Darley v City of Parramatta Council

Medium Neutral Citation: Darley v City of Parramatta Council [2025] NSWSC 990

Hearing dates: 29 May 2025

Date of orders: 29 August 2025

Decision date: 29 August 2025

Jurisdiction: Common Law

Before: Schmidt AJ

Decision: Judgment for Ms Darley

Catchwords: ADMINISTRATIVE LAW – local government – judicial review – complaint about councillor – Local Government Act 1993 (NSW) – Council’s Code of Conduct and applicable administrative procedures – construction of Act, Code and procedures – whether conduct reviewer and investigator adhered to the Code and procedures – whether complaints co-ordinator acted contrary to the Code and procedures – whether complaints co-ordinator exceeded authority – whether general manager adhered to requirements of Act – whether reasons given in reviewers reports inadequate – whether conduct reviewer failed to give required consideration to submissions – judicial review
ADMINISTRATIVE LAW – censure of councillor – construction of Local Government Act 1993 (NSW) – construction of Council's Code of Conduct – Council’s decision – reasonable apprehension of bias – procedural fairness – not provided with all relevant information – judicial review of censure
ADMINISTRATIVE LAW – the Hardiman principle – whether Council breached Hardiman principle in acting as active contradictor in these proceedings

Legislation Cited: Defamation Act 2005 (NSW)
Local Government Act 1993 (NSW)
Public Interest Disclosure Act 1984 (NSW)
Public Interest Disclosure Act 2022 (NSW)
Supreme Court Act 1970 (NSW)

Cases Cited: CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50
Commissioner of Police, New South Wales Police Force v Fine (2014) 87 NSWLR 1; [2014] NSWCA 327
Henroth Investments Pty Ltd v Sydney North Planning Panel [2019] NSWCA 68
Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101; [2008] HCA 38
McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209
Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11
Murlan Consulting Pty Ltd V Ku-Ring-Gai Municipal Council [2009] NSWCA 300
National Companies & Securities Commission v News Corporation Ltd (1984) 156 CLR 296; [1984] HCA 29
Nichols v Singleton Council (No 2) [2011] NSWSC 1517
Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34
The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13
Wang v Law Society Council (NSW) (2009) 73 NSWLR 226
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43

Category: Principal judgment

Parties: Kellie Darley (Plaintiff)
City of Parramatta Council (First Defendant)
Phil O’Toole in his capacity of conduct reviewer appointed by the City of Parramatta Council (Second Defendant)

Representation: Counsel:
C Jackson (Plaintiff)
E Holmes SC with O Ronan (First Defendant)
R Harvey (Second Defendant)
Solicitors:
Stringbark Legal (Plaintiff)
HWL Ebsworth Lawyers (First Defendant)
Gilchrist Connell (Second Defendant)

File Number(s): 2024/266362

Publication restriction: Nil

JUDGMENT

1. In December 2023 the City of Parramatta Council resolved to enter into an arrangement, described as a “3-year strategic partnership”, with the Parramatta Eels Rugby League Club. Its decision was made in a closed session as s 10A(2) of the Local Government Act 1993 (NSW) permits in specified circumstances. That attracting s 423A of the Act, which obliged the councillors to keep what was discussed in the closed session confidential.

2. The decision itself was not confidential and was soon announced by Council’s press release, which attracted considerable public attention.

3. Ms Darley and other councillors disagreed with the Council’s decision. She conveyed her views in social media posts and an interview. This came to the Council’s attention as a result of complaints made to its General Manager later in December 2023.

4. The complaint about Ms Darley concerned her alleged disclosure of confidential information discussed at the Council meeting; the disclosure of financial information about the partnership known to be untrue; and the making of untrue statements about the partnership. The complaint had to be investigated and dealt with in accordance with the Council’s Code of Conduct, which it had adopted as s 440G of the Act required it to do.

5. Section 440(5) of the Act imposes obligations on councillors and Council staff to comply with applicable provisions of such a code of conduct, with specified exceptions. Section 440AA(5) requires them to also comply with model procedures for the administration of such a code. Section 674A precludes a Council from bringing civil proceedings against a councillor in relation to an alleged contravention of s 440.

6. Section 440G(1) permits a Council to formally censure a councillor for misconduct, by resolution adopted at a meeting. “Misconduct of a councillor” being defined in s 440F(1) to include, “a failure by the councillor to comply with an applicable requirement of a code of conduct”: s 440F(1)(b). Section 440G(3) only permits a Council to pass a formal censure resolution, “if it is satisfied that the councillor has engaged in misconduct on one or more occasions.”

7. The General Manager referred the complaint about Ms Darley to the Council’s Ombudsman and Complaints Co-ordinator, Ms Renneberg. The result was that Mr O’Toole was appointed as the independent conduct reviewer tasked with investigating the complaint in accordance with the Code of Conduct and making a report about it to the Council, in accordance with the requirements of the Code and the applicable procedures.

8. In July 2024 Mr O’Toole issued his final report, which he had prepared with the assistance of Ms Renneberg. He attached a number of documents to the report, in which he concluded that two of the four allegations he had investigated had been substantiated. He recommended, as a result, that the Council formally censure Ms Darley.

Conclusion

15. For reasons which follow I am satisfied that on what the evidence establishes, the Court must exercise its discretion to make the orders Ms Darley pressed, given the errors into which I am satisfied the Council, its General Manager, its complaints co-ordinator and its conduct reviewer each fell, when dealing with the complaint which had been made against Ms Darley.

16. Further, that the Council was wrong in defending its own decision as it did, that course having breached the Hardiman principle, to which it ought to have adhered.

The parties’ cases

17. Ms Darley seeks orders quashing or setting aside Mr O’Toole’s report or in the alternative, declaring it to be invalid or of no effect. She also seeks an order quashing or setting aside the Council’s decision to censure her. She pursued her case on the following grounds:

18. Ground 1: The report was infected by a reasonable apprehension of bias;

19. Ground 2: The conduct reviewer misconstrued or misapplied the Code in ways which gave rise to jurisdictional error;

20. Ground 3: The conduct reviewer erred in constructively failing to exercise his jurisdiction, misconstruing his statutory task or otherwise erred in law in ways which affected the exercise of his jurisdiction;

21. Ground 4: The conduct reviewer’s reasons were inadequate or illogical and failed to comply with cl 7.3 of the Code, or otherwise the reasons reveal jurisdictional error in ways particularised;

22. Ground 5: The conduct reviewer failed to give genuine, proper and realistic consideration to Ms Darley’s submissions;

23. Ground 6: The Council’s decision was infected by a reasonable apprehension of bias;

24. Ground 7: The Council denied Ms Darley procedural fairness in the making of the decision to censure, and thus erred in the exercise of its jurisdiction;

25. Ground 8: The conduct reviewer erred in the exercise of his role as an independent conduct reviewer under the Code in specified ways, including by inviting submissions from the Complaints Co-ordinator about his draft reports, altering the reports without disclosing her intervention to Ms Darley;

26. Ground 9: The conduct of the conduct reviewer gave rise to a reasonable apprehension of bias;

27. Ground 10: The complaints co-ordinator, as an employee or agent of the Council, exceeded her authority in a manner which affected the conduct reviewer’s exercise of his power; and

28. Ground 11: The Council erred in the exercise of its jurisdiction when it censured Ms Darley in reliance on the conduct reviewer’s report, which was invalid.

