Executive Director, Local Government, under delegation from the Secretary, Department of Planning, Industry and Environment v Hindi

Use of disorder mechanism's at the council meeting.

1. In relation to each of grounds 1b, 2, 3, 4 and 5, Mr Hindi submits that the alleged disorder breaches were not addressed at the council meeting as is provided for in the legislative framework. Instead, the complaints were raised with Mr Hindi some months after the meeting. Mr Hindi submits, in relation to each of those grounds, which given the Mayor and council (including the other councillors and staff) did not utilise the disorder mechanisms which were open to them to use at the council meeting, the provisions in relation to acts of disorder cannot been engaged by these proceedings. It is not in dispute that the Mayor as chair and councillors and staff could have engaged mechanisms under the Code of Meeting Practice to deal with acts of disorder at the meeting and that they did not do so.
2. Mr Hindi submits that the object of the disorder provisions and code of meeting conduct is to avail the Mayor and councils with a mechanism to deal with and, if necessary, remove disorderly conduct from meetings. Mr Hindi submits that the object is not to 'facilitate post-hoc cherry picking of conduct that might, at a later date, be considered to meet the definition of disorder and made to justify allegations of misconduct.'
3. Mr Hindi refers to s 490A of the LGA and regs 182 and 233 (the "act of disorder" provisions) and submits that they craft a powerful tool for councils to manage the effective and efficient functioning of Council meetings. Those provisions allow the Chair of a council or committee meeting with the power to require a councillor to remedy his or her disorderly conduct in a variety of ways including withdrawal, apology or retraction and, if the conduct is not remedied as required at the time, to activate the power of expulsion.
4. Mr Hindi also refers to the comments of White JA in Barrak v City of Parramatta Council [2019] NSWCA 213 in which his Honour considered the application of reg 256 of the previous regulations (which is analogous to regs 182 and 233 of the Regulations)
5. Mr Hindi refers to paragraphs [92] - [93] of the judgement as providing precedent, which this Tribunal must follow, that there had to have been findings of disorder made by the Chair at the meeting for the Tribunal to consider the grounds. White JA, with whom Payne and McCallum JJA agreed, stated: 92 Regulation 256 is quoted at [48] above. A judgment as to whether a councillor has committed an act of disorder falling within that regulation must initially be made by the Chair of the meeting of the Council, or of the committee as the case might be, in order that immediate decision be taken at the meeting to deal with the point of order. That might indicate that words should be implied in the chapeau to r 256(1) that the chapeau is to be read as if it provided "a councillor commits an act of disorder if the councillor, at a meeting of a council or a committee of a council, in the opinion of the chair of the meeting ...". 93 The purpose and context of r 256 does not require any such implication. The question of whether a councillor has committed an act of disorder within the meaning of r 256 must be decided at the meeting. It need not be decided by the Chair of the meeting alone. The power of expulsion depends upon a resolution of the meeting, unless the Council has by resolution authorised the person presiding at the meeting to exercise the power of expulsion. If the application of the regulation depends upon the formation of an opinion, then that opinion may be the collective opinion of the meeting rather than the person presiding.
6. Unlike these proceedings, the nature of the proceedings in Barrak were not disciplinary. Mr Barrak, who was a councillor, had been expelled from meetings of council by the Lord Mayor. Mr Barrak sought relief, in respect of the expulsion from the meeting, in the Land and Environment Court. The primary judge had found that Mr Barrak had been expelled from the meeting by order of the Lord Mayor and that the Lord Mayor, as distinct from the Council, did not have the power to expel Mr Barrak from the meeting (at [29]). On appeal, the Court of Appeal found that the jurisdiction of the Land and Environment Court was property invoked (at [84]).
7. Barrak was dealing with a situation in which the Lord Mayor had decided that an act of disorder had occurred at the meeting and had expelled Mr Barrak from the meeting. The proceedings in Barrak were a review of that decision and it is in that context that [92] - [93] of Barrak should be read.
8. Relevantly, the issues raised on appeal in Barrak included at [64]: …. (3) whether the validity of Mr Barrak's expulsion on 20 February 2019 and the subsequent demands for an apology depended upon a jurisdictional fact (to be determined by the court) that his conduct was an act of disorder within the meaning of r 256, or whether it depended upon the Mayor's opinion; (4) if the former, whether either or both of the words used by Mr Barrak to and about the Mayor and the words used by him to or about Mr Gardner constituted an act of disorder within the meaning of r 256(1)(d) or (e); (5) if the latter, whether the opinion had to be reasonably reached, and if so, whether it was reasonably reached; (6) whether the Council could lawfully demand the return of documents the subject of the resolution of 25 February 2019; (7) whether refusal to comply with that demand at each meeting was an act of disorder within the meaning of r 256(1)(e) or, if relevant, was reasonably considered by the Mayor or the other councillors to be such; …
9. Paragraphs [92] - [93], which Mr Hindi relies on, fall under the heading in the judgement 'Application of r 256' and are proceeded by the following two paragraphs: 90 The primary judge considered that the relevant question was whether the Mayor's decision that Mr Barrak had by his use of language committed an act of disorder was within power and not infected by manifest unreasonableness (Judgment [115]). 91 Mr Barrak challenged that conclusion. He submitted that the question of whether he had committed an act of disorder within the meaning of r 256 did not depend upon the view of the Lord Mayor, but whether as a matter of fact his conduct fell within any of the paragraphs of r 256.
10. Paragraphs [92] - [93] in Barrak must be read in the context of appeal grounds 3 to 5 and the proceeding paragraphs [90] - [91]. The statement at [92] that "A judgment as to whether a councillor has committed an act of disorder falling within that regulation must initially be made by the Chair of the meeting of the Council, or of the committee as the case might be, in order that immediate decision be taken at the meeting to deal with the point of order' is a reference that in order for a Chair to have been able to make the decision to expel a councillor in those circumstances, the Chair must first have found that an act of disorder occurred. That is also the context of the statement in [93] in which the Court states 'power of expulsion depends upon a resolution of the meeting, unless the Council has by resolution authorised the person presiding at the meeting to exercise the power of expulsion.
11. Barrak does not stand for the proposition that if no finding in relation to an act of disorder was made at the time of the meeting that prevents a subsequent referral of an allegation or finding of misconduct by this Tribunal.
12. The LGA and legislative frameworks themselves do not support that a complaint or an act of disorder can only be raised at a meeting. Section 490A of the LGA provides that for the purposes of chapter 13 of the LGA (which relates to how councils are made accountable for their actions) a councillor commits an act of disorder if the councillor, at a meeting of the council or a committee of the council, does anything that is prescribed by the regulations as an act of disorder. There is nothing that requires that such a finding must have been made at the meeting or that the mechanisms are only to be used at council meetings.
13. Further, there is nothing contained in the legislation which supports the construction that if a point of order was not taken at the meeting, a referral cannot be subsequently made or considered.
14. I also reject Mr Hindi's submissions that because a meeting is not disrupted there cannot be an act of disorder. That same submission was rejected in Barrak. The appellant made the submissions that an insult or personal reflection made by a Councillor is not an act of disorder unless it leads to disorder at the meeting. The Court said at [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.
15. In so far as this issue has been raised in relation to each of the grounds, I do not find that the Tribunal is prevented from considering the grounds because a point of order was not taken at the meeting.

Ground 1b - Unfavourable personal remark

1. In Ground 1b it is alleged that: 1. During the meeting of Council, Ms Ware, the Legal Services Director, was responding to a question concerning whether Council had external counsel on retainer concerning an investigation by the Independent Commission Against Corruption. 2. While Ms Ware was addressing the question, Mr Hindi said words to the following effect: "She can't - she's sitting on your lap, it's too far for her". 1. When Mr Hindi said those words, he gesticulated towards the Mayor of Council, and Ms Ware. 2. The words said by Mr Hindi were directed towards the Mayor and Ms Ware. 3. The words said by Mr Hindi were an unfavourable personal remark towards the Mayor and Ms Ware. 4. Further or in the alternative to (6), the words said by Mr Hindi were inconsistent with maintaining order at the Council meeting. 5. In the premises, Mr Hindi committed an act of disorder for the purposes of reg 182 of the Local Government (General) Regulation 2005 (Regulation). 6. In the premises, Mr Hindi committed misconduct for the purposes of s 440F (1)(d) of the Act.

