to unauthorised works, for the following reasons. First, the Tribunal accepts that a statement by an owner, who was not there at the time, that fit out works by his new tenant had been stopped by a Council officer doing an inspection would not disclose much in the way of detail of the works themselves, or the concern. However, for an experienced Councillor, familiar with contact from constituents over many years on issues with Council, a readily available possibility as to why a Council officer might direct at an inspection that building works cease must have been that works were being carried out without authorisation. That is supported by Clr Coppock's statement of 12 February 2018, that illegal work is "not an uncommon occurrence which councillors come across and are asked to advise in relation to".
Secondly, the first mention of the proposition that Clr Coppock was unaware of the possibility that the works were unauthorised until during his conversation with Mr Fisher, and thus became aware only at that time of the potential impropriety of the conversation, is in his affidavit of 3 September 2020. In the statement of 12 February 2018 Clr Coppock stated that Mr Fisher "confirmed what I knew from my telephone call from Lum". There is no mention in the statutory declaration of 12 May 2018 of any surprise to learn from Mr Fisher that the works were unauthorised. Both documents were provided by Clr Coppock at the time of the conduct review, in which the context of the telephone call to Mr Fisher was a central issue.
Clr Coppock agrees that he referred in his conversation with Mr Fisher to Mr Lum as having been in the area a long time, and as a good bloke. He denies that he asked that Mr and Mrs Lum not be penalised, or that he said he would rescind the request if there was an issue, and his position was that his purpose in phoning Mr Fisher was to arrange for him to call Mr Lum. On the critical issue of whether Clr Coppock requested that Mr and Mrs Lum not be penalised, the Tribunal prefers the evidence of Mr Fisher, for the following reasons.
First, is Mr Fisher's reaction to the telephone conversation. In the interview with Dr Loves Mr Fisher stated that as soon as Clr Coppock said he should not issue an infringement notice, Mr Fisher knew that was "crossing the line". His evidence that he went to speak to Mr Taylor as soon as the conversation ended is supported by Mr Taylor. Mr Taylor's statement to Dr Loves as to what he was told by Mr Fisher immediately after the telephone conversation, that Clr Coppock had said he "would appreciate it" if a penalty or fine was not issued, is consistent with Mr Fisher's record of the conversation. While Mr Taylor in oral evidence was unable to recall much detail of his conversation with Mr Fisher, he did recall his surprise that Clr Coppock had contacted Mr Fisher, and the key points of what he was told by Mr Fisher.
Secondly, Mr Fisher's evidence that Mr Taylor advised him to put a record of the conversation in a file note is supported by the file note of 18 October 2017. Clr Coppock submitted that the file note is not a contemporaneous document, and while dated 18 October 2017, it was compiled close to the date it was entered in the ECM, 6 November 2017. Clr Coppock submits that there is no evidence that it was produced on 18 October 2017, or that Mr Fisher gave the file note to Mr Taylor; and Mr Taylor could not remember seeing it on 18 October 2017.
The Tribunal does not accept that submission, and is satisfied that that document is a contemporaneous record of the conversation. Based on Mr Fisher's evidence as to his usual practice and the content of the file note itself, the Tribunal accepts Mr Fisher's evidence that he made the file note on 18 October 2017 and that the document stayed in the system until he uploaded it on 6 November. Mr Fisher's evidence that it was his practice to record an inspection in the ECM, but not upload a note he had made in the ECM, as soon as possible as there may be several documents such as photographs to upload is supported by the fact that the file note of 18 October 2017 was not worked on after it was uploaded, and it includes photographs. If that conclusion is not correct, and if the record of the conversation with Clr Coppock was not written on 18 October 2017, at the latest the file note was created by 9am on 6 November 2017.
A third reason why Mr Fisher's account should be accepted is that no reason has been asserted as to why he would invent a request from Clr Coppock that Mr Lum not be subject to regulatory action in relation to unauthorised building works. Clr Coppock's oral evidence was that there was no reason for any personal animus towards Mr Fisher, and he described him in his statutory declaration of 12 May 2018 as "friendly and helpful as I have always found him to be". He acknowledged in the statement of 12 February 2018 that Mr Fisher and his colleagues were proficient in their jobs as compliance officers and he had never questioned the outcome of their work. Mr Fisher stated in his interview that he did not mind speaking to Clr Coppock as like a resident and explaining the situation. There is nothing about that mutual attitude to support any reason or motive for invention.
Fourthly, the Tribunal does not regard inconsistencies in the transcript of Mr Fisher's interview as detracting from the overall reliability of his evidence. Clr Coppock relied on references to Mr and Mrs Lum being the owner. Mr Fisher's oral evidence was that in responding to a CSR he would find out who the owner was either before or after the requested inspection, and he could not recall when he found out who owned the premises. The printout of the CSR confirms that ownership detail was not included. While Mr Fisher spoke only to the tenant on 18 October 2017, both Mr and Mrs Lum were present when he returned to the premises on 19 October 2017 (Annexure B, ex A2); and both were involved in the follow up action, as recorded in the CSR Notes Summary on 28 November 2017. The Tribunal does not regard any inconsistency as to whether or not it was Mr Lum alone who was the owner, or it was Mr and Mrs Lum jointly, as significant.
