1. Mr Kelly did not make submissions of any substance but adopted the Attorney-General's comprehensive submissions.
2. The Attorney-General submitted that the issue of whether Dr Sherlock is a party is to be determined by reference to the proper construction of the Local Government Act 1993 and the TASCAT Act, and that the nature of the review power provides context for that determination.
3. The Attorney-General started with s 78 of the TASCAT Act, which sets out the powers of the Tribunal to make orders on the review of a reviewable decision. The Attorney-General pointed out that s 78(1) provides that those general powers are subject to the provisions of a 'relevant Act'. The Local Government Act is a relevant Act, as defined in s 3 of the TASCAT Act. Section 78 provides:

78. Decision on review > > (1) Subject to the provisions of a relevant Act, the Tribunal, on a review by the Tribunal of a reviewable decision, may - > > (a) affirm the decision that is being reviewed; or > > (b) vary the decision that is being reviewed; or > > (c) set aside the decision being reviewed and - > > (i) substitute its own decision; or > > (ii) send the matter back to the decision-maker for reconsideration in accordance with any directions or recommendations that the Tribunal considers appropriate - > > and, in any case, may make any order that the Tribunal considers appropriate. > > (2) The reference in subsection (1) to an order includes a reference to - > > (a) an interim order pending the reconsideration and determination of the matter by the decision-maker; and > > (b) any ancillary or consequential order - > > that the Tribunal considers appropriate. > > (3) The fact that a decision is made on reconsideration under subsection (1)(c)(ii) does not prevent the decision from being open to review by the Tribunal. > > (4) The decision-maker's decision as affirmed or varied by the Tribunal or a decision that the Tribunal substitutes for the decision-maker's decision - > > (a) is to be regarded as, and given effect as, a decision of the decision-maker; and > > (b) unless the relevant Act states otherwise or the Tribunal orders otherwise, is to be regarded as having effect from the time when the decision reviewed would have, or would have had, effect. > > (5) Without limiting subsection (4)(a) , the decision-maker has power to do anything necessary to implement the Tribunal's decision. > > (6) Despite subsection (4)(a) , the decision as affirmed, varied or substituted is not again open to review before the Tribunal as a decision of the decision-maker.

4. The Attorney-General referred to s 75 of the TASCAT Act, which deals with the nature of proceedings in the Tribunal's review jurisdiction:

(1) The purpose of a review of a reviewable decision is to produce the correct or preferable decision.

(2) Subject to subsection (6) , if an application for review is made to the Tribunal in respect of one of the following reviewable decisions, the review by the Tribunal of the reviewable decision is to be by way of a hearing de novo of the matter to which the reviewable decision relates:

(a) a reviewable decision under an Act, including any regulations or instruments made under such an Act, that is an Act in relation to which the functions and powers of the Tribunal are allocated under clause 3 of Part 8 of Schedule 2 to the Resource and Planning stream;

(b) a reviewable decision under an Act or a provision of an Act, including any regulations or instruments made under such an Act, that is specified in Schedule 4 .

(3) Subject to subsections (4), (5), (6) and (7) and the provisions of a relevant Act, if a reviewable decision, to which an application for review made to the Tribunal relates, is a decision in relation to an Act, or regulations or an instrument made under an Act, that is not an Act to which subsection (2) applies, the review by the Tribunal of the reviewable decision is to be by way of a rehearing of the matter to which the reviewable decision relates.

(4) On a rehearing, the Tribunal may have regard to, and give appropriate weight to, the decision of the original decision-maker.

(a) an examination of the evidence or material before the decision-maker, unless any such evidence or material is to be excluded under another provision of this Act or under any other law; and

(b) a consideration of any further evidence or material that the Tribunal decides, in the circumstances of the particular case, to admit for the purposes of rehearing the matter.

(6) In exercising its review jurisdiction in relation to a reviewable decision under a relevant Act -

(a) the Tribunal is to deal with a matter in accordance with this Act and the relevant Act; and

(b) has, in addition to the powers of the Tribunal under this Act, all the powers that are conferred by the relevant Act on the original decision-maker.

(7) The relevant Act may modify the operation of this Act in relation to a matter that comes within the Tribunal's review jurisdiction under the relevant Act.