Intention

1. Parties made submissions as to the relevance of Mr Hindi's intention in relation to determining whether Mr Hindi committed an act of disorder. Mr Hindi submits that he did not intend his comment to have a sexual, personal, disparaging or offensive connotation and that Mr Hindi did not intend the comment to refer to Ms Ware or refer to anything other than social distancing breaches he had observed between the Mayor and General Manager throughout the course of the meeting.
2. In Deputy Secretary, Local Government, Planning and Policy v Byrne [2021] NSWCATOD 53, the Tribunal dealt with a complaint that a councillor had committed an act of disorder and breached clauses of a code of conduct. At [129] - [130] the Tribunal relevantly found the following: 129 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. 130 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.
3. In that case, the Tribunal clearly distinguished the act of disorder as defined in the regulation and the breach of the code of conduct. Intention was relevant to the code of conduct because the code refers to "acts of disorder or other conduct that is intended to prevent the proper or effective functioning of the council …". The regulation does not refer to intention.
4. On a proper construction of the reg 182, what is relevant in determining whether Mr Hindi has committed an act of disorder is Mr Hindi's conduct at the meeting. Mr Hindi's intention may be relevant to determining whether an act of disorder occurred, however it is not, on its own, determinative as to whether the conduct amounts to an act of disorder, and I have considered the ground on that basis.

Did Mr Hindi make an unfavourable personal remark about Ms Ware?

