Solicitors:
Robert Balzoa & Associates (Applicant)
File Number(s): 1520171
[2]
Introduction
At all material times the Applicant was a councillor of the Penrith City Council.
The Respondent is described in the Application as "the Director-General of the Department of Local Government (NSW)" but in accordance with the relevant legislation, is more correctly described as "The Chief Executive of the Office of Local Government".
On 2 September 2015, the Applicant made the application to the Tribunal expressed to be under S 440 L of the Local Government Act (1993) and S 7 of the Administrative Decisions Review Act (1997) and S 30 of the Civil and Administrative Tribunal Act (2013).
The Applicant sought review of a decision of the Respondent contained in a letter dated 5 August 2015 from Penrith City Council to the solicitors for the Applicant. The Application stated that a copy of the decision involved was attached to the Application and was a letter dated 5 August 2015. The Application stated that the applicant was notified of the decision by the letter dated 5 August 2015.
The letter is from the Senior Governance Officer of the Council and refers to several decisions. One is a decision of a reviewer/investigator who investigated a code of conduct complaint in relation to the conduct of the Applicant. A preliminary decision was made by the reviewer/investigator that the matter should be formally investigated. That decision was notified to the Applicant by Notice of Investigation of 29 December 2014 and is not the decision the subject of the Application for review.
The draft Final Investigation Report was issued on 22 March 2015, including to the Applicant. The Final Investigation Report was issued on 21 April 2015 (including to the Applicant). The Application does not seek in the Application to review any decision of the reviewer/investigator contained in the Final Investigation Report or in the previous draft.
By letter of 6 May 2015 the Applicant's solicitors wrote to the Office of Local Government complaining of numerous alleged defects in that report. By letter of 5 June 2015 the Office of Local Government replied to those allegations by a 4 page letter to the Applicant's solicitors setting out the findings of an internal review of the Investigator's report and reasons the allegations made were found to be unsubstantiated. That review decision rejecting the allegations was 3 months before the filing of the Application by Mr Cornish of 2 September 2015 and was not the decision identified by the Application as the decision the Applicant sought to have reviewed.
On 9 July 2015 the solicitors for the Applicant wrote to the Council making allegations of defects in the Final Investigation Report. The Council conveyed these matters to the Office of Local Government by its letter of 10 July 2015.
On 4 August 2015 the Council received from the Office of Local a letter advising that the allegations raised in the letter of 9 July 2015 from the solicitors for the Applicant to the Council, were matters previously raised and dealt with by the earlier review and responded to by its letter of 5 June 2015 to the solicitors. The reason given for refusal to reconsider the allegations of 9 July 2015 was there were no "new issues or information that would warrant it to revisit its previously expressed position in relation to this matter".
The Council, by its letter of 5 August 2015 to the Applicant's solicitors, notified the Applicant of the decision of the Office of Local Government refusing a further review of the decisions of the investigator in the Final Investigation Report. It is that refusal of the Office of Local Government in respect of which the Applicant sought a review by the Tribunal.
Directions were made 0n 29 September 2015 by the Deputy President for the respondent to file and serve by 13 October 2015 "application for summary dismissal and if the Tribunal is not …….. minded to dismiss the application, an application to join Penrith City Council and any incidental application as to the proper parties".
There were also directions made by consent that the matter then be dealt with on the papers without appearances, for the Applicant to file and serve submissions in reply by 10 November 2015 and for service of submissions on Penrith City Council.
The respondent filed and served an application for summary dismissal of the proceedings on the following grounds on 13 October 2015 (with submissions attached):
1. The Tribunal has no jurisdiction in respect of the application;
2. The Office of Local Government is not the proper respondent or a necessary party as the decision to which the application relates is not a decision of the Office of Local Government;
3. Penrith City Council is the necessary party as the decision to which the application relates is a decision of Penrith City Council.
On 10 November 2015 the Applicant Mr Cornish filed and served submissions opposing summary dismissal and the Penrith City Council filed its submissions supporting summary dismissal.