Clr Coppock also pointed to discrepancies in the words used by Mr Fisher in the interview, being "request" (the word also used in the file note of 18 October 2017) and later in terms of a direction, when Mr Fisher said that Clr Coppock told him he "shouldn't" issue an infringement notice (A104), and "not to issue" an infringement. Clr Coppock submits that the difference in wording between "request" and "direction" is significant, and counts against the reliability of Mr Fisher's evidence.
Mr Fisher did not use the term "direction" or "direct" in the transcript of the interview or in oral evidence. The strongest term used by Mr Fisher in the interview was "shouldn't", and in his oral evidence "don't". The Tribunal regards Mr Fisher's statement at A103 that Clr Coppock "… asked whether, that they not be penalised because they're good people…" as Clr Coppock's approach being understood as a request and not a direction. That was how Mr Fisher responded to Dr Loves' follow up question, whether Clr Coppock "requested you not to issue a penalty infringement to the owner because he was a good bloke", with "something like that" (para [44] above). It is also how Mr Taylor described his recollection of the conversation he had with Mr Fisher, that in essence, Clr Coppock "would appreciate it if a penalty notice or fine wouldn't be issued" (A119, para [55] above).
The Tribunal agrees that Dr Loves' interview with Mr Fisher included a number of leading questions, diminishing the weight that might be afforded to some of the responses. However, the central record of what Clr Coppock said in the conversation, in the passage beginning "He said it's Clr Coppock…" in [44] above, was in response to Dr Loves' prompt to use exact words as far as he could recall. Mr Fisher's further comment that he thought Clr Coppock "was trying to make sure that they didn't get any penalties" (A105, [45] above) was also in response to an open question, as to what gave him the impression that Clr Coppock was trying to influence him.
Fifthly, Mr Fisher's concession in oral evidence that Clr Coppock could have said "Do what you have to do", or that he was not trying to "tell you what to do", is not inconsistent with Clr Coppock requesting or suggesting that Mr Fisher not take regulatory action because Mr Lum was a good bloke. Even if those words were said, the latter on Clr Coppock's evidence at the conclusion of the telephone conversation, they could not redress what would otherwise be a request relating to how Mr Fisher should carry out his enforcement duties.
Sixthly, the Tribunal does not regard the fact that Clr Coppock contacted Mr Fisher through the Council switchboard, submitted to be an indication that he did not attempt to conceal the call; or that there is no apparent motive for his request; or a suggestion that Mr Fisher speak to his manager, as casting doubt on Mr Fisher's account. The call through the Council switch is consistent with Clr Coppock's statement of 12 February 2018 that he prefers to call through the Council switchboard so if the officer is not present he can leave a message on the message bank facility. While Clr Coppock submits that there was no pre-existing relationship of any significance between himself and Mr Lum, and thus no motive for a request, Mr Lum's evidence was that he had known Clr Coppock for over 15 years and had seen him regularly before he closed his restaurant. The possibility that Clr Coppock suggested that Mr Fisher talk to his manager appears in Mr Fisher's interview with Dr Loves, in terms of there being no objection to that course, and after Mr Fisher had stated that he was not the person to whom Clr Coppock should be talking, but rather his manager. It is not mentioned in Clr Coppock's statement of 12 February 2018 or his statutory declaration of 12 May 2018. Its inclusion in the affidavit of 3 September 2020 is in the absence of any context, context only being provided in Mr Fisher's evidence that it was a response to his statement that he was not the person to whom Clr Coppock should speak. The Tribunal does not accept that Clr Coppock independently suggested that Mr Fisher speak to his manager.
While there are some differences in the wording, the Tribunal is satisfied that the file note of 18 October 2017, and the record of the interview some three months later, reflect what Clr Coppock said to Mr Fisher during the telephone conversation. In contrast with those records on the day and relatively shortly thereafter, which are supported by the evidence of Mr Taylor, Clr Coppock's early accounts in the statement of 12 February 2018 and 12 May 2018 provide minimal detail to explain how the telephone call took 9 minutes if the purpose, and substance, was a request for Mr Fisher to call Mr Lum.
Clr Coppock's statutory declaration of 12 May 2018 includes the statement that the call from Mr Lum was no different from the countless calls he had received from constituents who had issues with the Council since 1999, and it is a major function of being a councillor. Based on his oral evidence, it was not unusual for Clr Coppock at least at that time to contact Council staff. In the Tribunal's view the purpose and the substance of Clr Coppock's telephone call was captured in Mr Fisher's comment to Dr Loves that he thought Clr Coppock was acting in his role as a councillor for the people who owned the building, and that he was trying to make sure that they did not get any penalties.
The Tribunal is satisfied that in the telephone conversation of 18 October 2017 Clr Coppock requested Mr Fisher not to take compliance action against Mr Lum in relation to the unauthorised building works being undertaken on the premises in Naremburn. That was more than a perception or impression or misunderstanding of what Clr Coppock was seeking, but based on what he said. Mr Fisher reported that to his manager because he "thought Clr Coppock overstepped a line in requesting that an infringement not be issued".