1. During the council meeting, a question was asked by Councillor Badalati about whether Council had engaged external counsel on retainer concerning an investigation being conducted by the Independent Commission Against Corruption. The Mayor referred the question to Ms Ware who was 'Legal Services Director' at the council.
2. Immediately after the Mayor made that referral, and before Ms Ware answered, Mr Hindi interjected with words "She can't - she's sitting on your lap, it's too far for her". Mr Hindi admits making that statement.
3. Mr Hindi submits that he made the comments as an aside to Councillor Badalati, and the remark was not directed to Ms Ware, nor was it in relation to Ms Ware. Mr Hindi submits that the Tribunal could only find that the words constitute misconduct, if it found that the unfavourable personal remarks was made towards Ms Ware and the Mayor and about Ms Ware.
4. Having reviewed the transcript of the meeting and watched the video recording, I am of the view that the words 'She can't - she's sitting on your lap, it's too far for her', said by Mr Hindi do constitute an unfavourable personal remark about Ms Ware. That is established by the words themselves, the context in which the words occurred and the events leading up to them being uttered by Mr Hindi.
5. The video recording of the Council Meeting shows the seating arrangement of the meeting was in a "u" shape. The Mayor was seated in the middle of a bench at the front of the room. Ms Ware was seated at the same bench to the left of Mayor. Gail Connolly, who was the General Manager was seated at the bench to the right of the Mayor. The councillors were seated on benches on either side of the front bench. Councillor Hindi was seated next to Councillor Badalati.
6. I have watched the video of the meeting and considered the transcript of the meeting. I am satisfied that the transcript is a generally accurate transcription of what was said at the meeting and have used the transcription in this decision where I have reproduced the words.
7. During the council meeting a recommendation was moved by Councillor Hindi and seconded by Councillor Badalati. Councillor Hindi spoke to the motion first. On at least two occasions while Councillor Hindi was speaking, the Mayor at the time, Mr Greene had to ask Councillor Hindi to 'come back to the point', being the point of the motion. Mr Hindi was clearly agitated, and the following exchange occurred: Cr. C Hindi: No, no, in the context of... [READING]... protect interests, Council's interests. So we are protecting Council's interest, which I've read that so many times. I'm trying to think, is Council being sued or is Council being investigated? Anyway, that's all, and we'll get on to the other stuff. I just wanted to know because all I'm trying to make the point is money is being spent and it's going towards an ICAC investigation. So the GM can ask for as many legal advice, who spends $20,000, $30,000, $100,000 on protecting the Council but it goes against the two Councillors. So anyway. Just a... I'm happy with the recommendation basically and if you want to put it in the public, I'm more than happy because I want to add to it when it goes to the public. I wanted to tell them who leaked the Section 11 to the major newspaper, which is nobody other than the General Manager. Mayor Greene: Councillor Hindi. Cr. C Hindi: And I will not withdraw that. I'm happy to be sued for defamation. I'm happy to be sued for defamation. Mayor Greene: Councillor Hindi, you're fortunate it's in confidential session. Cr. C Hindi: No, if I put in the open... Mayor Greene: Councillor Hindi... Cr. C Hindi: Because nobody else, and it's there and it's in writing. Nobody else but Ms Connolly... Mayor Greene: Councillor Hindi, could you come back to the motion that we have in front of us. Cr. C Hindi: Yeah, because that's actually about - Mayor Greene: Councillor Hindi, refer to the motion in front... Cr. C Hindi: - leaking confidential... That's about leaking confidential information is a criminal offence. I hope you know that Councillor Tegg. Leaking confidential information is a criminal offence and you are condoning that tonight because I will show you the evidence. I will show you the proof, from the newspaper. Mayor Greene: Councillor Hindi. Cr. C Hindi: Why are you shaking head? [71:03 UNCLEAR - OVERSPEAKING] Mayor Greene: Councillor Hindi, come back to the point of the motion. Cr. C Hindi: Yes, let's go back to the motion. Just a very simple thing. We asked a question last night and it's... All our question --this is to do with Arthur Moses, Councillors you are asking, we're allegedly asking questions and therefore we are interfering with the investigation. None of our questions have been anything about the substance of the investigation, none whatsoever. We know what the ICAC rules are. You cannot discuss anything. You can't ask it, you can't do anything. We were asking about the process, just the process. We cannot disclose a cost of a Code of Conduct publicly but we can disclose the name of two councillors where ICAC clearly said it to the St George Leader, said it to everybody, that we do not disclose names, we only just say there's an ongoing investigation, but the General Manager chose to put it in the public. That's fine. That is her prerogative 'cause of the hatred her towards me. ….
8. Mr Hindi continued speaking to the motion and had to again be asked by the Mayor to come back to the motion.
9. The Mayor then asked Councillor Badalati, as seconder of the motion, whether he wanted to speak to the motion and the transcript records the following: Mayor Greene: Yeah, Councillor, that's it. Councillor Badalati, you were seconder to the motion. Do you wish to speak to the motion? Clr. C. Hindi: [OFF Microphone] Happy to [inaudible], anytime. Cr. V Badalati: Yes, I do. Through you Mr Mayor to the General Manager, I have a question. With the cost of the legal fees, it was $1.3 [million] up to the end of December, another $600,000 to the end of this June, plus another $1.2 million put into the budget for a total of $3.1 million. My question is, our external lawyers and Mr Kondilios, are they on a retainer and, if so, how much a month is Council paying for the retainer? Mayor Greene: To the Director. Cr. C. Hindi: [OFF MICROPHONE] Oh, she can't she's sitting on your lap, its too far for her. [79:33 MULTIPLE SPEAKERS - INAUDIBLE] Mayor Greene: Councillor Hindi. Coun... Yeah, Councillor Hindi, I've... Cr. S. Elmir: We've been completely silent this whole time. Mayor Greene: That is just... [79:48 MULTIPLE SPEAKERS - INAUDIBLE] Cr. S. Elmir: That is taking it way too far. That is taking it way too far. CIr C. Hindi: [OFF MICROPHONE] Sure, keep sucking up. Mayor Greene: Councillor. CIr C. Hindi: [OFF MICROPHONE] You are disgusting. [MULTIPLE SPEAKERS - INAUDIBLE] Mayor Greene: Councillor Hindi. Councillor Hindi. Councillor Hindi... Councillor Hindi... CIr S. Elmir: [OFF MICROPHONE] Disgusting. Mayor Greene: Your remarks were... CIr C. Hindi: [OFF MICROPHONE] I do withdraw that, and I am sorry. It came out without thinking. I'm sorry. I apologise. Alright, you don't want me to apologise? I won't. [80:12 MULTIPLE SPEAKERS - INAUDIBLE] Mayor Greene: Oh, just settle down. Cr. C. Hindi: [OFF MICROPHONE] Yeah but stop, stop sitting there and talking, because you are chairing the meeting, not them. You're meant to be chairing. [80:20 MULTIPLE SPEAKERS - INAUDIBLE] Mayor Greene: Councillor. Cr. C Hindi: Yes.
10. The words 'Oh, she can't she's sitting on your lap, it's too far for her' are said by Mr Hindi after the Mayor directs the question to "the director". I find that the reference to "director', was a reference to Ms Ware, who was at that time the director of legal services. While Mr Hindi uttered the words, he raised his arm in the direction of where Mayor Greene and Ms Ware were seated. Having viewed the video, I find that the use of the word "she" was in reference to Ms Ware, to whom the question had been directed by Mayor Greene and "your" was in reference to Mayor Greene who had just referred to the question. I do not accept that the "your" was referring to Councillor Badalati, as that simply would not make sense given the arrangement of the room. I find that that the comment was being spoken towards both Mayor Greene and Ms Ware and that the words, the hand gestures and the comment itself were directed towards both Mayor Greene and Ms Ware and were a comment about Ms Ware. That is also supported by the events in the lead up to the comment being made and the nature of the motion that was being spoken about. In the lead up to Mr Hindi saying the words, Mr Hindi was agitated about the motion and about a retainer that Council may have had engaged for paying legal advisors.
11. I accept that the remark was not a literal comment as it is clear from the video that Ms Ware was not sitting on the Mayor's lap. However, I do not accept the Mr Hindi's submissions that the statement was non-sensical and objectively meaningless. In his statement made on 28 February 2023, Mr Hindi states at [3]: I arrived in Australia in 1977 as a 14-year old, when my family escaped the civil war in Lebanon. I spoke no English. I grew up in a Lebanese household, I still have an accent and I have difficulty expressing myself in the way others might do. I tend to speak abruptly and loudly and in short sentences which often gives the wrong impression of what I mean to say. This is a problem I have struggled with for many years. I would describe what I say, and the way I say it, as a form of verbal shorthand. As someone born overseas who grew up in a Lebanese household I use my hands emphatically and unthinkingly. I often speak quickly.
12. While I accept that the transcript of the meeting and cross-examination reveal that at times Mr Hindi's phrasing of sentences is awkward, I do not accept that he is unclear in what he means. If the words are read on their own, I accept that it is difficult to decipher the meaning, however, when considered in the overall context of events, I find that the remark he made 'Oh, she can't she's sitting on your lap, it's too far for her'' was intended to have a sexualised connotation, suggesting an inappropriate relationship between Ms Ware and the Mayor and was intended to be an unfavourable personal remark about them. The context and lead up to the comment indicate that Mr Hindi was agitated about referrals and leaks to ICAC. While his earlier remarks regarding leaks were directed at the General Manager, he was unhappy about the fact that council was spending money obtaining legal advice and Ms Ware was the director of legal services. The remark was reflective of his overall frustration regarding the retainer.
13. Ms Ware, Ms Connelly and Ms Roxanne Thornton who were employed by the council to look after the civil responsibilities of meetings of council all gave evidence that the remarks were made about Ms Ware and were directed at Ms Ware.
14. In her statement and during cross-examination, Ms Ware's recollections about the sequence of events, exact words or the seating of people was not always as depicted on the video. In my view, the differences in detail are because Ms Ware was recollecting events that had occurred over two years prior. I reject Mr Hindi's submissions that those errors affected Mr Ware's credibility, her evidence about how she felt affected by the remarks that had been made by Mr Hindi or that she believed that the remarks were made about her and directed at her. Similarly, I accept that the inconsistencies in relation to Ms Thornton's evidence about whether Mr Hindi had been asked to withdraw or apologise, was because she had incorrectly recalled events later and that does not affect her overall credibility.
15. I note that the statements of the applicant's witnesses were made some months after the meeting. In her statement made on 14 July 2021, some 2 months after the meeting, Ms Ware stated at [11] - [14] 11. I recall that CCL030A-21 came on for discussion at around 8:15pm. Councillor Hindi moved the Motion and it was Seconded by Councillor Badalati. I recall that Councillor Hindi spoke first (as the Mover) of the Motion and made a number of comments around the investigation process and leaking of confidential information. Councillor Badalati was then asked by the Mayor if he wanted to speak as the Seconder of the Motion. My notes record that Councillor Badalati first asked me (through the Mayor) whether Council's lawyers for the ICAC investigation were on retainer to Council. I answered that neither the lawyers nor Counsel were on retainer to Council. 12. Councillor Badalati then started to ask another question and was interrupted by Councillor Hindi who said (to my recollection), "She can't answer that, she's too busy sitting on the Mayor's lap". (Comment) 13. The Comment was clearly directed at me. I froze upon hearing the Comment and immediately said to the Mayor, "He must withdraw that remark." 14. I can recall Councillor Sam Elmir saying to Councillor Hindi, "You have gone too far". I can also recall that Councillor Warren Tegg jumped to his feet and addressed the Mayor and objected to the Comment, although I could not hear exactly what he said.