29. The Council contended that none of the grounds advanced had been established. Further, that both the code of conduct and applicable procedures had been complied with by Mr O’Toole, Ms Renneberg, the General Manager and the Council in the required procedurally fair process, in which the challenged decisions had been impartially made.

30. Mr O’Toole defended the challenge to his decision and the role that Ms Renneberg played in the review he had conducted, on a similar basis.

Issues

20. What was in issue included whether:

21. The Council should have actively defended not only the report on which it acted, that involving a consideration of the requirements of its Code of Conduct and the applicable procedures, as well as the conduct of its complaints co-ordinator and conduct reviewer, but also its own decision to censure Ms Darley. Or, whether it should have rather submitted itself to the Court in respect of its own decision;

22. The proper construction and operation of aspects of the Act, the Code of Conduct and the applicable procedures;

23. Mr O’Toole or Mr Renneberg had departed from the requirements of the Code of Conduct and the applicable administrative procedures in the investigation of the complaint against Ms Darley, given the role Ms Renneberg was given or took in the investigation and production of Mr O’Toole’s reports;

24. The result was that Mr O’Toole’s final report, on which the Council acted, was invalid;

25. Ms Darley was denied the procedural fairness she was entitled to receive;

26. Apprehended bias on the part of Mr O’Toole had been established;

27. Mr O’Toole had failed to provide the required reasons for his decision to recommend Ms Darley’s censure;

28. There had been further departures from the Code of Conduct, procedures and the Act because, as the result of decisions made by Ms Renneberg and the General Manager, councillors were not provided with annexures to Mr O’Toole’s report to consider; and

29. Apprehended bias on the part of the Council at the meeting had also been established.

Should the Council have actively resisted Ms Darley’s application to have its own decision to censure Ms Darley set aside?

21. In The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 at [54] the High Court stated at the end of its judgment:

“There is one final matter. Mr. Hughes was instructed by the Tribunal to take the unusual course of contesting the prosecutors' case for relief and this he did by presenting a substantive argument. In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal.”

22. This has become known as the Hardiman principle. The result is that usually, administrative decision makers whose decisions are challenged on judicial review such as this, submit themselves to the Court and do not appear to defend decisions which they have made.

23. In Commissioner o**f Police, New South Wales Police Force v Fine (2014) 87 NSWLR 1; [2014] NSWCA 327, it was explained that the tribunal in question in Hardiman had been required to investigate matters relevant to the inquiry it was undertaking in relation to the acquisition of shares in a licensee company. But it had limited the extent of the inquiry which it was prepared to undertake and had also placed restrictions upon the manner in which the proceedings before it were conducted, with the result that it had failed to discharge its statutory responsibility. That being because it had precluded itself from inquiring into matters that were relevant to that inquiry and what it was bound to investigate: at [62]-[63].

24. The inappropriateness of such an adjudicative body taking an active role in review proceedings was there explained to be because of the danger that the tribunal’s impartiality would thereby be compromised: at [65].

25. It follows that there are real similarities between what arose to be considered in Hardiman and in this case.

26. Under the Act, it is the Council who must be the decision maker in relation to complaints made about its councillors, that being a function which it cannot delegate: s 377. It is also the Council which is given the discretion to censure its councillors for breach of its code of conduct: s 440G. Such a censure potentially having serious consequences for a councillor, including suspension: s 440K.

27. That all underscoring the importance of the Council’s impartiality not being compromised when it has to consider a complaint which has been investigated under its Code.

28. A similar problem arose in Nichols v Singleton Council (No 2) [2011] NSWSC 1517. But that Council had not yet considered the report of the person it had appointed to investigate the complaint made against one of its councillors. Initially, it also took an active role in the proceedings, which I considered did not appear to accord with the Hardiman principle: at [198].

29. That Council abandoned the course it was pursuing, finally limiting itself at the hearing to resisting orders which would preclude it from dealing further with the complaint, in accordance with obligations imposed upon it by its code of conduct and the Act: at [199]. I took the view that the preferable course in that case would have been for that Council, from the outset, to have confined itself as it finally did: at [204].

“(a) the censure resolution was not the resolution of an “inter partes dispute” in the sense which engages Hardiman;

(b) the Council is the only “real contradictor” in respect of the relief sought against it;

(c) the legislative framework requiring the Council to utilise its censure powers to restrain or remedy breaches of the Local Government Act 1993 (NSW) supports its ability to defend the exercise of that power in litigation; and

(d) this is not a case in which remitter is sought, and there are means by which any outstanding complaint could be resolved without any further involvement by the Council, mitigating the risk of impartiality which Hardiman is intended to address.”

40. True it is that the Council was not dealing with an inter partes dispute. It was rather exercising a statutory power under its Code of Conduct with the applicable procedures intending that there would be a procedurally fair process which would result in an impartial decision.

41. Still the Council’s submissions were not confined to assisting the Court to deal with the challenges to Mr O’Toole’s report, in respect of which it was not the only contradictor, or even the conduct of its complaints co-ordinator and General Manager, but also its own decisions.

42. In McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; [2008] NSWCA 209 the Council was the consent authority whose decision was challenged as invalid. It was accepted that given the suggestion of improper conduct there in issue, it was appropriate for the Council to take an active role in defence of its councillors and officers: at [227].

43. In this case, that approach would appear to encompass the Council’s defence of the actions of its conduct reviewer, complaints co-ordinator and the General Manager. There is no complaint about improper conduct on the part of the councillors, it is apprehended bias which is raised in their context.

44. In Henroth Investments Pty Ltd v Sydney North Planning Panel [2019] NSWCA 68, on which the Council also relied, there was no challenge to any decision of the Council or anything which it had done, but it was still joined as a party to proceedings in the Land and Environment Court and to the appeal. It was considered that the Council should not have been joined: at [50]. Its interests not having been the same as that of the Planning Panel whose decision was challenged. And that the Council should have submitted to the Court, on the usual terms: at [51].

45. The Planning Panel did take an active role in defending its decision, without challenge. But it was observed that this also appeared to contravene the Hardiman principle: at [52]. It is difficult to see that in defending its own decision the Council was not in a similar position.

46. Like in Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [12], “it might have been expected that the Council would submit to such order as the Court might make and that it would not become a protagonist, lest by doing so it endanger the impartiality it would be expected to maintain upon any subsequent” consideration of the complaint about Ms Darley, if its decision to censure her is set aside, as she seeks.

47. But it was also observed in Henroth that “it could hardly be said that a decision-maker necessarily endangers its appearance of impartiality by taking an active role in proceedings where no other party is available to do so. That risk would be significant if it sought to cross-examine witnesses or call evidence; to take the more limited role in judicial review proceedings of arguing points of law is unlikely to create any material risk. Particularly is that so where the decision-maker is represented by independent counsel”: at [56].

