Hindi v Chief Executive, Office of Local Government

The reprimand and suspension orders by the Acting CLEOG

1. The suspension of Mr Hindi was ordered to occur from 10 May 2016 to 9 July 2016. A stay of that order was granted by the Tribunal on 11 May 2016. By proclamation, dated 12 May 2016, the Governor dissolved the Council. As a consequence, Mr Hindi's duties, rights and privileges as a councillor were, in practical terms, only suspended for about one day.
2. The orders were based on a departmental report prepared by an external investigator. The process leading to the making of the orders occurred under the procedures and powers regulating the conduct of councillors (and others) contained in Pt 1 of Chapter 14 of the Act.
3. Under those provisions, following an investigation, the CEOLG has the power under s 440I(1) to take disciplinary action against a councillor if satisfied that: (a) the councillor has engaged in misconduct (whether on the basis of a departmental report or a report by the Ombudsman or Independent Commission Against Corruption), and (b) disciplinary action is warranted.
4. Misconduct is defined to include, relevantly: 440F Definitions (1) In this Division: 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 under section 440….
5. Where satisfied of the matters in s 440I(1), the CEOLG has the power under s 440I(2) to impose a range of disciplinary action, the most severe of which is suspension from office and from the receipt of pay for a period of three months.
6. Where there is no report by the Ombudsman or from ICAC, a prerequisite to the taking of disciplinary action is that the CEOLG obtain a departmental report in relation to an investigation for the purpose of determining whether a councillor has engaged in misconduct: s 440H(6) and s 440H(1). As occurred in this case, such an investigation may be conducted at the initiative of the CEOLG.
7. On 29 May 2015, the then CEOLG authorised Ms Katrina Annis-Brown to undertake an investigation and prepare a departmental report. Terms of reference were supplied. These focussed upon "reporting or otherwise disclosing information about allegations concerning…" the General Manager during "…Council's ordinary meeting on 20 May 2015 and extraordinary meeting on 25 May 2015" and on Mr Hindi "…raising allegations concerning [the General Manager] with other councillors…" and whether Mr Hindi complied with Part 8 of the Code in doing so. The terms also extended to "… any other matters that may be relevant." As will be seen below, those terms of reference were mistaken in their premise that the disclosure referred to had occurred during an ordinary and then an extraordinary meeting of Council.
8. According to these terms, the focus was upon actions by Mr Hindi rather than inaction by him.
9. In written submissions, a point was raised on behalf of Mr Hindi that the extension of the investigation to any other relevant matters was beyond power. However, this point was not pursued at the hearing.
10. It was not until an unspecified date in May 2016 that such departmental report was prepared.
11. That report made a finding that Mr Hindi had failed to act honestly (as well as negligently) in contravention of s 439 of the Act.
12. It is apparent from the departmental report that the author took the view that Mr Hindi had abused his position by his disclosure of these allegations for his personal advantage.
13. At the hearing of this appeal, the finding of dishonesty by the CEOLG, based as it was on this departmental report, was abandoned. Furthermore, there was no cross-examination of Mr Hindi about his motives, as would have been necessary if a case of more serious conduct by Mr Hindi was to be pursued. The issues narrowed to whether there had been breaches of the Code and whether Mr Hindi had been negligent. This was a substantial downgrading of the case against Mr Hindi by the CEOLG.
14. It is not necessary for me to consider in any detail the conclusions and reasoning of the departmental report (or the subsequent reasons of the CEOLG). I am concerned with an appeal de novo and with a case that proceeded on the uncontested facts deposed to in an affidavit of Mr Hindi that was not before the author of the departmental report or the CEOLG at the time of the decision appealed from.