[14]

Whether Clr Coppock's conduct was in breach of the code of conduct

Relevant provisions of the Code of Conduct, and the Councillors' Access to Information and their Interaction with Staff Policy (Access Policy) which is agreed to be a policy governing the interaction of councillors and staff for the purposes of cl 6.2(c) of the Code of Conduct, are extracted in the Statement of Agreed Facts at [8] above.
Additional provisions in the Access Policy, not included in the Statement of Agreed Facts, need to be noted. The following provision is included under the heading "Interaction between Councillors and Council staff": Councillors must not attempt to direct staff as to the performance of their work. Staff must report all such attempts immediately to their Director or the General Manager.
Under the heading "Inappropriate Interactions", the following is provided: Councillors directing or pressuring staff in the performance of their work, or recommendations they should make; and staff providing advice to Councillors without recording or documenting the interaction as they would if the advice was provided to a member of the community.
Detail of provisions of the Code of Conduct omitted from the Agreed Facts also needs to be noted. Clause 3.1(a) of the Code of Conduct reads in full (omitted material italicised): General Conduct 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: (a) contravenes the Act, associated regulations, Council's relevant administrative requirements and policies …
Clause 5.8 of the Code of Conduct reads in full (omitted sentence italicised): Improper and undue influence 5.8 You must not use your position to influence other Council officials in the performance of their public or professional duties to obtain a private benefit for yourself or for somebody else. A councillor will not be in breach of this clause where they seek to influence other Council officials through the appropriate exercise of their representative functions.
The conduct reviewer concluded that in contacting Mr Fisher and requesting that he not issue an infringement notice to the owner of the premises, Clr Coppock was attempting to influence Mr Fisher in the proper execution of his professional duties for the benefit of his constituent, and that that conduct was in breach of cll 5.8, 6.2(b) and (c), and 6.7(g) of the Code of Conduct, and in breach of the Access Policy. The Departmental Report, adopted by the Deputy Secretary, concluded that by contacting and requesting Mr Fisher to not issue an infringement notice Clr Coppock contravened cll 3.1(a),(c) and (d), 5.8, and 6.2(b) and (c) of the Code of Conduct, and s 440(5) of the LG Act.
In written submissions the respondent submitted that it is relying on cll 3.1(a), (c) and (d), 5.8, and 6.2(b) and (c) of the Code of Conduct, and that the relevant Council policy relied upon in relation to cl 3.1(a) of the Code of Conduct is the Access Policy in force at the time of the conduct. In oral submissions, its position was that it is not relying on cl 6.7(g) of the Code of Conduct, however it would be open to the Tribunal to find a breach.
The parties agree that the specific provisions of the Code of Conduct and the Access Policy need to be understood in the context of s 232 of the LG Act, which relevantly provides: 232 The role of a councillor (1) The role of a councillor is as follows - (a) to be an active and contributing member of the governing body, (b) to make considered and well informed decisions as a member of the governing body, (c) to participate in the development of the integrated planning and reporting framework, (d) to represent the collective interests of residents, ratepayers and the local community, (e) to facilitate communication between the local community and the governing body, (f) to uphold and represent accurately the policies and decisions of the governing body, (g) to make all reasonable efforts to acquire and maintain the skills necessary to perform the role of a councillor. …
The Tribunal accepts that the role of a councillor includes responding to concerns of constituents in their dealings with Council and council staff. It was Clr Coppock's evidence that this had been his practice as a Councillor of many years. The parameters within which representing the interests of the local community (s232(1)(d)) and facilitating communication with the Council (s 232(1)(e)) are appropriately managed are reflected in the provisions of the Code of Conduct, and in the Access Policy. Clause 5.8 of the Code of Conduct refers to the "appropriate exercise" of a Councillor's representative functions. Further detail as to what that entails is provided in the Access Policy, which under the heading "Interaction between Councillors and Applicants/Correspondents" states a protocol for Councillors to observe in their meetings with applicants or correspondents so that they are able to explain and assist with the process of the application, advise they are expressing only a personal opinion on an application which is not the attitude or assessment of Council, avoid giving any judgment in the absence of authority to make a decision, and avoid acting as "mediator" between parties without proper training or authority.
Clr Coppock contends that there was no breach of the Code of Conduct. He submits that he did not seek to influence Mr Fisher in the performance of his duties to obtain a benefit for himself or anyone else, and he did not direct or influence, or attempt to direct or influence, Mr Fisher in the exercise of his functions. His contact with Mr Fisher was not contrary to the Access Policy, as the matter he contacted him about was not a "matter before the Council", he did not contact Mr Fisher for advice or for information on sensitive or controversial matters, and nor did he take advantage of his position as a councillor to improperly influence him.
Clr Coppock submits that if the evidence of Mr Fisher as to the telephone conversation is not accepted, there is no breach of cl 3.1, 6.2(b), or 6.7(g) of the Code of Conduct. For cl 6.2(c) and the Access Policy, the contact was for the purpose of having Mr Fisher contact Mr Lum to tell him what was going on, which would be permissible, and even if not a request for straightforward advice it was for a communication to be made. Clr Coppock accepts that if he said what Mr Fisher alleges, the conduct may have been an improper influence, however there is no indication that the information sought related to sensitive or controversial matters.
The respondent submits that Mr Fisher was not a nominated contact person for the purposes of the Access Policy, and the contact by Clr Coppock was not in the nature of an inquiry for basic information not pertaining to a matter before Council. The telephone call was therefore in breach of the Access Policy, and the relevant provisions of the Code of Conduct.