Was Mr O’Toole’s report invalid?

59. I am satisfied that it was.

60. This issue turns on the specific provisions in the Procedures for the Administration of the Code which expressly contemplate that a failure to comply with the procedures may involve a breach of the Code which will render a decision invalid. Part 9 providing:

“9.1 A failure to comply with these procedures does not, on its own, constitute a breach of the code of conduct, except as may be otherwise specifically provided under the code of conduct.

9.2 A failure to comply with these procedures will not render a decision made in relation to a matter invalid where:

a) the non-compliance is isolated and/or minor in nature, or

b) reasonable steps are taken to correct the non-compliance, or

c) reasonable steps are taken to address the consequences of the non-compliance.”

61. On the evidence I am satisfied that not only the procedures, but also aspects of the Code were not complied with, in ways that were not isolated nor minor, with the final result that Mr O’Toole’s report was invalid.

What did the Act, the Code of Conduct and the principles require?

62. In explaining this conclusion it is necessary to understand what the Act, the Code and the applicable procedures required and permitted, when the complaint made about Ms Darley was made, investigated and considered by Mr O’Toole.

63. There is no issue between the parties about the applicable rules of statutory construction, which are those discussed in SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14]. There it was explained that the starting point is the text of the statute whilst, at the same time, regard must be had to its context and purpose, context being regarded at this first stage and not at some later stage.

64. Delegated legislation made under an Act should not be taken into account for the purpose of the interpretation of the Act itself: Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101; [2008] HCA 38 at [19].

65. Further, neither the Code of Conduct nor the administrative arrangements adopted by Council may depart from the statutory scheme which binds the Council.

The Act

66. Pertinently, the Act regulates:

67. The Council’s functions, specified in s 8A to be to “act fairly, ethically and without bias in the interests of the local community” and in s 223(1)(a) “to direct and control the affairs of the Council in accordance with this Act;

68. Councils must have public meetings and must make “the agenda and the associated business papers (such as correspondence and reports) for the meeting” available to the public: s 9(2). But closed Council meetings are expressly provided for in prescribed circumstances: s 10A and 10B;

69. disclosure of documents considered at Council meetings: s 10A and 11.

70. documents considered at closed meetings later being made public: s 11;

71. In Chapter 11, how councils are to be staffed;

72. Councils must appoint a general manager, whose functions are specified in s 335, including relevantly:

“(f) to ensure that the mayor and other councillors are given timely information and advice and the administrative and professional support necessary to effectively discharge their functions, and

(g) to exercise any of the functions of the council that are delegated by the council to the general manager.”

7. General manager’s responsibility for the Council’s day to day management, as well as giving councillors “a notice specifying the time and place at which and the date on which the meeting is to be held and the business proposed to be transacted at the meeting”: s 367;
8. Councils’ exercise of their functions by various means, including by its councillors and employees: s 355;
9. Councils’ adoption of:

(a) A code of meeting practice which complies with a model code prescribed by regulation, with Council meetings conducted in accordance with it: s 360; and (b) A code of conduct which incorporates provisions of a model code of conduct which councillors and staff must comply with: s 440.

10. Delegation of certain functions to the general manager by resolution, except for the matters specified in s 377(1). In this case the Council delegated all of its powers, functions, duties and authorities under the Act to the general manager, subject to limitations it and other legislation, regulations or subordinate legislation imposed: Administrative Delegations Manual;
11. The sub-delegation of certain functions by the general manager to any person or body including other employees: s 378;
12. Adoption of a Code of Conduct and how misconduct by a councillor is to be dealt with, including by censure by resolution of Council at a meeting: ss 440 and 440G; and
13. Disclosure and misuse of information: s 644;

The Code

67. Pertinently, the Council’s Code of Conduct includes:

68. Clause 3 which provides:

“3.1 You must not conduct yourself in a manner that:

a) is likely to bring the Council or other Council officials into disrepute

b) is contrary to statutory requirements or the Council’s administrative requirements or policies

c) is improper or unethical

d) is an abuse of power

e) causes, comprises or involves intimidation or verbal abuse

f) involves the misuse of your position to obtain a private benefit

g) constitutes harassment or bullying behaviour under this Code, or is unlawfully discriminatory.

3.2 You must act lawfully and honestly, and exercise a reasonable degree of care and diligence in carrying out your functions under the LGA or any other Act. (section 439).”

2. Clause 8.9(d), which requires councillors only to release Council information in accordance with established Council Policies and Procedures and in compliance with relevant information;
3. Clause 8.10 which requires the integrity and security of information in Councillors’ possession to be maintained and in Clause 8.11, that they must:

“(a) only access confidential information that you have been authorised to access and only do so for the purposes of exercising your official functions;

(b) protect confidential information;

(c) only release confidential information if you have authority to do so;

(d) only use confidential information for the purpose for which it is intended to be used;

(e) not use confidential information gained through your official position for the purpose of securing a private benefit for yourself or for any other person;

(f) not use confidential information with the intention to cause harm or detriment to Council or any other person or body;

(g) not disclose any confidential information discussed during a confidential session of a Council or committee meeting or any other confidential forum (such as, but not limited to, workshops or briefing sessions).”

4. That complaints alleging a breach of the Code must not be made for an improper purpose: cl 9.1;
5. That all allegations of breach of the Code have to be dealt with under and in accordance with the administration procedures: cl 9.9; and
6. Provisions regulating how complaints about councillors are to be dealt with by the Office of Local Government, unless referred back to Council for consideration: cl 9.14.

The Procedures for the Administration of the Code

68. Pertinently, the Procedures provide for:

69. The Council to establish a panel of conduct reviewers, following a specified process for appointment of persons who meet specified requirements and are not councillors or employees of the Council, but may be an Internal Ombudsman: cls 3.1-3.16;

70. The Council appointing a member of staff or another person to be the complaints co-ordinator, but not the General Manager, who must also be the nominated disclosures co-ordinator for the purpose of receiving and managing reports of wrongdoing under the Public Interest Disclosures Act 1994 (NSW): cls 3.17-3.20. The role specified in cl 3.21 being to:

“a) coordinate the management of complaints made under the council’s code of conduct

b) liaise with and provide administrative support to a conduct reviewer

c) liaise with the Office, and

d) arrange the annual reporting of code of conduct complaints statistics.”