Clauses 8.11 and 8.12 of the Code

1. Under s 440I(4), the CEOLG is required to notify the councillor concerned of any decision to take disciplinary action and the reasons for decision. So far as those reasons concerned whether Mr Hindi had engaged in misconduct (as distinct from whether disciplinary action should be imposed) they were as follows: 8. I have carefully considered the departmental report under section 440H of the Act into the conduct of Clr Hindi. 9. I am satisfied that Clr Hindi has contravened clauses 8.11 and 8.12 of the Council's code of conduct by reporting or otherwise disclosing information about allegations concerning Mr Lampe initially with Clrs Badalati and Stevens and subsequently with all councillors at two (2) Council meetings which were held on 20 May 2015 and 25 May 2016. I0. I am satisfied that Clr Hindi has also contravened section 439 of the Act by failing to act honestly and exercise a reasonable degree of care and diligence when managing complaints concerning Mr Lampe, resulting in Mr Lampe's suspension. 11. There is evidence in the departmental report that Clr Hindi has contravened clause 8.11 of Council's code of conduct by failing to report an alleged breach of the code in accordance with the requirements of the code. This is conceded by lawyers acting on behalf of Clr Hindi. 12. There is also evidence in the report that Clr Hindi has contravened clause 8.12 of Council's code of conduct by making allegations of suspected breaches of the code at Council meetings. 13. Clr Hindi chose to circulate documents that identified the General Manager as the person being complained about, detailed the nature of the complaint and the complainant. 14. Clr Hindi is an experienced councillor who cannot have failed to be aware of the code and its application to himself and the General Manager. 15. Failing to consider the application of the code and seek advice about the governance aspect of the code is reckless conduct. 16. Clr Hindi sought legal advice urgently just before the meeting but he was not bound by it and he needed to judge whether to rely on it. 17. I have considered the submissions provided by Clr Hindi through his lawyers and do not accept that the conduct can be explained as follows: that even though Clr Hindi did not identify Mr Lampe, the hypothetical situation raised by him involved an allegation against "a general manager" and as Council has only one general manager, this left no doubt who the complaint was about, and the fact that Clr Hindi caused the material about the complaint to be made available is sufficient to show that he disclosed details of the complaint. 18. Council's code of conduct sets the minimum requirements of conduct for council officials in carrying out their functions and is prescribed by the Local Government (General Regulation) 2005. 19. With the above in mind, I find the Clr Hindi has engaged in misconduct as defined in section 440F of the Act…..
2. As can be seen, the only provisions of the Code that are referred to in the reasons are cll 8.11 and 8.12 of the Code. Those clauses come within Part 8 of the Code concerning "Maintaining The Integrity Of This Code" and were part of a group of three provisions as follows: Disclosure of information about the consideration of a matter under this code 8.11 You must report breaches of this code in accordance with the reporting requirements under this code. 8.12 You must not make allegations of suspected breaches of this code at council meetings or in other public forums. 8.13 You must not disclose information about the consideration of a matter under this code except for the purpose of seeking legal advice unless the disclosure is otherwise permitted under this code.
3. It is not contended that Mr Hindi failed to comply with clause 8.13 of the Code.

The Facts

1. The evidence adduced by the CEOLG on the appeal and accepted by the Tribunal (marked Exhibit 1) consisted of the departmental report (with Annexures 1 to 20), the Code and the Procedures. The evidence adduced by Mr Hindi and accepted by the Tribunal consisted of his affidavit dated 25 May 2016 (Exhibit A) and the Exhibit CH-1 to that affidavit (Exhibit B). No oral evidence was given at the hearing.
2. The parties accepted that the primary facts were uncontroversial. They emerge, largely, from Mr Hindi's affidavit. He was not cross-examined. I find the pertinent facts to be as follows: 1. On or about 1 May 2015, at a café, Mr Hindi had a conversation with a young, female member of the Council's staff (Ms X) in which she said to him that she had been sexually harassed by the General Manager (GM) for the last three years, she didn't want Mr Hindi to tell anyone about it at that stage and she had been seeing a doctor to help her get through it. 2. In the conversation, Ms X agreed that it would be a good idea for her to speak to Ms Stevens, the Deputy-Mayor. Mr Hindi said he would see if that could be organised. Ms X said she did not want Mr Hindi to do anything else about it for the time being. 3. Mr Hindi did not know how to handle the allegations but his instinct was to follow Ms X's wishes until she asked him to act on the complaint or she made a formal complaint or statement. He was suspicious about the complaint and thought Ms X may have raised it in order to try to get him to speak badly about the GM. 4. Mr Hindi next met with Ms X during the evening of 4 May 2015. Mr Hindi told Ms X there could be a motion to investigate an anonymous email sent to a number of councillors in January 2014 which had made allegations of sexual harassment by the GM. Ms X said that would be good since it may mean that other girls came forward. 5. The earliest time Mr Hindi could arrange for Ms X to meet with Ms Stevens was on 11 May 2015. Before that meeting, on or about 4 or 5 May 2015, Mr Hindi discussed how to handle such a complaint (with Councillor Badalati, who had been one of the longest serving Mayors of the Council). He did so without making reference to the specific allegation and who had made it. Councillor Badalati advised that Mr Hindi should seek legal advice. 6. At this time, it did not occur to Mr Hindi that the Code may be relevant to the situation. 7. A meeting occurred on 11 May 2015 between Ms X, Ms Stevens and Mr Hindi. Mr Hindi had not told Ms Stevens about the allegation before the meeting. At Mr Hindi's invitation, Ms X repeated what she had told him on or about 1 May 2015. Ms X said that she did not want them to tell anyone else at this stage, especially not Mr Park who was the Council's complaints coordinator. 8. After the meeting, Mr Hindi dictated a note of what had been discussed on his mobile phone. Later, he used this note to prepare a statement by Ms X - having done so, he deleted the recording on his mobile phone. 9. Mr Hindi met again with Ms X on Tuesday, 19 May 2015. This was arranged because Ms X's allegation was at risk of being known more widely as a result of an email Ms Stevens sent to Ms X (copied to Mr Hindi). The email was sent to Ms X's email address at the Council on 18 May 2015. It was read by an assistant who was filling in for Ms X, who was sick. In that email, Ms Stevens stated that she confirmed that both Ms X and Mr Hindi had asked that no further action be taken on the matter at this time. In the email Ms Stevens also stated that she wanted to reiterate that if this matter was required to be dealt with at a later time, the appropriate processes would need to be followed. 