Deputy Secretary, Local Government Planning and Policy v Byrne

NCAT Occupational|2021-09-02|Before: The J

REASONS FOR DECISION

On 10 August 2021 the Tribunal received a request from the legal representative of the Deputy Secretary for an amendment to the order made on 9 August 2021 in proceedings brought by the Deputy Secretary against Darcy Byrne, Mayor of Inner West Council (the Council), under the Local Government Act 1993 (the LG Act).
The proceedings commenced in the Tribunal on a referral by the Deputy Secretary to the Tribunal under s 440J(3) of the LG Act. On 4 May 2021 I published reasons for my findings that Clr Byrne's conduct which had been the subject of a departmental investigation and report was misconduct as defined in s 440F(1)(b) and (d) of the LG Act: Deputy Secretary, Local Government, Planning and Policy v Byrne [2021] NSWCATOD 53. Following a further hearing, on 9 August 2021 I published reasons for concluding that it was appropriate to make an order under s 482A(2)(d) of the LG Act, which provides: (2) The Tribunal may, if it finds that the behaviour concerned warrants action under this section - … (d)suspend the councillor's right to be paid any fee or other remuneration, to which the councillor would otherwise be entitled as the holder of the civic office, in respect of a period not exceeding 6 months (without suspending the councillor from civic office for that period).
The order made in Deputy Secretary, Local Government Planning and Policy v Byrne (No 2) [2021] NSWCATOD 112 (Byrne No 2) was in the following terms: Pursuant to s 482A(2)(d) of the Local Government Act 1993, the right of Councillor Darcy Byrne to payment as a councillor is suspended for a period of three months from the date of these orders.
The Deputy Secretary's request was made following a query by the General Manager of the Council for clarification as to whether the order has the effect of suspending Clr Byrne's remuneration as Mayor as well as his remuneration as a councillor. The Council is responsible for paying Clr Byrne's remuneration and therefore for implementing the Tribunal's order. The Deputy Secretary requested pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act) that the Tribunal amend the order to clarify that it is intended to apply to both the remuneration payable under s 248 of the LG Act and the remuneration payable under s 249 of the LG Act.

Submissions

The Tribunal invited the parties to make submissions.
Clr Byrne's position was that if there is any ambiguity that requires clarification he had no issue with the Tribunal issuing supplementary reasons to clarify the penalty issue.
The Deputy Secretary provided submissions, in summary: 1. The effect of the Tribunal's order is to suspend Clr Byrne's remuneration under both s 248 and s 249 of the LG Act; 2. Section 248A of the LG Act obliges the Council to suspend payment of Clr Byrne's remuneration under both s 248 and s 249 of the LG Act for the duration of the Tribunal's order; and 3. Having regard to the uncertainty expressed by the Council about the effect of the Tribunal's order, it would be appropriate for the Tribunal to vary its decision pursuant to s 63 of the NCAT Act to explain that the effect of its decision is to suspend remuneration under both s 248 and s 249 of the LG Act for the duration of the Tribunal's order.
The Deputy Secretary referred to the Dictionary to the LG Act which defines "councillor" to mean "a person elected or appointed to civic office and includes a mayor" (emphasis added), and defines "civic office" to mean, relevantly, "the office of councillor or mayor". A council must pay each councillor an annual fee: LG Act, s 248(1). A council must pay the mayor an annual fee, which must be paid in addition to the fee paid to the mayor as a councillor: LG Act, s 249(1), (2). Under s 248A(b) of the LG Act, a Council must not pay "any fee or other remuneration, or any expenses, to which a councillor would otherwise be entitled as the holder of a civic office" in respect of any period during which "the councillor's right to be paid any such fee or other remuneration, or expense, is suspended" under the LG Act.
The Deputy Secretary submits that reading the terms "councillor" and "civic office" consistently with their definitions in the Dictionary of the LG Act, s 248A(b) of the LG Act prohibits Clr Byrne receiving any fee or remuneration that he would otherwise be entitled to receive as the holder of the civic office of councillor or mayor, for the period of suspension.
The Deputy Secretary submits that although the position is clear, it would be consistent with the Tribunal's guiding principle in s 36 of the NCAT Act for the Tribunal to vary its decision to clarify that the order applies to both the annual fee as councillor under s 248 and the annual fee as mayor under s 249 of the LG Act, and that that variation could be effected under s 63 of the NCAT Act.
The parties agreed that a hearing is not required and any alteration can be made without reference to a hearing.