3. What and how a Code of Conduct complaint must be made: Part 4;
4. Complaints for which general managers are responsible and those which must be referred to the Office, the Mayor or other external agencies such as ICAC: Part 5;
5. The Code not overriding the Public Interest Disclosure Act 1984 (NSW) and that complaints made as public interest disclosures under that Act must be managed in accordance with its requirements: cl 5.45. That depending on whether the complaint is made as such a disclosure, in which case consent in writing to the disclosure of the complainant must be obtained: cl 5.46. If that is not given, it must be referred to the Office for consideration.
6. Part 6, which deals with the referral of complaints about a councillor by a complaints coordinator to a conduct reviewer;
7. Complaints which have to be dealt with by a conduct reviewer being referred within 21 days by the complaints co-ordinator, with the reviewer being required to satisfy specified criteria, including in respect of bias: cls 6.1-6.4;
8. Conduct co-ordinators at any time terminating a referral and referring the complaint to another reviewer in specified circumstances, including where the reviewer has failed to comply with the Code or with a lawful and reasonable request made by the co-ordinator: cl 6.10
9. Conduct reviewers undertaking a preliminary assessment of the complaint to determine whether to take no action, to resolve the complaint by appropriate strategies, to refer the matter to the general manager, an external agency or to investigate, having made such enquiries considered to be reasonably necessary: cls 6.12-6.24;
10. Clause 6.13 specifying the matters to which regard must be had by the conduct reviewer, including prima facie evidence of a breach of the Code;
11. In making this preliminary decision, the conduct reviewer making such enquiries as are considered to be reasonably necessary to determine what option to exercise: cl 6.15;
12. The conduct reviewer also asking the complaints co-ordinator to provide additional information considered to be reasonably necessary to determine what option to exercise, which the complaints co-ordinator must provide, as far as reasonably practicable: cl 6.16;
13. A decision to investigate a complaint only being made when the conduct reviewer is satisfied of the matters specified in cl 6.22:

“a) that the complaint is a code of conduct complaint for the purposes of these procedures, and

b) that the alleged conduct is sufficiently serious to warrant the formal censure of a councillor under section 440G of the LGA or disciplinary action against the general manager under their contract of employment if it were to be proven, and

c) that the matter is one that could not or should not be resolved by alternative means.”

14. What the conduct reviewer must consider in determining that a matter is sufficiently serious to warrant a councillor’s censure is specified in cl 6.23 to be:

“a) the harm or cost that the alleged conduct has caused to any affected individuals and/or the council

b) the likely impact of the alleged conduct on the reputation of the council and public confidence in it

c) whether the alleged conduct was deliberate or undertaken with reckless intent or negligence

d) any previous proven breaches by the person whose alleged conduct is the subject of the complaint and/or whether the alleged conduct forms part of an ongoing pattern of behaviour.”

15. On a preliminary assessment the conduct reviewer having to consider the matters specified in cl 6.31:

“a) whether the complaint is a code of conduct complaint for the purpose of these procedures

b) whether the complaint has been made in a timely manner in accordance with clause 4.4, and if not, whether the allegations are sufficiently serious for compelling grounds to exist for the matter to be dealt with under the council’s code of conduct

c) whether the complaint is trivial, frivolous, vexatious or not made in good faith

d) whether the complaint discloses prima facie evidence of conduct that, if proven, would constitute a breach of the code of conduct

e) whether the complaint raises issues that would be more appropriately dealt with by an external agency

f) whether there is or was an alternative and satisfactory means of redress available in relation to the conduct complained of

g) whether the complaint is one that can be resolved by alternative and appropriate strategies such as, but not limited to, explanation, counselling, training, informal discussion, negotiation, a voluntary apology or an undertaking not to repeat the offending behaviour

h) whether the issue/s giving rise to the complaint have previously been addressed or resolved

i) any previous proven breaches of the council’s code of conduct

j) whether the conduct complained of forms part of an ongoing pattern of behaviour

k) whether there were mitigating circumstances giving rise to the conduct complained of

l) the seriousness of the alleged conduct (having regard to the criteria specified in clause 6.23)

m) the significance of the conduct or the impact of the conduct for the council

n) how much time has passed since the alleged conduct occurred

o) such other considerations that the conduct reviewer considers may be relevant to the assessment of the complaint.”

16. The Procedures also specifying how the investigation of complaints is to be pursued: Part 7. That requiring notice of the complaint to be given which discloses the matters specified in cl 7.4 and giving the respondent an opportunity to make written submissions and to the conduct reviewer, who from this point in the Procedures is referred to as “the investigator”;
17. The investigator must also give specified notices to the complainant and the general manager: cl 7.8. Complainants also making submissions and all those received having to be considered by the investigator: cl 7.14;
18. How the investigations are to be conducted:

“7.15 Investigations are to be undertaken without undue delay.

7.16 Investigations are to be undertaken in the absence of the public and in confidence.

7.17 Investigators must make any such enquiries that may be reasonably necessary to establish the facts of the matter.

7.18 Investigators may seek such advice or expert guidance that may be reasonably necessary to assist them with their investigation or the conduct of their investigation.

7.19 An investigator may request that the complaints coordinator provide such further information that the investigator considers may be reasonably necessary for them to establish the facts of the matter. The complaints coordinator will, as far as is reasonably practicable, provide the information requested by the investigator.”

19. Investigators resolving a matter or referring it to the general manager or an external agency, but once the undertaken enquiries are complete and submissions have been completed, having to produce a draft report: cl 7.26;
20. Submissions also being sought from the respondent and any person about whom the investigator proposes to make adverse comments in this report: cls 7.27-28. Which may result in the pursuit of further inquiries, which may result in the need to seek further submissions: cl 7.30;
21. If the investigator issues a notice of investigation, a final report being prepared, unless the investigation is discontinued: cl 7.33;
22. What the investigator may recommend in a final report: cl 7.37. In the case of breach by a councillor, that the councillor be formally censured for the breach under section 440G of the Act, may be recommended;
23. A copy of the final report having to be provided to the complaints co-ordinator, the respondent and the complainant, who must also be given a written statement containing specified information, including the determination and the reasons for it: cls 7.41-7.42;
24. If the investigator determines that there has been a breach of the code of conduct and makes a recommendation under cl 3.37, the complaints co-ordinator must then, where practicable, arrange for the report to be reported to the next ordinary Council meeting for its consideration: cl 7.44;
25. The Council’s role is then to apply a sanction: cl 7.46. It must first give the respondent an opportunity to make any oral or written submissions, but the respondent “is to confine their submission to addressing the investigators recommendation”: cl 7.49;
26. A councillor who made a complaint not taking part in discussion or voting on the matter and having to absent themselves from the Council meeting: cl 7.49;
27. The Council must also “not invite submissions from other persons for the purpose of seeking to rehear evidence previously considered by the investigator”: cl 7.51;
28. But the Council may ask the investigator to make further inquiries and provide additional information or a supplementary report and may also seek an opinion from the Office of Local Government: cl 7.53. If it then receives new information adverse to the respondent, it must also provide a further opportunity for the respondent to make submissions: cl 7.57; and
29. The sanctions which the Council may impose are specified in cl 7.58 and in the case of a councillor include censure. In that event, the grounds on which it is satisfied that the councillor should be censured must be specified in the Council’s censure motion: cl 7.59. But the Council is not obliged to adopt an investigator’s recommendations, in which event it must state its reasons in its resolution and notify the Office: cls 7.60-7.61.

Did the role the Conduct Co-ordinator took accord with the requirements of the Code and the Principles?

69. I am satisfied that it did not.

70. Ms Renneberg was not an employee of the Council. That was not required by the Code. She was also the Council’s Ombudsman, under an arrangement the Council had entered with two others, to secure her services in that role. That gave her other functions, but an Ombudsman is given no role in the investigation of a complaint against a councillor under the Code by a conduct reviewer.

