The applicant seeks review by the Tribunal of the decision of a Councillor Conduct Panel ...
The nature of the Tribunal's merits review jurisdiction is well known. The jurisdiction in this proceeding is conferred under Division 7 of Part 6 of the [LG Act]. The Tribunal in exercising its review jurisdiction, will have regard to the law and the totality of the evidence before it to make what it determines to be the most appropriate decision.
The substance of the allegations against the applicant, and the findings of the Panel, was that the applicant had behaved unreasonably towards council staff engaged in serious misconduct, as defined in section 3(1) of the LGA. The applicant denies those allegations.
As the members of the Panel, the second and third respondents (Panel respondents) are parties to the review by the VCAT, together with the first respondent as the original section 154 applicant.
The applicant has filed further evidence before the Tribunal including witness statements in support of her position and has stated her intention to test the evidence against her through cross-examination of any witnesses.
[2]
Whether a decision-maker should be an active party in a merits review proceeding depends on an analysis of the statutory role of the decision-maker, the nature and extent of the review being undertaken, the position or interest of the party to be joined and the circumstances of the case. The joinder of a decision-maker as a proper or necessary party does not imply that the decision-maker should act as contradictor in the proceeding.
The role of a Panel under the LGA is that of an ad hoc tribunal formed for the purpose of hearing an application made under section 154 of the LGA. It is not a government agency with separate legal personality, nor a regular part of the executive branch of government. It has no staff and no budget.
The Panel is not responsible for the administration of local government generally, nor for a narrower remit such as to maintain standards of councillor conduct. It is brought into being for the sole purpose of conducting a hearing in accordance with the LGA.
The members of a Panel receive fees as determined by the Principal Councillor Conduct Registrar for the hearing conducted by it, and which are paid by the Council. The Panel subsists only until its actions are complete and any hearing by the VCAT is concluded; there is no suggestion that the Panel members are entitled to any fee in respect of their respondency to a VCAT review.
The continued existence of the Panel during the VCAT hearing is consistent with enabling it to perform its obligations as decision-maker to provide documents under VCAT Act section 49. It does not imply that a Panel would play an active role as contradictor in relation to the merits review by the Tribunal.
These circumstances differentiate the Panel from the position of a body which is the administrator of a scheme and is invested with powers and responsibilities under the relevant legislation, as was the role of the Commission for Gambling Regulation considered in Macedon Ranges Shire Council v Romsey Hotel Pty Ltd.
The Tribunal is not concerned to consider the merits of the decision of the Panel but rather to make what it considers the appropriate decision in a matter where the Panel respondents do not have any special experience, knowledge, or expertise lacking by the Tribunal.
There are other reasons why it is not appropriate for a Panel to take an active role as contradictor. Tadgell JA, considering the role of the Transport Accident Commission (TAC) the former Victorian Administrative Appeals Tribunal (AAT), warned that in a review of a decision of the TAC, its role "as the primary administrative decision making body" before the AAT, "is in no sense to be treated as raising a lis or amounting to an adversarial contest in which the [TAC] is entitled to engage in curial tactics."
The second and third respondents have been active in the review process to the extent of seeking to obtain and maintain orders relating to confidentiality as to the identity of witnesses in the proceeding before the Tribunal. It would however not be appropriate, or necessary, for the Panel Respondents to descend into the fray of a contested proceeding by leading evidence from, or cross-examining witnesses including the applicant, who had appeared before it, or to bring new evidence to bear before the Tribunal.
[3]
Subsequent to the submissions of the second and third respondents, the first respondent has stated that he does not intend to willingly play an active role in the proceedings.
The decision the subject of the review by the Tribunal arose from an application made by the first respondent under section 154(2)(b) of the Local Government Act 2020 for the formation of a councillor conduct Panel. At the hearing before the Panel the first respondent submitted evidence and examined witnesses against the applicant, and cross-examined the applicant. Consistent with his role before the Panel, the first respondent is the natural contradictor in an appeal before the Tribunal.
The applicant submits that it is a matter appropriately for the first respondent to determine if and to what extent he wishes to prosecute his application. The first respondent is able to take an active role as contradictor, whatever his views of the decision under review.
Any reluctance of the first respondent must be considered in the circumstance that the Panel has provided section 49 documents and presumably will continue to be represented before the Tribunal such that if the Tribunal requires further documents or other specific assistance, the Panel respondents will be able to comply with any order. The Tribunal is not left in a vacuum in carrying out its merits review of the Panel determination.
