Mauger v Wingecarribee Shire Council

Legislative provisions

1. Chapter 14 of the Local Government Act is entitled "Honesty and disclosure of interests". It relevantly provides: 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. (3) This section applies to an administrator of a council (other than an administrator appointed by the Minister for Primary Industries under section 66) in the same way as it applies to a councillor. 440 Codes of conduct (1) The regulations may prescribe a model code of conduct (the model code) applicable to councillors, members of staff of councils and delegates of councils. (2) Without limiting what may be included in the model code, the model code may: (a) relate to any conduct (whether by way of act or omission) of a councillor, member of staff or delegate in carrying out his or her functions that is likely to bring the council or holders of civic office into disrepute, and (b) in particular, contain provisions for or with respect to conduct specified in Schedule 6A. (3) A council must adopt a code of conduct (the adopted code) that incorporates the provisions of the model code. The adopted code may include provisions that supplement the model code. (4) A council's adopted code has no effect to the extent that it is inconsistent with the model code as in force for the time being. (5) Councillors, members of staff and delegates of a council must comply with the applicable provisions of: (a) the council's adopted code, except to the extent of any inconsistency with the model code as in force for the time being, and (b) the model code as in force for the time being, to the extent that: (i) the council has not adopted a code of conduct, or (ii) the adopted code is inconsistent with the model code, or (iii) the model code contains provisions or requirements not included in the adopted code. (6) A provision of a council's adopted code is not inconsistent with the model code merely because the provision makes a requirement of the model code more onerous for persons required to observe the requirement. (7) A council must, within 12 months after each ordinary election, review its adopted code and make such adjustments as it considers appropriate and as are consistent with this section. (8) Nothing in this section or such a code gives rise to, or can be taken into account in, any civil cause of action, but nothing in this section affects rights or liabilities arising apart from this section. (9) This section applies to an administrator of a council (other than an administrator appointed by the Minister for Primary Industries under section 66) in the same way as it applies to a councillor. … 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, (c) a failure by a councillor to comply with an order issued by the Director-General under this Division, (d) an act of disorder committed by the councillor at a meeting of the council or a committee of the council. (2) However, a contravention of the disclosure requirements of Part 2 is not misconduct. Note. A contravention of the disclosure requirements of Part 2 is dealt with under other provisions of this Chapter. (3) A reference in this Division to misconduct includes a reference to misconduct that consists of an omission or failure to do something. 440G Formal censure of councillor for misconduct (1) A council may by resolution at a meeting formally censure a councillor for misconduct. (2) A formal censure resolution may not be passed except by a motion to that effect of which notice has been duly given in accordance with regulations made under section 360 and, if applicable, the council's code of meeting practice. (3) A council may pass a formal censure resolution only if it is satisfied that the councillor has engaged in misconduct on one or more occasions. (4) The council must specify in the formal censure resolution the grounds on which it is satisfied that the councillor should be censured. (5) A motion for a formal censure resolution may, without limitation, be moved on the report of a committee of the council and any such report must be recorded in the minutes of the meeting of the council.
2. Schedule 9 to the Act is the Dictionary and in that Dictionary function is defined as including "a power, authority and duty".
3. Section 232 explains what the role of a councillor is. That section provides: 232 What is the role of a councillor? (1) The role of a councillor is, as a member of the governing body of the council: • to provide a civic leadership role in guiding the development of the community strategic plan for the area and to be responsible for monitoring the implementation of the council's delivery program • to direct and control the affairs of the council in accordance with this Act • to participate in the optimum allocation of the council's resources for the benefit of the area • to play a key role in the creation and review of the council's policies and objectives and criteria relating to the exercise of the council's regulatory functions • to review the performance of the council and its delivery of services, and the delivery program and revenue policies of the council. (2) The role of a councillor is, as an elected person: • to represent the interests of the residents and ratepayers • to provide leadership and guidance to the community • to facilitate communication between the community and the council.
4. The Code of Conduct relevantly provides: 8 GENERAL CONDUCT OBLIGATIONS General conduct 6.1 You must not conduct yourself in carrying out your functions in a manner that is likely to bring the council or holders of civic office into disrepute. Specifically, you must not act in a way that: a) contravenes the Act, associated regulations, council's relevant administrative requirements and policies b) is detrimental to the pursuit of the charter of a council c) is improper or unethical d) is an abuse of power or otherwise amounts to misconduct e) causes, comprises or involves intimidation, harassment or verbal abuse f) causes, comprises or involves discrimination, disadvantage or adverse treatment in relation to employment g) causes, comprises or involves prejudice in the provision of a service to the community. (Schedule 6A) 6.2 You must act lawfully, honestly and exercise a reasonable degree of care and diligence in carrying out your functions under the Act or any other Act. 6.3 You must treat others with respect at all times. … 11 REPORTING BREACHES 11.1 Any person, whether or not a council official, may make a complaint alleging a breach of the code of conduct. … Reporting breaches of the code of conduct 11.6 You should report suspected breaches of the code of conduct by councillors, members of staff of council (excluding the general manager) or delegates to the general manager in writing. … Complaint handling procedures - councillor conduct 12.8 The general manager is responsible for assessing complaints, made under Section 11.1, alleging breaches of the code of conduct by councillors, in accordance with the assessment criteria provided at Section 13 of this Code, in order to determine whether to refer the matter to the conduct review committee/reviewer. 