1. Section 75(2) provides that a review of certain decisions is to be by way of a hearing de novo of the matter to which the reviewable decision relates. That category includes a reviewable decision under an Act specified in Sch 4 of the TASCAT Act. The Local Government Act, other than a provision that is irrelevant to these proceedings, is listed in Sch 4 of the TASCAT Act.
2. Section 75(3) provides that a review is to be by way of a re-hearing, but again that is expressly subject to the provisions of a relevant Act. The Attorney-General also notes that s 75(7) provides that a relevant Act may modify the operation of the TASCAT Act in relation to a matter that comes within the Tribunal's review jurisdiction under the relevant Act.
3. I would add to those submissions, in the same vein, that s 7A of the TASCAT Act, which provides that if there is an inconsistency between the provisions of the TASCAT Act and a relevant Act, the provisions of the relevant Act will prevail to the extent of that inconsistency.
4. The power of review invoked by Mr Kelly is found in s 28ZP of the Local Government Act. That section restricts the grounds for review to the Panel having failed to comply with the rules of natural justice. Section 28ZP is the only right of appeal from a code of conduct determination in the Act. It provides:

If a person is aggrieved by the determination of a code of conduct complaint by the investigating Panel for the complaint on the ground that the Panel failed to comply with the rules of natural justice -

(a) the person may apply to the Tasmanian Civil and Administrative Tribunal for a review of that determination on that ground; and

(b) that determination is subject to administrative review under Schedule 4 of the Tasmanian Civil and Administrative Tribunal Act 2020 .

1. The Attorney-General points to the primacy of the Local Government Act as a relevant Act, so restricting a review by the Tribunal to a review of process rather than a review of the substantive determination by the Panel.
2. The Attorney-General contends that s 28ZP of the Local Government Act modifies the operation of s 75 of the TASCAT Act in respect to how the Tribunal is to exercise the review jurisdiction. The Attorney-General says that notwithstanding the provisions of s 75, the Tribunal is not permitted to conduct a de novo merits review of the complaint, and the Tribunal's jurisdiction is limited to considerations of procedural fairness.
3. Accordingly, the Attorney-General says that the options available to the Tribunal under s 78(1) are limited to affirming the decision of the Panel, or setting aside the decision and remitting the matter to the Panel, or another panel, for determination, and that the Tribunal does not have the jurisdiction to substitute its own decision for that of the Panel.
4. Prior to the transfer of jurisdiction to the Tribunal on 1 July 2025 by the Tasmanian Civil and Administrative Tribunal (Additional Jurisdictions) Act 2025, the jurisdiction to deal with applications for review under s 28ZP was vested in the Magistrates Court under the Magistrates Court (Administrative Appeals Division) Act 2001. The Attorney-General cited the decision of Deputy Chief Magistrate Daly, as he then was, in Synge v Attorney-General for the State of Tasmania [2024] TASMC 1. At [17]- [18] his Honour determined that the Court did not have jurisdiction to review a panel's determination for reasons other than compliance with the rules of natural justice, and that consequently, the Court cannot substitute its own decision for the reviewable decision made by a panel.
5. The Attorney-General has not sought a determination as to the ambit of the Tribunal's jurisdiction, but the Attorney's submissions are persuasive and for the purposes of this determination and in the absence of submissions to the contrary I accept them as a correct expression of the nature of the review power arising from s 28ZP of the Local Government Act.
6. Counsel for the Attorney-General properly pointed to an earlier decision of the Magistrates Court in Howard v Code of Conduct Panel [2019] TASMC 6, which is contrary to the position advanced by the Attorney. In that case the learned Magistrate observed that the parties had agreed that the Panel's determination should be set aside, and also agreed that the complaint should be reconsidered by the court de novo rather than remitted to a panel for rehearing. It appears that the jurisdiction to do so was not raised with or considered by his Honour. As the Attorney-General correctly pointed out, parties cannot confer jurisdiction on a court or tribunal by agreement. If any authority is required for that proposition see for example Neill v Legal Profession Complaints Committee [2011] WACA 48 at [7]. I agree with the Attorney-General that Howard v Code of Conduct Panel should not be followed insofar as it is authority for the proposition that the Tribunal may determine the merits of the complaint.
7. The Attorney-General says that the issues in dispute are therefore ones between Mr Kelly and the Panel and the merits or otherwise of Dr Sherlock's complaint are irrelevant on the review. The Attorney-General accepts that Dr Sherlock may have an interest in contending that the Panel did comply with the rules of natural justice, but says no evidence that she could tender or submissions she could make that would assist the Tribunal any more than any other member of the public.
8. Having established that context, the Attorney then pointed to s 95 of the TASCAT Act which prescribes who is a party to a proceeding. Section 95 provides:

