On 1 May 2024, Mr McDonald, who is the General Manager of Upper Hunter Shire Council wrote to Ms Flaherty, who was a Local Government Councillor, informing her that her absence from three consecutive ordinary Council meetings had triggered a vacancy of her role as councillor in accordance with s 234(1)(d) of Local Government Act 1993 (NSW). On 1 May 2024, Ms Flaherty made an application to this Tribunal seeking to challenge the vacancy on the basis that it was invalid. On 6 May 2024, Ms Flaherty also lodged a application for a stay order, seeking to prevent the respondents from appointing a new Councillor or conducting affairs of Council without Ms Flaherty as a validly elected Councillor.
The matter was listed for hearing to determine whether the Tribunal had jurisdiction to hear the application. Having considered the submissions the Tribunal finds that it does not have jurisdiction to hear and determine the applications and the applications were dismissed.
[2]
Jurisdiction
Section 28 of the Civil and Administrative Tribunal Act 2013 (NSW) relevantly provides:
28 Jurisdiction of Tribunal generally
(1) The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation.
…
Ms Flaherty submits that the conduct, being the failure of Ms Flaherty to attend three meetings and which resulted in the vacancy pursuant to s 234(1)(d) falls within the definition of 'misconduct' as is defined in s 440F in chapter 14 of the Local Government Act. Ms Flaherty also submits that as a result she has a right of appeal against a disciplinary action under s 440L of the Local Government Act and the Tribunal has jurisdiction to determine the appeal.
Section 234 of Local Government Act relevantly provides:
234 When does a vacancy occur in a civic office?
(1) A civic office becomes vacant if the holder -
(a) dies, or
(b) resigns the office by writing addressed to the general manager, or
(c) is disqualified from holding civic office, or
(d) is absent from 3 consecutive ordinary meetings of the council (unless the holder is absent because he or she has been suspended from office under this Act or because the council has been suspended under this Act or as a consequence of a compliance order under section 438HA) without -
(i) prior leave of the council, or
(ii) leave granted by the council at any of the meetings concerned, or
(e) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his or her creditors or makes an assignment of his or her remuneration for their benefit, or
(f) becomes a mentally incapacitated person, or
(g) is dismissed from civic office, or
(g1) in the case of the office of a councillor, is elected as mayor by the electors, or
(h) ceases to hold the office for any other reason.
Note -
See section 275 for the circumstances in which a person is disqualified from holding civic office.
…
'Misconduct' as is defined in s 440F in chapter 14 of the Local Government Act
(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.
Ms Flaherty submits that s 234(1)(d) of the Local Government Act falls within the definition of misconduct because the absence from the meetings has a punitive result. Section 234(1)(d) deprives a person from continuing to be a Councillor because of their failure to attend meetings.
Ms Flaherty further submits that because the conduct referred to in s234(1)(d) amounts to an omission and the provision is punitive, then s 440L applies and confers jurisdiction on the Tribunal by way of an appeal against a disciplinary action.
Section 440L of the of Local Government Act provides that:
(1) A councillor against whom disciplinary action (other than disciplinary action comprised only of counselling or reprimanding) is taken by the Departmental Chief Executive may appeal to the Civil and Administrative Tribunal against the decision of the Departmental Chief Executive to take disciplinary action.
Note -
An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013.
(2) An appeal must be made within 28 days after the day on which the councillor is notified of the Departmental Chief Executive's decision to take disciplinary action against the councillor.
(3) The Tribunal may stay any decision made by the Departmental Chief Executive until such time as the Tribunal determines the appeal.
(3A) If the Tribunal stays a decision for suspension of a councillor for misconduct that has resulted or will result in disqualification from civic office under section 275(1A), the disqualification ceases to have effect or does not take effect (as the case requires) until such time as the appeal is finally determined or withdrawn.
(4) On hearing the appeal, the Tribunal may -
(a) confirm the decision, or
(b) amend the decision, or
(c) set aside the decision and substitute a new decision.
(5) If a decision is amended or substituted, the decision as amended or substituted has effect as if it had been made in that form by the Departmental Chief Executive.
(6) If the Tribunal sets aside a decision to suspend a councillor, any fee or other remuneration, or expenses, withheld under the suspension is payable to the councillor and any disqualification that resulted from the suspension ceases to have effect.
…
The Tribunal rejects Ms Flaherty's submission that the vacating of civic office under s 234(1)(d) amounts to misconduct for the purposes of 440F of the Local Government Act or that vacating office pursuant to that provision invokes s 440L of the Local Government Act. The vacating of a civic office, as a result of the absence, is a consequence of fact. Like the provisions contained in sub-section 234(1)(e) in which someone becomes bankrupt or sub-section 234(1)(f) in which a councillor becomes a mentally incapacitated person, the provisions are all consequences of fact and do not amount to a disqualification.
Section 275 of Local Government Act specifies the circumstances in which a person is disqualified from holding office for the purposes of s 234(1)(c). That includes if an order for suspension from civic office for misconduct is made against a person by the Departmental Chief Executive or the Civil and Administrative Tribunal on a referral from the Departmental Chief Executive (s 275 (1A)(a). Accordingly, a person disqualified from civic office for reason of misconduct, is quite separate from a vacating of civic office because of an absence from 3 consecutive ordinary meetings of the Local Council.