10. At this meeting on 19 May 2015, Ms X amended the notes Mr Hindi had made of the meeting on 11 May 2015. Mr Hindi told Ms X she did not have to do anything if she did not want to - if she did want to do something she could sign the notes and he could act on it - or, if she wanted, she could sign a statutory declaration and they could take it to the police. Ms X said that "I have decided I want to go ahead with it." She also said she would prefer the investigation to be an external investigation. Ms X then signed the amended statement, as did Mr Hindi. 11. The content of the signed statement included that Ms X had stated that she would only speak to an external investigator for fear of retribution from senior staff. It also stated that Mr Hindi confirmed that the statement was to be kept solely in his possession and would only ever be handed over to an external investigator, the police or in compliance with court orders. 12. After obtaining the signed statement, Mr Hindi sought legal advice from Corrs Chambers Westgarth as to how best to manage the complaint. He spoke to a partner and a Special Counsel in the morning of 20 May 2015. He then sent the signed statement to the Special Counsel. That afternoon, and before the Council meeting that evening, he received an email from that firm setting out advice. Mr Hindi read the advice and thought the recommendations in it were reasonable. 13. The advice in the email included that the allegations, if sustained, appeared to amount to sexual harassment for which both the GM and the Council could be liable and that the allegations should be thoroughly and impartially investigated. It said that given that this matter was raised with a former Mayor in the context of the anonymous email in 2014 it was imperative that the Council take swift action. It recommended that the GM's employment be suspended to enable a thorough investigation to occur and remove the stress for all parties involved in maintaining a working relationship whilst the investigation was carried out. It recommended that an external investigation be carried out having regard to the GM's seniority, Ms X's wishes and the seriousness of the allegations. 14. An ordinary meeting of the Council commenced at 7pm on 20 May 2015. Soon afterwards, the Council resolved to move into a Committee of the Whole to deal with a staff matter. There followed a closed meeting in which all public and Council staff were excluded. The Minutes reveal this process. In the closed meeting, Mr Hindi distributed three documents - the email advice form Corrs, a redacted copy of Ms X's statement and a copy of the anonymous email sent in January 2014. Having done so, and once an opportunity was given to read the documents, Mr Hindi said "the floor is yours". A letter from Belgrave Lawyers dated 22 May 2015, referred to below, indicates that Mr Hindi provided background to the complaint and the discussions he had with Ms X. Following discussion for almost an hour, a motion was passed, as a result of Mr Hindi's casting vote. The motion included that the GM be suspended on full pay whilst an investigation of the allegations was carried out and that the Mayor and Deputy Mayor were authorised to contact the Office of Local Government (the OLG) for advice as to who should conduct the investigation. 15. On 21 May 2015, a motion to rescind the resolution concerning this matter was submitted. As a result, Mr Hindi arranged for an extraordinary meeting of Council to take place on 25 May 2015. 16. On 22 May 2015, before that extraordinary general meeting, Mr Hindi received a letter from the Office of Local Government (OLG) informing him that it had received a complaint from the GM and that it was making enquiries concerning that complaint. The subject matter of the enquiry concerned the possibility that the action taken against the GM was reprisal action in contravention of the Public Interest Disclosures Act 1994 (NSW). The previous day the OLG had sent a letter to Mr Hindi stating that the Chief Executive was making preliminary enquiries into what transpired at the closed meeting on 20 May 2015. Information about various matters was requested by 4pm that day, including as to what had transpired at the meeting. That letter was responded to by Belgrave Lawyers, on behalf of Mr Hindi, on 22 May 2015. 17. Mr Hindi sought further advice from Corrs about OLG's letter of 22 May 2015 concerning reprisal action. Corrs provided further written advice dated 25 May 2015. That advice included that the suspension of the GM was reasonable, consistent with the expectations of the law and necessary having regard to the close proximity in which the complainant worked with the GM. 18. On 25 May 2015, the Council received a letter for Carroll & O'Dea, on behalf of Ms X, making allegations of sexual harassment by the GM. 19. Another letter was sent by the Chief Executive of the OLG on 25 May 2015, this time to the Mayor and Councillors. This letter stated that in accordance with the Procedures For The Administration Of The Model Code Of Conduct (the Procedures), the Chief Executive required that the allegation about the GM be referred to the Council's complaints coordinator by 4pm on 26 May 2015 for immediate referral to a conduct reviewer for an assessment and preparation of an interim report, which the conduct reviewer should be requested to provide by 9 June 2015. The view was expressed in the letter that it would be inappropriate for the Council to take action that would prevent the GM from being reinstated for three months, given the length of time that some of the allegations have been known by some councillors and in the context of the interim report. 20. At no time prior to this letter had any councillor or Corrs or Carroll & O'Dea made any reference to the Code or the Procedures as applicable or, potentially, applicable to the situation. 21. The extraordinary general meeting commenced at 7pm on 25 May 2015. The Council immediately moved into a closed meeting of the Committee of the Whole. Mr Hindi distributed to councillors the advice from Corrs dated 25 May 2015, the letter from Carroll & O'Dea and an unredacted copy of Ms X's statement, since her identity had now been disclosed by the letter from her solicitors. Debate on the rescission motion lasted for about an hour and a half. The motion for rescission was not carried. 22. The allegations in the letter from Carroll & 0'Dea on behalf of Ms X referred to some examples of sexual harassment and discrimination by the GM in the workplace. Only one of these examples was specified to have occurred within three months of 1 May 2015, when Ms X first told Mr Hindi about sexual harassment. 23. On 26 May 2015, the complaint was referred to the Council's alternate complaints coordinator (alternative to Mr Park), who referred the matter to an external investigator.
