Marcus Cornish, Councillor of Penrith City Council, has lodged an appeal against the decision of the Tribunal made on 12 July 2018 pursuant to s482A(2)(c) of the Local Government Act 1993 (LG Act) to suspend his right to payment for a period of three months: Chief Executive, Office of Local Government v Cornish [2018] NSWCATOD 110.
For the reasons which follow we find that the decision of 12 July 2018 is not an internally reviewable decision for the purposes of an internal appeal, and as a consequence, we dismiss the appeal pursuant to s55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NCAT Act).
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Background
The proceedings have their origin in conduct of Clr Cornish at an Ordinary Council meeting on 24 November 2014 and an Extraordinary Council meeting on 8 December 2014. On 21 April 2015 a Conduct Reviewer completed a Code of Conduct complaint investigation report (the Report), in which she found that Clr Cornish had by his conduct at those meetings breached the Council's Code of Conduct. On 27 July 2015 the Council resolved to formally censure Clr Cornish for breach and adopt the recommendations of the Report, inter alia, to require that he acknowledge the findings of breach, offer an unqualified apology, give an undertaking not to make negative or derogatory comments regarding the complaint, and attend and participate in training relating to the Code of Conduct, all to be completed within three months. Clr Cornish has not complied with those requirements.
Cornish v Chief Executive, Office of Local Government [2018] NSWCATAP 235 | Case summary | Zoe
In a letter dated 22 June 2017 the respondent informed the Tribunal that it had determined to refer the matter to the Tribunal. On 13 July 2017 the respondent filed an Application for Disciplinary Findings and Orders, seeking an order that the Tribunal conduct proceedings pursuant to s 469 of the LG Act into the complaint that formed the basis of the Report. The grounds for the application were that Clr Cornish had breached cll 8.8 and 8.10 of Penrith City Council's Code of Conduct and committed misconduct by reference to s440F of the LG Act by failing to comply with the resolution of the Council of 27 July 2015.
On 27 July 2017 the Tribunal determined to conduct proceedings into the matter pursuant to s 470A(1) of the LG Act. In an amended application dated 3 October 2017 the respondent sought an order pursuant to s482A(2)(c) of the LGA Act that Clr Cornish be suspended from civic office; in the alternative, an order pursuant to s482A(2)(d) that his right to be paid a fee or remuneration be suspended; and further or in the alternative, an order pursuant to s 482(2)(b) that he be reprimanded.
In response to the application, Clr Cornish submitted that the statutory criteria for s482A of the LG Act were not satisfied and that the Tribunal lacked jurisdiction to hear the application; that the questions of fact and law in the Conduct Reviewer's Report had never been reviewed on the merits; that he had been denied procedural fairness; that there was no evidence to support the relief sought; and that the relief sought was excessive.
The Tribunal rejected each of those submissions, finding that the failure of Clr Cornish to comply with the resolutions of 27 July 2015 was a breach of cl 8.10 of the Council's Code of Conduct, and concluding that the appropriate order under s 482A of the LG Act was to suspend Clr Cornish's right to payment for a period of three months from the date of its orders.
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The Appeal
The appeal was lodged on 24 July 2018, within the 28 day period specified in r 25(4) of the Civil and Administrative Tribunal Rules (NCAT Rules). The 33 Grounds of Appeal can be summarised as a challenge to:
1. The constitution of the Tribunal by one Member rather than a panel of three;
2. The findings of breach of cll 8.8 and 8.10 of the Council Code of Conduct;
3. The validity of the Council resolution of 27 July 2015 and the requirements made by that resolution;
4. Procedural steps in the Tribunal;
5. The Tribunal's interpretation of relevant provisions of the LG Act; and
6. Rulings on evidence and disclosure of material to the Tribunal.
Leave to appeal was sought to challenge the Tribunal's findings of fact. Clr Cornish sought a stay of the orders made on 12 July 2018.
In the Reply to Appeal the respondent contended that the Appeal Panel does not have jurisdiction in respect of the appeal, and sought an order dismissing the appeal pursuant to s 55(1)(b) of the NCAT Act on the basis that the proceedings are misconceived. The respondent sought to have the question of jurisdiction determined separately to and before the determination of any other issue in the appeal.
