Kim v City of Ryde

NCAT Occupational|2021-11-11

introduction.

Peter Sang-Hui Kim has applied for administrative review of a decision, made by the General Manager of the City of Ryde, to refuse to indemnify Dr Kim, a councillor of the City, for legal fees he wishes to incur with respect to code of conduct complaints against him. That decision was made on the 27 July 2021. Councillor Kim made his application for administrative review on 16 August 2021.
At a directions hearing on 28 September 2021 the City of Ryde argued that the Tribunal does not have administrative review jurisdiction to review the decision in question. The parties agreed that the question of the Tribunal's jurisdiction should be determined on the materials provided by the parties, without a hearing, and the Tribunal made directions for the filing of submissions on jurisdiction.
The administrative review application has now been referred to me to be decided on the materials before the Tribunal.

Materials before the Tribunal.

In considering this application I have had regard to the following materials: 1. Administrative review application filed on 16 August 2021 with attachments. 2. Letter from Dr Kim dated 8 October with: 1. copy letter of advice to him from Finn Roache, Lawyers, dated 9 August 2021; and 2. letter from Hall & Wilcox, Lawyers for the City of Ryde to Finn Roache dated 24 September 2021. 1. Submissions in reply from the City of Ryde received on 15 October 2021. 2. Orders made by the Tribunal on 28 September 2021.

Should the application be determined without a hearing?

Section 50 (2) to (4) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) provide: (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first: (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.
In this case, both parties have indicated their agreement to the application being determined on the papers. Having reviewed all the materials I am satisfied that this is a matter that can be determined in the absence of the parties by considering the materials lodged by them. I therefore dispense with a hearing.

The decision in dispute.

The decision in issue was given to Dr Kim by email from the General Manager on 27 July 2021. Relevantly, it read: In regard to seeking legal advice etc for your Code of Conducts, you have asked this question before and has been answered on a number of occasions that Counsellors facing Code of Conducts under Council policy as per clause 9.6(3) of Council's Policy on Expenses and Facilities for the Mayor and other Counsellors.
There is a dispute between the parties as to whether or not clause 9.6(3) of the Council's Policy on Expenses and Facilities for the Mayor and other Counsellors ("the Expenses Policy") applies in Dr Kim's circumstances, with him arguing that he is entitled to be indemnified under clause 9.6(2) instead.
The issue at this time, however, is whether the Tribunal has jurisdiction to review the decision made by the General Manager under the Administrative Decisions Review Act 1987 (NSW) (the ADR Act).

Brief outline of submissions on Jurisdiction.

In their letter of advice to Dr Kim of 9 August 2021 his lawyers advised that, "further recourse can be sought by way of appeal to NCAT." No explanation was given for that advice.
In his letter to the Tribunal of 8 October 2021, Dr Kim stated that he relied on this advice in seeking administrative review. He also submitted that the Expenses Policy is "subordinate legislation made under the delegated authority conferred to the Ryde Council by the Local Government Act," relying on the definition of "subordinate legislation" in s 21 of the Interpretation Act 1987 (NSW). What consequence follows from that assertion is not clear from the letter. Dr Kim does not expressly address the issue of how the Tribunal has jurisdiction to review the decision to refuse him indemnity.
The City of Ryde, in its submissions, argues that this Tribunal does not have administrative review jurisdiction to review the decision. The City of Ryde submits that in order for the Tribunal to have administrative review jurisdiction with respect to a decision there must be enabling legislation which provides that an administrative review may be sought in relation to the decision or class of decisions made under the enabling legislation. The City of Ryde says that there is no enabling legislation authorising administrative review of a decision made by the General Manager under the Expenses Policy. It points to the fact that Dr Kim has been unable to identify any enabling legislation.

Consideration.

