Deputy Secretary, Local Government, Planning and Policy v Byrne

The Application

1. The applicant alleges that Clr Byrne engaged in misconduct as defined in s 440F(1) of the LG Act, as follows: 1. Allegation 1: It is alleged that Clr Byrne had a non-pecuniary conflict of interest in the consideration of the 26 March 2019 motion, which was moved by him at the meeting of Council held on 26 March 2019, that he did not avoid or appropriately manage, as required by clauses 5.4, 5.6 and 5.10 or 5.11 of the Code of Conduct. 2. Allegation 2: It is alleged that Clr Byrne, at the Council meeting held on 26 March 2019, made an allegation that Clr Hesse and Clr Lockie had engaged in conduct that was likely to bring them, as council officials, into disrepute. In doing so, it is alleged that Clr Byrne breached clause 3.1(a) of the Code of Conduct. 3. Allegation 3: It is alleged that Clr Byrne, at the Council meeting held on 26 March 2019, made an allegation that Clr Hesse and Clr Lockie had, in effect, breached the Code of Conduct by them having engaged in conduct that was likely to bring Council into disrepute. In doing so, it is alleged that Clr Byrne breached clauses 9.10, 9.11 and 9.12 of the Code of Conduct. 4. Allegation 4: It is alleged that Clr Byrne, at the Council meeting held on 26 March 2019, engaged in conduct that was improper, unethical and/or an abuse of power, when he used his position as Mayor and as a councillor, to move a motion in which he is alleged to have had a conflict of interest. In doing so, it is alleged that Clr Byrne breached clause 3.1(c), (d) and (f) of the Code of Conduct. 5. Allegation 5: It is alleged that Clr Byrne, at the Council meeting held on 26 March 2019, made personal reflections on Clr Hesse and Clr Lockie, when he said words to the effect that Clr Hesse and Clr Lockie had engaged in conduct that was likely to bring Council into disrepute. In doing so, it is alleged that Clr Byrne committed an act of disorder and as such, engaged in misconduct and breached clauses 3.1(b) and 3.22 of the Code of Conduct. 6. Allegation 6: It is alleged that Clr Byrne had a non-pecuniary conflict of interest in the consideration of the Rescission Motion and two related motions that were moved when this matter was considered at the meeting of Council held on 30 April 2019, that he did not avoid or appropriately manage, as required by clauses 5.4, 5.6 and 5.10 or 5.11 of the Code of Conduct, including this motion that was foreshadowed and moved by him: "THAT the Rescission Motion be refused (30 April 2019 motion) The "Rescission motion" being the following notice of motion that was included as Item 12 in the agenda for the meeting: We, the abovementioned Councillors, hereby submit a Notice of Motion to rescind Part 3 and 4 of the Council's resolution at the 26 March 2019 Council Meeting being C0319(2) Item 1 Draft Development Control Plan and Contributions Plan Amendments for Victoria Road (Precinct 47)."

Legislation

1. Chapter 14 of the LG Act deals with Honesty and Disclosure of Interests, and applies to councillors, members of staff of councils and delegates of councils.
2. Division 1 of Part 1 of Chapter 14 includes a requirement in s 440(3) for each council to adopt a code of conduct (the adopted code) that incorporates the provisions of the model code prescribed by the regulations. Under s 440AAA(2) the model code may contain provisions for or with respect to conduct that contravenes provisions of the Act or regulations, that is detrimental to the pursuit of the guiding principles and functions of a council, that is improper or unethical, or an abuse of power, in addition to provisions for disclosure of pecuniary interests.
3. Section 440(5) of the LG Act requires councillors, members of staff and delegates to comply with the provisions of the code of conduct.
4. Section 440AA requires each council to adopt a procedure (the adopted procedure) that incorporates the provisions of the prescribed model procedure, setting out the procedures for dealing with alleged contraventions of the code of conduct: LG Act, s 440AA(2).
5. It is common ground that the relevant code of conduct is the Inner West Model Code of Conduct dated 5 March 2019, adopted by the Council on 12 March 2019 (the Code of Conduct), and that the relevant procedures code is the Inner West Council Procedures for the Administration of the Model Code of Conduct, 2018 (the Procedures Code).
6. Division 3 of Part 1 of Chapter 14 deals with Misconduct. Section 440F of the LG Act defines "misconduct": 440F Definitions (1) In this Chapter - misconduct of a councillor means any of the following - (a) a contravention by the councillor of this Act or the regulations, (b) a failure by the councillor to comply with an applicable requirement of a code of conduct, (c) a failure by a councillor to comply with an order issued by the Departmental Chief Executive under this Division, (d) an act of disorder committed by the councillor at a meeting of the council or a committee of the council, (e) an act or omission of the councillor intended by the councillor to prevent the proper or effective functioning of the council or a committee of the council. (2) For the purposes of determining whether a person has engaged in misconduct, the person does not breach a provision of a code of conduct that requires the disclosure of a pecuniary interest if the person did not know and could not reasonably be expected to have known that the matter under consideration at a meeting was a matter in which the person had a pecuniary interest. (3) A reference in this Division to misconduct includes a reference to misconduct that consists of an omission or failure to do something.
7. The disciplinary actions that may be taken in dealing with misconduct by a Councillor are specified in s 440G, for action taken by a council, limited to a formal censure; in s 440I, for action taken by the Departmental Chief Executive (the DCE); and in s 482A, for action taken by the Tribunal on referral from the DCE under s 440J. As noted above, the present proceedings are before the Tribunal on a referral by the DCE under s 440J.
8. The powers of the Tribunal, should it find that misconduct occurred, are stated in s 482A: 482A Decision of NCAT - misconduct matters (1) This section applies where a matter has been referred to the Civil and Administrative Tribunal under section 438HA or 440J. (2) The Tribunal may, if it finds that the behaviour concerned warrants action under this section - (a) counsel the councillor, or (b) reprimand the councillor, or (c) suspend the councillor from civic office for a period not exceeding 6 months, or (c1) disqualify the councillor from holding civic office for a period not exceeding 5 years, or (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). (3) In determining which action, if any, to take against a councillor, the Tribunal may take into account any previous incidents of misconduct by the councillor, any disciplinary action previously taken against the councillor and any other relevant matters. (4) In this section, councillor includes a former councillor.
9. Allegation 5 alleges that Clr Byrne committed an act of disorder at the Council meeting of 26 March 2019. That term is defined in cl 256(1) of the Local Government (General) Regulation 2005 (the Regulation) in the following terms: 256 Acts of disorder (1) A councillor commits an act of disorder if the councillor, at a meeting of a council or a committee of a council: … (d) insults or makes personal reflections on or imputes improper motives to any other councillor, or …
10. It is common ground that while cl 256 had essentially been repealed as at 26 March 2019, it continued to apply during the period referred to in cl 422 as the "phasing-in period" before the Council adopted an amended Code of Meeting Practice, and that it applied to Council's debate on the motion moved by Clr Byrne at the meeting on 26 March 2019.