[3]
Decision(s) in the letter dated 28 July 2015
The letter dated 5 August 2015 notified the Applicant of a refusal of the Office of Local Government to further review the Final Investigation Report. .disciplinary decision by the Penrith City Council against him made by the Council at its meeting on 27 July 2015. The letter did not notify of any other decision.
[4]
S 7 of the Administrative Decisions Review Act 1997
This section provides:
Meaning of "administratively reviewable decision"
1. An
"administratively reviewable decision" is a decision of an administrator over which the Tribunal has administrative review jurisdiction.
1. For the avoidance of doubt (and without limiting subsection (1) or section 6):
the conduct of an administrator (or a refusal by an administrator to engage in conduct) is an administratively reviewable decision if enabling legislation identifies that conduct or refusal as conduct or refusal over which the Tribunal has administrative review jurisdiction, and
in its application to any such conduct or refusal by an administrator, any reference in this Act (however expressed) to an administrator making an administratively reviewable decision includes a reference to an
administrator engaging or refusing to engage in the conduct.
Note : The jurisdiction conferred on the Tribunal by section 55 of the Privacy and Personal Information Protection Act 1998 is an example of administrative review jurisdiction of the Tribunal over conduct.
[5]
S 30 of the Civil and Administrative Tribunal Act 2013
This section provides:
Administrative review jurisdiction
(1) The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has "administrative review jurisdiction" over a decision of an administrator.
Note : See section 9 of the Administrative Decisions Review Act 1997 .
(2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its administrative review jurisdiction:
the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings,
the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act, the Administrative Decisions Review Act 1997 or enabling legislation in connection with the conduct or resolution of such proceedings.
(3) An "administratively reviewable decision" is a decision of an administrator over which the Tribunal has administrative review jurisdiction.
Note : See section 7 of the Administrative Decisions Review Act 1997 .
(4) An "administrator" , in relation to an administratively reviewable decision, is the person or body that makes (or is taken to have made) the decision under enabling legislation.
Note : See section 8 of the Administrative Decisions Review Act 1997
(5) An "administrative review decision" of the Tribunal is a decision of the Tribunal determining a matter over which it has administrative review jurisdiction.
(6) An "administrative review application" is an application made to the Tribunal for an administrative review decision.
Note: Chapter 3 (Process for administrative reviews under this Act) of the Administrative Decisions Review Act 1997 also makes provision for the role of administrators when making administratively
[6]
S 440L of the Local Government act 1993
This is an enabling provision in respect of reviews by the Tribunal of disciplinary decisions. It provides:
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:
1. confirm the decision, or
2. amend the decision, or
3. 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 councilor and any disqualification that resulted from the suspension ceases to have effect.
This section relates to disciplinary decisions against councillors by the Office of Local Government. The decision notified in the letter dated 5 August 2015, being the decision the applicant seeks to review, is not such a decision by Office of Local Government.
[7]
Other Legislation enabling review by the Tribunal of the relevant decision
The submissions for the Council and the Office of Local Government assert that there is no enabling legislation that confers jurisdiction on the Tribunal to review the decision sought to be reviewed.
But the applicant, in 12 pages of submissions in reply, does not address that issue. The applicant does not nominate any other source of jurisdiction enabling the Tribunal to review the decision.
The Tribunal is not aware from its own research of any such provision.
[8]
Conclusion
The Tribunal concludes that it has no jurisdiction to review the decision of the Council sought to be reviewed. The application should therefore be dismissed.
[9]
Order
The order of the Tribunal is:
1. The application (of Marcus Cornish) is dismissed for want of jurisdiction.
[10]
NOTE:
The Tribunal notes that the application is misconceived as to the nature of the review application under the Administrative Decisions Review Act 1997. The applicant in the Application implies that the review would involve the Tribunal making findings as to errors by the decision maker, rather than a re-hearing as required by S 63 of that Act.
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
[11]
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: 02 February 2016
Parties
Applicant/Plaintiff:
Cornish
Respondent/Defendant:
The Chief Executive of the Office of Local Government