The appeal was listed for call over and the hearing of an application for a stay on 2 August 2018. On that occasion the application for a stay was adjourned, and orders were made for the issue of whether the Appeal Panel has jurisdiction to be determined on the papers under s 50 of the NCAT Act, with the parties to provide submissions on the jurisdictional issue by 30 August 2018 and 6 September 2018.
Clr Cornish provided written submissions on the stay application and the jurisdiction issues dated 31 August 2018, received at the Tribunal on 3 September 2018. The respondent's submissions on jurisdiction were received on 7 September 2018.
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Relevant legislation
Under s 80(1) of the NCAT Act, the Appeal Panel has jurisdiction to determine an appeal against an "internally reviewable decision", defined in s32(4) as "a decision of the Tribunal or a registrar over which the Tribunal has internal appeal jurisdiction". Section 32(1) provides:
(1) The Tribunal has internal appeal jurisdiction over:
(a) any decision made by the Tribunal in proceedings for a general decision or administrative review decision, and
...
Schedule 5 to the NCAT Act provides for the Occupational Division. Part 3 of Sch 5 allocates to the Occupational Division the functions of the Tribunal under 18 statutes, including the LG Act. Subject to some exceptions identified in cl 4(2) of Sch 5 relating to the administrative review jurisdiction of the Tribunal, those functions fall within the "general jurisdiction" of the Tribunal as defined in s 29(1) of the NCAT Act.
Section 17(3) of the NCAT Act provides:
(3) The provisions of a Division Schedule for a Division of the Tribunal prevail to the extent of any inconsistency between those provisions and any other provisions of this Act (except Part 3A) or the provisions of the procedural rules.
Part 6 of Sch 5 provides for appeals:
29 Certain profession decisions to be appealed directly to Supreme Court or Land and Environment Court
(1) Profession decisions not internally appealable
Despite section 32 of this Act, each of the following Division decisions (a profession decision) is not an internally appealable decision for the purposes of an internal appeal:
…
(f) a decision for the purposes of the Local Government Act 1993 other than:
(i) a decision for the purposes of section 469 of that Act not to conduct proceedings into a complaint, or
(ii) a decision for the purposes of section 470 of that Act to determine proceedings into a complaint without a hearing,
…
(2) Right to appeal to Supreme Court or Land and Environment Court
However, a party to proceedings in which a profession decision is made may appeal against the decision in accordance with this clause to:
(a) in the case of an order for the purposes of Division 3 of Part 5 or Division 4 of Part 7 of the Aboriginal Land Rights Act 1983 declaring a vacancy in an office - the Land and Environment Court, and
(b) in the case of any other decision - the Supreme Court.
(3) Despite subclause (2), an appeal does not lie with respect to any of the following Division decisions:
(a) a decision made for the purposes of section 89 (2) of the Legal Profession Uniform Law Application Act 2014,
(b) any other decision of a kind prescribed by the regulations made for the purposes of that Act.
(4) Basis or grounds for appeal
An appeal to a court under this clause:
(a) in the case of an appeal against a decision for the purposes of the Legal Profession Uniform Law (NSW) - is an appeal to which section 75A of the Supreme Court Act 1970 applies and, accordingly, is by way of a rehearing rather than a new (de novo) hearing, and
(b) in the case of any other appeal (a non-lawyer appeal) - may be made as of right on any question of law, or with the leave of the court, on any other grounds.
Note.
See also section 84 (Practice and procedure for appeals to courts under this Act).
(5) Subclause (4) (a) does not affect the provisions of section 75A of the Supreme Court Act 1970 relating to the receipt of evidence by the Supreme Court.
(6) Leave required in certain cases Despite subclauses (2)-(5), an appeal does not lie to a court under this clause against any of the following decisions except by leave of the court:
(a) an interlocutory decision of the Tribunal,
(b) a decision made with the consent of the parties,
(c) a decision as to costs.
(7) Non-lawyer appeals
The court in a non-lawyer appeal may:
(a) decide to deal with the appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and
(b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.
(8) In determining a non-lawyer appeal, the court may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following:
(a) the decision under appeal to be confirmed, affirmed or varied,
(b) the decision under appeal to be quashed or set aside,
(c) the decision under appeal to be quashed or set aside and for another decision to be substituted for it,
(d) the whole or any part of the case to be reconsidered by the Tribunal at first instance, either with or without further evidence, in accordance with the directions of the court.