Code of Conduct

1. The relevant provisions of the Council's Code of Conduct are: PART 3 GENERAL CONDUCT OBLIGATIONS General conduct 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. … Obligations in relation to meetings … 3.22 If you are a councillor, you must not engage in any acts of disorder or other conduct that is intended to prevent the proper or effective functioning of the council, or of a committee of the council. Without limiting this clause, you must not: a) leave a meeting of the council or a committee for the purposes of depriving the meeting of a quorum, or b) submit a rescission motion with respect to a decision for the purpose of voting against it to prevent another councillor from submitting a rescission motion with respect to the same decision, or c) deliberately seek to impede the consideration of business at a meeting. … PART 5 NON-PECUNIARY CONFLICTS OF INTEREST What is a non-pecuniary conflict of interest? 5.1 Non-pecuniary interests are private or personal interests a council official has that do not amount to a pecuniary interest as defined in clause 4.1 of this code. These commonly arise out of family or personal relationships, or out of involvement in sporting, social, religious or other cultural groups and associations, and may include an interest of a financial nature. 5.2 A non-pecuniary conflict of interest exists where a reasonable and informed person would perceive that you could be influenced by a private interest when carrying out your official functions in relation to a matter. 5.3 The personal or political views of a council official do not constitute a private interest for the purposes of clause 5.2. 5.4 Non-pecuniary conflicts of interest must be identified and appropriately managed to uphold community confidence in the probity of council decision-making. The onus is on you to identify any non-pecuniary conflict of interest you may have in matters that you deal with, to disclose the interest fully and in writing, and to take appropriate action to manage the conflict in accordance with this code. 5.5 When considering whether or not you have a non-pecuniary conflict of interest in a matter you are dealing with, it is always important to think about how others would view your situation. Managing non-pecuniary conflicts of interest 5.6 Where you have a non-pecuniary conflict of interest in a matter for the purposes of clause 5.2, you must disclose the relevant private interest you have in relation to the matter fully and in writing as soon as practicable after becoming aware of the non-pecuniary conflict of interest and on each occasion on which the nonpecuniary conflict of interest arises in relation to the matter. In the case of members of council staff other than the general manager, such a disclosure is to be made to the staff member's manager. In the case of the general manager, such a disclosure is to be made to the mayor. 5.7 If a disclosure is made at a council or committee meeting, both the disclosure and the nature of the interest must be recorded in the minutes on each occasion on which the non-pecuniary conflict of interest arises. This disclosure constitutes disclosure in writing for the purposes of clause 5.6. 5.8 How you manage a non-pecuniary conflict of interest will depend on whether or not it is significant. 5.9 As a general rule, a non-pecuniary conflict of interest will be significant where it does not involve a pecuniary interest for the purposes of clause 4.1, but it involves: a) a relationship between a council official and another person who is affected by a decision or a matter under consideration that is particularly close, such as a current or former spouse or de facto partner, a relative for the purposes of clause 4.4 or another person from the council official's extended family that the council official has a close personal relationship with, or another person living in the same household b) other relationships with persons who are affected by a decision or a matter under consideration that are particularly close, such as friendships and business relationships. Closeness is defined by the nature of the friendship or business relationship, the frequency of contact and the duration of the friendship or relationship. c) an affiliation between the council official and an organisation (such as a sporting body, club, religious, cultural or charitable organisation, corporation or association) that is affected by a decision or a matter under consideration that is particularly strong. The strength of a council official's affiliation with an organisation is to be determined by the extent to which they actively participate in the management, administration or other activities of the organisation. d) membership, as the council's representative, of the board or management committee of an organisation that is affected by a decision or a matter under consideration, in circumstances where the interests of the council and the organisation are potentially in conflict in relation to the particular matter e) a financial interest (other than an interest of a type referred to in clause 4.6) that is not a pecuniary interest for the purposes of clause 4.1 f) the conferral or loss of a personal benefit other than one conferred or lost as a member of the community or a broader class of people affected by a decision. 5.10 Significant non-pecuniary conflicts of interest must be managed in one of two ways: a) by not participating in consideration of, or decision making in relation to, the matter in which you have the significant non-pecuniary conflict of interest and the matter being allocated to another person for consideration or determination, or b) if the significant non-pecuniary conflict of interest arises in relation to a matter under consideration at a council or committee meeting, by managing the conflict of interest as if you had a pecuniary interest in the matter by complying with clauses 4.28 and 4.29. 5.11 If you determine that you have a non-pecuniary conflict of interest in a matter that is not significant and does not require further action, when disclosing the interest you must also explain in writing why you consider that the non-pecuniary conflict of interest is not significant and does not require further action in the circumstances. … PART 9 MAINTAINING THE INTEGRITY OF THIS CODE ... Disclosure of information about the consideration of a matter under the Procedures 9.10 All allegations of breaches of this code must be dealt with under and in accordance with the Procedures. 9.11 You must not allege breaches of this code other than by way of a complaint made or initiated under the Procedures. 9.12 You must not make allegations about, or disclose information about, suspected breaches of this code at council, committee or other meetings, whether open to the public or not, or in any other forum, whether public or not. …
2. The reference in Part 9 of the Code of Conduct to "the Procedures" is to the Procedures for the Administration of the Model Code of Conduct for Local Councils in NSW. Part 4 of the Procedures Code provides the procedure for the making of Code of Conduct complaints, and Part 5 for management of Code of Conduct complaints.
3. Part 4 of the Code of Conduct provides for Pecuniary Interests. The definition in cl 4.1 of the Code of Conduct of a "pecuniary interest", to which reference is made in cl 5.1, is: 4.1 A pecuniary interest is an interest that you have in a matter because of a reasonable likelihood or expectation of appreciable financial gain or loss to you or a person referred to in clause 4.3.
4. That definition is in similar terms to the definition in s 439AA(1) of the LG Act. Clause 4.3 identifies the relevant persons in the following terms: 4.3 For the purposes of this Part, you will have a pecuniary interest in a matter if the pecuniary interest is: (a) your interest, or (b) the interest of your spouse or de facto partner, your relative, or your partner or employer, or (c) a company or other body of which you, or your nominee, partner or employer, is a shareholder or member.

Evidence

1. The applicant relied on the departmental report prepared under s 440H of the LG Act (ex A1), which includes: 1. Copies of Clr Lockie's Facebook post on 29 August 2018 and comments; 2. The concerns notice letters sent to Clr Lockie and Clr Hesse dated 26 March 2019; 3. Correspondence between Clr Byrne's solicitors and Clr Lockie between 3 April 2019 and 29 May 2019; 4. Correspondence between Clr Byrne's solicitors and Clr Hesse's solicitor, Clr Steer, between 8 April 2019 and 18 July 2019; 5. Minutes of Council meetings on 26 March 2019, resumed on 9 April 2019, and 30 April 2019; 6. Transcript of the Council meeting on 26 March 2019; 7. Transcript of the debate on the Rescission Motion on 30 April 2019; 8. Inner West Council Model Code of Conduct, March 2019; 9. Inner West Council Procedures for the Administration of the Model Code of Conduct, 2018; 10. Inner West Council Code of Meeting Practice, 2017; 11. Transcript of an interview with Clr Byrne, with his solicitor present, conducted by the applicant's Principal Investigators Richard Murphy and Tony Day on 26 September 2019.
2. The documents annexed to the departmental report include: 1. Email from the Manager, Investigations, Office of Local Government (OLG) dated 17 May 2019 inviting Clr Byrne to comment on allegations relating to the Council meeting on 26 March 2019; 2. Terms of Reference for the investigation dated 25 July 2019; 3. Letter from the applicant dated 25 July 2019 notifying Clr Byrne of the investigation and the terms of reference; 4. Email from Richard Murphy, Principal Investigator, OLG, dated 2 August 2019 inviting Clr Byrne to comment on allegations relating to the Council meeting on 30 April 2019; 5. Letter dated 13 September 2019 from Clr Byrne's lawyers responding to the correspondence of 17 May 2019, 25 July 2019 and 2 August 2019; 6. Letter dated 10 March 2020 from Clr Byrne's lawyers responding to the findings in the draft departmental report; 7. Letter from the applicant dated 1 July 2020 to Clr Byrne enclosing copy of the final departmental report, stating his findings and inviting a submission as to whether the matter should be referred to the Tribunal as an alternative to disciplinary action; 8. Letter dated 13 July 2020 from Clr Byrne's lawyers responding to the departmental report, and opposing referral to the Tribunal.
3. Clr Byrne does not dispute that he said the words attributed to him in the transcripts attached to the departmental report. The material before the Tribunal includes a video recording of the relevant Council meeting. It has not been necessary to view the recording, as, having regard to the transcript, the Tribunal accepts the submission that there is no indication that the meeting itself became disorderly.
4. Clr Byrne relied on a statement dated 5 February 2021 (ex R1). Clr Byrne was not required for cross examination.

Issues

1. The issues for determination are: 1. Whether Clr Byrne had a non-pecuniary conflict of interest in any matter at the Council meetings of 26 March 2019 and 30 April 2019; 2. If so, whether that non-pecuniary conflict of interest was significant or not; 3. Whether that non-pecuniary conflict of interest was appropriately managed in accordance with the requirements of the Code of Conduct; 4. Whether Clr Byrne made allegations that Councillors Lockie and Hesse had engaged in conduct likely to bring them as council officials, or Council, into disrepute; 5. Whether Clr Byrne engaged in conduct that was improper, unethical, or an abuse of power; 6. Whether Clr Byrne committed an act of disorder; and 7. If so, whether any or all of that conduct was "misconduct" as defined in s 440F(1) of the LG Act.
2. Clr Byrne contends that the allegations against him are duplicitous, on the basis that Allegations 1, 2, 3, 4 and 5 all derive from the same conduct being the discussion in Council on 26 March 2019 as to the conduct of Clr Lockie and Clr Hesse, and Allegation 6 deals with the same issue raised on a different date. Clr Byrne did not press for that contention to be determined as a preliminary issue at the hearing, submitting that if established it would be relevant to any costs application.
3. The hearing on 19 February 2021 was conducted on the basis that if there was a finding of misconduct, a further hearing would be required to consider whether that behaviour warrants action by the Tribunal under s 482A, and if so, what disciplinary action is appropriate.
4. The Tribunal is not bound by the rules of evidence in these proceedings. The standard of proof is the civil standard on the balance of probabilities. In considering the strength of the evidence required for its findings of fact, the Tribunal is required to have regard to the gravity of the allegations made and to the seriousness of the consequences if they are made out. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 (Neat Holdings) at 449-450 the High Court held: "The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. …"

Consideration

1. There are two issues that need to be considered before turning to the allegations made against Clr Byrne. The first is the contention that the allegations are duplicitous. The second is the issue directly raised in Allegations 1 and 6, and which Clr Byrne contends underlies the other allegations, that is, whether he had a non-pecuniary conflict of interest in a matter at the Council meetings of 26 March 2019 and 30 April 2019.