[4]
I have directed that in the circumstances of this case it is appropriate that the second and third respondents (as the Panel) take the role of contradictor.
The direction is made in the context of the regulatory scheme set out in the LG Act.
The purpose of the LG Act is stated at section 1:
[5]
... to give effect to section 74A(1) of the Constitution Act 1975 which provides that local government is a distinct and essential tier of government consisting of democratically elected Councils having the functions and powers that the Parliament considers are necessary to ensure the peace, order and good government of each municipal district.
[6]
The role of the Panel was described in the second reading speech in the Victorian Parliament for the Local Government Bill 2019, which was passed as the LG Act:
[7]
This Bill sets clear standards to address and improve conduct. Mandatory standards of conduct, defining what communities expect from their councillors provides a greater understanding of acceptable behaviour, with a consistent framework against which to determine complaints and alleged breaches of the Councillor Code of Conduct. The currently complicated and varied internal resolution procedures will be replaced by clear, concise and consistent internal arbitration processes. This standardised process will be managed centrally by the Principal Councillor Conduct Registrar, and arbiters will be empowered to directly impose disciplinary measures against councillors. Where a finding of misconduct is reached, all decisions must be tabled at the next open council meeting to ensure greater transparency of the process and its outcomes.
[8]
The direction is made following considering the following criteria drawn from the Romsey Hotel decision:
[9]
Concerning the obligation of the primary decision maker in a review proceeding to assist the Tribunal, where necessary defending its original decision;
1. I do not accept that this principle set out in Romsey Hotel can be distinguished because of the legislative structure applying to the Panel as the original decision maker;
2. The Panel is correct in that it is not the statutory equivalent of the Commission whose decision was under review in that case. However, each Panel once established plays a critical role in the governance of local government, until the whole regulatory process, which can include a review by VCAT, comes to an end;
3. There is nothing in the Panel's function, including the power to sanction a councillor, which distinguishes it from other regulatory bodies which exercise disciplinary powers and act as contradictor at VCAT; and
4. While I have no reason to doubt that there may be challenges concerning the path for remunerating the Panel members, while unfortunate, presumably a mechanism can be found;
2. Concerning the presence of another party as contradictor, giving rise to there being no need for the primary decision maker to act as contradictor;
1. Here, there is no other potential contradictor, sufficiently equipped and willing to undertake the role. The need for the original decision maker to act as contradictor does not fall away.
2. I am not satisfied that Mr Gilligan is an appropriate contradictor as was available in the cases of, Draper v Chief Commissioner of Police(Review and Regulation)[2025] VCAT 1, Chuah v Harris and Ors (General)[2011] VCAT 1562, Coastal Estates Pty Ltd v Bass Coast Shire Council and Ors[2010] VCAT 1807 and Victorian Electoral Commission v Municipal Electoral Tribunal and Yee (Review and Regulation)(Corrected)[2017] VCAT 1910;
3. Given the emphasis in the submissions from the second and third respondents concerning Chuah, I note that in that case VCAT recorded that Councillor Ellis and Councillor Mayne as parties in Chuah, having been the original complainants, were clearly in the best position and equipped to participate as contradictors.