95. Parties > > (1) A person is a party to proceedings if the person is - > > (a) the applicant; or > > (b) in the case of any disciplinary proceedings or any proceedings constituted by any inquiry into a person - the person who is the subject of the proceedings; or > > (c) in the case of proceedings involving the review of a decision - the decision-maker; or > > (d) without limiting paragraph (a), (b) or (c) - > > (i) a respondent to an application before the Tribunal; or > > (ii) a person against whom a claim is made by the proceedings; or > > (iii) a party to a dispute before the Tribunal; or > > (e) a person joined in the proceedings by order of the Tribunal under section 96 ; or > > (f) a person lawfully intervening in the proceedings; or > > (g) a person specified by another provision of this Act or a relevant Act to be a party to the proceedings. > > (2) Subsection (1) applies subject to any provision of a relevant Act or provision of a Division Schedule. > > (3) In any proceedings in relation to which a decision-maker is a party, the official description, rather than the personal name, of the decision-maker is to be used so far as is practicable.

9. The Attorney-General addressed each of the categories in s 95(1) and submitting that:

(a) for the purposes of s 95(1)(a) Dr Sherlock is not the applicant;

(b) for the purposes of (b) Dr Sherlock is not the person who is subject to the disciplinary proceedings;

(c) in respect to (c) the decision maker is not Dr Sherlock;

(d) in respect to (d)(i) the respondent is not Dr Sherlock;

(e) in respect to (d)(ii) no claim has been made against Dr Sherlock;

(f) in respect to (d)(iii), which refers to a party to a dispute before the Tribunal, the sub-paragraph is self-referential and redundant but that Dr Sherlock is not a party to the dispute;

(g) (e) has no relevance as Dr Sherlock has not been joined;

(h) in respect to (f) Dr Sherlock has no right to intervene; and

(i) in respect to (h) there is no provision in the Local Government Act specifying that Dr Sherlock is a party to the proceedings.

1. The Attorney-General's submissions are clearly correct in respect to each of these matters but for s 95(1)(d)(iii), and perhaps in a related sense (d)(i), which deserve closer attention.
2. Dr Sherlock's submissions did not directly address the question of whether she was, by operation of the provisions of the Local Government Act and the TASCAT Act a party to the proceedings. They focussed on her having a sufficient interest in the proceedings of the type that would be relevant to consideration of standing to be joined to a proceeding or to bring proceedings in respect to a public right. She contends that she should have the ability to appear and respond to Mr Kelly's claims that the process before the Panel was procedurally unfair. She contends that as a matter procedural fairness she should be a party and that a failure to recognise her as a party would disenfranchise her.