3. In his affidavit of 25 May 2016, Mr Hindi stated that he now appreciated that in not immediately referring the matter to the complaints coordinator he "may not have followed precisely the requirements of the Code."[49]. He also said that he accepted that distributing documents regarding the complaint to the Council, in closed session, "may not have been strictly in accordance with the spirit of the Code,.." [49]. He gave an explanation for proceeding as he had.

Consideration of misconduct - breach of clause 8.11 of the Code

1. At the hearing of the appeal, there was debate about the meaning of relevant provisions of the Code and the Procedures. As will be seen below, at odds with these tentative concessions by Mr Hindi, Counsel for Mr Hindi contended that on the correct construction of the relevant provisions there was no breach of the Code or the Procedures in the manner contended for by CEOLG. In view of the issues about the meaning of these provisions, that was an appropriate course for Counsel for Mr Hindi to take. Correctly, there was no suggestion by Counsel for CEOLG that it was not.
2. On CEOLG's case, the claim of breach by Mr Hindi of cl 8.11 of the Code was based upon his alleged failure to comply with a particular provision of the Procedures concerning the referral of a complaint to a complaints coordinator (cl 5.25), from whom the complaint was to be referred to a conduct reviewer. On Mr Hindi's case, there was no breach of cl 8.11, even if he had failed to comply with such referral requirement of the Procedures. In this regard, Mr Hindi's submissions gave emphasis to the construction of cl 8.11 rather than to the question whether there had been a breach of the Procedures in the first place.
3. For the reasons set out below, I have concluded that Mr Hindi is correct in his submissions about the construction of cl 8.11. It follows from this conclusion that even if there was a breach by him of the Procedures, there was no breach of cl 8.11 of the Code and, therefore, no misconduct based upon a failure to comply with that clause of the Code. It is, therefore, not necessary for me to deal with the question whether there was a breach of the Procedures. In that regard, less than straightforward questions arose as to whether and, if so, at what point in time there had been a "code of conduct complaint" by Ms X within the meaning of the Procedures. This is because the Procedures are concerned with the handling of "a code of conduct complaint". Whilst it was accepted that what Ms X told Mr Hindi fell within the definition of "code of conduct complaint" in Part 2 of the Procedures, other provisions in Part 4 of the Procedures, dealing with how a code of conduct complaint was to be made, specify that such a complaint must be made within three months of the alleged conduct (cl 4.3) (although an older complaint could be accepted in certain circumstances (cl 4.4)) and that code of conduct complaints were to be made in writing (cl 4.10). Also, on one view of the Procedures, the requirements for managing a complaint assume that a complainant wishes the complaint to be pursued.
4. I will commence with the question whether a failure to refer a complaint in accordance with cl 5.25 of the Procedures is a breach of cl 8.11 of the Code.
5. The terms of cl 8.11 are set out above. As to the construction of cl 8.11, the parties were in contest about two particular matters. First, whether "breaches" included alleged breaches. Secondly, whether the requirement to refer a complaint to the complaints coordinator set out in cl 5.25 of the Procedures was a requirement to "report" in accordance with one of "the reporting requirements" referred to in cl 8.11.
6. CEOLG contended that on the facts here, by virtue of clause 5.25 of the Procedures, the alleged breach of the Code by the GM had to be referred to the complaints coordinator and that this requirement to refer was a "reporting requirement(s)" within the terms of cl 8.11 of the Code.