16. In her statement made on 16 September 2021, Ms Connolly stated at [15] - [24] 15. Councillor Badalati asked a question to the Mayor. The Mayor leaned over to get advice from the Director, Legal Services Jennifer Ware, and before she could answer, Councillor Hindi called out "She can't, she's sitting on your lap, it's too far for her." 16. I understood that to have a sexual meaning in that the Director was engaging in inappropriate sexual behaviour with the Mayor and therefore could not answer the question. 17. There was a general uproar and outrage by the Councillors after that statement was made. Everyone heard what Councillor Hindi said. 18. Councillor Elmir called out "You've gone too far" or "That's taking it too far" or words to that effect. 19. I then heard a Councillor say "that's a disgrace" or "You're a disgrace" or words to that effect. 20. Councillor Tegg who was sitting beside Councillor Hindi said that Councillor Hindi needed to be expelled from the meeting for the statement. 21. I heard Jenny Ware say "He needs to withdraw that" at the same time as I made a similar request to the Mayor to ask Councillor Hindi to withdraw the statement. 22. The Mayor directed Councillor Hindi to withdraw the statement. 23. Eventually Councillor Hindi did withdraw the statement and apologise. The withdrawal and apology was reluctant. Councillor Hindi did not immediately withdraw and apologise, he let the statement stand for a few moments and only withdrew and apologised after being directed to by the Mayor and after being shamed by some of the Councillors. 24. I thought the statement he made was disgraceful. I thought the statement was designed to embarrass and humiliate the Director in front of her peers and colleagues.
17. In her statement dated 22 September 2021, Ms Thornton stated at [18] - [26] 18. At that point there was a brief pause where the Director Legal Services was turning on her microphone to respond to Councillor Badalati's question and Councillor Hindi said, off microphone: "Oh she can't, she's sitting on your lap, it's too far... " he then said some other words I didn't hear. 19. I took Councillor Hindi's comment as derogatory slur towards Jenny Ware, suggesting that she had an inappropriate (sexual) relationship or interaction with the Mayor. 20. There were audible gasps from numerous people present at the Meeting. There were comments made from other Councillors that expressed disgust about what was said. 21. Councillor Elmir said "that's disgusting" and "you're disgusting". 22. Councillor Elmir also said (to the effect of) "You have gone too far." 23. Councillor Grekas said words to the effect that Councillor Hindi was childish or immature. 24. There was a large disruption to the Meeting at that point. 25. Councillor Hindi withdrew his comment and apologised to the Director, Jenny Ware. He only withdrew his statement at the request of the Mayor and I do not believe his apology was genuine. 26. At the request of the General Manager I was asked to go and speak to all the staff who were present at the meeting to let them know that they were permitted to leave the Meeting if they chose to, as the General Manager could not guarantee a safe working environment
18. Ms Ware stated in re-examination that she had believed the comment was about her because the Mayor had referred the question from Councillor Badalati to her. That is consistent with what is in the video. Ms Connolly stated in cross examination that she believed the comments were directed to the director. Ms Thornton said she believed the comment was directed at Ms Ware because it came immediately after the question was referred to the director. Those recollections are consistent with what I have seen in the video, and I find Ms Ware, Ms Connelly and Ms Thornton believed the comment to be directed to Ms Ware and the Mayor and was a comment about Ms Ware.
19. It also became apparent during cross examination of Ms Ware, Ms Connelly and Ms Thornton that a paragraph in each of the witnesses statements was similar in its terms. At [9] of her statement Ms Ware stated: The Agenda for the Meeting included consideration of a report, authored by me, that pertained to legal advice about an investigation by the Independent Commission Against Corruption (ICAC) into Councillors Vince Badalati and Con Hindi. The item was listed in the Agenda as "CCL030A-21 ICAC Investigation into Councillors Vince Badalati and Con Hindi - Legal Advice (Report by Director, Legal Services and General Counsel)" (CCL030A-21). The Agenda contained a recommendation that CCLO30A-21, along with some other items, be considered when the press and public were excluded from the Meeting. CCLO30A-21was listed on the closed (Committee of the Whole) Agenda. My report included annexures, being legal advices.
20. At [10] of her statement, Ms Connolly stated: The Agenda for the meeting included consideration of report that pertained to legal advice about an ICAC Investigation into Councillors Vince Badalati and Con Hindi. The item was listed in the Agenda as "CCL030A-21 ICAC Investigation into Councillors Vince Badalati and Con Hindi - Legal Advice (Report by Director, Legal Services and General Counsel)" (CCL030A-21). The Agenda contained a recommendation that this item, along with some others, be considered when the press and public were excluded from the Meeting.
21. At [13] of her statement Ms Thornton stated: The Agenda for the meeting included consideration of a report that pertained to legal advice about an ICAC Investigation into Councillors Vince Badalati and Con Hindi. The item was listed in the Agenda as "CCL030A-21 ICAC Investigation into Councillors Vince Badalati and Con Hindi - Legal Advice (Report by Director, Legal Services and General Counsel)" (CCL030A-21). The Agenda contained a recommendation that this item, along with some others, be considered when the press and public were excluded from the Meeting.
22. In cross examination, Ms Ware accepted that she adopted her witness statement as her own. The contents of that paragraph do not raise issues of material fact which are in dispute and are of little significance to the proceedings. While those paragraphs in the statements are similar in each of the statements, reading each of the statements in their entirety and as whole, I do not find that the statement's indicate collusion on the part of the witnesses or affects their overall credibility. When each of the witnesses statements in considered in light of the video footage of the meeting, they are consistent in the events as they are described. I find that each of the witnesses' statements reflect their own recollection of what occurred.
23. I also find, having watched the video, that the general reaction of the other councillors in the room indicate they understood that the remarks were unfavourable remarks.
24. Mr Hindi states that his remarks were to Councillor Badalati and were referring to the lack of distance between the persons on the bench in the context of social distancing protocols that were in place during the COVID-19 pandemic.
25. At [143] [153] of his statement dated 28 February 2023 Mr Hindi explains: 143. The Mayor then invited Councillor Badalati to speak as seconder of the motion. 144. I had observed, for the duration of the meeting, the Mayor and the General Manager seated in a way that breached the COVID-19 social distancing requirement to maintain a distance of 1.5 metres at all times. 145. Councillor Badalati asked a question, through the Mayor, to the General Manager. Councillor Badalati noted the $3.1 million allocated for spent and anticipated legal costs and asked whether the legal advisers council had engaged were on retainer. 146. Councillor Badalati's question was of the General Manager, and I turned to Councillor Badalati and made an off-the-cuff quip about the way the 1.5 metre distance had failed to be maintained between the Mayor and the General Manager throughout the meeting. 147. It wasn't a clever remark. It didn't even make much sense. I was not using my microphone and didn't intend anyone else in the meeting to hear it. It was a quip to Councillor Badalati and it just slipped out. I said 'she can't, she's sitting on your lap, it's too far for her.' As I looked at Councillor Badalati, I held my hand up as you might when shrugging, palm up. 148. At about the same time as I was making my quip to Councillor Badalati, the Mayor was saying the words 'To the Director' as he re-directed the question asked by Councillor Badalati of the General Manager. 149. Before the Director could answer the re-directed question a number of councillors reacted to my quip. 150. I turned towards them and attempted to explain what I had meant. I pointed towards the head table and started to say 'They should not be leaning in to speak they are breaching COVID-19 rules' but most of my explanation was drowned out. 151. realised some councillors objected to my quip to Councillor Badalati and, within about thirty seconds of making the remark, | withdrew the comment and apologised. I explained that the comment had come out without thinking, and I was sorry I had made it. 152. The Mayor evidently understood the meaning of my quip because he explained that a chair of any board or organisation will find it necessary to take advice. I took him to mean that in order to take that advice he and the General Manager often had to breach the social distancing requirements. 153. The Mayor then called on the Director, for a second time, to answer the question. Which she did by confirming that Hall & Willcox were not on retainer. She did not say anything about counsel.
26. The remarks in the context in which they were said give no support that they were being said regarding social distancing. I do not accept that on an objective viewing of the video that the purported comment regarding the social distancing was drowned. The video shows that the Mayor and Ms Ware were sitting apart and on occasion the Mayor was leaning over to speak to Ms Ware. The following exchange occurred between the Mayor and Councillor Hindi after Mr Hindi made the remark: Mayor Greene: Oh, just settle down. Cr. C. Hindi: [OFF MICROPHONE] Yeah but stop, stop sitting there and talking, because you are chairing the meeting, not them. You're meant to be chairing. [80:20 MULTIPLE SPEAKERS - INAUDIBLE] Mayor Greene: Councillor. Cr. C Hindi: Yes. Mayor Greene: As you well know, having sat in this chair, on occasions it is very appropriate for the Mayor, as for the chair of any meeting, and I don't know how many other boards you've been on, but any board that... Cr. C Hindi: This is not a Board here. This is not a Board. Mayor Greene: As I've said, any other authority or organisation where there is a chair, it is appropriate to take advice, particularly, particularly in regards to various matters. Can I...
27. I do not accept from that exchange that the Mayor was taking advice regarding social distancing, rather he was responding to Mr Hindi's allegation that he was 'sitting there and talking." The Mayor was simply explaining that as Chair it was appropriate for him to take advice.
28. Mr Hindi also submits that the Mayor himself understood that Mr Hindi's comments related to physical proximity and not an improper relationship and for that reason he took no action in relation to disorder at the meeting. Mr Hindi submits that during the seconds after the remark, a few voices can be heard in reaction to his comments, and he can be seen gesturing about social distancing. It is submitted that Mr Hindi responded and pointed to the head table and moved his hand from side to side in a gesture to identify distance between two points and said "Well, excuse me, they should not be...".
29. I reject the submissions that Mr Hindi sought to explain his words or clarify a misinterpretation that he was referring to social distancing. When he did speak, he offered to withdraw the remark, and nothing can be heard referring to social distancing or COVID-19 immediately following the remark. His hand motions are consistent with the fact that he uses his hands as a part of his expression and not that he was trying to explain the social distancing requirement. I find that the explanation in relation to social distancing and COVID-19 was an explanation devised by Mr Hindi to resile from the inappropriate and improper remark he had made about Ms Ware. I do not find that the remark was about distancing regarding COVID-19 restrictions.
30. Mr Hindi also submits that the Mayor did not believe that the remarks amounted to an act of disorder. Firstly, because he did not take any action (which was open to him under the relevant legislations and code) and secondly because the Mayor did not understand the comments to be inappropriate or improper. I do not accept Mr Hindi's submissions in that regard. The Mayor did not give evidence in the proceedings. We do not know what he was thinking or why he may not have acted.
31. The evidence does not establish that the Mayor accepted Mr Hindi's purported explanation. Having viewed the footage and considered the evidence provided to the Tribunal by the witnesses I do not find that it can be inferred that the Mayor believed that the comment was about social distancing. The Mayor made the statement "Councillor Hindi, your remarks were..." and Councillor Hindi responded immediately with the words "I do withdraw that, and I am sorry. It came out without thinking. I apologise...". That may instead indicate that the Mayor thought the comment inappropriate and was satisfied with Mr Hindi's response. Against the statements of the other witnesses who have provided evidence to the Tribunal and the footage contained in the video, I do not consider the actions or lack thereof, of the Mayor, indicate the Mayor believed the comments were about social distancing.
32. I find that the remark "Oh, she can't she's sitting on your lap, it's too far for her" implied an unfavourable relationship between Mayor Greene and Ms Ware at the time. Having considered the video, the order of events and the evidence of the witnesses, I find that Mr Hindi committed an act of disorder at a meeting of council, because he made an unfavourable personal remark about Ware, who was at the time staff of a council and for that reason I find that Mr Hindi contravened the relevant regulation at the time.
33. This ground has been established.