[15]

Discussion and findings

The Access Policy requires that other than for basic information not pertaining to matters before Council, a Councillor is to direct requests for information and approaches to staff to the General Manager, Directors, or persons nominated by the General Manager. An approach to a junior member of staff for information on sensitive or controversial matters is identified as an inappropriate interaction. Mr Fisher, while an experienced compliance officer, was not General Manager or a Director, and was not a nominated contact person identified in an email to councillors from the Acting Governance Manager of 30 June 2017, which included a summary of the requirements relating to councillors seeking information from Council staff other than routine conversations or basic administrative queries. That email also provided a copy of Part 6 of the Code of Conduct and the Access Policy. A further email of 5 July 2017 provided names and contact extension numbers of the persons nominated as a contact.
In his statement of 12 February 2018 Clr Coppock referred to that email, and stated that in 2017 he did not receive or read Council emails, and Council emails were not being communicated to him by any other method. The issue of Clr Coppock's receipt of Council emails was not explored in oral evidence or submissions. Regardless of whether or not Clr Coppock was aware, or should have been aware, in October 2017 as to who were the nominated persons for the purposes of the Access Policy, he accepted in oral evidence that he was familiar with the general terms of the Access Policy, and stated that he would normally call the General Manager or a Director. That would be consistent with the Access Policy.
The telephone call to Mr Fisher did not involve "basic information not pertaining to matters before Council", and the matter was not "straightforward advice on administrative matters". It related to a current investigation into alleged unauthorised building works. The question of possible enforcement action that might be taken in response was a sensitive matter. While he was an experienced compliance officer, Mr Fisher was not a senior member of staff. He was the compliance officer who had carried out an inspection of premises owned by Mr Lum, the person on whose behalf Clr Coppock stated he was calling. The telephone call was an inappropriate interaction, and in breach of the Access Policy.
In suggesting or requesting that Mr Fisher not take penalty or infringement action, Clr Coppock was taking advantage of his position as Councillor to influence a member of staff in the performance of his public duties. While that was not for the purpose of securing any personal benefit, it was for the benefit of Mr Lum. That was a breach of the Access Policy.
The contact with Mr Fisher otherwise than in accordance with the Access Policy was a breach of cl 6.2(c) of the Code of Conduct, and being in contravention of the Council's relevant administrative requirements and policies as to contact with staff under the Access Policy, was in breach of cl 3.1(a) of the Code of Conduct.
The request went beyond any representative function of a Councillor, as Clr Coppock recognised in his affidavit of 3 September 2020 in which he stated his understanding that directions, express or implied, to do with anything concerning compliance or enforcement measures had to be avoided. To make such a request was a misuse of Clr Coppock's position, in breach of cl 5.8 of the Code of Conduct. It was an attempt to influence a member of staff, in breach of cl 6.2(b) of the Code of Conduct. Having regard to the terms in which Mr Fisher described the request, the Tribunal does not conclude that Clr Coppock's conduct can appropriately be described as "directing" a member of staff in the performance of his work. However it could, even if Mr Fisher did not feel intimidated by it, be regarded as "pressuring", and as such it constituted a breach of cl 6.7(g) of the Code of Conduct.

Coppock v Department of Planning and Environment

At a glance

Court

Decision date

Source

Judgment (18 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (2)

Cited By (1)