12.9 The general manager must determine either to: a) take no further action and give the complainant the reason/s in writing as provided in clause 13.1 of this Code, and those reasons may include, but are not limited to, the fact that the complaint is trivial, frivolous, vexatious or not made in good faith, or b) resolve the complaint by use of alternative and appropriate strategies such as, but not limited to, mediation, informal discussion or negotiation and give the complainant advice on the resolution of the matter in writing, or c) discontinue the assessment in the circumstances where it becomes evident that the matter should be referred to another body or person, and refer the matter to that body or person as well as advising the complainant in writing, or d) refer the matter to the conduct review committee/reviewer. …. 13 COMPLAINT ASSESSMENT CRITERIA 13.1 The general manager or Mayor, in the case of a complaint about the general manager, will assess a complaint alleging a breach of the code of conduct to determine if the matter should be referred to the conduct review committee/reviewer. In assessing the complaint, the general manager and Mayor will have regard to the following grounds: a) whether there is any prima facie evidence of a breach of the code of conduct b) whether the subject matter of the complaint relates to conduct that is associated with the carrying out of the functions of civic office or duties as general manager c) whether the complaint is trivial, frivolous, vexatious or not made in good faith d) whether the conduct the subject of the complaint could reasonably constitute a breach of the code of conduct e) whether the complaint raises issues that require investigation by another person or body, such as referring the matter to the Department of Local Government, the NSW Ombudsman, the Independent Commission Against Corruption or the NSW Police f) whether there is an alternative and satisfactory means of redress g) how much time has elapsed since the events the subject of the complaint took place h) how serious the complaint is and the significance it has for council i) whether the complaint is one of a series indicating a pattern of conduct. 13 2 Complaints that are assessed as not having sufficient grounds to warrant referral to the conduct review committee/reviewer or that are to be referred to a more appropriate person or body can be finalised by the general manager or the Mayor, in the case of complaints about the general manager. 13.3 If a matter is referred to the conduct review committee/reviewer, then the conduct review committee/reviewer should use the above criteria in clause 13.1 for its initial assessment of the complaint and determination of the course to follow in dealing with the complaint. … 14.1 Jurisdiction of the conduct review committee/reviewer The complaint handling, function of the conduct review committee/reviewer; is limited to consideration of, making enquiries into and reporting on complaints made under clause 11.1, about councillors and/or the general manager. … 14.7 Procedural fairness In conducting enquiries, the conduct review committee/reviewer or the person engaged to do so should follow the rules of procedural fairness and must - a) provide the person the subject of the complaint with a reasonable opportunity to respond to the substance of the allegation b) provide the person the subject of the complaint with an opportunity to place before the conduct review committee/reviewer or person undertaking the enquiry any information the person considers relevant to the enquiry c) provide the person the subject of the complaint with an opportunity to address the conduct review committee/reviewer in person d) hear all parties to a matter and consider submissions before deciding the substance of any complaint e) make reasonable enquiries before making any recommendations f) act fairly and without prejudice or bias g) ensure that no person decides a case in which they have a conflict of interests h) conduct the enquiries without undue delay. Where the person the subject of the complaint declines or fails to take the opportunity provided to respond to the substance of the allegation against them, the conduct review committee/reviewer should proceed to finalise the matter. … 14.9 Findings and recommendations of the conduct review committee/reviewer Where the conduct review committee/reviewer determines, in its view that the conduct referred to it comprises a breach of this code of conduct it may, in its report to the council, make recommendations, that the council take any of the following actions a) censure the councillor for misbehaviour b) require the councillor or general manager to apologise to any person adversely affected by the breach c) counsel the councillor or general manager d) make public findings of inappropriate conduct e) prosecute for any breach of the law f) revise any of council's policies, procedures and/or the code of conduct. Before making any such recommendations, the conduct review committee/reviewer shall have regard to the following: a) the seriousness of the breach b) whether the breach can be easily remedied or rectified c) whether the subject has remedied or rectified their conduct d) whether the subject has expressed contrition e) whether the breach is technical or trivial only f) whether the breach represents repeated conduct g) the age, physical or mental health or special infirmity of the subject h) the degree of reckless intention or negligence of the subject i) the extent to which the breach has affected other parties or the council as a whole j) the harm or potential harm to the reputation of local government and of the council arising from the conduct k) whether the findings and recommendations can be justified in terms of the public interest and would withstand public scrutiny l) whether an educative approach would be more appropriate than a punitive approach m) the relative costs and benefits of taking formal enforcement action as opposed to taking no action or taking informal action n) what action or remedy would be in the public interest o) where to comply with a councillor's obligations under this code of conduct would have had the effect of depriving the council of a quorum or otherwise compromise the capacity of council to exercise its functions.

The dumping complaint

1. This complaint concerned the transportation to, and depositing of, waste onto a property known as "Karingal", Fountaindale Road, Robertson which was owned by the Plaintiff. The events took place in 2007. What appears to have happened is that on 26 March 2007 the Plaintiff approached council staff who were performing preparation work for the re-sheeting of Fountaindale Road. The Council staff were removing excess material from the table drains. The Plaintiff asked if he could have the material as he had some erosion problems on or near the back of his dam. One of the Council staff, Noel O'Maley raised the issue with Darren James, the works engineer of the Council, who gave his permission for the materials to be placed on the property. The materials were then loaded onto two trucks and approximately 20 loads of eight tonnes each of waste were transported to and deposited on the Plaintiff's property.
2. On 6 June 2007 the Plaintiff was served with a Notice under s 91 of the Protection of the Environment Operations Act 1997 (NSW) to take clean-up action relating to the material on his land.
3. A report from Vince Emmerick of the Regional Illegal Dumping Squad (RIDS) of 17 February 2010 said that where material is to be stored on private land it is necessary for Council approval to be obtained. The report went on to say that documentation was never lodged and approval was never given. RIDS was a joint venture of three Councils, Shoalhaven, Wingecarribee and Eurobodalla together with the Department of Environment, Climate Change and Water (NSW) and the Sydney Catchment Authority.