71. The Role of the Internal Ombudsman Shared Service was agreed by the Councils to be to provide an independent ear regarding complaints about specified matters, including unethical behaviour by Council: Governance Charter. The Service was there given an investigative function, as well as an educative one: cl 4. The matters there specified to be available to be investigated by the Ombudsman including matters referred by a general manager, failures to comply with a Code of Conduct and applicable procedures, including in relation to the release of confidential information.

72. The position description for the Internal Ombudsman includes key responsibilities of receiving, assessing, investigating and reporting on external and internal complaints and if warranted, referral to external bodies.

73. There is no suggestion that Ms Renneberg was tasked with investigating the matters the subject of the complaint made about Ms Darley. It was she, as Ombudsman, who referred the complaints to Mr O’Toole in January 2024, asking him to deal with them together. That referral did not contemplate that his tasks would be undertaken under her supervision or control as Ombudsman.

74. Nor did the Code

75. Ms Renneberg was also the Council’s complaints co-ordinator. The Code required the Council to have a panel of conduct reviewers: cl 3.1. It permitted the Ombudsman to be appointed to that panel: cl 3.13. The Ombudsman could also be appointed the complaints co-ordinator. A complaints coordinator could investigate a complaint or refer it to another conduct reviewer, as occurred in relation to the complaints made about Ms Darley: cl 3.15.

76. Under the Code, after such a referral, the complaints co-ordinator’s role had various aspects. They did not involve the conduct reviewer reporting to the complaints co-ordinator or the complaints co-ordinator overseeing or guiding the conduct reviewer’s tasks. The complaints co-ordinator’s role involved providing specified assistance and undertaking specified tasks:

77. To liaise with and provide administrative support to a conduct reviewer: cl 3.21(b);

78. At the preliminary stage, to provide additional information that the reviewer considered to be reasonably necessary, to determine what option to exercise: cl 6.16;

79. During an investigation to provide such further information that the investigator considered reasonably necessary to establish the facts of the matter: cl 7.19; and

“7.36 At a minimum, the investigator’s final report must contain the following information:

a) a description of the allegations against the respondent

b) the relevant provisions of the code of conduct that apply to the alleged conduct investigated

c) a statement of reasons as to why the matter warranted investigation (having regard to the criteria specified in clause 6.23)

d) a statement of reasons as to why the matter was one that could not or should not be resolved by alternative means

e) a description of any attempts made to resolve the matter by use of alternative means

f) the steps taken to investigate the matter

g) the facts of the matter

h) the investigator’s findings in relation to the facts of the matter and the reasons for those findings

i) the investigator’s determination and the reasons for that determination

j) any recommendations.”

78. Given the different roles for which the Code provided, I am satisfied that Ms Darley’s case, that Ms Renneberg did not confine herself to her role of conduct co-ordinator must be accepted.

79. She not only identified typos, grammatical issues and errors of fact in Mr O’Toole’s reports, which she suggested needed to be corrected, which accorded with her providing administrative support. But even without request from Mr O’Toole Ms Renneberg took steps such as:

80. On 4 January 2024 asking Mr O’Toole to advise her, if he elected to speak to the complainant, despite observing “I appreciate it’s not necessary under the Procedures”;

81. On 17 January, having been provided with the draft preliminary report, advising Mr O’Toole about what she considered the councillors roles under the Act and the Council social media policy were and how that policy operated;

82. On 17 January drafting and included in the preliminary report “a paragraph re the disclaimer under paragraph k)- section 4”;

83. On 14 February, after Mr O’Toole advised her that he had granted Ms Darley an extension of time which her solicitor had requested, writing without his direction to the OLG Governance Team requesting that its consideration of the matter be expedited and advising Mr O’Toole that she intended to follow this up;

84. That resulting in OLG advice to Ms Renneberg that potential defects in the notice of investigation had been identified; that an amended notice might be required, and that action on the investigations should be deferred until there was an opportunity to formally communicate the outcome of its review;

85. Ms Renneberg then communicating and discussing that advice with Mr O’Toole, with the result that an amended notice of investigation was issued;

86. In April advising Mr O’Toole about how the General Manager would like his report couched, so that aspects of it could be copied into meeting minutes “In the event you found that there had been a breach of the Code of Conduct”;

87. Ms Renneberg requesting in May 2024 that Mr O’Toole not send his draft final report to Ms Darley, before she had reviewed and responded to it, a process not provided for by the Code;

88. In her later advice Ms Renneberg not merely pointing to errors which might be corrected, but effectively making submissions about why aspects of the draft should be reconsidered by Mr O’Toole and asking that aspects of it be reconsidered. For example, because of her views about whether or not particular information was confidential or had been released in the public domain, that going to the heart of the complaint about Ms Darley which was being investigated;

89. The result was that while in his original draft report Mr O’Toole did not recommend censure under cl 7.37, but that Council conduct an information session and the revision of the social media policy, as cl 7.39 permitted, he revised the draft sent to Ms Darley recommending, without explanation, her censure;

Did the Conduct Reviewer depart from the requirements of the Code and the Procedures?

88. I am also satisfied that Mr O’Toole did not adhere to the requirements of the Code and procedures, despite his submission that they are procedural and facilitative in nature, giving the complaints co-ordinator a supportive role. As I have explained, the course Ms Renneberg pursued went beyond such a role.

89. Given the involvement which Mr O’Toole permitted the complaints coordinator to have in his review and the account which he took of the submissions advanced to him, important aspects of which he adopted both in his preliminary and final reports, including as to his recommendations, that he went beyond what the Code and Procedures permitted must also be accepted.

90. Notwithstanding his submission that it was relevant that he had not adopted all that Ms Renneberg had proposed.

91. Mr O’Toole’s approach did not confine the assistance provided by Ms Renneberg to the administrative support the Code and Procedures provided for. It gave her an ongoing advisory role that was not envisaged, even if submissions which she advanced were correct in law, as was also submitted.

92. Even when Ms Darley’s solicitor sought information from him about what was being investigated, Mr O’Toole provided Ms Renneberg with his draft response for comment.

93. The Code permits investigators to seek advice or expert guidance that may be reasonably necessary to assist with the investigation or its conduct: cl 7.18. But that aspect of the Code does not have in mind guidance or advice of the complaints co-ordinator, who is not there referred to.

94. Perhaps Mr O’Toole considered that what he was then seeking involved expert guidance or assistance which Ms Renneberg could provide, given her role as Ombudsman and the investigative functions which that role had. As perhaps may also have been the case when he sought Ms Renneberg’s advice about providing a copy of a video of the closed meeting of Council in June to Ms Darley, about which permission had been obtained from Council. He even arranged for her to be present with him when Ms Darley was given the opportunity to view the video of the Council meeting.

95. But what the Code and Procedures do not envisage is the process Mr O’Toole pursued, by which he reported to Ms Renneberg his ongoing progress, gave her oversight of how he conducted his investigation, involved her in the crafting of his reports and even entertaining her submissions about the recommendations which he should make and the form in which he should make them.