7. Clause 5.25 appears in Part 5 of the Procedures dealing with the topic "How Are Code of Conduct Complaints To Be Managed". It is one of four clauses on the subject of "code of conduct complaints" about the general manager. It provides: 5.25 The Mayor must refer all code of conduct complaints about the general manager other than those referred to the Division under clause 5.21 or resolved under clause 5.23 to the complaints coordinator.
8. Under cl 5.23 the Mayor has a discretion to seek to resolve such code of conduct complaints by alternative means such as by explanation, counselling, informal discussion or mediation, instead of referring them to the complaints coordinator.
9. Importantly, Part 10 of the Procedures is concerned with the topic of "Procedural Irregularities" and cl 10.1 provides: 10.1 A failure to comply with these procedures does not, on its own, constitute a breach of the code of conduct except as may be otherwise specifically provided under the code of conduct.
10. It was not in dispute that: 1. What Ms X had conveyed to Mr Hindi prior to the Council meeting on 20 May 2015 fell within the definition of "code of conduct complaint" in the Procedures, it being a complaint: …that alleges conduct on the part of a council official acting in their official capacity that on its face, if proven, would constitute a breach of the standards of conduct prescribed under the council's code of conduct 1. So far as the conduct alleged against the GM was concerned, such conduct fell within various provisions of the Code, namely, cl 3.6 (dealing with harassment), cl 3.1 (general conduct), cl 3.2 (act lawfully) and cl 3.3 (treat each other with sensitivity and respect). 2. The reference in cl 8.11 to the reporting requirements "under this Code" included a reference to any such requirements in the Procedures. This was because of the reference at the end of the definitions section of the Code to: The phrase "this code" used in the Model Code of Conduct refers also to the procedures for the administration of the Model Code of Conduct prescribed under the Local Government (General) Regulation 2005.
11. As submitted by CEOLG, I have approached the construction of cl 8.11 (and cl 8.12) in accordance with the recognised principles of statutory construction set out in, for example, Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [69]-[71] and [78]; and Australian Education Union v Department of Education and Children's Services [2012] HCA 3 at [26]-[28]. Accordingly, it is necessary to construe the clause by reference to the ordinary and grammatical meaning of the words used, the text of the Code as a whole and the purpose of the provision. I am also prepared to accept the submission of the CEOLG, with which Mr Hindi took no issue, that I should approach the construction of the clause on the basis that less precision should be attached to the words used than is the case with the words of a statute - an approach that appears to have application to subordinate legislation: see per Leeming JA in Tovir Investments Pty Ltd v Waverley Council [2014] NSWCA 379 at [54]. As to this, I note that the provisions of the Code in issue are in the terms of the model code prescribed by the Local Government Regulation (General) Regulation 2005 (the Regulations).
12. However, I do not agree with the construction of the clause for which CEOLG contends.
13. Firstly, in ordinary language, the word "breaches" does not include allegations of breaches and there is no clear indication in the language of the clause or in the text as a whole that such an extended meaning of the word was intended. On the contrary, a clear distinction appears between the word "breaches" in cl 8.11 and the words "allegations of suspected breaches" in the immediately succeeding clause (cl 8.12). That suggests that a difference is intended between the two clauses and that cl 8.11 is not intended to cover allegations of breaches. The nearby cll 8.14 and 8.15 also refer to "[c]omplaints alleging a breach" thereby heightening the apparent deliberate absence of such language in cl 8.11.
14. Secondly, I do not think that "the reporting requirements" in cl 8.11 covers the referral step envisaged by cl 5.25 of the Procedures. This is not only because at this point matters are a long way from being a breach but also because I distinguish a "report" or "reporting" from a requirement to "refer" a complaint as one step in a described process for how to deal with code of conduct complaints against the general manager (and others as well - see, for example, cl 5.16) - a process in which the word "report" does not appear. That process includes, as the next step after referral to the complaints coordinator, the requirement that such coordinator "refer" the complaint to a conduct reviewer (cll 6.1 and 6.2). (It must follow from CEOLG's submission that this next step is also a "reporting requirement" within the meaning of cl 8.1). To describe this at each stage as "reporting" does not seem to me to be apt. Rather, I would have expected cl 8.11 to speak in terms that the processes for referral in dealing with complaints had to be complied with, if the intention was that this be a code of conduct requirement.
15. All the more so, in my view, given that to make this a code of conduct requirement was to make an exception to the general rule that failure to comply with the Procedures does not constitute a breach of the Code "except as may be otherwise specifically [my emphasis] provided under the code of conduct" (see cl 10.1 of the Procedures).
16. Further as to the distinction between "report" and "refer", I note that the Code itself does use the language of report in other places and in a manner that distinguishes the meaning intended from "refer", namely in connection with the reporting of suspected child abuse (cl 3.18) and the receipt of political donations (cll 4.21 and 4.24).