4. As a result of the material and reports from RIDS the matter was referred by the General Manager of the Council to the Council's Conduct Review Committee for investigation and report. On 26 July 2010 the Chair of the Committee wrote to the Plaintiff. The letter, amongst other things, set out the details of the complaint as follows: The complaint alleges that you have breached the code by causing or permitting fill, in the form of demolition waste and other similar material, to be placed on your property at Fountaindale Road Robertson, without the authority of a development approval or any other authority when the zoning of the property required development approval for such an activity. In the Committee's view your actions may be in breach of the following obligation under the code. Two paragraphs from cl 6.1 of the Code were identified, namely, (c) (acting in a way that is improper or unethical) and (d) (acting in a way that is an abuse of power or otherwise amounts to misconduct). It was accepted that the letter was written in compliance with the Committee's obligation to afford procedural fairness.
5. Worthington and Reading, solicitors acting for the Plaintiff, responded to that letter. Their response was not in evidence. However, the Committee in turn responded to the solicitors and in the course of doing so said this: 18. Your client's failure is seen as a failure to provide leadership to his community in accordance with the second dot point in section 232(2). 19. As a councillor, your client is required to provide leadership to his community. His failure to seek and obtain approval for placing the demolition material on his property, knowing that such approval was required, constitutes his failure to exercise a reasonable degree of care.
6. On 12 August 2010, the solicitors responded to the Committee's letter, saying (inter alia): We requested you to specify precisely the function or functions that Mr Mauger failed to exercise a reasonable degree of care and diligence. The Committee responded that Mr Mauger's failure to provide "leadership to his community" constituted failure to exercise a reasonable degree of care and diligence. With respect, failure to exercise a reasonable degree of care is tantamount to negligence, not leadership. … We requested the Committee to specify precisely the "function" that it is alleged that Mr Mauger was required to carry out. You referred us to s 232 of the Local Government Act 1993. An alleged breach of the Act is not one of the roles of the Council official listed in s 232. The letter then went on to assert that the complaint was without foundation, was misconceived, and was frivolous and vexatious.
7. The Plaintiff submitted that the Plaintiff's actions could not be said to amount to a failure to provide leadership to the community or a failure to exercise a reasonable degree of care. What the Plaintiff did was done in a private capacity as a landowner and not as a result of his election as a councillor. In that way, there was no complaint of a breach of the Code within the meaning of cl 11.1 and therefore nothing that could lawfully have been put before the Review Committee.
8. The Plaintiff submitted that the conduct alleged amounted to possible breaches of the Protection of the Environment Operations Act and the request he made to the road gang to dump the material on his land. Neither of those matters related to the carrying out of his functions as a council official under the Local Government Act. Accordingly, the jurisdiction for referral of the matter was entirely lacking.
9. The Plaintiff also relied on the asserted failure by the General Manager to consider the matters in cl 13.1 of the Code evidenced by his emails to the Committee.
10. On 26 May 2010 the General Manager sent an email to three members of the Committee which said this: Further to my discussion with you today please find attached background documents for our upcoming meeting. The documents are in three parts - first is report from David Martin; second is attachment to Vince Emmerick's report part of David Martin's report and third a number of reports from Council regarding the matter that I have found in a preliminary review. My PA will contact you for possible meeting dates for the initial meeting for the Code of Conduct Panel. My thoughts are that a number of issues regarding staff and the best way of dealing with these outcomes be as a panel review as a code of conduct matter, however we can discuss this further at the initial meeting.
11. The Plaintiff submitted that that email identified the only one matter of concern to the General Manager, that is, the number of issues regarding staff. The Plaintiff accepted that such a concern could fall within a number of sub-paragraphs within cl 13.1.
12. The Plaintiff submitted that, because the General Manager identified the issues regarding staff, it could be safely inferred that this was his sole consideration. The Plaintiff submitted that if there was a failure at any step along the way by the General Manager the entire process failed and the referral and report of the Committee was thereby invalidated. This was so even if the Review Committee had regard to the matters in cl 13.1. That was because the General Manager's power to refer was conditioned upon compliance with cl 13.1.
13. The Plaintiff's third grievance about the Dumping Complaint is that the General Manager did not afford procedural fairness to the Plaintiff. The first time the Plaintiff became aware of the Committee's involvement was when he received the letter of 26 July 2010 ([19] above).
14. The Defendant submitted that a determination that a complaint amounted to breach of the Code was a factual finding that went to the merits of the matter and was a decision for the Committee to make.
15. The Defendant denied that the General Manager failed to comply with cl 13.1 of the Code. The Defendant submitted, however, that, even if there was non-compliance, that would not make the reference nor the Committee's determination invalid. Reference was made to Project Blue Sky v Aba [1998] HCA 81; (1998) 194 CLR 355 at [91] - [92].
16. The Defendant submitted that the Plaintiff was not denied procedural fairness as a result of any failure on the General Manager's part to refer the complaint to the Plaintiff before sending it to the Committee. This is because there was no duty to observe procedural fairness when initiating an enquiry. Further, the General Manager's decision lacked the essential quality of finality in the decision-making process. The Committee did accord procedural fairness to the Plaintiff before reaching its conclusions.

(a) Jurisdiction to refer the complaint to the Review Committee

1. The report from the Conduct Review Committee was detailed and thorough. Significant matters relating to the jurisdictional issue entitling the Committee to investigate and report are these.
