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

NCAT Occupational|2024-08-09

Solicitors: Legal, Office of Local Government (Applicant) Wotton and Kearney (Respondent) File Number(s): 2022/00251466

Reasons for decision

On 14 December 2023 the Tribunal found five grounds of misconduct by Mr Hindi, a former Councillor: Executive Director, Local Government, under delegation from the Secretary, Department of Planning, Industry and Environment v Hindi [2023] NSWCATOD 186 (misconduct decision). For the reasons that follow, the Tribunal has determined that Mr Hindi should be reprimanded for those breaches.

Background

As part of the referral of the complaint to the Tribunal, the applicant provided two departmental reports. The first departmental report dated April 2022 related to allegations which formed grounds 2, 3, 4, 5 and 6 of the referrals. The second departmental report dated June 2022 related to the allegations which formed grounds 1 and 1b of the referral. Ground 1 was no longer pressed by the applicant. In its earlier misconduct decision, the Tribunal found that grounds 1b, 3, 4, 5 and 6 were established.

Totality Principle

The applicant proposes that the Tribunal should impose the following actions in relation each of the grounds: 1. Ground 1(b) - disqualify Mr Hindi from holding civic office for a period of six months. 2. Ground 3 - disqualify Mr Hindi from holding civic office for a period of six months. 3. Grounds 4 and 5 - these grounds relate to the same overarching allegation by Mr Hindi against the General Manager and for that reason the grounds should be dealt with together and in relation to those grounds, that Mr Hindi should be disqualified from civic office for two years. 4. Ground 6 - disqualify Mr Hindi from holding civic office for a period of 2 years.
The applicant submits that it is then appropriate for there to be a modest reduction in the total disqualification and for Mr Hindi to be disqualified for the maximum period of five years.
The applicant submits that the proper course in determining what action to take is for the Tribunal to determine the appropriate action to be taken in respect of each instance of misconduct, and then apply the principle of totality by reviewing the aggregate action to be taken and consider whether that is just and appropriate having regard to the totality of Mr Hindi's misconduct. The applicant submits that it is not appropriate for the Tribunal to skip over the process of identifying the appropriate action to be taken in respect of each instance of proven misconduct, and instead impose one holistic action.
The applicant referred to the decision in Deputy Secretary, Local Government Planning and Policy v Byrne (No 2) [2021] NSWCATOD 112 (Byrne (No 2)).
In Deputy Secretary, Local Government, Planning and Policy v Byrne [2021] NSWCATOD 53, the applicant had made 6 allegations that Mr Byrne, a Councillor, had engaged in misconduct (at [19]). The Tribunal considered whether the allegations were duplicitous and found at [52]: "[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."
The Tribunal went on to find that allegations 1, 2, 3 and 6, and allegations 4 and 5 in part, were established.
In Byrne (No 2) the Tribunal went on to consider whether the conduct as found warranted action and if so, what action under s 482A(2) of the Local Government Act was appropriate.
The Tribunal also considered whether, properly grouped, there was in fact only a single course of conduct. The Tribunal concluded at [66] - [69]: "[66] At [51] in Byrne No 1 I described the allegations against Clr Byrne in the following terms: 51. …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. [67] The conduct the subject of the findings of misconduct in Byrne No 1 was related, stemming from Clr Byrne's response to the Facebook posts made after the Council meeting of 28 August 2018. That conduct occurred over two meetings of the Council, and as identified at [51] in Byrne No 1, constituted two different forms of "misconduct" as defined under s 440F of the LG Act. [68] It was common ground, and the Tribunal agrees, that care needs to be taken to ensure that Clr Byrne is not punished twice for the same conduct. Whether or not the single course of conduct principle applies in proceedings which are not criminal proceedings, the Tribunal is of the view that consideration of the nature of, and the interrelationship between, the elements of the misconduct as found assists in ensuring that Clr Byrne is not punished twice for the same conduct. [69] Applying that approach, there are two aspects of the conduct relevant to the consideration of whether to take action under s 482A, and if so, what that action should be. The first is Clr Byrne's conduct at the meeting