Whether the allegations are duplicitous

1. Clr Byrne submits that Allegations 1, 2, 3, 4 and 5 all derive from the same conduct, being the discussion in Council on 26 March 2019 as to the conduct of Clr Hesse and Clr Lockie, and that Allegation 6, which the applicant admits raises similar issues to Allegation 1, deals with the same issue, raised on a different date. Clr Byrne submitted that the applicant should elect which allegation is to be pursued, as it is otherwise oppressive and can lead to punishment twice for the same conduct, and requires him to repeatedly defend his conduct.
2. In support of the contention that the allegations are duplicitous, Clr Byrne relied on the decisions in Law Society of New South Wales v Mattila [2017] NSWCATOD 166 (Mattila) at [45], where the application of the doctrine was considered in the context of professional disciplinary proceedings, and Canturi v Sita Coaches Pty Ltd (2002) 116 FCR 276; [2002] FCA 349 (Canturi), dealing with duplicity in a civil penalty context. Clr Byrne submitted that Canturi is analogous to the present proceedings, in that both involve exposure to a penalty through civil proceedings. The question is ultimately one of fairness, in being required to expend costs and time dealing with multiple allegations that are all different ways of saying the same thing, so that the litigation of all the allegations is not just, quick or cheap.
3. The applicant disagrees, submitting that the concept of duplicity should be taken into account only in a limited way. The present disciplinary proceedings are not analogous to civil penalty proceedings, and the criminal concept should not be introduced into disciplinary proceedings for misconduct. The present proceedings are protective and not punitive. The central issue is whether Clr Byrne has been accorded procedural fairness, or whether he has been unable to understand the allegations made against him. Allegations 1 and 6 are not duplicitous, because they relate to separate conduct on different days.
4. The applicant relied on Kumar v Legal Services Commissioner [2015] NSWCA 161 (Kumar) and Mattila in support of the proposition that the concept of duplicity does not apply directly to professional disciplinary matters, and on Woods v The Legal Ombudsman [2004] VSCA 247 (Woods) at [46], in which the Victorian Court of Appeal cited with approval the following academic comment: "An objection that a charge is duplicitous will fail before disciplinary bodies and before courts of review on most occasions. This is so because the rule is not absolute, but rather part of the flexible notion of procedural fairness. If it is clear that a respondent was called upon to answer several charges, clear findings of fact were made, and no case submissions were entertained, an infringement of the rule will very infrequently, if ever prejudice the respondent. Disciplinary bodies can adopt procedures which will overcome any injustice which duplicity might otherwise have caused."
5. The applicant submits that duplicity may have relevance to procedural fairness, in the sense of overlapping allegations and conduct making it unclear what the person is required to answer, and duplicity of penalty, if overlapping conduct is subject to cumulative penalties. The applicant submits that there is nothing to suggest that the respondent does not understand the allegations. The allegations are not duplicitous since, although based on a similar factual matrix, each has distinct legal elements and refers to separate aspects of the Code of Conduct.

Discussion and findings

1. In Canturi, an application for civil penalties for alleged breaches of the Workplace Relations Act 1996 (Cth) (repealed), Ryan J held (at [77]) that the fact that the applicants had relied on conduct capable of contravening both s 170WG(1) and s 298K did not necessarily render either proceeding bad for duplicity as it might have been had it been clearly brought by way of information for a criminal offence. His Honour referred to Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees' Union (No 2) (1987) 15 FCR 64 in which Wilcox J observed, at 74, that while it is an established principle of the criminal law that a single charge alleging the commission of a multiplicity of offences is defective, a proceeding for civil contempt is not a criminal prosecution, and the principle of duplicitous pleading has no place. Ryan J held at [81] that that did not mean that there was no room for the avoidance of uncertainty "where the same acts are capable of amounting to a contravention of two separate and self-contained provisions of the same Act", and concluded (at [84]) that it was appropriate to impose a penalty under only one of the two relevant provisions, notwithstanding that the same conduct amounted to a contravention of the other provision.
2. In Mattila, the respondent solicitor had submitted that the grounds in the application were duplicitous, the application was unfair to her, and the applicant should be forced to elect which ground(s) to pursue. The Tribunal found (at [45]) no duplicity in the pleading, citing Kumar. The Tribunal found that fairness to the solicitor had been demonstrated by the application, in that particulars were provided to each ground and the solicitor had filed a reply in which most of the particulars for each ground were admitted; and the Tribunal was "comfortably satisfied that the solicitor knew the substance of the complaints levelled against her". The Tribunal was satisfied, citing Woods at [51], that a repetition of the factual context underlying charges is permissible in disciplinary proceedings provided that on their proper analysis it is apparent that the charges deal with two or more separate instances of misconduct, and that ultimately there is no duplication of penalty.
3. In Kumar the appellant contended that s 674(1) of the Legal Profession Act 2004 (NSW) (repealed), which provided that a person "must not, without reasonable excuse, obstruct or mislead an investigator exercising a power under the Act", created separate offences of obstructing an investigator and misleading an investigator. Leeming JA (with whom Basten JA and Sackville AJA agreed) did not accept any of the submissions based on duplicity, concluding at [84] that s 674 creates a single offence. His Honour held at [91] that even if the rules associated with duplicitous criminal prosecutions applied, the starting point was the statute; and at [93] that Mr Kumar had ultimately accepted that the question was whether he had been denied procedural fairness by reason of the charge being duplicitous.
4. Those authorities confirm that in professional disciplinary proceedings such as the present proceedings, the rule against duplicity does not apply in the same terms as in criminal proceedings; and that the issue will ultimately be one of fairness. As was the case in Mattila, here the allegations arise out of a related course of conduct, but are each separate descriptions of conduct constituting the separate allegations relied on by the applicant. The allegations are based on a similar factual matrix, however each has distinct legal elements and refers to separate aspects of the Code of Conduct. There are two types of misconduct separately alleged, being that Clr Byrne failed to comply with applicable requirements of the Code of Conduct, which is misconduct as defined in s 440F(1)(b) of the LG Act, and that he engaged in misconduct as defined under s 440F(1)(d) of the LG Act by committing an act of disorder at a Council meeting. Further, there is no uncertainty as to the allegations which Clr Byrne is required to meet: the numbered allegations in the referral to the Tribunal are stated in substantially the same terms as those contained in the draft departmental report provided to the respondent on 18 February 2020, to which he responded in submissions dated 10 March 2020; and in the final departmental report, to which he responded on 13 July 2020.
5. The Tribunal is satisfied that even if the concept of duplicity could have any operation in disciplinary proceedings such as these, there is no potential uncertainty or procedural unfairness in how the allegations against Clr Byrne have been framed and put to him. Any possible unfairness arising in terms of appropriate orders under s 482A of the LG Act, should a finding of misconduct be made, so as to ensure that Clr Byrne is not sanctioned twice for the same conduct, can be addressed at that point.

Whether Clr Byrne had a non-pecuniary conflict of interest

1. The first issue is to determine what a "non-pecuniary interest" is for the purposes of the Code of Conduct. In contrast with the position for a "pecuniary interest", a term which is defined in s 439AA and in respect of which detailed provision is made for the terms of the prescribed model code by s 440AAA(3), the LG Act does not define a "non-pecuniary interest".
2. Part 5 of the Code of Conduct deals with non-pecuniary interests. The provisions of the Code of Conduct defining what a non-pecuniary conflict of interest is, how it is to be identified, and how it is to be managed by reference to whether it is significant or not, are extracted above.
3. The applicant submitted that cl 5.1 first defines the term "non-pecuniary interest" and then provides non exhaustive examples, and that cl 5.2 states the test for a conflict of interest. Clause 5.6 imposes an obligation to disclose a non-pecuniary interest. In the present proceedings, the non-pecuniary interest is Clr Byrne's private interest in the restoration of his reputation by calling for the withdrawal of the comments. In considering cl 5.2, the "reasonable and informed person" would encompass a community observer at the Council meeting.
4. The applicant submitted that while based on his statement of 5 February 2021 Clr Byrne was concerned for the reputation of other Councillors as well as himself, the vindication of his private reputation was a non-pecuniary interest, and not just in an abstract sense. There was an advantage to Clr Byrne in the concerns notices given to Clr Lockie and Clr Hesse in subsequent defamation proceedings: if either had apologised, that could be tendered as an admission; or if not, that could be relied upon for any application for aggravated damages.
5. Clr Byrne submitted that cl 5.1 is the primary definition, and that to use cl 5.2 in the way submitted by the applicant is in error. Clause 5.2 limits the meaning set out in cl 5.1, and confirms that the test is objective rather than subjective, but does not extend the definition in cl 5.1 to any conduct which could give rise to a reasonable perception of influence. To do so would mean that the definition of non-pecuniary interest would include a pecuniary interest, which would be an absurd outcome. That proposition is supported by cl 5.5, which makes it clear that the question of perception is a check upon whether a person already has a conflict of interest. The "reasonable and informed observer" for the purposes of cl 5.2 would not be someone in the public gallery observing the meeting, but someone who would know more about the issues. Clr Byrne submitted that it is necessary to find an actual conflict, and not merely the perception of a conflict, before the provisions in cl 5 apply. Clr Byrne submitted that any apology would not constitute an express or implied admission, relying on s 20 of the Defamation Act, and so there would be no material benefit to Clr Byrne in any defamation proceedings were Clr Lockie and Clr Hesse to apologise.