17. CEOLG's strongest argument on this point is that unless cl 5.25 in the Procedures is a reporting requirement these words in cl 8.11 have no work to do. Just what are the reporting requirements to which cl 8.11 refers is not clear. However, in my opinion, I do not see this argument as sufficient to force the referral action in the Procedures into cl 8.11, bearing in mind the matters to which I have already referred.
18. In any event, the Procedures does use the language of "report" (as distinct from "refer") in Part 12 concerning the reporting of statistics of complaints and their outcome to the council and from there to the "Division" - a reference to the OLG. It would seem that where the outcome of a complaint is a finding of breach, the requirement of the complaints coordinator to report under cl 12.1 of the Procedures has become a Code requirement by virtue of cl 8.11. In this respect, I note that "You" (the first word in cl 8.11) is defined in Part 9 of the Code to include Council officials and staff, which would cover a complaints coordinator.
19. Subsequent to the oral hearing, I sought written submissions from the parties about the relevance to the construction of cl 8.11, if any, of the Internal Reporting Policy referred to on page 3 of the Code of Conduct in the Message from the Mayor and General Manager. I have read the submissions of the parties about this. I disagree with the submissions on behalf of Mr Hindi that the policy is of some relevance as another illustration of "reporting requirements" within the meaning of cl 8.11. For the reasons given by the CEOLG in their submissions, in my opinion, cl 4 of the policy does not constitute a reporting requirement within the meaning of cl 8.11. First, that clause does not make a report mandatory. Secondly, it is not a provision for action "under this code" as specified in cl 8.11. The meaning of "this code" does not extend to the policy: see the definition in the last paragraph of the definitions in Part 9 of the Code.
20. I also do not accept Mr Hindi's submission that the referral step in cl 5.25 does not fall within cl 8.11 because of the discretion given to the Mayor in cl 5.23, which he submits was at odds with the notion of a reporting requirement. In my opinion, the force of this argument falls away once it is recognised that we are not concerned with what is said to be a reporting requirement at the stage of the initial complaint, but only with a requirement that arises in circumstances where the discretion in cl 5.23 has not been activated.

Consideration - breach of clause 8.12

1. In my opinion, the first answer to the claim of breach of cl 8.12 is that, on the facts, Mr Hindi made no allegation of a breach of the Code - he did no more than inform of an allegation made by another. Even if it be accepted, as I do, that a purpose of the provision is protection against groundless, vexatious or malicious allegations, I do not accept that such mischief warrants a construction that involves such a substantial departure from the words of the clause so as to encompass what occurred in this case. It is one thing to make the allegation. It is quite another to inform of the existence of an allegation by a third party.
2. The second answer is that, in my opinion, the occasions with which we are concerned (the closed meetings of the committee of the whole on 20 and 25 May 2015) were not "council meetings" as provided for in cl 8.12. CEOLG does not contend that what occurred took place in "other public forums". In my opinion, CEOLG was correct not to do so.
3. In my opinion, by the use of the words "or other public forum", it is evident that the meetings that are the subject of the clause are those which are open to the public, even if the meetings in issue were otherwise regarded as "council meetings" (which, in my opinion, they were not - see further below). The use of the words "other public forums" [my emphasis] conveys that this is the case.
4. As outlined below, this interpretation is supported by the Act. It is also consistent with the apparent mischief to which the provision is directed, to which I have already referred. In my opinion, the Act is part of the context for the construction of the clause because the clause is one contained in the model code prescribed by the Regulations, in accordance with the Act.
5. The Act makes provision for the role of the "public" in relation to council decision making: see Chapter 4 of the Act ("How can the community influence what a council does?"), including Part 1 of that chapter concerned with open meetings. As a general rule, all meetings of the council (and committees of which all the members are councillors) are to be open to "the public" (s 10(1) (b)). A meeting that is open to the "public" is, in my opinion, the "public forum[s]", including council meetings, to which cl 8.12 is referring.
6. As to consistency with the mischief to which cl 8.12 is directed, broadcasting allegations of Code breaches at a meeting open to and attended by the public is a matter of more serious concern for the parties to the allegation and for abuse of power than if made to a closed meeting of councillors.
7. As I have indicated, I am also of the opinion that the meetings of the committee of the whole were not "council meetings" referred to in cl 8.12, although if they had been meetings of such a committee that were open to the public (which they could have been, but were not) they would, in my opinion, have come within the phrase "other public forum" in cl 8.12.
8. On a first reading of cl 8.12, without regard to the context provided by the Act and Regulations, it may seem somewhat over technical to take the view that a meeting of all councillors, albeit as a committee of the whole, was not a "council meeting". As to this, the Respondent submits that the clause should not be construed too precisely.