of 26 March 2019 and 9 April 2019 in proposing the Byrne Motion, participating in debate, and voting in favour of that motion; continued in his conduct at the meeting on 30 April 2019 in putting the motion that the Rescission Motion be refused and participating in debate and voting on that motion; and in the conduct the subject of Allegation 4. That aspect goes to Clr Byrne's use of the power conferred on him as councillor and mayor to move motions at Council meetings, to rule on procedural matters, and to participate in the discussion and voting on matters before the Council, in circumstances where he had a significant non-pecuniary conflict of interest in relation to the matters before the Council. The second aspect concerns Clr Byrne's conduct at the meeting on 26 March 2019, in making the specific allegations as to the conduct of Clrs Hesse and Lockie, and making personal reflections on those councillors."
The Tribunal then went on to consider whether the principal of totality applied and stated at [70] - [72]: "[70] The parties agree that the principle of totality is relevant. That principle, a principle of sentencing in criminal proceedings, is summarised in Mill v The Queen (1988) 166 CLR 59 at 63 as being to require the sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed, to review the aggregate sentence and consider whether the aggregate is just and appropriate. [71] The principle has been recognised as relevant in disciplinary proceedings under the LG Act, the Tribunal in Office of Local Government v Pauling [2014] NSWCATAD 121 (Pauling) noting: 31. …The Office of Local Government readily accepted that there was a very significant overlap between the two breaches and an approach similar to the principle of totality in the Criminal Law would be justified in a case such as this. In essence this is a principle that requires a consideration of multiple offences so that the totality of the behaviour is considered and then an appropriate penalty is then imposed for all of the offences. The total penalty imposed must be just and appropriate and must avoid a mechanical or arithmetical approach where imposing separate sentences would result in an unjust or crushing penalty. Those considerations derived from Criminal Law, in a general sense, are appropriate to consider in civil disciplinary proceedings such as the present. In this case there is a very significant overlap in the conduct constituting both breaches. [72] In Pauling the Tribunal had found that the councillor had been present at two meetings of Council and had participated in consideration and voting on a matter in which he had a pecuniary interest. In the present matter the breaches of the Code of Conduct requirements for disclosure and management of a significant non-pecuniary conflict of interest occurred at two meetings of the Council. What is relevant about Clr Byrne's repeated failure to disclose and properly manage that interest is both the passage of time between the meetings, and the fact that at the resumed meeting on 9 April and the second meeting on 30 April 2019 Clrs Lockie and Hesse declared that they had a significant non-pecuniary conflict of interest and absented themselves from the relevant part of the meeting. Clr Byrne's failure to do so is relevant to the determination of the seriousness of the misconduct."
The applicant relies on para [70] above to support the proposition that the Tribunal must determine the appropriate action to be taken in respect of each instance of misconduct, and then to apply the totality principle by reviewing the aggregate action to be taken and consider whether that is just and appropriate having regard to the totality of Mr Hindi's misconduct.
When para [70] is read in context, it does not stand for the proposition that the Tribunal is required to undertake an arithmetical approach in relation to each ground of misconduct. That was not the approach taken in Byrne (No 2). The Tribunal did not go through an artificial arithmetical exercise assigning each allegation a sentence and then deducting an amount. At paras [87] - [96] the Tribunal considered whether action should be taken and what action was appropriate. These are not criminal proceedings in which each separate offence carries a separate sentence to be decided. I agree that the Tribunal must review each of the instances of misconduct and consider them when deciding what action to take. The principal of totality as it applies in disciplinary proceedings requires a consideration of each of the instances of misconduct, so that the totality of the behaviour is considered and then an appropriate action is then imposed. The action imposed must be just and appropriate so that the Tribunal avoids imposing an unjust result.