Discussion and findings

1. Part 5 of the Code of Conduct applies where a councillor has a private or personal interest which does not constitute a "pecuniary interest" as defined and otherwise managed in accordance with the LG Act and Part 4 of the Code of Conduct. Clause 5.4 confirms that the onus is on the councillor to identify any non-pecuniary conflict of interest that they may have in matters that they deal with, to disclose it fully, and to take appropriate action to manage the conflict. How a non-pecuniary conflict of interest is managed depends on whether it is "significant": if it is, it is to be managed by not participating in consideration or decision-making in relation to that matter, similarly to how a pecuniary interest would be managed (cl 5.10); and if not, by written disclosure (cl 5.11).
2. The Code of Conduct has effect and applies in accordance with the provisions of s 440 of the LG Act: while not legislation, as a code of conduct adopted by the Council it must incorporate the provisions of the model code prescribed by the regulations, and any provisions which supplement the model code must be consistent with the prescribed model code: LG Act, s 440(3), (4). Councillors must comply with the applicable provisions of a council's adopted code: LG Act, s 440(5).
3. Clause 5.1 states what a "non-pecuniary interest" is, and how a relevant non-pecuniary interest might commonly arise, such as in family or personal relationships or other connections through sporting, social, religious or cultural associations. A financial interest which does not meet the definition of a "pecuniary interest" in cl 4.1 of the Code of Conduct, or the LG Act, may also be included in the range of non-pecuniary interests relevant for Part 5 of the Code of Conduct.
4. The concept of non-pecuniary conflict of interest does not lend itself to closed categories, and there may be a variety of circumstances in which a non-pecuniary conflict of interest may arise, including associations with family and friends, and work associations: De Luca v Simpson [2012] NSWSC 960 at [143]. Clause 5.2 of the Code of Conduct explains that a conflict of interest exists in respect of a non-pecuniary interest "where a reasonable and informed person would perceive that you could be influenced by a private interest when carrying out your official functions in relation to a matter". That cl 5.2 is a test for a non-pecuniary conflict of interest is supported by the use of the words "for the purposes of cl 5.2" in both cl 5.3 and cl 5.6. The Tribunal does not accept the submission of Clr Byrne that cl 5.2 requires an actual existence of a conflict. Rather, cl 5.2 in terms refers to a perception; and cl 5.5 reinforces that it is how a matter is perceived by an outsider that is relevant. The position is to be considered from the point of view of a "reasonable and informed" person, and focuses on the possibility of influence, rather than a certainty.
5. There are similarities between cl 5.2 and the test for apprehended bias, which is met if a fair-minded lay observer might reasonably apprehend that a decision-maker might not bring an impartial mind to the resolution of the question the decision-maker is required to decide: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]. The notion of the "fair-minded lay observer", as considered by the High Court in Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48, particularly at [12] and [13] of the joint judgment, is that such an observer is "taken to be reasonable", and to have some understanding of the nature of the decision-making process and issues to be decided.
6. While there are similarities, a significant difference is that rather than the "double might" test which applies for apprehended bias, cl 5.2 provides that a conflict of interest exists where the reasonable and informed person "would" perceive that a councillor "could" be influenced by the private interest. The position is still as observed by an outsider, but requires a greater degree of certainty.
7. A further difference is that the context of council administration and functioning is not directly analogous to a judicial or other decision-making process. So much is acknowledged in the Code of Conduct, in the exclusion by cl 5.3 of "personal or political views" from a private interest otherwise caught by cl 5.2. As explained in De Luca v Simpson at [146], the obligation on a councillor to identify and manage a conflict of interest in accordance with code requirements is of importance to the accountability of councillors in the exercise of their duties under the LG Act. That is acknowledged in cl 5.4 of the Code of Conduct, which provides that non-pecuniary conflicts of interest must be identified and appropriately managed "to uphold community confidence in the probity of council decision-making".
8. The first issue to determine is whether Clr Byrne had "a non-pecuniary interest" in a matter before the Council at its meeting on 26 March 2019. Clr Byrne submits that he did not, on the basis that any interest of his did not fall within the definition in cl 5.1 of the Code of Conduct.
9. Contrary to the respondent's submissions, the Tribunal is of the view that the reference in cl 5.1 to family or personal relationships or involvement in sporting, religious or other cultural groups and associations, is not an exhaustive list of what might be relevant "private or personal interests" a council official has, but rather are examples of the circumstances that might constitute a private or personal interest for the purposes of Part 5 of the Code of Conduct. That construction is supported by the use of the word "commonly" in cl 5.1, and is also consistent with the list of circumstances in which a non-pecuniary conflict of interest will be regarded as "significant" in cl 5.9. While paras (a), (b), (c) and (d) of cl 5.9 relate to family or other relationships or involvement in groups and associations referred to in cl 5.1, paras (e) and (f) do not necessarily relate to such interests, and would encompass a range of interests not limited to the examples given in cl 5.1; and that could include a financial interest that would not be regarded as a pecuniary interest.
10. In submissions in response to the draft departmental report Clr Byrne described his belief that Clr Lockie and Clr Hesse should remove and apologise for offensive comments as not being a private interest, but rather a personal view within the meaning of cl 5.3 of the Code of Conduct. The Tribunal does not agree. As made clear in the letters of 26 March 2019 to Clr Lockie and Clr Hesse, Clr Byrne considered that he had been defamed by the comments on Clr Lockie's public Facebook post. He claimed that the defamatory imputations conveyed included that he was corrupt, that his behaviour was reprehensible, that he does not abide by proper process, and that he has acted unlawfully. In those letters he sought to have the comments deleted, and an apology made. While he had not, at that point, commenced legal proceedings, the final paragraph of both letters was framed by reference to the requirements of the Defamation Act.
11. The Tribunal is satisfied that at the time of the Council's 26 March 2019 meeting, Clr Byrne had an interest in wanting to vindicate his reputation and public perception of his character, which he considered had been impugned or harmed by the Facebook posts. His interest in maintaining and defending his reputation was more than a personal view or opinion, and was a private interest; and it was a "non-pecuniary interest" as defined in cl 5.1 of the Code of Conduct.
12. That Clr Byrne was concerned to vindicate his reputation is confirmed on a reading of the transcript of the 26 March 2019 meeting. Shortly after moving the Council officers' recommendation in relation to Item 1 on the Agenda, with the two amendments, Clr Byrne said (ex A1, p A70-1): "Furthermore, unfortunately, in researching for tonight's meeting, I went back across some of the communications which occurred subsequent to the adoption of the DCP, and discovered that a couple of Councillors had made very clear imputations about me being corrupt. And, in fact, about all of the Councillors who voted for that motion being corrupt. And unfortunately, I've had to issue a letter today to two of those councillors, Councillor Hesse and Councillor Lockie, simply seeking a withdrawal of that statement, which is still on Councillor Lockie's Facebook page right now, and asking them to withdraw and apologise. I'm not seeking costs in any way, but I think all Councillors recognize that we come to these considerations with a determination to act in the public interest. And whilst I cop a lot of criticism, I think I have to defend my name. It's certainly not the case I am corrupt, and that's why I've had to direct lawyers to issue that letter today. So I'd like to amend the primary motion to note that no liability has been incurred by Council at all, and that the approximate costs of the works have been reduced by $35 million. And to call on Councillors who, following the adoption of the DCP, have made potentially defamatory statements and imputations about other Councillors, or through those comments, may have brought the Council into disrepute, which is certainly the legal advice that I've received, to withdraw those comments and apologise so that we can all move on."
13. Following discussion by other Councillors, Clr Byrne said (ex A1, p A82-83): "In relation to the process issues, and the comments that have been made, I regret that it's been necessary to bring this matter to Council, but I became aware of these comments in researching for tonight. I sought legal advice, and was advised that the comments were so clearly defamatory, not only of myself but of all the Councillors who voted for the adoption of the DCP, and impugning the Council itself, that the right and proper thing for me to do would be to write to the people who'd made those comments in advance of the meeting to let them know that there was a serious concern. I'm a little confused as to how other people are angry that I've raised an issue about being defamed. If you're angry about me raising that issue, imagine how distressed I feel to have seven of the …Well to have some Councillors suggesting I'm in the pocket of the developers. Which I've never said about anyone that I've disagreed with on Council, so I'm not expressing anger about that, but I am expressing disdain for your faux-anger at me having objected to it. Given that I've never defamed any of you, and never will. The primary motion does not assert that a single Councillor …The primary motion does not assert that any single Councillor in this chamber has defamed anyone, it simply requires any Councillor who, on reflection of their comments, realizes that they may have impugned the reputation of the Council and other Councillors, to withdraw those comments. And I'd like to indicate tonight that I think, if the motion is adopted, it's an opportunity for Councillors to consider their position before making a decision about that. But to reject it out-of-hand and pretend that there is not a problem here, and that it's perfectly legitimate to infer that people are criminals because you disagree with them on policy, it unprofessional. I'll now put the primary motion."
14. In the interview with the applicant's investigators on 26 September 2019, Clr Byrne was asked why, having sought legal advice and given instructions that the letters be issued in the terms they were issued, he moved the Byrne Motion, and what prompted him. Clr Byrne said (ex A1, p A233): "Councillor Byrne: I had a general concern that having discovered these defamatory comments that they'd be repeated in the public domain either at the meeting or subsequently, and I thought the letter was a sensible and moderate and respectful way to suggest that the comments should just be withdrawn and an apology made and that the matter could then be concluded. Mr Murphy: So, would it be fair to say you didn't want a repetition of what happened after the previous meeting where this DCP had been considered? Councillor Byrne: That's the central component of my entire motivation."