9. The Respondent also points to the process under which the Council in ordinary meeting simply changes itself by resolution from one form (a meeting of the council) to the other (committee of the whole). In this regard, the Respondent has pointed to a number of matters, including aspects of its Code of Meeting Practice (COMP) and to what actually occurred on the two occasions with which we are concerned.
10. The Respondent submits that by meeting as the committee of the whole the councillors saw themselves as a closed meeting of the Council. The Respondent also submits (in supplementary written submissions): 13 On the basis of the evidence outlined above, where the term "Committee of the Whole" is used in Council documents, including the COMP [Code of Meeting Practice] and the relevant minutes, it means a closed Council meeting, which is a council meeting for the purposes of clause 8.12 of the Code (noting that the Code is also a Council document).
11. I have already rejected the argument that the meetings referred to in cl 8.12 include meetings that are closed to the public. However, even if I be wrong about that, in my opinion, I do not agree with the Respondent that a meeting of the Committee of the Whole is interchangeable with a closed meeting of the council and, hence, a meeting of council within the terms of cl 8.12. I outline my reasons below, but before doing so make reference to the particular aspects of the evidence relied upon by the Respondent in making this submission.
12. The Respondent places particular reliance upon two provisions of the COMP (one of the documents specified in the message on page 3 of the Code as a document to be referenced in conjunction with the Code) as follows: 1. Clause 16(1) which specifies the order of business that shall occur "[A]t a meeting of the Council…" Item 12 of the business is stated to be "Closed Council in session (Committee of the Whole)". I also note that item 13 states "Consideration of Closed Council session recommendations." That is an indication of a substantial difference between a meeting of the Council and that of the Committee of the Whole, to which I make further reference below. 2. Clause 42 which deals with the subject of the Committee of the Whole at the commencement of Part 5 of the COMP dealing with "Council Committees". The clause is headed "Committee of the Whole (Closed Session)" and in cl 42(1) begins by stating that the Council "may resolve itself into a Committee of the Whole to consider any matter before the Council". The Respondent points to sub-clauses (2), (4) and (5) and their references to closing the meeting to the public and, in particular to sub-clause (2) and its reference to "close the meeting [emphasis added].
13. The Respondent submits that these provisions demonstrate that a Committee of the Whole is treated as "interchangeable" with a closed meeting of Council.
14. The Respondent also points to the minutes of the relevant meetings and the notice of the extraordinary meeting on 25 May 2015 in Exhibit B to show that on the occasions with which we are concerned the council was proceeding on the basis that the Committee of the Whole was regarded as a closed meeting of the council. I will not set out all the references relied upon, but they include a reference in Minute No 322 on page 9 (at point 4) "Council resolves itself into a Committee of the Whole (closed Council)" and a reference in Minute 363 on page 37 (at point 3) to a motion that certain people "remain in the Chamber during the Closed Council meeting".
15. Even if it be established that the councillors saw themselves as participating in a closed council meeting when meeting as a Committee of the Whole on the occasions with which we are concerned, as I am inclined to think the material does so establish, I do not think that fact is of any real assistance in construing cl 8.12, even if it be regarded as relevant, which I do not think it is. I do not see how the understanding of those involved is of any real weight to the identification of the meaning of cl 8.12.
16. I regard the COPM as relevant to the construction of the clause, but I assess the significance of the parts upon which the Respondent places reliance in the light of the COPM as a whole, and, in my opinion, more significantly, in the light of the relevant provisions of the Act and the Regulations, to which I now turn. In the hierarchy of contextual material, the Act and the Regulations are the most significant, for the reason already given (paragraph 49) and because, as the COPM acknowledges (cl 3), it is made pursuant to s 360(2) of the Act, it incorporated relevant provisions of the Regulations and, in the event of inconsistency, the Act and the Regulations prevail.
17. A distinction between a meeting of the council and a meeting of a committee of the council of which all of the members are councillors is clearly made in the Act and the Regulations: ss 9, 10, 10A, 360(1), 365 to 372 and 373 of the Act and Part 10 of the Regulations, including the separate treatment of "Council Committees" in Division 5 of Part 10. The definition of "committee" in the Regulations includes a "committee of the whole": cl 231.
18. Importantly, the decision making forum is a meeting of the council, not a meeting of a committee of the council of which all members are councillors. The order of business provision, to which I have already referred, reflects the distinction with respect to decision making roles by its reference in item 13 to recommendations coming from the Committee as a Whole, as do cll 42(4) and (5) of the COPM. This is a fundamental reason why a meeting of the committee of the whole is not interchangeable with a closed meeting of the council.
19. It is also of some significance that the procedural rules for the conduct of a meeting of council and a meeting of a committee of the whole are not entirely the same: cl 259(1) of the Regulations and cl 42(3) of the COMP.