Whether action should be taken

In the written submissions neither party appeared to dispute that action should be taken. As noted above the respondent submits that a reprimand is appropriate.
The Tribunal has found that Mr Hindi's conduct at a council meeting on 24 May 2021 led to breaches of grounds 1b, 3, 4, 5 and 6 as they were alleged by the applicant. The Tribunal finds that it should act in relation to the misconduct.
Section 7 of the Local Government Act relevantly sets out the purpose of the Act as including: … (a) to provide the legal framework for the system of local government for New South Wales, (b) to set out the responsibilities and powers of councils, councillors and other persons and bodies that constitute the system of local government, … (e) to provide for a system of local government that is accountable to the community and that is sustainable, flexible and effective.
Chapter 14 of the Local Government Act deals with honesty and disclosure of interests. The chapter makes provision for codes of conduct and action to be taken in relation to misconduct.
The need to enforce the provisions of the Code of Conduct, and to reinforce the need for transparency and adherence in the conduct of Council business, is central to consideration of whether Mr Hindi's behaviour warrants action under s 482A of the Local Government Act. The obligation on a councillor to adhere to the requirements of the Local Government Act and the Code of Conduct is fundamental to the proper administration of local government and public confidence in that proper administration. The obligation on councillors not to engage in conduct likely to bring the council or other councillors into disrepute or make allegations of breaches of the Code of Conduct against other councillors other than by making a complaint in accordance with the Procedures Code, is important for the proper functioning of Council's decision making processes and for the fair and independent determination of complaints.
The Local Government Act sets out a framework for the transparent, effective and responsible running of Local Government. That is further strengthened by the Code of Conduct for Councillors established under the Local Government Act. That framework is essential to the maintenance of public confidence in Local Government processes. The misconduct provisions of the Local Government Act and the Code of Conduct also assist in preserving the integrity of Local Government and councillors compliance is essential. Councillors must comply with the Local Government Act and Code of Conduct so that they behave in a way towards staff of Council and at meetings to promote the proper and effective management of Council business and ensure public confidence in that process.
There is an obligation on councillors not to engage in conduct at a meeting making unfavourable personal comments likely to bring the council or other councillors into disrepute. The Code of Conduct makes provision about how to make allegations of breaches of the Code of Conduct against employees and other councillors. Making a complaint in accordance with the legislative frameworks and codes of conduct is important for the proper functioning of Council decision making processes, and for the fair and independent determination of complaints.

Previous incident of Misconduct or Disciplinary Action

Section 482A(3) of the Local Government Act provides that: (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.
The applicant submits there are three such incidents by Mr Hindi.
The first incident relates to a Council meeting on 16 December 2019. A final investigation report has been provided by the applicant in that regard (exhibit 19). The report the findings are relevantly summarised as follows: 7.4 Cllr Hindi's misconduct can be summarised as follows: - He impugned the character of Cllr Tegg, insinuating financial impropriety. - He disregarded the safety of people in the public gallery and brought the Council into disrepute by throwing a packet of cheese. - He was aggressive, badgering, and overbearing towards a council staff member, Ms Thornton. - He belittled and demeaned Cllr Grekas, disparaging her American accent and making cat noises and gestures at her. 7.5 Whilst he was not alone in exhibiting misconduct at the council meeting, Cllr Hindi, especially as a long-serving councillor and as the Deputy Mayor, both knew better and had a responsibility to lead by appropriate example. He manifestly failed to do so. 7.6 ClIr Hindi's conduct at the council meeting was in breach of multiple provisions of the Code, and should be regarded as serious misconduct. 7.7 Cllr Hindi has had previous substantiated breaches of the Code. 7.8 The community would expect that such poor behaviour by an elected official in public be dealt with as a serious matter. A formal censure is entirely warranted in this case.
Mr Hindi was formally censured for the breaches under s 440G of the Local Government Act.
The second incident related to a Council meeting held on 14 December 2020. That incident was also the subject of a departmental report (Exhibit 20). The report concludes that Mr Hindi had engaged in misconduct. He breached Council's Code of Conduct by moving a motion that suggested that the then Mayor had failed to disclose a significant nonpecuniary interest, and that the Mayor should be investigated by ICAC. On 26 October 2021, the Executive Director, Local Government ordered that Mr Hindi be issued a reprimand and that his remuneration be suspended for one month under s 440I(2)(h) of the Local Government Act (exhibit 23).
The third incident relates to a breach at a meeting on 26 April 2021, which was less than one month before the Council meeting that is the subject of the present proceedings. Mr Hindi was again found to have engaged in misconduct (exhibit 22). Mr Hindi submitted a question with notice asking whether the General Manager (Ms Connolly) had leaked confidential information to the media about Mr Hindi and another councillor being referred to ICAC for investigation. On 27 October 2021, the Executive Director, Local Government ordered that Mr Hindi be reprimanded and suspended for office for one month (exhibit 22).
Mr Hindi submits that even though he has been found to have committed previous breaches, those breaches are relatively minor unrelated matters which were not subject to the unique set of circumstances which were present during the 24 May 2024 meeting and its preceding context.
I reject the submission of Mr Hindi that the previous breaches are not apposite to what occurred at the meeting the subject of these proceedings. At the Council meeting on 26 April 2021, Mr Hindi said: "So one last question to the General Manager. Can you confirm on record that you did not leak information to the media regarding section 11 in March 2019?"
That meeting was a month prior to the meeting at which the breaches the subject of this complaint occurred and the General Manager on both occasions was Ms Connolly. Mr Hindi was told by the Mayor at the meeting on 26 April 2021 that he could not ask that question. Mr Hindi insisted that he could. Ms Connolly answered the question anyway and confirmed that she did not leak information. Mr Hindi responded, "I have proof that you have and I'll show it to you".
In my view the instances of previous misconduct are relevant to the weighing of the discretion to determine what is appropriate action to take against Mr Hindi. Mr Hindi had been reprimanded and suspended previously for making allegations against other councillors or Council staff in meetings rather than making a complaint under the Code of Conduct.