15. Clr Byrne was later asked whether he had given consideration about whether he had a conflict of interest (ex A1, p A243-4): "Mr Murphy: My question for Councillor Byrne is in the circumstances where you had written - you had issued instructions and were aware that letters had been written to Councillor Lockie and Councillor Hesse seeking apologies and actions in regard to -- Councillor Byrne: Apology and withdrawal. Mr Murphy: -- in response to having been defamed, you then moved a motion - prepared a motion and ultimately at the meeting moved a motion from the chair calling upon councillors who had essentially done what - and you made it clear during the debate that you were concerned about actions of Councillor Lockie and particularly Councillor Hesse's comment. Did you, in the lead-up to the meeting, give consideration about whether you had a conflict of interest in that matter? Councillor Byrne: Well, I thought the comments were defamatory, and I thought the best course, the best way forward to avoid acrimony, was for them simply to be withdrawn, and I still think that, and that was reflected in the letters that were sent and in the resolution. Mr Murphy: So, my question, if I can ask it again because I don't think you've answered it, is did you consider whether you had a conflict of interest as set out in the code of conduct in the matter? Councillor Byrne: I don't consider that I did, no. Mr Murphy: Okay. Now, is that something you gave thought to in preparing to move the motion or moving the motion? Councillor Byrne: I've answered the question. Mr Murphy: I'm not clear that you have. I mean, I think it's a yes or a no. Is it something you recollect having given thought to prior to the meeting, whether you had a conflict of interest or not? Councillor Byrne: I don't believe I had a conflict of interest."
16. The passage from the transcript of the 26 March 2019 meeting quoted above at [69] indicates that in addition to a concern for his personal reputation, Clr Byrne was raising a concern for imputations made about other Councillors and the Council. That is also apparent from the transcript of the interview conducted by the applicant's investigators, when Clr Byrne was questioned as to whether his concern at the meeting of 26 March 2019 about the social media posts being defamatory only related to himself or was it broader than that (ex A1, p A252-253): "Councillor Byrne: Well, I never made any suggestion that Councillor Lockie or Councillor Hesse had breached the code, as is clear from the transcript, and my concern was that Councillors Hesse and Lockie had committed the common law tort of defamation, and I used the words "defamatory" and "imputations" and "impugning" generally. I did use the phrase "council" - "brought council into disrepute" but only once and in a sentence where it was connected to defamatory statements and imputations, which were obviously drawn from defamation law. Mr Murphy: My question is that you were concerned about - you were concerned about - you've indicated to me earlier in the interview and I think in your correspondence that you were concerned, and you've restated it here, about the impact on you and your reputation and that you considered they were defamatory of you. On my reading of what you said at the Council meeting you also expressed a concern about the possible - that they were potentially - the possible impact on council itself and other councillors. Is that - have I understood that correctly? Were you only concerned about their impact on you or did you have a concern that was broader than that? Councillor Byrne: I thought they were very insulting to the other councillors who voted for the recommendation previously, yes. Mr Murphy: And what about council itself, do you think it had - I mean, I appreciate the context in which you've said you said those words in terms of the potential - that it may bring council into disrepute. I acknowledge what you've said to me, but is it your view, that it did have the potential to bring council into disrepute? Councillor Byrne: I've answered your question, but I'd like to know what you think about that. … Mr Murphy: …Did you have a concern about - that the social media posts had the potential to reflect badly on council? Councillor Byrne: I thought all - I thought they were defamatory comments about myself, and I think the other councillors were defamed, and I took action on my own behalf.
17. In his statement of 5 February 2021 Clr Byrne stated that after the Council meeting of 28 August 2018 a number of Councillors spoke to him to express concerns that through the public commentary of Clr Hesse and Clr Lockie on Facebook the reputation of the Council had been impugned, and that they as Councillors had been insulted and had their reputations unfairly damaged by implications that they were corrupt. Clr Byrne stated that Clr Drury had been questioned as to whether he had acted improperly or at the behest of developers in voting for the resolution; Clr Macri had felt his reputation and that of Council had been damaged as a result of the comments; and Clr Passas had insisted that as Mayor Clr Byrne had a responsibility to try to ensure that Councillors were not making comments during debate or in the public domain that brought Council into disrepute or which had insulting or defamatory imputations about elected Councillors.
18. Clr Byrne stated that he felt that their insistence that Council's reputation should be upheld was fair and reasonable and he also felt a sense of responsibility as Mayor to seek to address their concerns. At par 10 Clr Byrne stated that in preparation for the March 2019 meeting he reviewed the public comments made by Councillors regarding the developer contributions plan for the Victoria Road Precinct, and he was cognisant of the representations made to him by Clrs Drury, Macri and Passas. He felt responsible for taking some action to ensure that their reputations as well as his own and that of Council as a whole were not further damaged by defamatory imputations at that meeting.
19. In his written submissions Clr Byrne submitted that it is impossible to separate the reputation of a councillor, as a public figure, so far as it affected the performance of their official functions, from the reputation of the council; and in protecting the reputation of the Councillors and the Council, Clr Byrne was protecting the reputation of the Council. That was not a private interest, but manifestly a public interest. In oral submissions, Clr Byrne submitted that his primary motivation was to protect the reputation of Councillors generally and the Council itself.
20. The Tribunal accepts, having regard to the statements made by Clr Byrne during the meeting of 26 March 2019 (above at [69], [70]), his responses to questions from the investigators about that meeting (above at [73]), and in his statement of 5 February 2021, that Clr Byrne had a concern for the reputation of Council, and for that of other Councillors. Other Councillors, including Clr Drury and Clr York, expressed concern in their contributions to the debate on 26 March 2019 that their reputation had been impugned (ex A1, pp A74, A77). The Tribunal agrees with Clr Byrne that there was a public interest in the restoration of the reputation of the Council and that of other Councillors who had voted for the DCP.
21. However, in the Tribunal's view the evidence does not support the conclusion that protection of the reputation of Councillors generally and the Council was the primary motivation. In the statements made when amending the motion to include the call for the comments to be withdrawn and an apology made (quoted at [69]), Clr Byrne referred first to the imputations made that he was corrupt, and said that he needed to defend his name. In his comments during the interview (above at [71]) he said he wanted the defamatory comments withdrawn. The existence of a concern for the reputation of Council and other Councillors does not detract from there being a private interest in maintenance of his personal reputation which Clr Byrne asserted had been impugned by the comments on Clr Lockie's Facebook post, and in respect of which he had had the concerns notices issued.
22. The Tribunal is satisfied that in seeking to vindicate his reputation and public perception of his character, Clr Byrne had a private or personal interest, which was not a pecuniary interest or of a kind referred to in cl 5.3 of the Code of Conduct, and that that interest was a non-pecuniary interest as defined in cl 5.1 of the Code of Conduct.
23. That non-pecuniary interest would give rise to a conflict of interest if it would be perceived by a reasonable and informed observer that Clr Byrne could be influenced by it when carrying out his official functions in relation to a matter. The matter before Council on 26 March 2019 in Item 1 on the Agenda was the report on further steps for amendment of the DCP and the Council's contributions plan. Clr Byrne was chairing the meeting, and he put forward the Clr Byrne Motion to add Parts 3 and 4 to the motion included in the business papers. Part 4 of the motion (quoted at [11] above) would, if passed, confer a personal benefit on Clr Byrne by requiring Councillors who had made statements that were potentially defamatory of him to withdraw and apologise for them.
24. As Mayor, Clr Byrne was presiding over the Council meeting, exercising a central function in managing debate and Council decision-making in accordance with s 369 of the LG Act and Part 2 of the Inner West Council Code of Meeting Practice, in the conduct of the Council's public business. As proposer of the Byrne Motion, he was exercising a function conferred on Councillors, and subject to the requirements of Part 5 of the Inner West Council Code of Meeting Practice. The Tribunal finds that Clr Byrne was carrying out his official functions in relation to the matter of the adoption of the motion including Part 4.
25. The Tribunal is satisfied that a reasonable and informed person could be presumed to be aware of the background, namely the amendment to the DCP and the contributions plan which provided context for Item 1 on the Agenda for the Council meeting of 26 March 2019, as well as that part of the debate quoted at [69] in which Clr Byrne disclosed that he had issued letters to Clr Lockie and Clr Hesse requiring the withdrawal of the comments and an apology. The Tribunal is satisfied that such an observer would perceive that in proposing and voting on the motion requiring the withdrawal of the comments and an apology, Clr Byrne could be influenced by his private interest in seeking those steps in order to vindicate his personal reputation which he considered had been impugned by the Facebook comments. The Tribunal finds that Clr Byrne had a non-pecuniary conflict of interest.
26. The next issue is whether that non-pecuniary conflict of interest was "significant". Clause 5.9 of the Code of Conduct provides for when, "as a general rule", a non-pecuniary conflict of interest will be regarded as significant. In the present circumstance, each of the letters dated 26 March 2019 to Clr Lockie and Clr Hesse stated that it was to be treated as a concerns notice pursuant to the Defamation Act and a genuine steps letter in an attempt to arrive at a settlement. Accordingly, while disavowing any intention to seek costs, defamation proceedings by Clr Byrne against each of those Councillors were potentially in contemplation. The Byrne Motion required that they withdraw and apologise for the comments.
27. Clr Byrne had taken the step of issuing a concerns notice to each of Clr Lockie and Clr Hesse, which was relevant to any offer to make amends under Part 3 of the Defamation Act. While the respondent correctly points to s 20 of that Act, which provides that an apology does not constitute an express or implied admission of fault or liability by the person, and is not relevant to the determination of fault or liability in connection with that matter, it would potentially be a relevant factor in mitigation of damages had the matter proceeded to litigation: Defamation Act, s 38. The requirement that Clr Lockie and Clr Hesse withdraw and apologise involved conferral or loss of a personal benefit on Clr Byrne, which was other than one conferred or lost as a member of the community or a broader class of people affected by a decision. The Tribunal finds that Clr Byrne had a significant non-pecuniary conflict of interest, as defined in cl 5.9(f) of the Code of Conduct, in the consideration of the motion moved by him at the Council meeting on 26 March 2019.
28. The Rescission Motion, which sought to rescind Parts 3 and 4 of the Byrne Motion, was Item 12 on the Agenda at the Council meeting on 30 April 2019. The Minutes record that a motion to defer that item until advice from the OLG was received was defeated, Clr Byrne voting against. A motion to refuse the Rescission Motion, moved by Clr Byrne and Clr Passas, was carried, Clr Byrne voting in favour.
29. As at the date of the Council meeting on 30 April 2019 correspondence between Clr Byrne's solicitors and Clr Lockie (ex A1, pp A17-19) and Clr Hesse (ex A1, pp A41-2) was continuing. The outcome of the motion moved by Clr Byrne at that meeting, and in favour of which he voted, was that the resolution of the 26 March 2019 meeting that required Councillors who had made potentially defamatory statements and imputations about other Councillors to withdraw those comments and apologise, would stand.
30. The Tribunal is satisfied that Clr Byrne had the same significant non-pecuniary conflict of interest in respect of the Rescission Motion on 30 April 2019 as he had in respect of the Byrne Motion on 26 March 2019 and 9 April 2019.