Section 440L of the Local Government Act, allows an appeal by councillor's against whom disciplinary action is taken by the Departmental Chief Executive (who is defined in the dictionary as the 'the Chief Executive of the Office of Local Government').
Section 440H of the Local Government Act empowers the Departmental Chief Executive to investigate for the purposes of whether a councillor has engaged in misconduct. Section 440I sets out the disciplinary action the Departmental Chief Executive may take for misconduct including.
….
(2) The Departmental Chief Executive may take one or more of the following actions (and any such action is disciplinary action) -
(a) counsel the councillor,
(b) reprimand the councillor,
(c) by order, direct the councillor to cease engaging in the misconduct,
(d) by order, direct the councillor to apologise for the misconduct in the manner specified in the order,
(e) by order, direct the councillor to undertake training,
(f) by order, direct the councillor to participate in mediation,
(g) by order, suspend the councillor from civic office for a period not exceeding 3 months,
(h) by order, suspend the councillor's right to be paid any fee or other remuneration, to which the councillor would otherwise be entitled as the holder of the civic office, in respect of a period not exceeding 3 months (without suspending the councillor from civic office for that period).
Ms Flaherty contends that the letter sent to her on 1 May 2024 from the General Manager on behalf of Upper Hunter Shire Council amounts to disciplinary action by the Council. However, the letter does not amount to disciplinary action by Council, rather it informs Ms Flaherty that there has been a vacating of civic office because Ms Flaherty has been absent for 3 consecutive ordinary meetings of the Council.
In any case, for an appeal to arise under s 440L, disciplinary action must have been taken by the Departmental Chief Executive. This was raised with Ms Flaherty at the hearing. Ms Flaherty submitted that it could be inferred from the letter sent by the General Manager on 1 May 2024 that it was the Departmental Chief Executive that had taken disciplinary action. Ms Flaherty referred to the following paragraph in the letter:
It is also to be noted that after seeking confirmation from the Office of Local Government, neither the Council, myself or the Office of Local Government have the discretion to overturn this part of the legislation and must advise you that your role as Councillor is now considered vacant.
That statement does not establish that an investigation was taken into whether the Councillor had engaged in misconduct or that disciplinary action had been taken by the Departmental Chief Executive. Rather, the statement simply informs Ms Flaherty that the General Manager had sought confirmation as to whether there was any discretion regarding the vacating of the office.
Ms Flaherty also made submissions that it could not be the case that the only recourse for Ms Flaherty to seek review was to have to go to a Court or to seek a declaration from the Land and Environment Court under s 674 of the Local Government Act. Further, Ms Flaherty submitted that a councillor should entitled to the benefit of merits review.
Ms Flaherty referred to various cases to support a wide reading of s 440L of the Local Government Act. Ms Flaherty referred to the statements of Barwick CJ in Tickle Industries Pty Limited v Hann & Anor [1974] HCA 5; (1974) 130 CLR 321 at 331, which was also cited by the in Chief Commissioner for Business Franchise Licences (Tobacco) v Century Impact P/L [1996] NSWSC 555 (21 November 1996):
It is, in my opinion, a sound rule of statutory construction that a meaning of the language employed by the Legislature which would produce an unjust or capricious result is to be avoided. Unless the statutory language is intractable, an intention to produce by its legislation an unjust or capricious result should not be attributed to the Legislature.
As I explained at the hearing, the Tribunal can only proceed to determine proceedings for which it has been conferred jurisdiction. On any reading of s440L of the Local Government Act, the Tribunal does not have jurisdiction to determine the proceedings by way of external appeal.
Ms Flaherty initially made the application using an administrative review application form. Section of 55 the Administrative Decisions Review Act 1997 (NSW) provides that the Tribunal only has jurisdiction to review 'an administratively reviewable decision'. An administratively reviewable decision is 'a decision of an administrator over which the Tribunal has administrative review jurisdiction': see s 7. Section 9 provides that the Tribunal has administrative review jurisdiction over a decision of an administrator 'if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision'. The 'enabling legislation' is legislation that provides for applications to be made to the Tribunal with respect to a specified matter or class of matters, or otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters: Administrative Decisions Review Act, s 4(1); Civil and Administrative Tribunal Act, s 4(1).
Ms Flaherty has failed to demonstrate any administratively reviewable decision or enabling legislation which would give the Tribunal jurisdiction in relation to the proceedings. For that reason, the application, including the application for a stay must be dismissed.
The second respondent foreshadowed at the hearing that if it were found that the Tribunal lacked jurisdiction to deal with the application, they may seek costs. It is noted that the second respondent was not legally represented and so any such application must clearly identify the costs being sought. If an application is made, then the Tribunal will make directions for the costs application to be heard.
[3]
Orders
1. The application is dismissed because the Tribunal has no jurisdiction.
2. Any application for costs must be made on or before 11 June 2024 and will be dealt with in due course.
[4]
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: 29 May 2024