Circumstances leading up to the misconduct

Mr Hindi has provided two statements in which he sets out what he claims are the circumstances leading up to his misconduct. The first statement is dated 5 April 2024 (exhibit 25), the second statement is dated 12 April 2024, (exhibit 26).
In his statement dated 5 April 2024 (first statement) Mr Hindi explains that he is a migrant and moved to Australia from Lebanon at the age of 14. His formal education in English was limited. Mr Hindi states that leading up to the Council meeting on 24 May 2021, a disclosure had been made by the General Manager to a journalist at the Sydney Morning Herald (SMH) that a complaint had been referred to the Independent Commission Against Corruption (ICAC). That had resulted in a series of articles in the SMH in the period between April 2019 and June 2021. Mr Hindi states that one of the articles on 2 April 2019 was subsequently the subject of an apology by the publisher: at [21].
Mr Hindi states that the disclosure and the articles which arose caused him considerable distress and anxiety: at [15] - [16]. In that regard Mr Hindi also annexes notes from a General Practitioner from 1 November 2019 and 11 November 2019 (Annexures V and W). The applicant submits that little weight should be given to evidence from Mr Hindi's practitioner at Annexures V and W of his first statement. That is because the recorded visits by Mr Hindi to his GP predate the relevant Council meeting by about 18 months.
In November 2019, Mr Hindi was made redundant from his position at Ausgrid, where he had been employed for 34 years and held a senior management position. It was his belief that the redundancy was because of the bad publicity in the media: at [22] - [25].
Mr Hindi also sets out in his statement what he believes to be an inconsistent handling of various complaints, including the way notices of motions were dealt with. He states that his code of conduct complaints were either not pursued or dismissed and that the Office of Local Government had been inconsistent in its position towards him as opposed to complaints against the General Manager and other Councillors: at [26] - [56].
The applicant submits that Mr Hindi's grievances about the handling of his other complaints should not be treated as a factor in Mr Hindi's favour. They submit that, if anything, they demonstrate that Mr Hindi was aware of the appropriate processes for raising complaints about Council staff. The applicant submits that they are independent of local Councils and that they acted against Mr Hindi independent of the Council. Therefore, in considering what action to take against Mr Hindi, the Tribunal should give no weight to Mr Hindi's concerns about how the Office of Local Government dealt with the complaints that he made to it.
Moreover, the applicant submits that Mr Hindi's assertion that the Office of Local Government took no action in response to the complaint that he refers to is factually incorrect. The applicant has provided a statement from Ms Karin Bishop (exhibit 24) where at [9]-[11] she sets out the steps she took in relation to the complaints. She also includes a copy of a letter (Annexure C) she sent to Mr Hindi advising that the Office of Local Government decided to take no action. The applicant submits that if Mr Hindi was unhappy about how Council or the applicant were handling his complaints, then there were various appropriate ways that those complaints could have been raised and that it was not appropriate to instead make allegations against Ms Connolly.
In summary, Mr Hindi submits that the publication of the media articles about the ICAC investigation, his redundancy from his long-held job, the public tabling by the Council of motions referring to ICAC's investigation, the ICAC investigation itself and what he perceived to be the Office of Local Government's inconsistent treatment arising from Code of Conduct complaints all led to the pressure he was experiencing in the lead up to the Council meeting on 24 May 2021.