20. What is also clear from the Act, the Regulations and the COMP is that a closed meeting of the council does not equate to a meeting of the committee of the whole. As a general rule a meeting of each of these bodies is required to be open to the public (s 10(1) of the Act; cl 55(1) of the COMP), and a meeting of the council can be closed without becoming a meeting of the committee of the whole (s 10A(1) of the Act; cl 55 (2) of the COMP).
21. For these reasons, I do not agree with the Respondent that a closed meeting of council and a meeting of the committee of the whole are interchangeable terms. On the contrary, I agree with the submissions of Mr Hindi that the reference to "council meetings" in cl 8.12 is a reference to a meeting of the council as provided for under the Act and the Regulations as distinct from a meeting of a committee of the whole.

Consideration - contravention of s 439 - negligence

1. Section 439 of the Act is, relevantly, in the following terms: 439 Conduct of councillors, staff, delegates and administrators (1) Every councillor, member of staff of a council and delegate of a council must act honestly and exercise a reasonable degree of care and diligence in carrying out his or her functions under this or any other Act. (2) Although this section places certain duties on councillors, members of staff of a council and delegates of a council, nothing in this section gives rise to, or can be taken into account in, any civil cause of action.
2. I have already mentioned that at the hearing of the appeal the case against Mr Hindi of a contravention of s 439 of the Act and, hence, misconduct within the meaning of s 440F of the Act was reduced to a case of negligence by him.
3. The Respondent's primary case of negligence was founded on the premise that Mr Hindi had breached cl 8.11 and cl 8.12 of the Code and that he had been negligent in doing so because he had failed to turn his mind to the applicability of these Code requirements.
4. In view of my conclusions that there was no breach of these provisions, the Respondent's primary case falls away and must be rejected.
5. However, the Respondent maintained a case of negligence in contravention of s 439 that is not dependent upon a breach of these clauses of the Code. It was said to be negligence constituted by the failure of Mr Hindi to turn his mind to the potential application of the Code and the Procedures to the circumstances he was confronted with when informed by Ms X of sexual harassment.
6. This is a narrowly confined case of a contravention of s 439 of the Act. It is important to bear in mind that I am not dealing with a case that is concerned in a much more general way with the management by Mr Hindi of the sexual harassment matter. Such a case would have required proper particularisation.
7. I accept that Mr Hindi did not turn his mind to the applicability of the Code - his own evidence was to that effect. However, in my opinion, this case pays insufficient regard to the course of events as they unfolded. I also note that the case does not articulate consequences disclosing harm or potential harm to the council or any person within Mr Hindi's reasonable contemplation, on the facts I am dealing with. Yet further, it does not confront the point that if one consequence was a failure to refer a code of conduct complaint to the complaints coordinator, that was only a procedural irregularity.
8. I am also mindful that I am dealing with a complaint of misconduct, albeit based on negligence alone. As the Respondent has submitted, in view of the seriousness of such an allegation and the gravity of the consequences, I should adopt the approach to the civil standard of proof on the balance of probabilities as outlined in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.
9. On the facts, in my opinion, the Respondent has not made out this case of a contravention of s 439 of the Act. This is because (in addition to the general points already made): 1. It was not until 19 May 2015 that the complainant stated that she wanted to pursue the complaint. Up until that point in time, the complainant had said she did not want Mr Hindi (and, subsequently, Ms Stevens) to do anything about it. Whilst it may have been very prudent of the someone in Mr Hindi's position to turn his mind to the Code and the Procedures shortly after he was first approached by the complainant, I am not satisfied that there was a lack of reasonable care or diligence by him in failing to do so. In this respect, it is relevant that neither of his peers (former Councillors Badalati and Stevens) said that he should proceed to do so or indicated that these documents were applicable. Such evidence has some real weight, particularly, in the absence of any evidence to the contrary as to what would be reasonably expected of a person in Mr Hindi's position. 2. In saying this, I recognise that Mr Hindi was an experienced a councillor and a recently made Mayor, but I do not regard these factors as being of much weight on this issue, particularly in view of the evidence as to the reactions of the two councillors I have just mentioned. 3. Once the complainant, gave the go ahead, as it were, Mr Hindi promptly sought legal advice, and did so from Corrs. That was an appropriate step to take and an appropriate place to turn to for advice. The Respondent does not point to some other source of advice that he should have consulted. It is significant that these lawyers, who were, apparently, experienced in the field, did not raise the applicability of the Code or the Procedures. It is far from clear that there was neglect by Mr Hindi in failing to turn his mind to the Code and the Procedures in circumstances where external lawyers, with apparent experience in the field, did not do so. 4. Overall, in my opinion, the Respondent has not put forward a sufficiently firm basis for the inference of negligence that I am asked to draw.

Orders on appeal

1. For the above reasons, I make the following orders: 1. The appeal is allowed. 2. The decision of the Acting Chief Executive, Office of Local Government dated 3 May 2016 is set aside. 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: 08 November 2016