96. The procedures not contemplating that a conduct reviewer utilise a complaints co-ordinator in such a counsel assisting type role. That is, one in which submissions are advanced about how an investigation should be conducted, what views should be formed, what reports should contain and what recommendations should be made.

“I have now concluded my investigation of the complaints relating to Councillor Kellie Darley and have provided my final investigation report.

In providing the final investigation report I have considered clause 7.36 of the Procedures which specifies the requirements of the investigator’s final report.

I am satisfied the final report, as provided, meets the requirements of clause 7.36 of the Procedures encompassing all relevant and necessary information to the complaint matters investigated, consideration of which enabled me to make a determination and recommendations regarding this matter, as required.

I also note in providing my final report, that the report meets the requirements of clause 7.35 of the Procedures in that the report has:

- Made findings of fact in relation to the matters investigated; and

- Made a determination that the conduct investigated constituted a breach of the Council’s Code of Conduct

Relevant to the obligations of Councillors under section 232 (1) (b) of the Local Government Act 1993, the final report (excluding attachments) contains all required information in order for Councillors to make a considered and well informed decision relevant to the determination and recommendations in that report.”

100. The Code gave Mr O’Toole no role in giving such advice. It is pertinent that despite giving it, he did not alter his report, by removing the annexures, understandably, given that without them, the report was incomplete. The result was that the Code required that it and the annexures be placed before the Council. As the result of the course pursued by Ms Renneberg and the General Manager, that did not occur.

Apprehended bias

101. Whether the evidence establishes the alleged bias was also in issue.

102. Ms Darley relied on the course Mr O’Toole permitted Ms Renneberg to pursue, which was not disclosed to her. That, it was argued, would permit a fair-minded lay person, properly informed about the nature of his task and his conduct, to apprehend that his decisions were the result of bias.

103. Reliance was also placed on the inconsistent approaches adopted by Mr O’Toole to the disclosure of $2.4 million discussed at the closed Council meeting in the complaints against Ms Darley and Mr Bradley.

104. Mr O’Toole relied on the requirement that it be a fair minded lay observer properly informed as to the nature of the procedure in question, who might reasonably apprehend that the conduct reviewer might not bring an impartial and unprejudiced mind to the resolution of the factual and legal questions that arise for decision in the conduct of the review of the complaint: CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; [2019] HCA 50 at [17].

105. On his case that not permitting the alleged bias to be found.

106. So approaching the alleged bias I consider that there is a basis for accepting the case Ms Darley advanced.

107. That Mr O’Toole permitted Ms Renneberg to “nudge” his reports in the direction of a recommendation that the Council censure was the conclusion Ms Darley urged, that not having been the outcome sought by complainants. Why his original recommendations were departed from, given what they had urged, being unexplained, despite cl 7.36(h) and (i) of the Procedures requiring reasons to be given not only for findings of fact, but also the determination, as well as an explanation for why the matter could or should not be resolved by alternative means.

108. The course pursued, I accept, could lead a fair minded lay observer properly informed as to the nature of the procedure the Code required Mr O’Toole to pursue, to reasonably apprehend that in his conduct of the review into the complaints against Ms Darley, he did not bring the required impartial and unprejudiced mind to his resolution of what arose for decision. But rather pursued a course which permitted him to be influenced by Ms Renneberg, as the result of the adoption of a process for which the Code and Procedures did not provide.

109. That resulting in him not having brought the impartial and unprejudiced mind to the resolution of the questions that he had to decide in relation to the complaints made about Ms Darley.

Were the reasons given in the final report adequate?

110. The applicable law was not in issue. It including the obligation to explain the actual path of reasoning by which the issues and facts which had to be determined were resolved: Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [55]. And compliance with the aspects of the Code earlier discussed.

111. The report, it was complained:

112. Failed to provide reasons for the conclusion that the complaint was sufficiently serious to go to investigation, despite reasons being required by cl 7.31(d);

113. Failed to determine an allegation that Ms Darley had pursued a pattern of behaviour and did not disclose whether it had formed any part of the conclusions arrived at, despite cl 6.23(d);

114. Did not explain why the complaint could not be resolved by means other than censure, as cl 7.31(e) required;

115. Failed to make findings about Facebook posts relied on in the complaint; and

116. Failed to articulate why the consequences of the breaches found required the recommended course.

117. This also establishing that proper consideration had not been given to Ms Bradley’s submissions, as the Code also required, that resulting in a failure to exercise jurisdiction, a mandatory consideration not having been taken into account.

118. That was disputed.

119. But the minimum requirements for a final report are specified in cl 7.36. They include: why the matter warranted investigation, why it could not or should not be resolved by alternative means, as well as a description of attempts to resolve it by such means and the giving of various reasons.

120. The report was structured to give an explanation of:

121. Background matters, including the complaints, what had been concluded in the preliminary assessment, the notices given, information sought and the evidence gathered from the complainants and documents obtained;

122. Provisions of the Code;

123. What was dealt with in the closed Council meeting, evidenced by minutes;

124. Ms Darley’s submissions, explained by annexure;

125. What the draft report contained;

126. Further information obtained in the investigation, including from Ms Darley, also explained by annexure;

127. An explanation of Ms Darley’s further submissions, also by annexure;

128. The final findings, that two of the four allegations were substantiated and two were not; and

129. Mr O’Toole’s recommendations.

Invalidity and procedural fairness

119. I am thus also persuaded that given the errors into which Mr O’Toole fell, it must be concluded that his report was invalid, as the Procedures themselves contemplate.

120. The Act required that a complaint against a councillor be dealt with in accordance with the requirements of the Code and the procedures which the Council had adopted. That did not occur. That as a result Ms Darley was also denied procedural fairness she ought to have received, given the undisclosed role Ms Renneberg was permitted to pursue, must be accepted

121. Unbeknownst to her, Mr O’Toole not only permitted Ms Renneberg to pursue a role for which the Code did not provide, but considered and accepted submissions she advanced, even when he had not sought them, including about the recommendations which he should make in his reports. That was a process for which the Act, Code and Procedures simply did not provide.

122. In the result, the relief Ms Darley sought in respect to Mr O’Toole’s report must be granted.

Should the relief sought in relation to the Council’s decision also be granted?

123. I have already dealt with some aspects of the unsatisfactory way in which the Council came to make its decision. What its meeting agenda proposed was:

“(a) That Council adopt the external conduct reviewer’s (investigator’s) recommendation:

1. That Councillor Kellie Darley is formally censured in accordance with clause 7.37 b) of the Procedures which states:

7.37. Where the investigator determines that the conduct investigated constitutes a breach of the Code of Conduct, the investigator may recommend:

b) in the case of a breach of a Councillor, that the Councillor be formally censured for the breach under section 440G of the Local Government Act.

(b) That should Council determine to censure Councillor Kellie Darley, in accordance with Clause 7.59 of the Procedures for the Administration of the Model Code of Conduct for Local Councils in NSW 2020, Council makes public the findings of inappropriate conduct by Councillor Kellie Darley by publishing those findings in the Minutes as:”

124. Adoption of the Council’s resolution was claimed to be the result of further departures from the Act, Code and Procedures, in a meeting described in written submissions advanced for Ms Darley as “chaotic”. That was also disputed but it is difficult to see that the motion adopted complied with the requirement imposed by cl 7.59 of the Procedures, that the grounds on which the Council is satisfied that the councillor should be censured must be specified in the censure motion.