2. At paragraph 15, having recited the factual history leading up to 2009, the Committee noted the concerns of the Ranger Services Manager of Shoalhaven City Council who investigated the matter for RIDS. The relevant concerns were these: (a) The investigation appeared to have been undermined by some management decisions of the Council including obstruction by some management staff in the conduct of the investigation; (b) The unauthorised misuse of Council plant and staff in providing free works and upgrades to a Councillor's private property. The Ranger Services Manager queried whether the Councillor (the Plaintiff) attempted unduly to influence Council staff in the performance of their duties. (c) Potentially inappropriate meetings between Council staff and councillors relating to the ongoing investigation by RIDS including potential collusion between Council staff and the Plaintiff; (d) Undeclared conflicts of interest related to the investigation including the Council Manager Environment and Health and his family ties with the Plaintiff; (e) Potential withholding of RIDS correspondence by the Council relevant to the investigation.
3. At paragraph 32 the Committee decided that the complaints before the Committee against the Plaintiff "distilled down" to the following issues: (a) That building waste from the demolition of a house at …. Burradoo was deposited on his property; (b) That no development consent was sought from or given by the Council for the depositing of that waste; (c) That there were allegations of the exercise of improper influence by him on Council staff; (d) That there were allegations that a Council staff member had improperly influenced or attempted to influence members of the RIDS Squad in its investigation; (e) That the Councillor had failed to comply with at least two clean-up notices issued in respect of the deposited material and to pay the associated administrative charges. (f) A secondary allegation as to the depositing of building waste from the demolition of a house in Moss Vale on the Plaintiff's property.
4. Issues (c), (d) and (e) were arguably issues that fell within cl 6.1 of the Code.
5. The Committee's findings were set out in paragraph 37. The Committee relevantly found that no development consent for the depositing of building and other waste on his property had been issued by the Council. It found that the Plaintiff improperly approached members of the road gang working in Fountaindale Road to have table drain ways placed on his property. The Committee was satisfied that no Council consent had been given for that activity and that the Plaintiff exercised improper influence over them. The Committee was unable to verify the exercise of improper influence by a staff member upon other staff members in relation to the matter. The Committee also ascertained that two clean-up notices issued to the Plaintiff had not been finalised.
6. At paragraph 42 the Committee was satisfied that the General Manager complied with the complaint handling requirements by establishing the Committee in accordance with the Code and referring the complaint to the Committee in accordance with cl 12.9(d) of the Code. The Committee then set out its options under cl 12.19 of the Code.
7. The report of the Committee then contained the following: 45. The Committee determined that on the basis the allegations contained in the complaint was substantiated then a breach of the Code would arise in that such conduct would potentially infringe the standards of conduct provided at clause 6 of the Code. 46. When the matters provided at clause 13.1 of the Code are weighed, the Committee determined the complaint contained allegations of conduct that, if substantiated, may give rise to a breach of the Code and the Act. Accordingly, in dealing with the complaint the Committee considered it appropriate to conduct an enquiry in accordance with clause 12.19(c) of the Code. 47. In the conduct of its enquiry the Committee formed the view that the following provisions of clause 6 of the Code have specific relevance to the complaint. 6.1 You must not conduct yourself in carrying out your functions in a manner that is likely to bring the council or holders of civic office into disrepute. Specifically, you must not act in a way that: … b) is detrimental to the pursuit of the charter of a council c) is improper or unethical d) is an abuse of power or otherwise amounts to misconduct … 6.3 You must treat others with respect at all times. 6.2 You must act lawfully, honestly and exercise a reasonable degree of care and diligence in carrying out your functions under the Act or any other Act. … 49. The Committee considers Councillor Mauger's conduct in relation to the depositing of waste material on his land and in approaching Council employees without Council consent to be inappropriate. It is not consistent with a councillor's obligations under the Code, and in particular clauses 6.1 and 6.2 of it. 50. On this basis, the Committee considers that he has breached those clauses.
8. In its recommendation the Committee set out the provisions of cl 14.9 as to the actions it could take. It then concluded: 56. The Committee views the breaches in this matter as serious. The Committee considers that Councillor Mauger was aware that what he was doing was wrong but made no reasonable effort to regularise his position. The Committee sees no mitigating circumstances. 57. In these circumstances, the Committee recommends that Council take the following action in relation to the breaches. (a) Councillor Mauger be censured for misconduct. (b) These findings be made public in open Council.
9. On the basis of the material available to the General Manager it was open to him to refer the matter to a review committee for breaches of the Code. It was not his responsibility to determine if there had been breaches of the Code. His obligations were set out in cl 13.1 of the Code. There was prima facie evidence of a breach of the Code of Conduct and the subject matter of the complaint related to conduct that was associated with the carrying out of the functions of the Plaintiff as a councillor.
10. The Defendant's submission that the findings of the Committee were factual findings should be accepted. It is not this Court's function to review the merits of the matter. The enquiry was within the jurisdiction of the Committee as some of the findings clearly demonstrate. A finding that the Plaintiff improperly approached Council officers and exercised improper influence over them is related to his position as a councillor and the carrying out of his functions. The behaviour was improper or unethical and involves an abuse of power. The Plaintiff was able to achieve the result he desired by reason of his being a councillor.
11. Moreover, s 232 of the Act emphasises the need of a councillor to provide leadership and guidance to the community. By acting in the way found by the Committee in his dealings with the Council employees and by having the waste deposited on his property without a development application the Plaintiff demonstrated a failure to act as s 232 requires.
12. The Plaintiff's allegation that the process was somehow invalidated by the asserted failure of the General Manager to identify the matters in cl 13.1 of the Code that he took into account must be rejected. The email to the members of the Committee of 26 May 2010 (at [25] above) provides no support for the Plaintiff's submission. The email makes references to the reports that form the basis for the referral. The fact that the General Manager made a passing reference to staff issues and the way of dealing with them is no indication that other matters in cl 13.1 were not taken into account. Indeed, the material in the reports must have been matters that the General Manager had regard to for him to have expressed a view that staff issues were involved.