Ground 2 - Imputation of Improper Motive of Councillor Tegg

1. Ground 2 is an allegation that: 1. During the council meeting on 24 May 2021, council considered a procedural motion, moved by Councillor Tegg, to bring forward certain matters for immediate consideration. 2. During consideration of the procedural motion, Mr Hindi said words to the following effect: "I know why the game is being played. We know why it's being played. Because somebody does not want to expose someone else for leaking information." 1. The words said by Mr Hindi are an allegation that the procedural motion was put by Councillor Tegg in order to avoid exposing someone else for leaking information. 2. The words said by Mr Hindi are an imputation of an improper motive towards Councillor Tegg. 3. In the premises, Mr Hindi committed an act of disorder for the purposes of reg 182(d) of the Regulation. 4. In the premises, Mr Hindi committed misconduct for the purposes of s 440F(1)(d) of the Act.
2. Mr Hindi admits having made the remark but denies that the comment was directed at Councillor Tegg and submits that the words have no objective meeting. Mr Hindi claims that s 731 of the LGA, is a defence to the ground because the comment was done in good faith for the purpose of executing the LGA or another Act. Mr Hindi also relies on the Code of Meeting Practice.

Were the words about Councillor Tegg?

1. The following exchange occurred in the lead up to the subject words being said: Cr. C Hindi: Thank you Mr Mayor. Can I move a procedural motion that we didn't do that last meeting but I don't have an issue being -- doing that, bringing that forward but it is important that we deal with all the items tonight and so we should move a motion that we should go till the end of the meeting. I don't have an issue with Councillor Tegg doing his, okay, even though the people at home have got to... Mayor Greene: Yeah, well Councillor, Councillor Hindi, you'll get that opportunity at the appropriate... Cr. C Hindi: No, no, I'm moving a motion now. Mayor Greene: You'll get, you'll get... Cr. C Hindi: A procedural motion Mr Mayor that we deal with all the items tonight. That's my procedural motion, that all items will be dealt with tonight. Mayor Greene: Yeah. Cr. C Hindi: Because I'm afraid, I'm afraid some of my questions are right at the end and I'm not waiting for next month. That's the problem. And I know why this game is being played. We know why it's being played. Mayor Greene: Councillor Hindi. Cr. C Hindi: Because somebody does not want to expose someone else for leaking information.
2. The applicant submits that those comments in the lead up to the remarks being made establish that Mr Hindi was referring to Councillor Tegg because Councillor Tegg had moved the procedural motion and there is nobody else about whom the remark could be understood to have been made.
3. In cross examination, Mr Hindi used the words "he's just playing games" in response to a question concerning Councillor Tegg. The applicant makes submissions that the use of "he's" reinforces that Mr Hindi's remarks at the meeting were about Councillor Tegg. Mr Hindi also referred to a number of councillors who he believed all voted together and that Councillor Tegg was one of those councillors.
4. Having considered the remark and the context of the remark I cannot be satisfied to the requisite standard that the comment was about Councillor Tegg as alleged by the applicant. I do not find that simply because the words were said at the time a motion was being proposed by Councillor Tegg, that it can be then implied that the words were about Councillor Tegg. The use of the word "he's" in cross examination does not establish that the comment was about Councillor Tegg. While the motive for the words is clear, that is to allege that someone does not want to expose someone else for leaking information, it is unclear from the evidence precisely who the person who does not want to expose the other person is. For that reason, the allegation of misconduct in relation to ground 2 is rejected. Given my finding regarding the ground, I do not need to deal with the purported defence under s 731 of the LGA. I have however dealt with it in relation to ground 3 at [87] - [99] below.

What is an allegation?

1. In relation to each of the remaining grounds, Mr Hindi submits that where it is raised that he has made an 'allegation', the particulars of the relevant ground are not sufficient to establish that an allegation has been made.
2. Mr Hindi submits that the word "allegation" is not defined in the relevant code of conduct and that when considering whether the relevant words amount to an allegation, the Tribunal should take a plain English view of the meaning of allegation. Mr Hindi submits that an allegation is typically understood to be a claim or assertion of illegality or wrongdoing made without evidence or proof.
3. Mr Hindi submits I should apply the primary definition of 'allegation' that is contained in the Macquarie Dictionary (6th ed, 2013) in which allegation is defined as: 1. a mere assertion made without proof.
4. Mr Hindi also submits that when the concept of 'allegation' is measured in that way, Mr Hindi's words amount to no more than warnings and complaints about an unsatisfactory situation in relation to the performance of certain roles or people within council which, in his opinion, required modification and improvement. Mr Hindi submits that by identifying deficits in the execution of certain council functions, with attendant significant public policy considerations, he was proposing a change of council policy to remedy the deficit.
5. Mr Hindi also submits that given these are disciplinary proceedings and the standard of proof that applies to the consideration of the evidence, the Tribunal should interpret 'allegation' in that way.
6. The applicant submits that a wider view should be taken in relation to the definition of allegation and relies on the third definition of 'allegation' which is contained in the Macquarie Dictionary. 3. the act of alleging; affirmation.
7. The applicant refers to the use of the word allegation in Georges River Council, "Code of Conduct" (2020) and in particular the section relating to maintaining the integrity of the code.
8. Having considered the submissions and the use of the words 'allegation' or 'alleging' in the relevant provisions and the Code of Conduct, I prefer the applicant's construction and find for the purposes of this type of proceeding, that an allegation is taken to mean the act of alleging and there is no reason to prefer a narrower meaning as submitted by the Mr Hindi.

Ground 3 - Allegation of improper motive on the part of the General Manager

1. Ground 3 alleges that Mr Hindi made an allegation of an improper motive on the part of the General Manager, Ms Connolly. The applicant submits that is a breach of regulation 182(d) and so misconduct for the purposes of s 440F (1) (d) of the LGA. It is alleged that: 1. During the council meeting on 24 May 2021, Mr Hindi asked a question, through the Mayor as chair of the council meeting, enquiring why a motion on the council agenda did not refer to the names of two councillors, when another item did include the names of Mr Hindi and Mr Badalati. 2. While the General Manager was answering the question, Mr Hindi interjected and said words to the following effect: "Oh! Oh! So that wasn't because we hate... No, the answer is not what I got. The answer is telling me there's hatred here for me and Vince [CIr Vince Badalati]. [...] Because they're trying to hide the fact that there's a hatred here. There is a vendetta that is happening against me and Councillor Badalati that's happening and we're trying to protect other people." 1. The words said by Mr Hindi were an allegation that the decision by the General Manager to include the names of Mr Hindi and Mr Badalati on the Council agenda was motivated by the General Manager's hatred of Mr Hindi and Mr Badalati. 2. The words said by Mr Hindi are an imputation of an improper motive towards the General Manager of Council.
2. Mr Hindi denies that the words said amount to an allegation of improper motive on the part of the General Manager. Mr Hindi also submits that the comments were not directed at the General Manager and that the comment was unfocused in its application and did no more than express a sense of grievance about what Councillor Hindi perceived as unfair treatment towards him.
3. Mr Hindi also refers to comments made by Councillor Landsberry at the council meeting and in particular the following relevant comments: …. Firstly, as much as I objected tonight about Council moving into closed session at the beginning of the meeting, I think it's... You know, the reasons for that are, it's really inappropriate when we know that we have people who follow this at home and now they're sitting there twiddling their thumbs, not knowing what - how much longer they're going to be in confidential. I wasn't given the opportunity to speak against it but that was the reason for it. ... However, now we are here I would like to say finally, this is the forum that we always should have been discussing this matter in. It should never, ever have been discussed in open council. It should never have been discussed in open council in April 2019, it should never have been discussed in open council last year again, and back in March, and as my name is included on this, in this advice from Hall & Wilcox, I just want it on the record that I'm personally really offended. That is not my intention. My questions were never to elicit information about the investigation, as has been alleged through that. ... I don't see why we need to constantly... It's only for personal and political means that their names have been made public and it's really inappropriate. You can see the stress that these two guys are under and you've seen it like, you know, unfortunately, the behaviour has been pretty poor again. That is a reflection on the impact that this particular process has had on these Councillors because it's been so public. You know, rumour has it that there are other councillors in Sydney that are under investigation. Nobody knows about it. Nobody knows about it because it hasn't been made public, yet for some reason this Council chose to go down that road and that's why l've stuck my neck out, and it's very hard again…
4. Mr Hindi submits that Mr Landsberry made a number of allegations, and no action was taken against him in that regard. Mr Hindi submits that the comments of Mr Landsberry are indicative of why the Tribunal should take a narrower view of the meaning of allegation as such ordinary statements are made in the ordinary running of business. I reject that submission. The misconduct provisions do not only depend on the finding of allegations being made. The misconduct provisions as defined in the legislative scheme and relevant codes require that elements other than the making of an allegation must also be established. For the present purposes there must also be an imputation of improper motive. The fact that action was not taken against Mr Landsberry either at the meeting or later, has no bearing on whether Mr Hindi committed an act of misconduct or how 'allegation' should be defined.
5. At [117] - [119] of his statement dated 28 February 2023, Mr Hindi stated the following: 117 My QWN appeared on the agenda as 'CCL031A-21 (Code of Conduct Investigations - Costs). My name and that of Councillor Grekas had been removed. I asked the General Manager (through the Mayor) why the names of the Councillors had been removed from the heading. 118 Although the General Manager is responsible for compiling and approving the agenda, she could not answer my question. She said she would have to 'check with the Manager of the Office of [the General Manager, Roxanne Thornton]. 119 It seemed to me at the time this indicated that the ill-feeling and poor regard for me and Councillor Badalati informed the decisions about the agenda items.
6. That statement supports the construction that the words said by Mr Hindi were an allegation that the decision by the General Manager not to include the names of Mr Hindi and Mr Badalati on the Council agenda was motivated by the General Manager's hatred of Mr Hindi and Mr Badalati. Even though Mr Hindi does not name the General Manager, in the context Mr Hindi's statement and given that Mr Hindi had addressed the question to the General Manager, I find that the subject remark said at the meeting amounts to an imputation of an improper motive towards the General Manager of council and that the comment was about her and directed at her. The imputation being that her hatred of him had resulted in the removal of his and Councillor Badalati's name from the heading of the agenda item.