Allegation 1

1. Allegation 1 is that Clr Byrne had a non-pecuniary conflict of interest in the consideration of the 26 March 2019 motion, which was moved by him at the meeting of Council held on 26 March 2019, that he did not avoid or appropriately manage, as required by clauses 5.4, 5.6 and 5.10 or 5.11 of the Code of Conduct.
2. Part 4 of the motion moved by Clr Byrne called on Councillors "who have made potentially defamatory statements and imputations about other Councillors or who through those comments may have brought the Council into disrepute to withdraw these comments and apologise".
3. The Tribunal has, for the reasons above, concluded that Clr Byrne had a significant non-pecuniary conflict of interest when carrying out his official functions in that matter. While Clr Byrne informed the meeting that he had issued a letter to Clr Lockie and Clr Hesse in response to the comments which he regarded as defamatory, and had asked them to withdraw and apologise, Clr Byrne did not disclose that he had a non-pecuniary interest in writing, or by having it recorded in the minutes at that Council meeting, as required by cl 5.6 and cl 5.7 of the Code of Conduct.
4. The Tribunal has concluded that the non-pecuniary conflict of interest was significant, as it involved the conferral of a personal benefit as referred to in cl 5.9(f) of the Code of Conduct. Clause 5.10(a) required Clr Byrne to not participate in consideration of, or decision-making in relation to, that matter. Since the significant non-pecuniary conflict of interest arose in relation to a matter under consideration at that meeting, he was required to manage it as if it were a pecuniary interest, by disclosing the nature of the interest and not being present at or in sight of the meeting at which the motion was discussed, in accordance with cl 5.10(b) of the Code of Conduct.
5. Even if the conclusion that the non-pecuniary conflict of interest was significant is not correct, cl 5.11 would have required Clr Byrne to explain in writing why he considered it not significant and why it did not require further action in the circumstances.
6. The Tribunal finds that Clr Byrne did not identify and disclose the non-pecuniary conflict of interest as required by cl 5.4 and 5.6 of the Code of Conduct, or manage that conflict of interest in accordance with cl 5.10 or cl 5.11 of the Code of Conduct. Allegation 1 is established.

Allegation 2

1. Allegation 2 is that at the meeting of 26 March 2019 Clr Byrne made an allegation that Clr Hesse and Clr Lockie had engaged in conduct that was likely to bring them, as council officials, into disrepute, and in doing so, breached clause 3.1(a) of the Code of Conduct.
2. In the first paragraph of the passage from the transcript of the meeting of 26 March 2019 quoted above at [69], Clr Byrne identified Clr Lockie and Clr Hesse as the Councillors who "had made very clear imputations about me being corrupt", and that he had had "to issue a letter today to two of those Councillors, Councillor Hesse and Councillor Lockie, simply seeking a withdrawal of that statement, which is still on Councillor Lockie's Facebook page right now, and asking them to withdraw and apologise". Further in the meeting, in response to a request from a Councillor to see the comments said to be "defamatory statements" and "imputations", Clr Byrne said (ex A1, p A73): "I'll take that as a question to the chair, and that's a fair point to ask about Councillor Stamolis. The two relevant comments on Councillor Lockie's Facebook page are one from someone stating that Councillors who voted for the motion are "in bed with developers at the cost to locals". The second one is a comment from Councillor Hesse himself. I had posted a link to the Council's media release, saying "Here's the facts", and Councillor Hesse has commented, "Here's a promotion from the developers". So I think the imputation is quite clear, and I've issued that letter. I'm not seeking, through this motion, to do anything other than for any Councillor who has impugned others to withdraw the comment. So I'll leave it at that. …"
3. The applicant submits that the statement made by Clr Byrne during debate on the Byrne Motion quoted at [69] above was an unambiguous public statement that Clr Hesse and Clr Lockie had made imputations against him that he was corrupt, and that by making those serious allegations against them, Clr Byrne engaged in conduct that was likely to bring those Councillors into disrepute. Relying on the Tribunal decision in Office of Local Government v Shelley [2018] NSWCATOD 103 (Shelley), the applicant submits that where an allegation of wrongful conduct is made by a councillor against other councillors, it is unnecessary to consider whether the alleged conduct was, or would have been, a breach of the Code of Conduct. In alleging that Clr Lockie and Clr Hesse had made imputations that Clr Byrne was corrupt, Clr Byrne brought those councillors into disrepute. The applicant submitted, relying on the decision of the Court of Appeal in Barrak v City of Parramatta Council [2019] NSWCA 213 (Barrak), that it is not necessary to determine the truth or otherwise of an allegation made by a councillor against other councillors.
4. Clr Byrne submits that the basis for the allegation of bringing the Councillors into disrepute is entirely based on the matters that give rise to the allegation as to non-pecuniary interest. He submits that there is a circularity of reasoning in the departmental report conclusion that he had brought Clr Lockie and Clr Hesse into disrepute by making a statement that Clr Lockie and Clr Hesse had engaged in conduct that was likely to bring Council and himself, as a Council official, into disrepute (whether that statement was truthful or not). Clr Byrne submits that while a statement may be insulting even though true, it is intuitively difficult to comprehend how a truthful statement that sought to protect the Council and its Councillors could be seen to bring the Councillors into disrepute in a way that would be actionable under the Code. Clr Byrne submits that Barrak can be distinguished, as this circumstance did not involve a gratuitous use of an insult, but was a serious and restrained discussion.
5. In the comments quoted above at [69], Clr Byrne identified Clr Lockie and Clr Hesse as having made imputations about him being corrupt. That was a serious allegation. In the comments quoted above at [70], in which he referred to his distress that it had been suggested he was "in the pocket of the developers", and in the disclosure that he had issued a letter requiring the Councillors who had made comments "so clearly defamatory" to withdraw and apologise, Clr Byrne indicated at the meeting that he took the allegation seriously. The Tribunal agrees with the applicant that to identify Clr Lockie and Clr Hesse as persons who had made such a serious allegation was to suggest that their behaviour was not proper or appropriate, and was to discredit them, or bring them into disrepute.
6. The applicant submits that that is a breach of cl 3.1(a) of the Code of Conduct, which provides that a Councillor "must not conduct yourself in a manner that …is likely to bring the council or other council officials into disrepute". Clr Byrne submits that it is not, contending that cl 3.1 has regard to how a Councillor conducts himself or herself, and not what they say. Clr Byrne submits that there is a difference between "manner", relying on the Macquarie Dictionary definition as being a "way of doing, being done, or happening; mode of action or occurrence", and the words used.
7. The Tribunal does not agree that cl 3.1 should be read so as not to include the words used by a Councillor. Clause 3.1 identifies in paras (a)-(g) a broad range of inappropriate behaviour, including in (e) "verbal abuse". In the Tribunal's view when read as a whole, cl 3.1 is not limited to a person's "conduct" or actions as opposed to words, but refers to the way in which a Councillor conducts themselves more generally. That includes the words used by that person. To limit cl 3.1 in the way submitted by Clr Byrne would not be consistent with the purpose of the Code of Conduct. That is stated in the Introduction, which states that the code of conduct "sets the minimum standards of conduct" for council officials including Councillors, and assists them to "act in a way that enhances public confidence in local government". That is a broad concept and purpose, and in the Tribunal's view includes the words used by a Councillor as well as their actions.
8. The Tribunal finds that in alleging that Clr Lockie and Clr Hesse had made imputations that were defamatory of him, Clr Byrne had conducted himself in a manner likely to bring them as council officials into disrepute, in breach of cl 3.1(a) of the Code of Conduct. Allegation 2 is established.