(b) Procedural fairness

1. As far as procedural fairness was concerned, the Plaintiff drew attention to what was said in Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 578 and 593-594. The judgment of Mason CJ, Dawson, Toohey and Gaudron JJ said (at 578): It is not in doubt that, where a decision-making process involves different steps or stages before a final decision is made, the requirements of natural justice are satisfied if "the decision-making process, viewed in its entirety, entails procedural fairness". South Australia v. O'Shea [1987] HCA 39; (1987) 163 CLR 378, per Mason C.J. at p 389. The difficulty in the present case is in viewing the Commission and the Parliamentary Committee as engaged in the one decision-making process. That is because the report was the final step in the discharge by the Commission of the functions and responsibilities which were brought into play by its decision to investigate and report with respect to the introduction of poker machines. Moreover, the functions and responsibilities of the Commission and of the Parliamentary Committee are separate and distinct and serve quite different purposes. Brennan J said (at 593-594): It has been held, at least in some cases, that a want of procedural fairness on the part of a repository of a power may be "cured" by an appeal to a tribunal which does accord procedural fairness and exercises the power according to its own view of the merits, not being bound by the decision of the first repository of the power. See Twist v. Randwick Municipal Council [1976] HCA 58; (1976) 136 CLR 106, at pp 111, 113-114, 116; Calvin v. Carr [1979] UKPC 1; (1980) AC 574, at pp 592, 594-595. Where a power is reposed in a primary administrator and an appellate tribunal is authorized to exercise the same power, it may well be immaterial that a purported exercise of the power is invalidated by a failure on the part of the primary administrator to observe the rules of natural justice if the power has thereafter been validly exercised by the appellate tribunal. But that proposition has no application to the performance by the Commission of the assumed statutory functions of producing and furnishing a report. The functions prescribed by s.2.14(1) are reposed in the Commission alone; the Parliamentary Committee cannot perform them. The functions of the Parliamentary Committee are defined by s.4.8(1) of the Act. Those are the functions of a watchdog over the Commission; they do not extend to the production of a revision of a Commission report, though the Parliamentary Committee may "report to the Legislative Assembly on any matter appearing in or arising out of (a Commission) report": s.4.8(1)(c). The Parliamentary Committee is thus authorized to produce its own report but its report does not supersede or set aside a report produced and furnished by the Commission.
2. There is no proper analogy with what was being discussed in Ainsworth. There was no requirement in the present case for the General Manager to do otherwise than have regard to the matters in cl 13.1 and, if appropriate, send the matter to the Committee. He was, as it were, a gatekeeper with minimal obligations compared with the responsibilities of the Committee. It was the Committee alone which had the responsibility of making enquiries, hearing the parties, reporting on the matter and making recommendations.
3. The Plaintiff pointed to the judgment of the Privy Council in Rees v Crane [1994] 2 AC 173. In that matter the Chief Justice of the High Court of Trinidad and Tobago, after receiving complaints about the Plaintiff who was a judge of the court, decided not to include him on the roster of judges who were to sit in Court for the following term. The Chief Justice notified the Judicial and Legal Service Commission of that decision and the Commission agreed with the decision. At the time the judge was on leave and was not notified of the decision or the intention of the Chief Justice to refer it to the Commission. No notice was given to the judge before the Commission's agreement with the decision.
4. The judgment of the Privy Council said this (at 194): It is true, as the appellants contend, that a decision to make a representation is not itself a punishment or penalty and that the eventual dismissal requires two further investigations. That, in their Lordships' view, is too simplistic an approach in resolving the present questions. There was obviously considerable publicity for the decision to make a representation even if the detailed charges were not publicised. Indeed it was reported on the television news on 22 November that the President had appointed a tribunal to investigate whether the respondent should be removed as a judge, apparently even before the respondent received from a policeman in the street a copy of the President's decision suspending him from office. The fact that a representation was made, a tribunal appointed and the respondent suspended on the basis of bodily infirmity and misbehaviour were bound to raise suspicion or conviction that the commission and even the President were satisfied that the charges were made out, in a way which subsequent revocation of the suspension would not necessarily dissipate. If the respondent had had a chance to reply to such charges and had been given the opportunity to do so before the representation was made this suspicion and damage to his reputation might have been avoided. If he gave no adequate reply then the matter could have gone forward without justifiable complaint on his part. … The consideration of these factors and their Lordships' conclusion on them are not based specifically on the nature of the judicial function or the fact that the respondent is a judge. A similar approach would apply mutatis mutandis to other persons who could rely on the same considerations.
5. The position in that case was different because the judge had effectively been suspended before he was given notice of the Commission's decision. In the present case the Committee had made no determination.
6. The Plaintiff quite properly took me to the decision of Schmidt J in Nichols v Singleton Council (No 2) [2011] NSWSC 1517. That was a decision dealing with a referral by the general manager of a council pursuant to cl 12.8 of the Code. Schmidt J said: [104] … Mr Nichols also seeks a declaration that his decision to refer the complaint to Mr Smith for review under the Code is void and orders quashing Mr Thomson's decision to refer are also sought. I am also satisfied that these orders may not be made. [105] Mr Nichol's case was that Mr Thomson was obliged to give Mr Nichols an opportunity to be heard in relation to the question of whether the complaint against him should be referred to a reviewer and that he was obliged to give reasons for his decision. That case was not made out. [106] Mr Thomson made an initial assessment of the seriousness of the complaint in accordance with cl 12.8 of the Code. Neither the Code nor the common law required Mr Nichols to be given an opportunity to be heard on the question of referral which Mr Thomson determined. That consideration was one of a number of administrative safeguards provided by the Code, which were designed to ensure that complaints which raised no serious matters, went no further (see The Medical Board of Queensland v Byrne [1958] HCA 40; (1958) 100 CLR 582). …
7. The Plaintiff submitted that I should not follow Nichols because it is clearly wrong. I do not consider that Nichols is wrong. Nothing in the Code suggests that there is any obligation on the General Manager to alert the person, the subject of the complaint, before a referral. Indeed, the presence in the Code of cl 14.7 imposing specific duties on the Committee but not the General Manager with regard to procedural fairness, provides strong support for the view to which Schmidt J came.