Is section 731 of the LGA a defence?

1. Mr Hindi relies on s 731 of the LGA as a defence to this ground because the comment was done in good faith for the purpose of executing the LGA and the Code of Meeting Practice.
2. Section 731 of the LGA provides: 731 Liability of councillors, employees and other persons A matter or thing done by the Minister, the Departmental Chief Executive, a council, a councillor, a member of a committee of the council or an employee of the council or any person acting under the direction of the Minister, the Departmental Chief Executive, the council or a committee of the council does not, if the matter or thing was done in good faith for the purpose of executing this or any other Act, and for and on behalf of the Minister, the Departmental Chief Executive, the council or a committee of the council, subject a councillor, a member, an employee or a person so acting personally to any action, liability, claim or demand.
3. That provision must be understood in its statutory context.
4. Kaldas v Barbour [2017] NSWCA 275 the Court of Appeal dealt with the construction of a privative provision under s35A of the Ombudsman Act 1974 (NSW). Bathurst CJ stated at [119] - [123]: 119 In Batterham v QSR, the plurality (at [25]) emphasised that the operation of the privative provisions contained in s 179 of the Industrial Relations Act 1996 (NSW), was to be approached by reference to established principles, and that its meaning and application must be ascertained from its terms set in the context of the Act as a whole (see also Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 at [81]). 120 It is also well established that privative clauses of the nature of that contained in s 35A must be construed strictly on the basis that it is presumed Parliament did not intend to oust the jurisdiction of the Court, save to the extent the legislation expressly so states or necessarily implies. 121 Section 35A(1) provides that the Ombudsman shall not be liable whether on the ground of want of jurisdiction or on any other ground. Liable in the section means, in my opinion, liable to suit. That construction is supported by the fact that the relevant phrase used is liable "to any civil or criminal proceedings". The word "to" used in contradistinction to the word "in", in my opinion, makes it clear the expression is referring to liable to be sued, rather than, for example, liable in damages or liable for some other remedy. 122 That construction is supported by s 35A(2) which provides that a pre-condition of bringing proceedings under s 35A(1) is the leave of the court. 123 Further, the words "on the ground of want of jurisdiction or on any other ground" are of extremely wide import. The words "want of jurisdiction", in my opinion, demonstrate an intention by the legislature to exclude public law remedies as well as personal remedies.
5. The privative provision contained under s 35A of the Ombudsman Act is not in the same terms as s 731 of the LGA. However, like the approach adopted by Bathurst CJ, the operation of s 731 must be approached by reference to established principles and the context of the LGA, in which it is found.
6. The LGA contemplates misconduct in s 440F. Section 440F is contained within Chapter 13 of the LGA which is headed "How are councils made accountable for their actions?" and the section in its entirety provides as follows: 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 LGA itself contemplates that a councillor may engage in misconduct by doing something at a meeting of council which they are a part. The LGA contemplates that conduct at a meeting can be misconduct and disciplinary action may arise. If s 731 applied as a complete defence, then the misconduct provisions relating to meetings would have little purpose. I do not find that s 731 of the LGA operates as a defence to the misconduct.
8. Further, the use of the words "for and on behalf of the Minister" used in s 731 of the LGA must also be understood in their context. In The Queen v Toohey; Ex Parte Attorney-General (N.T.) (1980) 145 CLR 374, the High Court dealt with the meaning of "on behalf of" in the context of the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth).
9. Barwick CJ stated: 14. It is, of course, quite true, as has been submitted, that the words "on behalf of" are words of varying significance and must necessarily take their particular meaning from the context in which they are used. The primary context in the present case is that the words are used in respect to estates and interests in land. By definition, a right against the Crown to the grant of an estate or interest in land is an estate or interest for the purposes of the Act. Secondly, they are used as part of a total expression of "by or on behalf of". (at p381)
10. Stephen, Mason, Murphy and Aickin JJ also observed: 9. The phrase "on behalf of" is, as Latham C.J. observed in R.v. Portus; Ex parte Federated Clerks Union of Australia (1949) 79 CLR 428, at p 435, "not an expression which has a strict legal meaning", it bears no single and constant significance. Instead it may be used in conjunction with a wide range of relationships, all however in some way concerned with the standing of one person as auxiliary to or representative of another person or thing. (at p386) 10. In what is perhaps its least specific use, "on behalf of" may be applied to someone who does no more than express support for persons or for a cause, as with one who speaks on behalf of the poor or on behalf of tolerance. It may be used when speaking of an agency relationship, but also of some quite ephemeral relationships, such as that which exists between a party to litigation and the witness he calls, a witness "on behalf of" the defence. Again, it may, as the Northern Territory here contends, be used where the relationship is that of trustee and cestui que trust. It was of such a use that Lord Cairns L.C. spoke when he said, in Gillespie v. City of Glasgow Bank (1879) 4 App Cas 632, at p 640, that the phrase could describe a relationship of trustee and cestui que trust "if the circumstances of the case are consistent with that interpretation". Context will always determine to which of the many possible relationships the phrase "on behalf of" is in a particular case being applied; "the context and subject matter" (per Dixon J. in the Federated Clerks' Case (1949) 79 CLR, at p 438) will be determinative. (at p386)
11. Their Honours went on to find that in the context of that case, the use of the phrase 'on behalf of' took a narrow meaning.
12. The LGA has amongst its objectives that it sets out the legal framework for the system of local government, prescribes the responsibilities and powers of those that constitute the system of local government and provides for a system of local government that is accountable to the community. For that reason, I find that the term "for and on behalf of the Minister" as used in s 731 implies that a person has been authorised to do something, whether that be delegated by an authority or another provision of the LGA. It is not simply that any thing or matter, done by a councillor for the purpose of executing the LGA, prevents an action for misconduct because of the purported immunity is s 731 of the LGA.
13. Even if the privative clause did apply, Mr Hindi has not precisely identified what has been done in good faith. Further, it cannot be that Mr Hindi is just broadly exercising his role as councillor. Mr Hindi has not identified precisely for what purpose he was executing the LGA or any other Act.
14. Section 731 does not provide an immunity to Mr Hindi in this circumstance, and I find that ground 3 is established.

Grounds 4 and 5 - Duplicity

1. Mr Hindi submits that the Tribunal should reject grounds 4 and 5 because the grounds are duplicitous.
2. Mr Hindi submits that ground 4 and ground 5 rely upon the same conduct and that creates uncertainly and imposes a burden of procedural unfairness on Mr Hindi. It raises the prospect that Mr Hindi will be sanctioned more than once for the same conduct.
3. This issue was raised also raised in Byrne. At [48] - [52] the Tribunal stated the following: 48 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. 49 In Mattila, the respondent's 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. 50 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. 51 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. 52 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.
4. I agree with the Tribunal's analysis in the paragraphs above and adopt the approach taken in Byrne. Having considered the parties' submissions, I do not find that grounds 4 and 5 are duplicitous. Both grounds arise out of the same overall context. However, Grounds 4 relates to a purported act done by the General Manager to which Mr Hindi imputed an improper motive. Ground 5 relates to the alleged motive of the General Manager in doing that act. The grounds are each separate descriptions of conduct constituting separate allegations relied on by the applicant with distinct legal elements. They have been two separate and clear grounds since the referral of the grounds and on that basis, there cannot be a procedural unfairness. Insofar as Mr Hindi being sanctioned more than once for the same conduct, that may be a matter that is relevant at the time when the Tribunal considers what sanction should be imposed.