Consideration

Section 63 of the NCAT Act provides: 63 Power to correct errors in decisions of Tribunal (1) If, after the making of a decision by the Tribunal, the President or the member who presided at the proceedings is satisfied that there is an obvious error in the text of a notice of the decision or a written statement of reasons for the decision, he or she may direct a registrar to alter the text of the notice or statement in accordance with the directions of the President or the member. (2) If the text of a notice or statement is so altered, the altered text is taken to be the notice of the Tribunal's decision or the statement of its reasons, as the case may be, and notice of the alteration is to be given to the parties in the proceedings in such manner as the President or member may direct. (3) Examples of obvious errors in the text of a notice of a decision or a statement of reasons for a decision are where - (a) there is an obvious clerical or typographical error in the text of the notice or statement, or (b) there is an error arising from an accidental slip or omission, or (c) there is a defect of form, or (d) there is an inconsistency between the stated decision and the stated reasons.
In Dixonbuild Pty Ltd v Adams [2020] NSWCATAP 190 the Appeal Panel, having considered the authorities on r 36.17 of the Uniform Civil Procedure Rules 2005 including Newmont Yandal Operations Pty Ltd v The J Aron Corporation & The Goldman Sachs Group Inc [2007] NSWCA 195, summarised the criteria for the exercise of the power under s 63 in the following terms: 94. Having regard to the above, in our view s 63 operates to permit the amendment to an order in circumstances where: (a)There is an obvious error in the order; (b)Even if the Tribunal was unaware of the error at the time the order was made, the error arises from facts which, if known to the Tribunal, would have caused it at once to make an order correcting the error; (c)Correcting the error does not involve redetermination of the real issues in dispute; (d)The correction of the error will not be contrary to other orders made and/or any reasons given in respect of the original orders, unless those other orders and reasons also require correction for obvious error; and (e)The amendment will not give rise to any injustice on the party affected. 95. Injustice might include where a party has been denied a reasonable opportunity to be heard on the substantive dispute to which the error relates or has subsequently acted to their detriment in reliance of the original decision. 96. Errors include where the parties, through inadvertence or being unaware, have not raised the error with the Tribunal.
The Deputy Secretary acknowledges that the application of the Tribunal's order to both forms of annual fee payable to Clr Byrne under the LG Act was not averted to by either party during the hearing. Had my attention been drawn to that matter, it would have been clarified at the time that it applied to both: Newmont Yandal Operations Pty Ltd v The J Aron Corporation and The Goldman Sachs Group Inc [2007] NSWCA 195. As the reasons for decision in Byrne No 2 make it clear, in particular at [94] and [96], it was Clr Byrne's position both as an elected councillor, and as Mayor elected from among the councillors under s 227 of the LG Act and thereby occupying a position of leadership and responsibility, that was important in determining both whether an order should be made under s 482A of the LG Act, and what order would be appropriate.
The Tribunal agrees with the Deputy Secretary that by operation of the definition of "councillor" in the Dictionary to the LG Act, the application of the definition of "civic office" to the terms of s 482A(2)(d) of the LG Act, and the application of s 248A of the LG Act, the order made in Byrne No 2 under s 482A(2)(d) of the LG Act applies to both forms of annual fee payable to Clr Byrne. That order has the effect of suspending any and all remuneration that Clr Byrne would be entitled to as the holder of the civic offices of councillor and mayor. It may be that no clarification or variation of the order is required. However, I agree that to make the position clear, it is appropriate to amend the reasons for decision of 9 August 2021 as requested by the Deputy Secretary. Amending the text of the decision to correct an obvious error and make the position clear does not involve a redetermination of the real issues in dispute, require the making of fresh findings of fact, or contradict any other order made or the reasons given, and does not give rise to any injustice in respect of either party. That is an appropriate use of the power conferred by s 63(1) of the NCAT Act.
I am satisfied pursuant to the provisions of s 50 of the NCAT Act that the amendment can be made without the necessity for a hearing, as the issues can be adequately determined in the absence of the parties by considering their written submissions.

Orders

The Tribunal orders: 1. Pursuant to s 63(1) of the Civil and Administrative Tribunal Act 2013 the Registrar is directed to alter the text of the notice of decision published on 9 August 2021 in Deputy Secretary, Local Government Planning and Policy v Byrne (No 2) [2021] NSWCATOD 112 by the addition of the following at the conclusion of para [96]: "That order applies to both the remuneration payable to Clr Byrne pursuant to s 248 of the LG Act and the remuneration payable pursuant to s 249 of the LG Act." 1. Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 a hearing is dispensed with.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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 September 2021

At a glance

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Judgment (5 paragraphs)

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Cases Cited (4)