125. The Minutes establish that the meeting certainly did not involve the consideration of the final report recommending censure of Ms Bradley which the procedures contemplated. One in which the councillors considered not only the conduct reviewer’s report, but also Ms Darley’s submissions and whether they were persuaded that the recommendations made should be adopted. Or whether instead, further information or a supplementary report needed to be pursued or the recommendations rejected.

126. Adoption, rejection or the pursuit of further information all being potentially possible outcomes under the Code, as I have explained. What occurred at the meeting was in part the result of incorrect and incomplete advice which councillors were then given.

127. The result was that the decision making process for which the Code and the Procedures provided, was not adhered to.

The approach the General Manager took

128. That outcome was also the result of the approach which the General Manager took, which had a number of difficulties and must be considered in resolving the question of whether Ms Darley has also established her case in respect of the Council’s decision.

129. A general manager is obliged to refer code of conduct complaints about a councillor to the Office, in circumstances specified in cl 5.20 of the Procedures. The general manager may also decide that a complaint about a councillor need not be investigated, if they consider no action is warranted: cl 5.22. He or she may also take steps to seek to resolve the complaint: cl 5.24.

130. Otherwise the general manager must refer the complaint to the complaints co-ordinator: cl 5.26. That was the course taken in relation to the complaint made about Ms Darley.

131. Once referred, the general manager has no role to play in the conduct reviewer’s investigation, decision or preliminary report; the investigator’s final report; or its referral to Council. But the general manager can decide to refer the complaint to an external agency and must report it to ICAC, if on reasonable grounds it is suspected that it may concern corrupt conduct: cl 5.35-36.

132. Neither the Act, the Code, nor the Procedures for its administration give or contemplate that a complaints co-ordinator or a general manager will have the role, function or power of censoring a conduct reviewer’s report. It having to be placed before the Council for consideration at a meeting by the complaints co-ordinator.

133. Pertinently, s 335(f) of the Act requires the general manager to give councillors the information and advice they require, so that the Council can effectively discharge its functions. They include those it has under its Code of Conduct when dealing with complaints made against councillors. That not being a function which can be delegated, even in part, to a general manager.

134. Section 367 requires the general manager to ensure that councillors are provided with a notice of the meeting, as well as an agenda and “the business papers” relating to the meeting. That term is not defined but I consider it must catch not only a conduct reviewer’s report, but also any documents attached to it, which explain aspects of the report, as was the case in Mr O’Toole’s report.

135. The reliance placed by the Council on Minister for Immigration, Citizenship and Multicultural Affairs v McQueen [2024] HCA 11 at [26] does not lead to any other conclusion, concerned as it was with the question of whether a Minister who was a decisionmaker had an obligation personally to read submissions and material received. Here in issue is what the Code and Act required be placed before the decisionmakers, the councillors who comprised the Council.

136. In this case the Council could not delegate its decision about the conduct reviewer’s recommendations and the Code and the Act required that the documents the reviewer attached to the report in which he made those recommendations, be provided to the councillors.

“1. Amended Notice of Investigation 21 March 2024

2. Submission – James Ryan 11 April 2024

3. Interview notes – Respondent (Oral) Submission to Allegation 2 12 April 2024

4. Letter from Mr James Ryan requesting additional information 24 May 2024

5. Interview notes – Respondent further (Oral) Submission 3 June 2024

6. Submission - James Ryan 17 June 2024”

139. That the attachments had been withheld came to the General Manager’s notice, because their provision to the councillors was pursued with the General Manager by Ms Darley’s solicitor, Mr Ryan.

140. Withholding the attachments was not a decision for Ms Renneberg to make, as I have explained. Her failure thus ought to have been corrected by the General Manager, who also had no discretion to withhold them and was also obliged by the Act, I consider, to put them before Council, so that the councillors were given the opportunity to consider the report in its entirety.

141. The General Manager’s views were explained in the reply she sent to Ms Darley’s solicitors:

“I refer to your request dated 17 July 2024 regarding Item 16.2 on the Council Business Paper for the 22 July 2024 meeting, Code of Conduct Investigation Report - Councillor Kellie Darley.

I have considered your request and also the provisions of s232 of the Local Government Act 1993 and clause 7.36 of the Procedures for the Administration of the Code of Conduct.

Additionally, I have considered the relevant provisions of the Public Interest Disclosure Act 2022, the Defamation Act 2005, Council's adopted Code of Conduct and Code of Meeting Practice.

I note that at the time of writing this email, Councillor Darley has not indicated that she is prepared to indemnify the City of Parramatta Council, myself as the Chief Executive Officer, the Complaints Coordinator and the Conduct Reviewer/Investigator against any and all legal action (including costs associated with those actions) that may arise as a result of the publication of the Attachments.

Therefore, having regard to the statutory obligations that apply to myself and the Complaints Coordinator pursuant to all of the above legislation, I have determined that the Attachments to the Final Report of the Investigator will not be provided to Councillors.”

142. The statutory basis for the General Manager imposing a requirement that Ms Darley provide such an indemnity is not apparent. The General Manager had no discretion under the Code to withhold the attachments. That providing them to councillors would have involved breaches of the legislation she referred to, was not established in these proceedings.

143. What is apparent from the explanation given is that the General Manager did not take necessary account of the requirements of the Act, the Code and Procedures. General managers are given no role to play in a Council’s consideration of a complaint against a councillor or a conduct reviewer’s final report, but they are obliged to ensure that the relevant business papers are put before the councillors.

144. Despite this, not even the General Manager’s correspondence about the disputed attachments were provided for the councillors to consider, so that they might consider whether to ask the conduct reviewer to provide them with further information.

145. There were various unsatisfactory aspects of how the Council meeting at which the censure motion was adopted was conducted. A transcript of the meeting is in evidence. It establishes that even then no explanation was given for the decision to withhold the disputed documents from the councillors, despite the oral submissions Ms Darley advanced and that councillors were even confined to speaking about Mr O’Toole’s recommendations.

146. While the Code confined Ms Darley to addressing the councillors about the investigator’s recommendations, it did not confine the councillors’ consideration of the complaint to those recommendations, understandably, given that collectively, they were the decisionmaker.

147. The result, it seems to me, was that the councillors also did not receive advice they should have been given, pertinent to their consideration of Mr O’Toole’s report. Namely, as to the role which the Code gave them as decision makers. That necessarily requiring them to consider the report, which they were entitled to discuss, in order to decide which of the courses the Code made available, in respect of the complaint they had to consider.

148. While the Council could not invite submissions from other persons, in order to seek to rehear evidence the investigator had already considered, the advice which the councillors were given was incorrect. With the result that the procedure for which the Code provided the Council had to pursue, in arriving at its impartial decision, was also not complied with.

149. It follows that Ms Darley’s complaints that not only was Mr O’Toole’s report not considered in the way in which the Code and Procedures required, but that she was again denied procedural fairness, must also be accepted.