4. In Fidge v Councillor Conduct Panel(Review and Regulation)[2014] VCAT 1477 (a decision by me), while I said that as is appropriate in councillor conduct panel cases, VCAT had agreed that the Panel take a neutral role and be excused from appearing at the hearing, that was in the context that the joined parties were capable contradictors who were legally represented;
5. Returning to this case, first, Councillor Gilligan, for good reason, protests having to undertake the contradictor role at VCAT. As far as I can gather from the transcript, before the Panel there was no one else but him to move his application forward. The challenges he faced and dealt with reasonably well in that role are evident in the transcript. Meaning no criticism of him, it would have been better if he had had legal representation. It is understandable that he does not wish to repeat that experience, nor does it appear appropriate that he be required to do so;
6. Second, Councillor Gilligan does not have legal representation, which will disadvantage him. It appears that the hearing at VCAT will be complex. The VCAT procedure, while as informal as is appropriate, will be more formal than before the Panel. VCAT will highly likely be markedly less interventionist in its questions in a contested matter of this nature. The Panel will presumably be legally represented, given that has occurred so far. Councillor Hill, legally represented, as she is entitled to do so, intends to cross-examine witnesses who gave evidence in support of the allegations against her;
7. Third, if a precedent is established that where a person makes an application for the formation of a councillor conduct panel, and the respondent following the Panel's decision seeks review by VCAT, if the original applicant is required to run the case at VCAT, under protest, that has the potential to deter people from making applications for the formation of the Panel in the first place. The existence of such deterrence would have the capacity to undermine a critical part of the governance structure which the Parliament of Victoria intended to establish, as described in the second reading speech; and
8. Fourth, Mr Gilligan does not support the penalty imposed by the Panel. Without the Panel as contradictor, there is no contradictor to support its decision;
[10]
I accept that this is not necessarily a case where the Panel acting as contradictor will be able to provide a unique contribution similar to the Gambling Commission in Romsey. However, it will be able to bring a highly informed view, in accord with the aims and objectives of the statutory scheme. Also, there is no indication of any real risk that the two panel members will not be able to work cooperatively together;
[11]
There is no real prospect that the impartiality of panels established under the scheme will be jeopardised by the Panel in this case acting as contradictor;
1. First, it is almost certain that VCAT will make a final decision in this proceeding, rather than remit the decision back to the Panel;
2. Second, panels are drawn from a group of potential panel members so the differing combinations of panel members presumably contribute to their independence; and
3. Third, it should not be concluded from this decision that VCAT will direct the Panel to act as contradictor in every case of this type before it. Every case turns on its facts. Chuah, as opposed to this case, is an example.
2. With Councillor Gilligan not legally represented, there is risk that without the Panel as contradictor, that he would not manage to adequately address all relevant issues.
[12]
The next directions hearing is scheduled on 2 October 2025. The Tribunal requests the parties to attend, equipped for meaningful discussion to enable the Tribunal to decide the next steps to the final hearing.
[3] Adopting the Tribunal's reasons in Hill (No. 2).
Parties
Applicant/Plaintiff:
Hill
Respondent/Defendant:
Gilligan
Legislation Cited (5)
Government Act 2020
Civil and Administrative Tribunal Act 1998
Accident Act 1986
Environment Act 1987
Government Act 1989
Cases Cited (6)
Hill v Gilligan (No 3) (Review and Regulation) [2025] VCAT 721 (18 August 2025)
The decision of the Supreme Court of Victoria Court of Appeal in Macedon Ranges Shire Council v Romsey Hotel Pty Ltd[2008] VSCA 45 (Romsey Hotel) is the lead precedent in Victoria on the issue of an appropriate contradictor in an application for review before VCAT.
The background to the Court's decision is that in November 2004, the owner of the Romsey Hotel applied to the Victorian Commission for Gambling Regulation for approval of the hotel premises for gaming. The proprietor finally proposed to install 30 electronic gaming machines. The Commission refused the application, because it was unable to be satisfied that the net economic and social impact of the proposal would not be detrimental to the wellbeing of the Romsey community. A survey conducted by the local council proved important evidence leading to the Commission's 'overwhelming impression' that members of the local community found the prospect of gaming at its only hotel so disconcerting that it would have a significant effect upon that community.
The owner sought review at VCAT. The local council did not rely on and did not provide the survey evidence. Beyond providing a section 49 statement, the Commission declined to participate.
The Court of Appeal overturned the refusal, requiring VCAT to rehear the review and required the Commission to act as contradictor.
At [25] to [39] the Court said:
Consistent with established practice in this Tribunal, it is appropriate that the Second and Third Respondents not be the contradictor and adopt the Hardiman-style position proposed.
This is not a case where Romsey Hotel-style participation is required of the Second and Third Respondents. Even though the appearance of a contradictor (the First Respondent) does not preclude active participation or diminish its appropriateness, it is still clearly the case that the Tribunal has the benefit of the First Respondent's participation.
The Second and Third Respondents do not have a unique contribution to make to this review: it is not the regulator (as was the Victorian Commission for Gambling and Liquor Regulation in Romsey Hotel), but it is a quasi-judicial body determining allegations of serious misconduct put before it. In the words of Romsey Hotel, it is not the 'administrator of the scheme'. It is therefore distinguishable from that case. Here, the Second and Third Respondents' experience, knowledge and expertise was with respect to making the decision under review - a decision which now falls to the Tribunal to make afresh, standing in its shoes.