8. In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 McHugh J said at 146: …Natural justice requirements are less likely to attach to decisions that are preliminary in nature. Examples are decisions to lay charges or commence disciplinary proceedings. The closer a decision is to having finality and immediate consequences for the individual, however, the more likely it is that natural justice requirements apply. See also Edelsten v Health Insurance Commission (1990) 27 FCR 56.
9. In my opinion, there was no requirement on the General Manager to give notice to the Plaintiff before establishing the Committee and referring the issue to the Committee. The Committee afforded procedural fairness to the Plaintiff.
10. No basis is shown for any challenge to the procedures in relation to the Dumping Complaint. The Review Committee had jurisdiction to deal with the matter and there was no denial of procedural fairness to the Plaintiff.

The Mayor's Complaint

1. The Plaintiff complains first that these five matters were dealt with in the first instance by the Acting General Manager of the Council, Mr Brearley, who decided that no action needed to be taken on them except in respect of allegation 3 where the Acting General Manager suggested an apology from the Plaintiff to the Mayor would be in order. However, when the new General Manager, Jason Gordon, was appointed, he decided the matters needed to be referred to a sole reviewer. The history is as follows.
2. On 31 July 2009 the Mayor, Duncan Gair, sent a memorandum to the Acting General Manager Michael Brearley about the five matters set out at [6] above.
3. On the same day the Acting General Manager sent an email to Barry Paul who was the Director of Corporate Services. He attached the memo from the Mayor and asked Mr Paul to arrange for his staff to collate information on those five matters. Mr Paul was then asked to prepare a confidential report to the Mayor, copied to the Acting General Manager, that advised on each of the issues suitable for submission to ICAC.
4. On 6 August 2009 Mr Paul sent a confidential memo to the Acting General Manager.
5. On 10 August 2009 the Acting General Manager sent a confidential memo to the Mayor in these terms: Please refer to the attached 5-page confidential memorandum and attachments from the Director Corporate Services. Barry has presented a detailed analysis on the five matters you referred to me on 31 July 2009. I have carefully reviewed Barry's memo and agree with his conclusions. Accordingly, I am not satisfied that there are sufficient grounds to refer these matters to other authorities or to convene the conduct review committee. However, in regards to item 4 in Barry's memo, there may be sufficient evidence and witnesses to confirm that Council (sic) Mauger did say the alleged words on the evening of 22 July 2009 at Dormie House. This being the case, Councillor Mauger may have breached the Code of Conduct - Section 6.1 (e) - "causes, comprises or involves intimidation, harassment or verbal abuse". In this regard, I recommend to you that I write to Councillor Mauger advising that I believe that he has breached Section 6.1 (e) of Council's Code of Conduct as a result of the words he said at Dormie House on 22 July 2009, and suggesting that an apology to you would be in order. A file record will be kept on this matter. Please return the attached documentation to me once you have read it and advise me if I can assist any further in this matter. The Plaintiff submitted that the second last paragraph of that memorandum was reflective of a decision made under cl 12.9(b) of the Code which enables the General Manager to resolve the complaints by the use of alternative and appropriate strategies.
6. There is a memorandum from the Mayor to the Acting General Manager of 28 August 2009 entitled "Request for referral of matter to the Department of Local Government": I refer to our discussions today regarding the situation which has arisen with CIr Jim Mauger, and confirm my instructions that this matter should be referred to the Department of Local Government. I also request that a questionable travel claim be referred to ICAC. Please also include all material that was requested in my previous memorandum. I believe that CIr Mauger"s behaviour has become vexatious, and is likely to cause the Council to become dysfunctional. I understand the number of requests recently from CIr Mauger for information would almost have averaged one per day. I also note that he has alleged "systemic corruption" and possible criminality, and publicly stated this current Council should be sacked. This decision has come after receiving a demand from CIr Mauger to supply him with my solicitor's details for the serving of documents - received on Thursday 27 August 2009 CIr Mauger when confronted would not tell me the reasons for this, only to say it depended on his legal advice, I find this very intimidating and so request the above.
7. It is not clear, as the Plaintiff accepts, that this memorandum is a direct response to the memo to the Mayor from the Acting General Manager. Some references in this memo suggest that it is not a reference to the Mayor's earlier complaints. The first paragraph refers to "this matter" when the Mayor had raised five allegations. What this memo does show, however, is that relations had deteriorated between the Mayor and the Plaintiff with allegations against the Mayor having also been made by the Plaintiff.