(9) Effect of appeal on profession decision
Subject to any interlocutory order made by the court concerned, an appeal under this clause does not affect the operation of the Division decision under appeal or prevent the taking of action to implement the decision.
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Submissions
Cl Cornish submits that the Appeal Panel has jurisdiction, for the following reasons:
1. There are serious and live questions as to the appropriateness and legality of the application of the provisions of the LG Act that ultimately led to the orders made, and the jurisdiction of the Appeal Panel as an internal appeal may be well founded in finding that there is no Profession Decision within the meaning of cl 29 of Sch 5 to the NCAT Act. There may be no statutory bar to the application of the internal appeal and cl 29 has no application to this application for internal appeal;
2. Taking the respondent's case at its highest, assuming that cl 29 has application, then the decision below is a hybrid decision being part Profession Decision and part General Decision. Even allowing for the statutory discretion to appeal a costs decision per cl 29(6) of Sch 5, the latent error within the decision below places that decision as one of generalised error and not attracting cl 29(6) that leave to appeal a costs order is required by leave to the Supreme Court of New South Wales;
3. The issues of classes of decision prescribed in Sch 5 being Profession Decision, General Decision and Review Decisions is a serious matter to be tried and a unique opportunity to assess how such hybrid decisions are dealt with in the Tribunal. At this point the jurisdiction question is ambiguous and in need of determination.
The respondent submits that the decision of the Tribunal from which Clr Cornish seeks leave to appeal is not an internally appealable decision and the Appeal Panel does not have jurisdiction. That decision is a decision for the purposes of the LG Act, and is not a decision for the purposes of ss 469 or 470 of the LG Act, being neither a decision not to conduct proceedings into a complaint nor a decision to determine proceedings without a hearing. The submission that the decision is a "hybrid" is erroneous: even if the Tribunal had made a determination on the question of costs, the decision as a whole would still be a decision for the purposes of the LG Act. The respondent observes that Clr Cornish has filed a summons in the Supreme Court seeking to appeal from the Tribunal decision, and contends that the Supreme Court has jurisdiction in relation to that appeal.
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Consideration
The decision of the Tribunal of 12 July 2018 was a decision made under s482A(2)(d) of the LG Act to suspend the right of Clr Cornish to be paid a fee for a period of three months. Whether or not any of the grounds on which Clr Cornish contests the legal validity of the findings in the Report, or of the Council resolution of 27 July 2015, or of the procedure or reasoning or determination of the Tribunal, could be established, it was a "decision" as defined in s5 of the NCAT Act. It was a "general decision" as defined in s29(3) of the NCAT Act. It was also, for the purposes of identifying appeal rights in Part 6 of Sch 5, a "profession decision".
That decision did not involve the exercise of any of the functions conferred on the Tribunal under either s469 (not to conduct proceedings into a complaint) or s470 (to determine proceedings into a complaint without a hearing) of the LG Act. Accordingly, it was not an "internally appealable decision" as defined in cl 29(1)(f) of Sch 5 to the NCAT Act. Clause 29 of Sch 5 prevails over the general provision of the internal appeal jurisdiction of the Tribunal in s32 of the NCAT Act, both in its terms, and by operation of s17(3) of the NCAT Act.
The internal appeal jurisdiction of the Appeal Panel is conferred only in respect of an "internally appealable decision". By operation of cl 29(1)(f) of Sch 5, the Tribunal decision of 12 July 2018 was not an "internally appealable decision", and the Appeal Panel has no jurisdiction to review it. The Supreme Court of New South Wales has jurisdiction conferred by cl 29(2)(b) of Sch 5 to hear an appeal from that decision, as confirmed in Mehajer v Director-General of the Department of Local Government [2016] NSWSC 143. Such an appeal is limited by cl 29(4)(b) to a question of law unless that Court grants leave to appeal on any other grounds.
The Appeal Panel has no jurisdiction to hear and determine this appeal, and the proceedings should be dismissed.
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Orders
The Appeal Panel orders:
1. Pursuant to s55(1)(b) of the Civil and Administrative Tribunal Act 2013, the proceedings are dismissed.
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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: 09 October 2018