1. The usual and appropriate course for a statutory Tribunal whose decision is appealed on grounds of natural justice is to submit to such order as may be made on the appeal, as explained in R v Broadcasting Tribunal; Ex-parte Hardiman [1980] HCA 13 at [54]. Hardiman involved proceedings in the nature of judicial review. In Sultan Holdings Pty Ltd v John Fuglsang Developments Pty Ltd [2017] TASFC 14 at [216] Porter AJ pointed to the importance of a decision maker preserving its impartiality in judicial review proceedings which may result in the matter being remitted to that decision maker. The limited grounds of appeal under s 28ZP are akin to a judicial review. Quite properly, the Panel has filed a notice of submission.
2. If a complainant in a matter before a panel is not a party to an application for review there would not automatically be a contradictor to the application. The Attorney-General has intervened, but that is at the Attorney's discretion and he is not obliged to. The complainant might apply to be joined, but is not obliged to do so.
3. That may be contrasted with a circumstance where the complainant in the matter before a panel seeks a review of the panel's decision. I note that the right to seek a review under s 28ZP is invested in a person aggrieved by the determination of a code of conduct complaint and so is not limited to the relevant councillor against whom a complaint is made, but extends to the complainant, and conceivably others. It would be curious if a complainant is a party to a review when the complainant applies for a review, but not when any other person seeks a review. Further, in that circumstance the respondent councillor would be a party pursuant to s 95(1)(b) of the TASCAT Act, notwithstanding that if the Attorney-General's analysis is applied the issue would be one only between the applicant for review and the Panel.
4. A review might require evidence to establish the relevant breach of natural justice, beyond what is on the face of a panel's determination. For example, facts to underpin an allegation of apprehended or actual bias, or to establish that a matter taken into account was not disclosed to the moving party. Without a contradictor those facts may be unchallenged and other relevant facts may go unraised.
5. It is common to name the decision-making body as a respondent in judicial review proceedings, particularly where an appeal arises in respect to proceedings which are not inter-partes. The usual process in respect to a claim seeking a prerogative writ or for relief similar to a prerogative writ, is that an application is made ex parte for a general order to show cause, or an order nisi, which will identify persons who may be affected by the relief sought and who may appear on the return of the order and take part in the proceedings for final orders as parties without applying to join: see Pt 26 of the Supreme Court Rules 2000.
6. As well as the nature of the review, it is also useful for the purposes of context to look at the complaint process under Div 3A of the Local Government Act and the role of a complainant in that process and the proceedings before a panel.
7. Under s 28V of the Local Government Act a complaint is lodged with the general manager of the relevant Council who, pursuant to s 28Y, undertakes an initial assessment to determine whether the complaint meets certain statutory requirements, and if it does then refers the complaint to the executive officer appointed under s 28M. The executive officer then appoints a member of the panel to undertake an initial assessment under s 28ZA. A panel is then convened under s 28L to conduct an investigation.
8. It is common that a complainant in professional and disciplinary proceedings is not a party and is essentially a witness. For example, in proceedings for complaints against health practitioners under the Health Practitioners Tribunal Act 2010 the relevant Board brings proceedings and the complainant's role in those proceedings is essentially as a witness. That is also the circumstance in respect to complaints against legal practitioners under the Legal Profession Act 2007. By contrast, a complainant in respect to a local government code of conduct matter acts as the prosecuting party.
9. Pursuant to s 28ZE, the panel is to conduct the investigation with as little formality as is practical, is not bound by the rules of evidence and may inform itself as it considers appropriate it must observe the rules of natural justice. In terms of the evidentiary process the Local Government Act distinguishes complainants from witnesses generally. Section 28ZE(2) provides that the panel may determine what evidence is required and may "determine the manner in which it will accept evidence from the complainant, the councillor against whom the complaint is made and any witnesses".
10. Under s 28ZG the panel may determine that a hearing should be held. Pursuant to s 28ZH(2) the hearing is to take the form of an enquiry and is not to be adversarial. Although the proceeding is to be inquisitorial, there is no provision for a statutory person or body to move or prosecute the complaint and that role is undertaken by the complainant.
11. Section 28ZH(3) expressly provides that at a hearing witnesses may be called by the complainant, as well as the and the panel. Section 28ZH(6) provides that the panel may permit a complainant to be represented at a hearing by an advocate. These are matters that are generally characteristics of parties to proceedings.
12. Those characteristics are evident in the determination of Dr Sherlock's complaint. The reasons for determination published by the Panel show that a hearing was held at which Dr Sherlock called three witnesses, as well as giving evidence herself. It appears from the reasons that Dr Sherlock led evidence from those witnesses. In addition, she cross-examined the only witness called by Mr Kelly. Following the conclusion of the evidence Dr Sherlock made closing submissions to the Panel.
13. It is apparent from the reasons for determination that Dr Sherlock undertook the role of prosecutor in respect to the complaint, and was not merely a witness in the process or an informant who triggered the process. Her engagement reflected the role of a complainant under the scheme of Div 3A of the Local Government Act.
14. The issue may also be considered through the prism of procedural fairness. In an oft quoted passage in Kioa v West [1985] HCA 81 at [31] Mason J said:

31. The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which effect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.

15. In that case Brennan J observed at [34] that the content of the principles of natural justice to be observed are to be determined in the light of the particular circumstances: see also Deane J at [7]. It might be said that the rights and interests affected by the review are primarily those of Mr Kelly, who is the subject of sanction by the Panel. However, Dr Sherlock's interests are also affected. If Mr Kelly succeeds in establishing that the Panel failed to afford him natural justice and the matter is remitted to the Panel Dr Sherlock will return her to active role as the 'prosecutor' in that proceeding. She therefore has an interest in the decision of the Panel being upheld and the application for review being dismissed.
16. In State of Tasmania v Anti-Discrimination Commissioner [2022] TASSC 20 Blow CJ considered whether the Anti-Discrimination Commissioner failed in her duty to afford procedural fairness in circumstances where she determined whether a complainant under the Anti-Discrimination Act 1998 made outside the 12-month limitation period established in s 63 of that Act should be accepted for investigation. His Honour considered that the Commissioner was required to afford the respondent to the complaint an opportunity to be heard on the issue and remitted the matter to the Commissioner. As in this circumstance, that case involved a contended breach of the rules of natural justice where the relevant remedy available on that ground being made out was remission to the primary decision maker.
17. The meaning of s 95 of the TASCAT Act is to be determined according to the ordinary and grammatical meaning of the text having regard to the context and purpose of the surrounding sections and of the Act: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 at [4] and [47] and Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 at [69]. A purposive approach is to be taken and context is to be considered at the first stage of the process of construction: The Queen v A2 [2019] HCA 35 at [32] to [37]. In Palmanova Pty Ltd v Commonwealth of Australia [2025] HCA 35 the Court recently summarised the process of statutory construction in the following terms at [4]:

4. Statutory construction is the process of attributing meaning to statutory text. The construction of a statutory provision begins and ends with the statutory text understood in context and in light of the statutory purpose - being what the provision is designed to achieve in fact - insofar as that purpose is discernible from the statutory text and context...[Footnoted citations omitted]

18. Section 10(1)(a)(ii) of the TASCAT Act provides that a main objective of the Tribunal is to provide natural justice and procedural fairness. Section 10(1)(f) and (g) require the Tribunal to act with as little formality and technicality as possible and to be flexible in the way that the Tribunal conducts its business. Section 95 of the TASCAT Act should be considered in the context of those objectives.
19. The purpose of s 95 is to identify the parties to a proceeding in the Tribunal. It has a broad application across the diverse divisions and streams of the Tribunal, and pursuant to s 7A of the TASCAT Act is subject to and defers to any inconsistent provisions in a relevant Act.
20. Section 95(1)(iii) provides that a person is a party to proceedings in the Tribunal if the person is "a party to a dispute before the Tribunal". The Attorney-General submits that this paragraph is self-referential and redundant. I agree that the provision would be circular if the terms "dispute before the Tribunal" and "proceedings" have the same meaning. However, the sub-paragraph would have work to do and not be redundant if the words "a party to a dispute" has a different meaning to "a party to proceedings". In my opinion, a party to a dispute within the meaning of s 95(1)(iii) is a party to an existing controversy or contest which arises independently of the Tribunal and is brought before the Tribunal for determination, so becoming a proceeding.
21. Such a construction is consistent with the objectives of the TASCAT Act, reflects the ordinary and grammatical meaning of the phrase "[a] person is a party to proceedings if the person is... a party to a dispute before the Tribunal", is consistent with the context and purpose of s 95 and avoids the redundance contended by the Attorney-General.
22. Dr Sherlock and Mr Kelly were parties to a dispute as to whether Mr Kelly had acted in breach of the code of conduct. That dispute came before the Panel and was determined by it. Mr Kelly has appealed the determination of the Panel, so continuing or restoring that dispute. The appeal is narrowly limited to an assertion that he was not afforded procedural fairness by the Panel, but that assertion of error arises in connection with the dispute, and the determination of the dispute, and is not separate from the dispute. The fact that Mr Kelly contends that there was error by the Panel is no different to an appeal from a first instance decision in any other circumstance where it is contended that the adjudicating body erred, and the other party to the proceeding before that body acts as the contradictor on the appeal. The fact that the permissible grounds of appeal are very narrow does not change that circumstance.
23. The Panel has been named as the respondent to the application for review. As noted above, it is not unusual for a moving party to name a tribunal as the respondent to an appeal which asserts error by the tribunal. Blow CJ was critical of that approach in B v Mental Health Tribunal [2020] TASSC 10, observing at [3]:

3. In both notices of appeal, the Tribunal was named as the only respondent to the appeal. That was inappropriate. The Tribunal is required to act impartially when it deals with applications made by medical practitioners and opposed by the individuals to whom the applications relate. The appropriate respondents in proceedings of this nature are the medical practitioners who made applications that were granted by the Tribunal. It may be highly undesirable for such medical practitioners to take any part in appeal litigation, particularly when they have an ongoing therapeutic role, but they are the only appropriate persons to be named as respondents. In this case, the Attorney-General has intervened in the proceedings and has acted as the sole contradictor. It was very appropriate for that course to be taken.

That case involved an appeal by a patient of a treatment order that had been made by the Mental Health Tribunal, as it then was, on the application of a medical practitioner. The Tribunal acted administratively in determining applications for treatment orders under the Mental Health Act 2013, and undertook an inquisitorial rather than adversarial approach to hearings. Notwithstanding that, his Honour considered that on the appeal the proper respondent to name was the applicant in the proceedings before the Tribunal, not the Tribunal itself. Following that approach Dr Sherlock should be identified as the respondent to the application for review, and she would therefore be a party by the operation of s 95(1)(d)(i), as well as s 95(1)(d)(iii).

1. I am satisfied that where an application for a review of a determination made by an investigating panel in a code of conduct proceeding under Div 3A of the Local Government Act is brought under s 28ZP by the councillor who is the subject of the complaint, the complainant is a party to the application for review.
2. Accordingly, I am Dr Sherlock is properly a party to the application for review.
3. A timetable should be set for the interlocutory steps necessary for this matter to proceed to a hearing of the substantial issues on the application for review. Taking into account the impending seasonal holidays I direct that:
   1. A directions hearing is to be listed not before 19 January 2026.