Ground 4 - Imputation that General Manager had improperly disclosed information

1. Ground 4 is an allegation Mr Hindi committed misconduct for the purposes of s 440F(1)(b) of the LGA by contravening cl 9.11 of Council's Code of Conduct.
2. It is alleged that: 1. During the Council meeting on 24 May 2021, Council was considering the issue of legal costs incurred by Council. 2. During the consideration of that issue, Mr Hindi said words to the following effect: I wanted to tell them who leaked the section 111 report to the major newspaper, which is nobody other than the General Manager. [...] And I will not withdraw that. I'm happy to be sued for defamation [...] Because nobody else, and it's there and it's in writing. Nobody else but Ms Connolly [the General Manager of Council]. [...] Leaking confidential information is a criminal offence and you are condoning that tonight because I will show you the evidence. I will show you the proof, from the newspaper. […] We can disclose the name of two councillors where ICAC clearly said it to the St George Leader, said it to everybody, that we do not disclose names, we only say there's an ongoing investigation, but the General Manager chose to put it in the public [...] A person that's sitting up there on a half million dollars that has actually been leaking things to the newspaper, right? [.] You have chosen to link the prelim investigation with that one to get it out to the public because of your hatred towards two people. [...] The question is here, leaking confidential information which is illegal, which is against the Local Government Act, which is against the Code of Conduct, which is a criminal offence to leak confidential information, right, to leak it to a major newspaper... And it says clearly here, you're not allowed to disclose anything. Section 11, to do with ICAC, an investigation, but the General Manager did. She leaked it to the Herald. [...] Mate, half a million dollars someone gets paid to leak information. I'll tell you, that information being leaked, and it is leaked, and it is there and I am happy to be sued. 1. The words above amount to allegations that the General Manager of Council had improperly disclosed information concerning an ICAC investigation to the media. 2. The allegation is an allegation that the General Manager had contravened cl 3.1(c) of the Code by engaging in improper conduct. 3. By making the allegation against the General Manager, Mr Hindi contravened cl 9.11 of the Code, by making an allegation of breach of the Code otherwise than by making a complaint under the Procedures for Administration of the Code of Conduct.
3. Clause 3.1 (c) of the Council Code of Conduct provides: You must not conduct yourself in a manner that: … (c) is improper or unethical
4. Clause 9.11 of the Council Code of Conduct as it was at the time relevantly provides: 9.11 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.
5. The applicant submits that Mr Hindi's words amount to allegations that the General Manager of Council had improperly disclosed information concerning an ICAC investigation to the media. Mr Hindi admits having made these statements. Mr Hindi considered this to be a criminal offence and alleged that the General Manager's actions were motivated by her "hatred' of him and Councillor Badalati.
6. Mr Hindi submits that the allegations he made against the General Manager were based on inferences that he had drawn from material he had received, and on advice that he had received. Mr Hindi submits that he had material to substantiate his belief that the General Manager had leaked material about the ICAC investigation to the media. In his statement dated 28 February 2023 at [45] - [48] Mr Hindi states the following: 45. In November 2019 I corresponded, via my lawyer, with the SMH, concerning the potentially defamatory nature of the untested allegations contained in the stories it published about me and Councillor Badalati in April 2019. In response to a challenge to the reliability of the source of their information about the terms of the ICAC referral, the lawyers for the SMH, Banki Haddock Fiora, (in a letter dated 19 November 2019… confirmed their information had been provided by the same person who made the s11 referral in March 2019. It seemed open to conclude at the time that the referral had been made by the official at council competent and empowered under s11 of the ICAC Act to make such a referral; the General Manager. 46. I read the letter as confirming in my mind that a well-respected colleague, occupying the most senior role in the council administration, had informed the SMH of the details of the ICAC investigation. I struggled to understand how the informing might be justified and was shocked that this had happened. 47. I felt that a sense of fairness should have restrained the informing to the media and the subsequent publication of details of the ICAC investigation. There seemed no reason why that restraint was not exercised and I could only conclude that this was to humiliate and harass me, to create a hostile work environment for me and to unnecessarily amplify the existence and circumstances of the investigation in order to make me feel that my ongoing participation as a councillor was untenable and in order to force me to stand down. 48. Although councillors were not informed at the time, on 29 November 2019 the ICAC wrote to the General Manager. It referred to the reports submitted to the ICAC by the General Manager in March and June 2019 and confirmed that a preliminary investigation would be conducted. ….
7. In cross examination, Ms Connolly stated that Angus Thompson, a journalist, had made a code of conduct complaint and she had dealt with it under the procedures. The Georges River Council, "Procedures for the Administration of the Code of Conduct" (2020), at 5.35 allow the General Manager to refer a code of conduct complaint to an external agency for its consideration, where they consider such a referral warranted. Pursuant to 5.36 the General Manager must refer to the Independent Commission Against Corruption, any matter they suspect on reasonable grounds concerns or may concern corrupt conduct.
8. Clause 5.37 provides: 5.37 Where the general manager, mayor or conduct reviewer refers a complaint to an external agency under clause 5.35, they must notify the complainant of the referral in writing unless they form the view, on the advice of the relevant agency, that it would not be appropriate for them to do so.
9. Mr Connolly gave evidence that she did make the referral. There was no evidence given by Ms Connolly that she had formed the view, on the advice of the relevant agency, that it was not appropriate for her to notify the complainant in writing of the referral.
10. On that basis, it would have been appropriate for Ms Connolly to tell Mr Thompson in writing that the complaint had been referred to the Independent Commission Against Corruption.
11. Mr Hindi refers McCallum J's observations in Barrak where Her Honour (in dissent) stated at [162] - [164]: 162 For that reason, I would regard the exchange preceding Mr Barrak's resort to calling the Mayor a clown to be of critical importance. In my view, the issue Mr Barrak was attempting to raise (whether the Council had knowingly misled the Court), while perhaps irrelevant to the debate at hand, was an important one. His question was susceptible of a simple answer. It appears the Council had not made any representation to Kunҫ J on the matter of its intention; his Honour's remark simply recorded an absence of evidence. However, rather than favouring Mr Barrak with that simple explanation with the assistance of the solicitor present, the Mayor took the discussion down a path of ridiculing Mr Barrak. On the strength of the only direct evidence before this Court, he did not take the issue seriously; he insulted Mr Barrak by attributing him with a tendency himself to mislead courts; he exposed him to personal ridicule (accusing him of being "emotional" and "under a lot of pressure") and he made it clear that he did not propose to entertain any different course: "Barrak: Lord Mayor is there any reason why Council and Mr Stapleton can't meet to hopefully resolve the matter on mutually acceptable terms? Mayor: Oh yes. The reason is that we're going to sack him today." 163 It was undoubtedly inappropriate of Mr Barrak to deploy the term "clown" but the burden of his remark was that, in not taking an important issue seriously, directing personal insults at Mr Barrak and inviting others to laugh at his expense, the Mayor was reducing the debate to the atmosphere of a circus. 164 In context, I do not think Mr Barrak's words "Lord Mayor, you are a clown" would have been taken by an objective observer to amount to an insult calculated to bring disorder to an otherwise orderly meeting. If anything, Mr Barrak would have been understood by an objective observer to be pleading to have an important issue considered by the Council in an orderly way. I am not persuaded that the single incidence of calling the Mayor a clown addressed in Mr Barrak's evidence amounted to an act of disorder within the meaning of r 256(1)(d). As White JA has explained, there was evidence to suggest that he used the word more than once but no context was given to that assertion and it is impossible to assess.
12. Mr Hindi submits that the passage provides necessary insight into the importance of context for the understanding of conduct at a meeting. Her Honour found that Mr Barrak attempted to raise an important issue that the council may have misled the Supreme Court in ex parte proceedings, and that was thwarted and trivialised.
13. Mr Hindi submits that an analogy can be drawn between the circumstances of his case, in that he was attempting to raise and have addressed his concerns and questions about what he considered to be his irregular potentially unlawful exposure of his identity in relation to what he believed to be inconsistent treatment.
14. The passage which the respondent relies on in Barrak was in a dissenting judgment. I do not find that the facts of this case are analogous to Barrak. At [73] - [74] of his statement dated 28 February 2023, Mr Hindi admits that at an earlier council meeting on 26 April 2021, he had asked the General Manager whether she had leaked information regarding the referral to the media in March 2019 and that she had replied: I can confirm that I did not, Councillor Hindi.
15. While I accept that Mr Hindi thought the issue important, the answer that was given at the meeting prior does not indicate that the question was dismissed or that Mr Hindi had been treated with ridicule. Rather, the question had been answered, even if it was not the answer that Mr Hindi believed.
16. Having considered the submissions and evidence in relation to this ground, I find that Mr Hindi did allege that the General Manager had improperly disclosed information concerning an ICAC investigation to the media when he stated, "I wanted to tell them who leaked the section 111 report to the major newspaper, which is nobody other than the General Manager". I also find that the allegation is an allegation that the General Manager had contravened cl 3.1(c) of the Code of Conduct by engaging in improper conduct by leaking the information. Despite his submissions, Mr Hindi has not produced material to substantiate his belief that the General Manager had leaked material about the ICAC investigation to the media and do not find that anything contained in the letter from Banki Haddock Fiora Lawyers dated 19 November 2019 would support the belief that the General Manager had leaked the information to the media. I accept Ms Connolly's evidence that she made the referral consistent with the code of conduct and that if she notified Mr Thompson of the referral then that fell within the requirements of the Code of Conduct.
17. On that basis I find that by making the allegation against Ms Connolly, Mr Hindi contravened cl 9.11 of the Code of Conduct, by making an allegation of breach otherwise than by making a complaint under the Procedures for Administration of the Code of Conduct and that amounts to misconduct for the purposes of s 440F(1)(b) of the LGA.
18. Mr Hindi has also raised s 731 of the LGA as a defence regarding this ground. For the reason given above at [87] - [96], I am not satisfied that section 731 operates as a defence in relation to this misconduct.
19. I find that ground 4 is established.