Apology

In his statement dated 12 April 2024 (second statement), Mr Hindi states that although it was not his intention to imply an improper relationship between Ms Ware and former Mayor Greene when he said "Oh, she can't she's sitting on your lap, it's too far for her," he accepts that is how the remark was understood by those at the meeting: at [2] - [4]. He also states at [5] of his second statement: "I deeply regret making this remark and the offence which it caused to Mayor Greene and Ms Ware."
The applicant submits that Mr Hindi continues to blame other councillors for how they interpreted his remarks. He has previously, without any medical evidence, blamed his diabetes (second statement Annexure A, paragraph 26). At the substantive hearing, he insisted that his remarks were made by reference to social distancing restrictions, which the Tribunal rejected. On that basis, the applicant submits that Mr Hindi continues to fail to take responsibility for his actions.
Mr Hindi also states in his second statement that prior to the commencement of the proceedings he offered to proffer a public apology in respect of the remark: at [6]. In that regard he has annexed to his second statement a letter from his former solicitors to the Office of Local Government dated 25 February 2022 in which it is stated: "Our client reiterates that he would be happy to issue a public apology to anyone who was offended."
Mr Hindi also states that whatever the outcome of these proceedings, it is his intention to send letters to Ms Ware and to former Mayor Greene acknowledging and sincerely apologising for the hurt and offence that his remark caused to them. Mr Hindi also states that he has not previously formally written to Ms Ware and to former Mayor Greene to apologise as he did not want to pre-empt any result or devoid the apology of proper meaning by making it appear as if he made it for the purposes of these proceedings: at [7] - [8]. The applicant noted in their submissions that Mr Hindi did not apologise for his misconduct towards Ms Connolly (the then General Manager). The applicant put to Mr Hindi in cross-examination that there was no suggestion of an apology to Ms Connolly. Mr Hindi stated that he would be willing to apologise to Ms Connolly and was sorry to Ms Ware, Mr Greene and Ms Connolly and thought he would say it when he got to the hearing.
The applicant submits that Mr Hindi's offer has come far too late in time to be treated as a factor that reduces the severity of his misconduct. The applicant submits that rather, Mr Hindi appears to introduce factual material, not tendered at the previous stage, with the apparent intent of justifying his misconduct. The applicant submits that this demonstrates his lack of insight into the wrongfulness of his misconduct and that it necessitates stronger action being taken than would otherwise be the case.

Mr Hindi as a future Councillor

Finally, at [8] of his second statement, Mr Hindi states that he will not be standing for election as a councillor at any time in the future.
The applicant submits that the Tribunal should not accept that there is no risk of Mr Hindi acting in the same way in the future if he were to become a local councillor again. They also submit that there is at least a reasonable possibility that further action will be taken against Mr Hindi in relation to serious corrupt conduct, and if Mr Hindi were to become a councillor again, then that would attract media and Council attention which would raise the same pressures in Mr Hindi's mind. They submit that even if Mr Hindi were not in future subject to the exact same factual matters that allegedly contributed to his state of mind in May 2021, the Tribunal cannot exclude the future possibility of his state of mind being subject to other external pressures. His evidence does not indicate how he will deal with those pressures differently in future were he to be a councillor. Further, Mr Hindi's assertion that he does not intend to stand for election again can only be treated as a statement of present intent and he can change his mind.