In this matter, there are parties with opposing positions - the Applicant and the First Respondent - where the Tribunal should be entitled to expect that they will cover off relevant issues. In this sense, it is relevant that the parties had informed the Tribunal that they were ready for hearing, but for the late withdrawal of Senior Counsel. The involvement of the Second and Third Respondents would likely yield no further issues than what was already considered and determined before the Councillor Conduct Panel at first instance.
Further, since the time of the adjourned hearing, the Applicant has filed all material to be relied on at the final hearing and as such, the Applicant and First Respondent are otherwise ready for the final hearing of this matter. Both the Applicant and the First Respondent have stated that they will rely on the section 49 materials, being the totality of the relevant material before Councillor Conduct Panel, including transcripts of the hearings. As such, neither party is disadvantaged by the Second and Third Respondents taking an active role.
There are also practical difficulties in requiring the Second and Third Respondents to be the contradictors: whether one should take a more active role than the other, or whether they should be permitted to both lead separate evidence, and both be entitled to cross-examine witnesses, may hinder the efficient conduct of the proceedings, in any event. Further, given the matters noted above, being ordered to take part as a contradictor, in circumstances where the matter is otherwise ready for final hearing, will only serve to further delay the review of a decision made in late 2023 by effectively resetting the procedural timetable.
(1) It is a quasi-judicial body, determining inter-partes disputes, and is required to afford procedural fairness;
(2) Taking an active role in proceedings would endanger its impartiality. It is possible that the Tribunal may remit the matter to the Councillor Conduct Panel for determination under section 51(2)(d) of the VCAT Act. It is also a possibility that, following the Applicant's re-election to Council, that she may come before the Councillor Conduct Panel again on another matter;
(3) There is a natural contradictor in the First Respondent. In Victorian Electoral Commission v Municipal Electoral Tribunal and Yee (Review and Regulation) [2017] VCAT 1910, the First Respondent there took a Hardiman-style position, where the Second Respondent - who was the original applicant to the First Respondent for an inquiry - was found 'well equipped' to act as the contradictor. The same ought to be said here;
(4) It is not for the Second and Third Respondents to assist the Tribunal with its own powers and procedures: these are not anticipated to be issues for this Tribunal in the review. To the extent that it can assist the Tribunal, the Councillor Conduct Panel has already done so by filing its material pursuant to section 49 of the VCAT Act; otherwise, the other parties can and have filed further material. In this case, there is a significant amount of material already before the Tribunal, including some 329 pages of transcript. If an issue arises appropriate for submissions by the Second or Third Respondents, then the Hardiman position allows them to assist the Tribunal with respect to them.
These Hardiman factors considered above, were persuasive in Coastal Estates Pty Ltd v Bass Coast Shire Council and Ors[2010] VCAT 1807. In that case, the Tribunal considered the case of the role of a Panel under the Planning and Environment Act 1987, discouraging the active role played by the Panel in that case. It said:
In Chuah v Harris and Ors (General) [2011] VCAT 1562 (Chuah), the Tribunal declined to require the Councillor Conduct Panel to be an active contradictor or relieve them from participation. It was a matter for them the position to adopt, and it was appropriate to adopt a Hardiman-style position.
The same decision should be made here to permit the Second and Third Respondents to continue to adopt a Hardiman position - just as it has done thus far.
In Chuah, the members of the Councillor Conduct Panel under the then Local Government Act 1989 (Vic) sought leave from the Tribunal to not actively participate in the proceeding. The Tribunal (Aird DP) referred to Romsey Hotel. The Tribunal found that a Councillor Conduct Panel did not have a responsibility for the administration of a statutory scheme regulating the conduct of councillors in the State of Victoria, and as such its participation is not governed exclusively by the aims and objectives of the statutory scheme. The Tribunal went on to say:
The Tribunal has recently considered the appropriate role of respondents before it. In Draper v Chief Commissioner of Police [2025] VCAT 1, the Tribunal considered whether the Firearms Appeal Committee (as the decision-maker) should be the proper contradictor. There, the Tribunal did not consider it necessary to have assistance from that Committee beyond ensuring that all material is lodged consistent with the obligations under section 49 of the VCAT Act. It was sufficient that the Tribunal had the decision under review, the final order, the transcript of the hearing and all material before the Committee was before the Tribunal.24 It considered that there was little, if anything, the Committee could contribute, particularly where there was already a proper contradictor in the Chief Commissioner of Police.