8. The Acting General Manager wrote to the Director General of the Department of Local Government on 2 September 2009 as follows: The Mayor of WSC, Clr Duncan Gair, has requested that I seek your advice regarding the alleged intimidating and vexatious behaviour of a Councillor. In my capacity as the current Acting General Manager of Council, the Mayor has advised me that he and a number of Councillors are concerned that the behaviour of one Councillor has become intimidating and vexatious, and is having a detrimental impact on the harmony and productivity of the Council. There have been statements by this Councillor in the media that this Councillor believes there is "systemic corruption" within Council, furthermore, in letters to the Editor in the Southern Highlands News, this Councillor has stated that "Council should be sacked". The allegations of corruption made by this Councillor have been referred to ICAC on numerous occasions, without any finding of corruption. The Mayor, the previous General Manager Mr Hyde, and myself have made many attempts to mediate with this Councillor in order to work through these issues. These attempts have resulted in further animosity and are unproductive. There is extensive documentation on Council's records regarding this matter. I am seeking your assistance and advice on how this matter should best be handled. In this regard, I welcome the opportunity for the Mayor and myself to meet with you to discuss the matter and would be pleased to visit Nowra at a mutually convenient time to do so. Please contact my Personal Assistant, Pam Bowes, on xxxx xxxx to arrange a time to meet with the relevant officers from your Department.
9. The Deputy Director General replied on 21 October 2009 saying, in substance, that the matter should be dealt with under the Code in the first instance.
10. Matters then fell strangely silent for some 8 months, at least as far as mention was made in any Council documents, concerning the disputes between the Plaintiff and the Mayor.
11. On 21 June 2010 the Plaintiff wrote to the new General Manager, Mr Gordon, in these terms: I have made you aware of a letter from Mayor Duncan Gair in which he makes allegations against me. As I also told you I have sent a copy of this letter to the Department of Local Government who asked did I want them to address the matter. I advised them that I would give you the opportunity as the incoming general manager to remedy the situation. This has not happened so I now request you to take action against Clr Gair as I believe Clr Gair has breached the Code of Conduct. This has of course been supported by comments from Department of Local Government. The letter is self- explanatory. Clr Gair was totally out of order when he raised the points. Further by making the allegations he did I reserve the right to take civil action against him. Trusting you will proceed with my request urgently as the allegations made have hung over my head for too long with no resolution.
12. It is not entirely clear what letter the Plaintiff is referring to. However, since he refers to the allegations having hung over him for a long period, it seems likely that the allegations are those contained in the memorandum from the Mayor to the Acting General Manager on 31 July 2009.
13. On 28 June 2010 the General Manager wrote to the Plaintiff in these terms: Prior to your letter dated 21 June 2010 regarding alleged breach of the Code of Conduct by the Mayor, Duncan Gair, for inappropriate behaviour, the Mayor had passed the same matter to me for consideration. As stated in the letter to you dated 24 June your claim appears to be a counter claim to that matter. Prior to your letter, the Mayor had indicated a willingness to drop the matter in line with his comments at one of the later Council meetings in December 2009 where he asked for by gones to be by gones (sic) and for councillors to move forward as a group. As I had started drafting a reply prior to your letter and prior to any further review of the matter, I am formally asking you if you are prepared to accept this action. If you are of that mind, I would suggest a meeting with myself and the Mayor if I can say, 'to shake hands and move forward'. Should you believe that this will not satisfy your concerns raised in the letter dated 21 June 2010, please also advise me and I will consider the matter in more depth under Section 12 of the Code of Conduct.
14. On 12 July 2010 the Plaintiff wrote to the General Manager saying: Further to our telephone conversation this morning I wish to advise that I request you to review the matter under s 12 of the Code of Conduct as outlined in my letter of 21st June 2010. As I advised you I have been victimised, ostracised, criticised and hindered in performing my duty as an elected councillor. I therefore request that the matter be referred to the ICAC.
15. On 22 August 2010 the Plaintiff wrote again to the General Manager in these terms: Further to your undated letter in the above mentioned matter [this letter cannot be identified], please be advised as follows. I see no merit whatsoever involving myself in the mediation session, with any mediator, with yourself and Duncan Gair. It is my belief that any mediation should have taken place at the time of the unacceptable behaviour by Mayor Gair. Accordingly, I respectfully request that you proceed with the alleged breach of the WSC Code of Conduct as a matter of urgency. …
16. On 25 August 2010 the General Manager wrote to the Plaintiff saying that he had written to ICAC as requested but ICAC had determined not to take any action because there were no allegations of corrupt conduct and the matter could be dealt with under the Code of Conduct. The letter concluded by saying: The matter will now be dealt with under Council's Code of Conduct. I will advise of progress in due course.
17. On 7 September 2010 the General Manager wrote to the Mayor saying: As you are aware I am in possession of a complaint from Councillor Mauger regarding alleged breach of the Code of Conduct by yourself. You are also aware that you had passed the same matter to me for consideration. The Code of Conduct under Section 12 and 13 indicates how a complaint should be handled. In this case, the General Manager must assess the complaint under Section 12 in accordance with the assessment criteria provided at Section 13 of the Code. I have now assessed the matter(s) taking into consideration the information before me and am of the opinion that the complaints, in both cases, could be resolved by the use of alternative and appropriate strategies In this case I believe that mediation would be appropriate. I request that you consider this as a real option and advise me of your thoughts. Pending agreement I can arrange a list of accredited Mediators for you to review. The chosen person would be that person agreeable to both parties.
18. On 27 September 2010 the new General Manager, Mr Gordon, forwarded an email to Esther McKay who appears to have been retained by him as a sole reviewer in respect of an unrelated matter. The email said this: Recently I mentioned to you when you were in that I might have a second matter. The matter is between cllrs Mauger and Gair. I have reviewed the matter in the first case and thought mediation may be an alternate (sic) means to resolve the matter. Cllr Mauger has refused while Cllr Gair has agreed. I was wondering if you would be interested as single reviewer to look at the matter. The matter has been raised by both Cllrs against each other and revolves to a large extent with their conduct toward each other.
19. Then on 5 October 2010 Mr Gordon sent a letter to Ms McKay saying that he would like to engage her as sole reviewer of an alleged Code of Conduct matter between the Plaintiff and the Mayor.