150. She was entitled to have the councillor’s decision about the complaints made against her made as the result of adherence to the procedures which the Council had adopted by the Code and the Procedures. That did not occur.

Apprehended bias

153. I am not, however, satisfied that the problems with the Council’s decision was the result of apprehended bias.

154. That requiring identification of the factor which might lead a resolution of the question other than on its legal and factual merits, taking into account the role of the councillors in the decision the Council had to make; an articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and the assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer.

155. Ms Darley was given an opportunity to address the meeting which the Code contemplated. The debate, both as to the adjournment motion and censure of Ms Darley, was wrongly stymied by the incorrect advice given about how the councillor’s consideration of the complaint was confined to a consideration of Mr O’Toole’s recommendations.

156. But that this established apprehended bias on the part of the councillors is difficult to accept.

157. The councillors, after all, had the same interest in the requirements imposed on them by the Act, the Code and the Procedures being complied with at the Council meeting, as did Ms Darley. Given the serious potential ramifications of the recommended decision to censure a fellow councillor, if made without adherence to the requirements which they had to comply with.

158. The advice they received and the resulting course the councillors pursued was incorrect and did not reflect what the Act envisaged or the Code and the Procedures required, but I am not persuaded that establishes the alleged bias on the part of the councillors.

Procedural fairness

159. There was no issue that the Council had to give Ms Darley procedural fairness in making its decision, but it relied on what that required not being fixed, but depending on the terms of the Act, the nature of its function and the administrative framework in which its decision had to be made to resist her claim that she had been denied procedural fairness: National Companies & Securities Commission v News Corporation Ltd (1984) 156 CLR 296; [1984] HCA 29.

160. I have explained what the Code and Procedures required, that regulating how Ms Darley was to be provided procedural fairness when the complaints made against her were considered by Council.

161. Despite the annexures to Mr O’Toole’s report not having been provided to councillors the Council pointed to four reasons why Ms Darley had not been denied procedural fairness:

162. Mr O’Toole had considered that the body of his report reflected the necessary analysis and a decisionmaker is entitled to have regard to summaries, so long as they are accurate and contain a full account of the essential matters;

163. Ms Darley had a right under cl 7.49 to provide written submissions which could have included the annexures;

164. councillors were entitled to seek the annexures;

165. Procedural fairness did not require disclosure of materials which tended to disclose the identity of a complainant contrary to the Public Interest Disclosure Act 2022; and

166. The logical corollary of the Code was that an independent expert would consider and synthesise greater volumes of material than presented in the final report, which assisted with the Council’s functioning at meetings where it is expected to consider numerous items of business and associated materials.

167. But the evidence does not establish that providing the councillors with the annexures would necessarily have resulted in a breach of the PID Act. Even if that was possible in respect of some of them, the councillors ought to have been informed of the basis of the perceived difficulty and how it was proposed to be managed, that being what the Code expressly contemplated. It being they, after all, who were the decisionmakers intended by the Code to be in full possession of Mr O’Toole’s report, in coming to their decision.

168. Clause 7.49 of the Procedures did not give Ms Darley the claimed opportunity to put the annexures before the councillors, it confining her submissions to addressing Mr O’Toole’s recommendations. In any event, his report did not summarise his annexures in the required way. Given that councillors were wrongly advised that they also had to confine their consideration to his recommendations, which the Code did not provide for, their opportunity to seek the annexures was not in reality available, as the Code intended.

If the Act, Code and the Procedures had been complied with the Council may have come to a different decision

166. The Code made the Council the decisionmaker in respect of a complaint about a councillor: cl 7.60.

167. In Nichols, on which Mr O’Toole relied, I concluded that the Code there in question did not purport to constrain the Council in any way, in the exercise of its statutory powers, once a complaint came before it for consideration. And that it was the parties' common position that the Council was obliged to abide by common law principles of procedural fairness in its consideration of the report there in issue: at [75].

168. That requiring the councillor to be given an opportunity to be heard by the Council and it considering the matters which the councillor raised, before it determined whether the complaint that there had been a breach of the Code, had been established and if so, what sanctions should be imposed upon Council.

169. I also concluded that “any construction of the Code which would inhibit the Council's governing body in the proper performance of its fundamental statutory task of directing and controlling the affairs of the Council, must be rejected. The Code does not purport to oblige the Council to adhere to the outcome of a review conducted under the Code. It must satisfy itself as to the nature and adequacy of the enquiry undertaken by the reviewer and must itself come to a view about the matters raised by the complaint the subject of the review, once satisfied that an adequate enquiry has been undertaken.”: at [76].

170. I have come to no different conclusion in this case.

171. I am satisfied on all the evidence that if the councillors had not been incorrectly advised as they were at the meeting, had they received the documents attached to Mr O’Toole’s report which helped explain his recommendations, and had they considered his report and Ms Darley’s submissions as the Code required, it is possible that the Council might have taken a different course and/or arrived at a different conclusion about whether or not to censure Ms Darley.

172. At the least the Council may have required the production of the withheld attachments to Mr O’Toole’s report, as the Code undoubtedly permitted.

Invalidity

173. It is difficult to see that given the invalidity of Mr O’Toole’s report and the Council’s failure itself to abide by how his report had to be considered by the Council in accordance with the Code and Procedures, that its decision was not also invalid.

174. The Council’s case was that this did not necessarily follow, but it accepted that the censure motion would likely be vitiated by error, if the report it received was held not to be a report for the purpose of the Procedures.

175. Given all that I have explained, I am satisfied that the decision was invalid and even if it was not, given all the errors into which the Council fell, the orders Ms Darley seeks must be made.

Exercise of the Court’s discretion

176. The Council accepted that a decision made under s 440G could be set aside as Ms Darley sought, if the claimed errors had been established in the preparation of Mr O’Toole’s report, given its relevance to their exercise of the disciplinary powers provided by the Act: see s 440I(3).

177. But it relied on there still being a discretion to be exercised as to the relief which the Court granted.

178. I am satisfied in all the circumstances I have explained, that justice requires that the orders sought by Ms Darley be made, given the many departures from the Code and the Procedures which I have explained and the result. That Council did not give Mr O’Toole’s report the consideration it had to be given, in light of the submissions which she advanced to it at its meeting.

179. The course pursued simply failed to adhere to the decision making process for which the Code provided and must result in both Mr O’Toole’s report and the Council’s decision being set aside.

Costs

180. The usual costs order under the Uniform Civil Procedure Rules 2005 (NSW) is that costs follow the event: r 42. In this case that is an order that the defendants bear Ms Darley’s costs.

181. But the parties indicated that they wish to be heard on costs.

182. In the result they should confer and provide final orders, including as to costs, within 21 days and in the event of disagreement, together with short written submissions.

Orders

183. For these reasons I order that:

184. The conduct reviewer’s report be quashed.

185. The Council’s resolution made at its general meeting on 22 July 2024 to formally censure the Plaintiff for a purported breach of the Code of Conduct under section 440G of the Local Government Act also be quashed.

**********