Conclusion

Having considered the parties submissions regarding what action the Tribunal should take in relation to the misconduct, I am satisfied that the appropriate order is to issue Mr Hindi a reprimand.
Mr Hindi's misconduct did fall short of what is required for the proper administration of Local Government. The misconduct was serious as it involved an unfavourable personal remark about an employee of Council (ground 1b). Further, Mr Hindi alleged that a decision by Ms Connolly 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. That amounted to an imputation of an improper motive towards the General Manager who again was an employee of Council (ground 3). Mr Hindi alleged that the General Manager had improperly disclosed information concerning an ICAC investigation to the media and that the disclosure was motivated by hatred (an imputation of improper motive). That contravened the Code of Conduct and amounted to misconduct and was again directed towards an employee of Council (grounds 4 and 5). Finally, Mr Hindi alleged that the General Manager had texted Mr Hindi during council meetings to influence his vote which again amounted to a breach of the code of conduct against an employee (ground 6).
There are proper mechanisms available to councillors to make complaints against employees of Council. As was set out in the misconduct decision, 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 Code. The previous disciplinary action taken against Mr Hindi indicates that he has a history of making improper allegations against Ms Connolly. Given that Mr Hindi was told by the Mayor on 26 April 2021 that he could not make such allegations against Ms Connolly, Mr Hindi clearly ought to have known that to make such allegations against Ms Connolly on 24 May 2021 would also have been wrong.
Mr Hindi has a history of disciplinary action for similar behaviour, but I accept that he does now regret his behaviour. I also accept that the pressure of the ICAC investigation, the surrounding media interest and losing his job placed significant pressure on Mr Hindi in the lead up to the 24 May 2021 meeting. Although the Tribunal has found otherwise, I accept that Mr Hindi himself believed that he was being dealt with in a way that was inconsistent regarding complaints.
While Mr Hindi's offers to apologise have come late, I accept that they are genuine and that he does regret his actions.
I am of the view that disqualifying Mr Hindi from civic office for a period of 5 years would be excessive. That is the maximum time for which a councillor can be disqualified. The parties took me to previous decisions regarding disciplinary actions taken against Local Government Councillors. I am mindful that each case should be decided on its own facts and of the dangers of comparisons - see Gayed v Walton [1997] NSWCA 121 at [25] - [35]. However, a consideration of the cases does indicate that the five-year disqualification sought by the applicant is excessive.
The respondent has helpfully summarised some cases and the action taken by this Tribunal: 1. In Deputy Secretary, Local Government, Planning and Policy v Garrard (No 3) [2022] NSWCATOD 35, a councillor failed to declare a conflict of interest when voting in favour of a development application in circumstances where the councillor had financial arrangements with the developer. The Tribunal suspended the councillor for two months. 2. In Office of Local Government v Shelley [2018] NSWCATOD 103, the Councillor, in a Council meeting, made adverse comments about three other councillors that they had failed to declare pecuniary conflicts of interest and had engaged in corrupt behaviour. The councillor also published what he said at the meeting in a Facebook post. The Tribunal reprimanded the councillor. 3. In Office of Local Government v Councillor Ticehurst of Lithgow City Council (No 2) [2016] NSWCATOD 162, the councillor in a council meeting called the mayor a "bitch" twice, threatened her and saying, "I hope you choke on your sandwich". The Councillor then refused to apologise. The following year the councillor acted in an aggressive, rude and intimidating manner towards a member of the public. This Tribunal suspended the councillor for five months. The councillor had already been suspended on six previous occasions for similar misconduct. 4. In Deputy Secretary, Local Government Planning and Policy v Byrne (No 2) [2021] NSWCATOD 112, the findings of misconduct included that the councillor had failed to identify and disclose non-pecuniary conflicts of interest. The Tribunal suspended the councillor's entitlement to payment for three months. 5. In Office of Local Government v Neville [2018] NSWCATOD 31, the councillor was found to have failed to disclose his pecuniary interest in a business over a period of 13 years. The Tribunal suspended the councillor's entitlement to payment for two months.
The applicant submits that each of the cases referred to by the respondent concerns individuals who were sitting councillors at the time the Tribunal was dealing with their misconduct. The applicant submits that the Tribunal had a wider range of options available to it in those cases. The Tribunal could have decided to suspend those councillors' remuneration or suspend them from office. Those options are not available to the Tribunal here. Therefore, those cases do not provide much assistance to the Tribunal in identifying what action should be taken in this case.
The applicant also refers to Acting Chief Executive, Office of Local Government v Passas (No 2) [2017] NSWCATOD 12, which involved action being taken under s 482A Local Government Act against a person who was not a local councillor at the time of the Tribunal proceedings. In that case, the Tribunal found that the respondent: 1. Was disruptive or refused to abide by the Mayor's procedural rulings, or refused to accept she needed to leave the Council chamber when lawfully directed after the requisite three warnings on a number of occasions (Grounds 1-4); 2. Had an inappropriate and direct interaction with a Council employee / staff member, Mr Albaba (Ground 5); 3. Refused to give an apology as formally resolved by the Council (Ground 7); and 4. Refused to undertake training on the Code in accordance with the Council resolution (Ground 8).
The respondent in that case was disqualified from holding office for a period of 4 months.
Having considered those cases I do not accept that Mr Hindi's actions are sufficiently serious to warrant the imposition of disqualification for the maximum period. Mr Hindi is already prevented from standing for the elections in September 2024. I accept that even though he presently states he has no intention of standing for Council elections in the future, that may change. However, the earliest which he could stand for election is 2028. Even if he would stand for elections in the future, there will be a sufficient lapse of time for him to consider how he would behave as a Councillor in the future.

Orders

Accordingly, I make the following order: 1. Mr Hindi is reprimanded for misconduct

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: 12 September 2024

At a glance

Court

Decision date

Source

Judgment (12 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (11)