Allegation 3

1. Allegation 3 is that at the 26 March 2019 meeting Clr Byrne made an allegation that Clr Hesse and Clr Lockie had, in effect, breached the Code of Conduct by them having engaged in conduct that was likely to bring Council into disrepute, and that in doing so he breached cll 9.10, 9.11 and 9.12 of the Code of Conduct.
2. The applicant submits that the fact that Clr Byrne did not use words to the effect of a "breach of the Code" does not prevent that allegation being established, and nor is it necessary to consider whether in fact either Clr Lockie or Clr Hesse had breached the Code of Conduct for that to be so. Clr Byrne had alleged that Clr Lockie and Clr Hesse had made statements containing clear imputations that he was corrupt, and the conduct alleged by Clr Byrne against Clr Lockie and Clr Hesse, if it in fact occurred, would be a breach of cl 3.1(a) and cl 9.10 of the Code of Conduct. That allegation was made in the course of a public meeting of Council.
3. Clr Byrne submits that an interpretation that meant that a Councillor would never be able to make a statement about another Councillor that raised conduct which if proven might lead to a breach of the Code of Conduct, would be absurd, and contrary to the educative and non-interventionist objects of the LG Act, being in s 8 to "provide guidance to enable councils to carry out their functions in a way that facilitates local communities that are strong, health and prosperous". If such an interpretation were to be accepted, any breach is marginal. Clr Byrne submits that Shelley is distinguishable, as what was said in that case was a very clear allegation that named councillors had a pecuniary interest which they had not declared, whereas in the present circumstances the applicant is relying on an indirect series of inferences.
4. In Shelley the Tribunal was considering comments made at a Council meeting and on a Facebook post by Clr Shelley, in which he had identified three Councillors who he asserted had actively taken part in promoting and arguing for a 20% reduction in farm rates and a commensurate increase in other rate categories to compensate, and who had then tried to vote in favour of a recommendation without having to declare a pecuniary interest, stating: "…The problem with this is whether through ignorance, arrogance or something worse they perverted and influenced the recommendation to Council which would give them significant financial gain as all 3 have significant land holdings. You cannot appoint an independent rates reference group, participate and argue a point of view in those meetings then vote on the recommendation you corrupted then claim that you are allowed under the Local Government Act. It doesn't work that way, ethically or morally."
5. Clause 8.12 of the applicable code of conduct provided that a Councillor "must not make allegations of suspected breaches of this code at council meetings or in public forums".
6. The Tribunal accepted (at [22]) the applicant's submission that a breach of the code could occur even if the person making the allegation did not say words to the effect of "X breached clause Y of the Code" or even "X breached the Code", and that it was sufficient that an allegation is made that certain conduct occurred (or potentially, that certain conduct occurred and was wrong or improper), where that conduct (if it in fact occurred) would be a breach of the code. The Tribunal concluded (at [23]) that to find otherwise would mean that a Councillor could avoid making an allegation that another Councillor breached the code simply by avoiding use of words to the effect of "in breach of" the code when describing the conduct complained of. The Tribunal also accepted that it was unnecessary to consider whether the alleged conduct was, or would have been, a breach of the code.
7. The Tribunal agrees with that reasoning, and is of the view that it applies in the present circumstances. The transcript of the 26 March 2019 meeting confirms that while Clr Byrne did not in terms allege a breach of the Code of Conduct, in the remarks quoted above at [69] he alleged that a couple of Councillors had "made very clear imputations" not only that he was corrupt, but that "all of the Councillors who voted for that motion [were] corrupt", and identified Clr Hesse and Clr Lockie as the Councillors to whom he had issued a letter seeking a withdrawal and apology. Further in the debate, as quoted at [70], Clr Byrne referred to his legal advice that the comments were defamatory not only of himself, but all the Councillors who voted for the adoption of the DCP, "and impugning the Council itself".
8. Clr Byrne stated that Clr Lockie and Clr Hesse had made statements or comments that were not only defamatory of councillors including himself, but which had impugned the Council. While Clr Byrne did not in terms allege that Clr Lockie or Clr Hesse had breached the Code of Conduct in bringing the Council into disrepute, that was more than an inference, and was an allegation that conduct occurred where that conduct, if it in fact occurred, would be a breach of cl 3.1(a) of the Code of Conduct. Consistent with Shelley, that was sufficient to constitute an allegation of a breach of the Code of Conduct.
9. The relevant provisions of Part 9 of the Code of Conduct are extracted above at [30]. Clause 9.10 requires that all allegations of breaches of the code are dealt with under and in accordance with the Procedures Code. Clause 9.11 provides that a Councillor must not allege breaches of the Code other than by way of a complaint made or initiated under the Procedures Code, and cl 9.12 provides that a Councillor must not make allegations about suspected breaches of the Code at a Council meeting. In alleging a breach of the Code of Conduct other than by way of a complaint made or initiated under the Procedures Code, at a Council meeting, Clr Byrne failed to comply with cll 9.11 and 9.12 of the Code of Conduct. The Tribunal is satisfied that Allegation 3 is established.

Allegation 4

1. Allegation 4 is that Clr Byrne engaged in conduct that was improper, unethical and/or an abuse of power when he used his position as Mayor and as a Councillor to move a motion in which he is alleged to have had a conflict of interest, and in doing so, he breached cl 3.1(c), (d) and (f) of the Code of Conduct.
2. The applicant submits that in moving the Byrne Motion despite having a significant non-pecuniary conflict of interest in the matter, Clr Byrne engaged in conduct that was improper and unethical. His action in moving a public motion to seek vindication of his reputation in circumstances where he had a significant non-pecuniary conflict of interest that he did not declare or manage appropriately was improper or unethical conduct, as explained in Office of Local Government v Toma [2016] NSWCATOD 21 (Toma). The public is entitled to expect that Councillors disclose and manage their non-pecuniary conflicts of interest in accordance with the provisions of the Code of Conduct.
3. The applicant submits that in seeking to achieve the same outcome by moving the Byrne Motion that he was pursuing privately, namely withdrawal of the comments he considered to be defamatory of him, Clr Byrne was utilising the power available to him as a Councillor to propose, and vote on, a resolution to call on other Councillors to apologise to people, including him. His conduct in proposing and voting on the Byrne Motion when he knew, or ought to have known, that he had a significant non-pecuniary conflict of interest was an abuse of his power to propose and vote on Council business.
4. Clr Byrne submits that this allegation depends on acceptance of the allegation that Clr Byrne had a significant non-pecuniary conflict of interest, which is denied.
5. The terms "improper" and "unethical" as used in cl 3.1(c) of the Code of Conduct are not defined. In Toma the Tribunal considered the expression "unethical and improper" as found in analogous professional standards legislation, including the Health Practitioner Regulation National Law (NSW), noting the adoption of the dictionary definition of those words in Health Care Complaints Commission v Mitchell [2015] NSWCATOD 151 at [56]: "The words 'unethical' or 'improper' are not defined in the National Law. The Macquarie Dictionary defines 'improper' relevantly as not in accordance with propriety of behaviour, manners etc. or abnormal or irregular and 'unethical' as 'contrary to moral precept; immoral; 2. in contravention of some code of professional conduct.'"
6. The Tribunal concluded at [25]: "Applying these authorities, I do not need to state an exhaustive definition of improper or unethical conduct. Rather it is enough to here note that the expression encompasses conduct which, viewed objectively, would be regarded by reasonable persons as falling below the standards of conduct to be expected of Councillors, in that it has a tendency to bring into disrepute the civic office held by Councillors, or the Council, or both."
7. The Tribunal has found, for the reasons above, that Clr Byrne had a significant non-pecuniary conflict of interest when he moved, and voted in favour of, the Byrne motion at the Council meeting of 26 March 2019. In circumstances where he had not declared or managed that conflict of interest in accordance with the requirements of the Code of Conduct, and where the two Councillors concerned had declared a conflict of interest and absented themselves from the discussion and vote when the meeting resumed on 9 April 2019, the Tribunal is satisfied that Clr Byrne's conduct fell below the standards of conduct expected of Councillors, and reduced public confidence in the institution of local government. Consistent with the reasoning in Toma, that conduct was unethical and improper, and was in breach of cl 3.1(c) of the Code of Conduct.
8. The applicant submits that in proposing and voting on a motion that would if carried and implemented achieve the same outcome that he was seeking to achieve privately, namely the withdrawal of the comments and an apology, Clr Byrne's conduct was also a misuse of his position as councillor, and an abuse of power.
9. On the Tribunal's reading of the record of the interview with the applicant's investigators quoted above at [71] and [72], Clr Byrne was aware that the concerns notices sent to Clr Lockie and Clr Hesse and the Byrne Motion which he moved at the Council meeting would achieve the same outcome, namely the withdrawal of the comments and an apology. The Tribunal agrees with the applicant that the use of the power available to Clr Byrne as a Councillor to propose, and vote on, the Byrne Motion, when he was aware that it would achieve that same outcome, was an improper use of that power. That was a breach of cl 3.1(f) of the Code of Conduct.
10. Whether that impropriety constituted an "abuse of power" for the purposes of cl 3.1(d) of the Code of Conduct would depend on Clr Byrne's state of mind, as explained by the majority in R v Byrnes (1995) 183 CLR 501 at 514-515; [1995] HCA 1: "Impropriety consists in a breach of the standards of conduct that would be expected of a person in the position of the alleged offender by reasonable persons with knowledge of the duties, powers and authority of the position and the circumstances of the case. When impropriety is said to consist in an abuse of power, the state of mind of the alleged offender is important: the alleged offender's knowledge or means of knowledge of the circumstances in which the power is exercised and his purpose or intention in exercising the power are important factors in determining the question whether the power has been abused." (Footnotes omitted.)
11. Clr Byrne was not cross examined on his statement of 5 February 2021, the substance of which is summarised above at [74]-[75]. Considering that evidence, and the responses given in the interview, in the context of Clr Byrne's contribution as a whole to the discussion at the meeting of 26 March 2019, and bearing in mind the approach to such a finding as stated by the High Court in Neat Holdings, the Tribunal is not persuaded that it can be concluded that Clr Byrne's actions constituted an abuse of power. The Tribunal is not satisfied that there was a breach of cl 3.1(d) of the Code of Conduct.
12. The Tribunal finds that Clr Byrne's conduct as alleged in Allegation 4 was in breach of cl 3.1(c) and (f) of the Code of Conduct.