Section 30 of the NCAT Act relevantly provides that: (1) The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator. Note. See section 9 of the Administrative Decisions Review Act 1997. (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its administrative review jurisdiction: (a) the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, (b) the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act, the Administrative Decisions Review Act 1997 or enabling legislation in connection with the conduct or resolution of such proceedings. (3) An administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction. Note. See section 7 of the Administrative Decisions Review Act 1997. (4) An administrator, in relation to an administratively reviewable decision, is the person or body that makes (or is taken to have made) the decision under enabling legislation. Note. See section 8 of the Administrative Decisions Review Act 1997. … (6) An administrative review application is an application made to the Tribunal for an administrative review decision. Note. Chapter 3 (Process for administrative reviews under this Act) of the Administrative Decisions Review Act 1997 also makes provision for the role of administrators when making administratively reviewable decisions and the role of the Tribunal when conducting an administrative review of such decisions.
Section 9 the ADR Act then provides the circumstances in which the Tribunal has administrative review jurisdiction. It relevantly provides: (1) The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator: (a) in the exercise of functions conferred or imposed by or under the legislation, or (b) in the exercise of any other functions of the administrator identified by the legislation. … (5) Nothing in this section permits administrative review jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.
"Enabling legislation" is defined in s 4: enabling legislation means legislation (other than this Act or any statutory rules made under this Act) that: (a) provides for applications to be made to the Tribunal with respect to a specified matter or class of matters, or (b) otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters.
The first question confronting the Tribunal when seeking to exercise its administrative review jurisdiction is whether there is any "enabling legislation" which provides for the applicant to seek administrative review: see Dubow v Mid-Western Regional Council [2019] NSWCATAP 242.
Dr Kim's submissions with respect to the definition of "subordinate legislation" in s 21 of the Interpretation Act 1987, suggests that the Expenses Policy is a statutory rule and therefore subordinate legislation upon which he relies.
I do not accept this is the case. Section 21 of the Interpretation Act does not define subordinate legislation. I think it likely that Dr Kim is referring the definition of statutory rule in that section: statutory rule means - (a) a regulation, by-law, rule or ordinance - (i) that is made by the Governor, or (ii) that is made by a person or body other than the Governor, but is required by law to be approved or confirmed by the Governor, or (b) a rule of court.
The Expenses Policy Is made in accordance with s 252 of the Local Government Act 1993 (NSW) (the LGA) which provides: 252 Payment of expenses and provision of facilities (1) Within the first 12 months of each term of a council, the council must adopt a policy concerning the payment of expenses incurred or to be incurred by, and the provision of facilities to, the mayor, the deputy mayor (if there is one) and the other councillors in relation to discharging the functions of civic office. (2) The policy may provide for fees payable under this Division to be reduced by an amount representing the private benefit to the mayor or a councillor of a facility provided by the council to the mayor or councillor. (3) A council must not pay any expenses incurred or to be incurred by, or provide any facilities to, the mayor, the deputy mayor (if there is one) or a councillor otherwise than in accordance with a policy under this section. (4) A council may from time to time amend a policy under this section. (5) A policy under this section must comply with the provisions of this Act, the regulations and any relevant guidelines issued under section 23A.
The Expenses Policy is not a regulation, by-law, rule or ordinance; is not made by the Governor and does not require the Governor's approval. It is not a rule of court. It is therefore not a statutory rule. It cannot constitute enabling legislation. Dr Kim has not pointed to any provision in it which provides that an application may be made to the Tribunal for an administrative review of a decision regarding the payment of expenses under the policy.
Further, Dr Kim has not pointed to any provision in the LGA, or in any other Act, which provides that an application may to be made to the Tribunal to review a decision not to pay his expenses under the Expenses Policy as required by s 8(5) of the ADR Act.
As the City of Ryde points out, the LGA does contain a number of provisions which provide for applications to be made to the Tribunal for an administrative review of various decisions made under the LGA: see for example s 438V which enables an application for administrative review to be made regarding the reasonableness of the expenses of holding a public inquiry determined by the Departmental Chief Executive. The LGA also contains provisions giving a right to appeal against certain decisions, by way of external appeal to the Tribunal (see s 31 of the NCAT Act). An example is an appeal by a councillor under s 440L(1) against a decision of the Departmental Chief Executive to take disciplinary action for misconduct under s 440I, beyond counselling or reprimanding the counsellor.
There is no provision in the LGA or in any other Act which provides that an application may to be made to the Tribunal to review a decision not to indemnify a councillor for expenses under the Expenses Policy. There is therefore no enabling legislation which could found the Tribunal's jurisdiction to administratively review the decision not to pay Dr Kim's legal expenses.

Orders.

In the light of the above, the Tribunal orders: 1. The Tribunal dispenses with a hearing in this matter under s 50(2) of the Civil and Administrative Tribunal Act 2013. 2. The application is dismissed for want of jurisdiction.

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: 20 February 2023

Administrative Decisions Review Act 1987(NSW)

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