Ground 5 - Improper motive of the General Manager

1. Ground 5 is an allegation that Mr Hindi committed misconduct for the purposes of s 440F(1)(d) of the Act.
2. It is alleged that: 1. During the Council meeting on 24 May 2021, Council was considering the issue of legal costs incurred by Council and during the consideration of that issue, Mr Hindi said words to the following effect: We cannot disclose a cost of a Code of Conduct publicly but we can disclose the name of two councillors where ICAC clearly said it to the St George Leader, said it to say to everybody, that we do not disclose names, we only just say there's an ongoing investigation, but the General Manager chose to put it in the public. That's fine. That is her prerogative 'cause of the hatred her towards me. 1. The words said by Mr Hindi were an allegation that the General Manager disclosed information about an ongoing ICAC investigation concerning Mr Hindi to the media, and that this was motivated by the General Manager's hatred of Mr Hindi and Vince Badalati. 2. The words said by Mr Hindi are an imputation of an improper motive towards the General Manager of Council. 3. In the premises, Mr Hindi committed an act of disorder for the purposes of reg 182(d) of the Regulation. 4. In the premises, Mr Hindi committed misconduct for the purposes of s 440F (1)(d) of the Act.
3. Ms Connolly was not asked about her motivations for providing information about Mr Thompson. However as discussed above, I accept that Ms Connolly did advise Mr Thompson of the complaint consistent with her obligations under the Code of Conduct and not because of a purported "hatred" of Mr Hindi or Mr Badalati. For that reason, I do not find that Ms Connolly was motivated by hatred.
4. On that basis, I find that the words said by Mr Hindi were an allegation that the General Manager disclosed information about an ongoing ICAC investigation concerning Mr Hindi to the media, and that he was alleging that disclosure was motivated by her hatred of Mr Hindi and Mr Badalati.
5. Those words said by Mr Hindi are an imputation of an improper motive towards the General Manager of Council and Mr Hindi committed an act of disorder for the purposes of reg 182(d) and committed misconduct for the purposes of s 440F (1)(d) of the LGA.
6. Again, for the reason given above at [87] - [96], I am not satisfied that section 731 operates as a defence in relation to this misconduct.
7. I find that ground 5 is established.

Ground 6 - Allegations that the General Manager had tried to influence Hindi's votes

1. Ground 6 is an allegation that Mr Hindi committed misconduct for the purposes of s 440F (1)(b) of the Act by contravening c 9.11 of the Code of Conduct.
2. It is alleged that: 1. During the Council meeting on 24 May 2021, Council was considering a motion to prohibit the use of mobile phones by councillors during Council meetings, in order to prevent councillors from being improperly influenced during meetings. 2. During the consideration of that motion, Mr Hindi said words to the following effect: So it has happened in this Council. It's been happening for the past three years. It has happened to me on more than one occasion. It probably happened to me three times and I've got them, stored, where people are trying to influence my votes, trying to make me change my vote... [.] Yeah, clarification. I'm not talking about Councillors texting each other, I'm talking about a third party I said here. [.] Third parties, we're talking about inside here, not third parties outside. I'm talking from here, that's third party. [...] Councillor Katris I understand is concerned that I was talking about not Councillors texting that. Third party is General Manager. That's what the third party is. Yes I've got the evidence. Would you like to see it? [...] Well I was being pressured to withdraw my motion. 1. The words said by Mr Hindi were an allegation that the General Manager had texted Mr Hindi during Council meetings to influence his vote. 2. The allegation is an allegation that the General Manager had contravened cl 3.1(c) of the Code by engaging in improper conduct. 3. By making the allegation against the General Manager, Mr Hindi contravened cl 9.11 of the Code, by making an allegation of breach of the Code otherwise than by making a complaint under the Procedures for Administration of the Code of Conduct.
3. Mr Hindi admits having made the statements and admits that the general tenor of those statements is that the General Manager had sent Mr Hindi text messages to influence Mr Hindi's vote at earlier council meetings, and that the General Manager had engaged in improper conduct by doing so.
4. Mr Hindi denies that these statements amount to allegations against the General Manager on the basis that 'allegation' should be defined narrowly to mean 'an assertion about the General Manager's conduct made without evidence of proof of the assertion made'.
5. For the reasons given at [71] - [78] above I find no reasons to construe the meaning of allegation that narrowly.
6. Mr Hindi also submits that the general tenor of the words did state that the General Manager had engaged in improper conduct. However, the context of the words did not amount to an 'allegation', rather they constituted a bona fide complaint about policies and procedures of the council within the meaning of clause 4.2 (c) of the Procedures for the Administration of the Code of Conduct, or complaints about the conduct of a council official within the meaning of clause 4.2 (d) of the Procedures for the Administration of the Code of Conduct. Mr Hindi submits that therefore the comments are not amenable to the procedures for complaint in that Code of conduct because clause 4.2 relevantly provides: 4.2 The following are not "code of conduct complaints" for the purposes of these procedures: … (c) complaints about the policies or procedures of the council (d) complaints about the conduct of a council official arising from the exercise of their functions in good faith, whether or not involving error, that would not otherwise constitute a breach of the standards of conduct prescribed under the council's code of conduct.
7. Those clauses do not apply to the kind the circumstances, or the words said by Mr Hindi. The allegation as made by Mr Hindi was neither a complaint about the policy or procedure of council or about the conduct of the General Manager arising from the exercise of her functions in good faith, which would not otherwise constitute a breach of the standards of conduct prescribed under the council's code of conduct. I find that by saying the relevant words Mr Hindi did make an allegation in the relevant sense and his words were not simply a warning about an unsatisfactory situation or a deficit in the execution of certain Council functions.
8. There is no evidence before the Tribunal of what, if any texts that were sent by the General Manager, which might have been the subject of what Mr Hindi said, or when any such texts were sent and their contents.
9. The words said by Mr Hindi were an allegation that the General Manager had texted Mr Hindi during council meetings to influence his vote. That is an allegation that the General Manager had contravened cl 3.1(c) of the Code of Conduct by engaging in improper conduct and by making the allegation against the General Manager. Mr Hindi contravened cl 9.11 of the Code, by making an allegation of breach of the Code of Conduct otherwise than by making a complaint under the Procedures for Administration of the Code of Conduct.
10. I find that ground 6 is established.

Conclusion

1. The Tribunal finds that grounds 1b, 3, 4, 5 and 6 are established. For the reasons given above Mr Hindi'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) or s 440F(1)(d) of the LG Act.
2. The next step is to consider whether Mr Hindi's behaviour as found warrants action by the Tribunal under s 482A of the LGA. The matter will be listed 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: 14 December 2023