Allegation 5

1. Allegation 5 is that Clr Byrne made personal reflections on Clr Hesse and Clr Lockie when he said words to the effect that Clr Hesse and Clr Lockie had engaged in conduct that was likely to bring Council into disrepute, and that in doing so he committed an act of disorder and breached clauses 3.1(b) and 3.22 of the Code of Conduct.
2. The applicant submits that Clr Byrne's statements during debate on 26 March 2019, being those quoted at [69] above, were to the effect that Clr Lockie and Clr Hesse had engaged in conduct that warranted them making an apology. Clr Byrne's statement that Clr Lockie and Clr Hesse had made imputations about him being corrupt was capable of being a personal reflection on them; and having regard to the fact that Clr Byrne considered the allegations against him were baseless, those statements contained imputations that each of them was motivated to make baseless statements against him. That was an imputation by Clr Byrne of an improper motive, and an act of disorder under cl 256(1) of the Regulation, whether or not that was inconsistent with maintaining order at the meeting.
3. Clr Byrne submits that the meaning of "disorder" as referred to in cl 3.22 is informed by the need for Councillors to act with decorum so that order at a meeting is maintained, and a construction that permitted the making of insults, personal reflections or the imputation of improper motives if they were true would not be conducive to attaining that objective, relying on Barrak at [108].
4. In Barrak the Court considered three alleged acts of disorder by a Councillor: calling the Mayor a clown, allegedly insulting the solicitor for the Council, and refusing to return documents as requested when he left a Council meeting. White JA, with whom Payne and McCallum JJA agreed, rejected a submission that an insult or personal reflection made by a Councillor is not an act of disorder unless it leads to disorder at the meeting: "100. That is not an available interpretation of r 256. Sub-regulations 256(1)(a)-(d) specify matters, any of which constitutes an act of disorder. Sub-regulation 256(1)(e) is a catch-all that covers anything done at a meeting that is inconsistent with maintaining order at the meeting. If a councillor commits an act falling within r 256(1)(a)-(d) that will be an act of disorder, whether or not it is inconsistent with maintaining order at the meeting. Insulting another councillor, or making personal reflections on, or imputing improper motives to, another councillor is an act of disorder under r 256(1)(d) without the need for any further enquiry as to whether that act is inconsistent with maintaining order at the meeting."
5. The appellant had submitted that the Mayor was behaving like a clown and the use of that word was a fair characterisation of his behaviour, and that as an accurate rendering of what was going on, was not an insult. The Court rejected that submission, holding: "108. There is nothing in the language or context of r 256 to suggest that para 256(1)(d) is not engaged if the insult, personal reflection or imputation of improper motive is true. Rather, the regulation addresses the need for councillors to act with decorum so that order at a meeting is maintained. A construction of the regulation that permitted the making of insults, personal reflections or the imputation of improper motives if they were true, would not be conducive to attaining that objective. To the contrary, if the truth or falsity of such statements could be ventilated, before the meeting could resolve that a councillor be expelled, argument about the truth or falsity of the comment would be likely to exacerbate disorder."
6. The Tribunal has found that in the statements made at the Council meeting on 26 March 2019 as quoted above at [69], Clr Byrne had stated that Clr Lockie and Clr Hesse had made imputations that he was corrupt. That was a personal reflection on them. The Tribunal finds that as such, it was an act of disorder as defined in cl 256(1)(d) of the Regulation, and, applying Barrak, that it does not matter whether or not the statements were true, or whether to make those statements was inconsistent with maintaining order at the meeting.
7. The Tribunal finds that Clr Byrne committed an act of disorder as defined in cl 256(1)(d) of the Regulation. In doing so he also conducted himself in a manner that was contrary to statutory requirements, and accordingly that was a breach of cl 3.1(b) of the Code of Conduct.
8. Clause 3.22 of the Code of Conduct provides that a Councillor "must not engage in any acts of disorder or other conduct that is intended to prevent the proper or effective functioning of the council …". While cl 3.22 uses the term "acts of disorder", which would suggest that it is the definition in cl 256 as interpreted in Barrak that applies, it is not clear from the context whether the proscribed behaviour for the purpose of cl 3.22 is to be construed in a more limited sense, namely by reference to "other conduct that is intended to prevent the proper or effective functioning" at the meeting. On the evidence before the Tribunal, the Tribunal would not conclude that in making the statements that were a personal reflection on Clr Lockie and Clr Hesse, there was an intention to prevent the proper functioning of the meeting. The Tribunal is not persuaded that a breach of cl 3.22 is established.
9. The Tribunal concludes that Clr Byrne committed an act of disorder at a meeting of the Council, contrary to cl 256(1)(d) of the Regulation.

Allegation 6

1. Allegation 6 is that Clr Byrne had a non-pecuniary conflict of interest in the consideration of the Rescission Motion and two related motions moved when that matter was considered at the meeting of 30 April 2019 that he did not avoid or appropriately manage as required by cll 5.4, 5.6 and 5.10 or 5.11 of the Code of Conduct.
2. The Rescission Motion was Item 12 on the Agenda for the Council meeting of 30 April 2019. The transcript of the meeting records that in moving the Rescission Motion Clr Porteous, one of the three Councillors who had submitted the notice of motion, sought clarification from the General Manager regarding rulings from the OLG, and then moved a motion to defer that Item until advice from the OLG was received. The motion for deferral was seconded. Then followed discussion of Clr Steer's disclosure of a conflict of interest. Clr Byrne foreshadowed that he would move for refusal of the Rescission Motion, "a foreshadowed motion that the rescission be refused and dealt with tonight". Clr Passas seconded that foreshadowed motion. The deferral motion was put, and lost, and the foreshadowed motion was put, and carried.
3. The Tribunal has found, for the reasons above, that Clr Byrne had the same significant non-pecuniary conflict of interest in respect of the Rescission Motion on 30 April 2019 as he had in respect of the Byrne Motion on 26 March 2019 and 9 April 2019.
4. The Minutes record that Clr Byrne voted against the deferral motion, and moved and voted in favour of the motion that the Rescission Motion be refused. Clr Byrne did not identify and disclose the non-pecuniary conflict of interest as required by cl 5.4 and 5.6 of the Code of Conduct, or manage that conflict of interest in accordance with cl 5.10 or cl 5.11 of the Code of Conduct. The Tribunal is satisfied that Allegation 6 is established.

Conclusion

1. The Tribunal finds that Allegations 1, 2, 3 and 6, and Allegations 4 and 5 in part, are established. Clr Byrne's failure to comply with applicable provisions of the Code of Conduct, as found in relation to those Allegations, was misconduct as defined in s 440F(1)(b) of the LG Act. As alleged in Allegation 5, Clr Byrne committed an act of disorder at a meeting of the Council, which is misconduct as defined in s 440F(1)(d) of the LG Act.
2. The next step is to consider whether Clr Byrne's behaviour as found warrants action by the Tribunal under s 482A of the LG Act. The matter is listed at 4:15pm on 10 May 2021 by telephone for directions for further progress of the matter.

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: 04 May 2021