20. Letters from the sole reviewer to the Plaintiff and the Mayor both dated 29 October 2010 show that the sole reviewer was investigating complaints made by each of them against the other. As far as the Mayor's complaints were concerned, it is clear that what was referred to the sole reviewer were the same five matters set out at [6] above. Those five matters are identified in paragraph 1 of the report of the Conduct Review Committee of 25 August 2011.
21. The Plaintiff submitted, first, that the General Manager had no power to refer those five matters to the sole reviewer because a proper analysis of the Code demonstrated that the power to do so was in September 2010 lacking. The General Manager was functus officio. Alternatively, it would be unreasonable to refer matters that had been resolved by different means under the Code.
22. Secondly, the Plaintiff submitted that procedural fairness had not been accorded to the Plaintiff in the way that the sole reviewer went about her task. Certainly, the Plaintiff was notified that the five matters had been referred to her and was given the opportunity to respond to them. The complaint is, however, that, as her report demonstrates in the summary of the steps she took, after the draft report was provided the reviewer spoke with a number of persons identified in paragraphs 33, 34, 35, 36 and 37 of her final report but did not again speak to the Plaintiff nor provide him with information she had obtained during the course of those discussions.
23. The Plaintiff submitted that the final report makes clear that the sole reviewer made use of the information she obtained from her discussions with the various persons identified without further reference to the Plaintiff. The relevant paragraphs in the report are 88 to 94. The Plaintiff made reference to Kioa v West (1985) 159 CLR 550 and VEAL v The Minister for Immigration [2005] HCA 72; (2005) 225 CLR 88 at 95.
24. The third challenge to the Mayor's Complaint and to the report is based on the failure of the sole reviewer to comply with cl 14.9 of the Code.
25. At paragraph 127 of the final report the sole reviewer noted that cl 14.9 of the Code of Conduct provided that on making a finding of a breach of the Code the sole reviewer might make recommendations to Council that it take any of the six actions set out in the first part of cl 14.9, and she listed those. Thereafter, the sole reviewer at paragraph 128 said this: The reviewer finds all four sustained allegations to be of a serious nature and should be treated as such. Recommendations to be implemented in 21 days of the handing up of this document to open Council are as follows: 1. Councillor Mauger be censured for misbehaviour; 2. Councillor Mauger is required to apologise to Councillor Gair for referring to him as a "maggot"; 3. Council make public these findings of "inappropriate conduct".
26. The Plaintiff complained that, nowhere did the sole reviewer make any reference to the second part of cl 14.9, requiring her to have regard to the 15 matters enumerated before making any recommendations identified in the first part of cl 14.9.
27. The Plaintiff's fourth complaint related to the sole reviewer's finding at paragraph 120 of the report as follows: The reviewer finds that Councillor Mauger was deceptive with regards to his involvement of booking the WSC theatrette and has breached the WSC Code of Conduct clause 6, General Conduct Obligations, 6.1(a) and (c) and Improper and Undue Influence clause 8.8.
28. The Plaintiff says that no such complaint appeared in Councillor Gair's memorandum which started the whole matter rolling and that cl 14.1 of the Code limited the jurisdiction of the sole reviewer to the matters contained in the complaint. This was also said to be a matter involving a denial of procedural fairness.
29. The Defendant submitted that the Acting General Manager was not functus officio. In exercising a statutory power or function the decision-maker may retain sufficient statutory power to return to a decision from time to time: Parkes Rural Distributions Pty Ltd v Glasson (1986) 7 NSWLR 332 at 335-336; Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 21 FCR 193 at 218. Reference was also made to s 48 of the Interpretation Act 1987 (NSW) which refers to the fact that a function conferred on any person may be exercised "from time to time as occasion requires".
30. The Defendant submitted that the referral to the sole reviewer was occasioned by the Plaintiff's complaint again the Mayor, which complaint re-enlivened the investigation of the complaint against the Plaintiff. In any event, the Defendant submitted, the Plaintiff requested the matter to be determined in accordance with cl 12 of the Code.
31. The Defendant submitted that the Plaintiff was not denied procedural fairness. The Defendant submitted that there was no evidence from the Plaintiff to say that he was not given the opportunity to respond to matters in the report, and that, in any event, the parts of the report complained about were not of any moment. Reference was made to Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37]. The Defendant submitted further that the Plaintiff had the opportunity to respond at the Council meeting on 14 September 2011 where the Report was discussed.
32. The Defendant submitted that if an error of law was established it would need to be shown that the error had a bearing on the outcome of the matter or relief, which is discretionary, will not be granted.

(a) Jurisdiction to make referral

1. Section 48 of the Interpretation Act 1987 provides: 48 Exercise of statutory functions (1) If an Act or instrument confers or imposes a function on any person or body, the function may be exercised (or, in the case of a duty, shall be performed) from time to time as occasion requires. (2) If an Act or instrument confers or imposes a function on a particular officer or the holder of a particular office, the function may be exercised (or, in the case of a duty, shall be performed) by the person for the time being occupying or acting in the office concerned.
2. The definition of instrument in the Interpretation Act is circular. Section 3(1) provides: (1) In this Act: instrument means an instrument … made under an Act. Nevertheless, in my opinion the Council's Code of Conduct should be regarded as an instrument for the purposes of the Interpretation Act.
3. In Kurtovic Gummow J construed the Commonwealth equivalent of s 48 as meaning that a power to make a deportation order exercisable from time to time meant that an order made could be revoked or revived whether on the same facts as before or otherwise.
4. In Parkes Rural Distributions Glass JA construed the equivalent of s 48 of the Interpretation Act in the old Interpretation Act 1897 (NSW), s 32 as meaning that the donee of a power (in that case to issue a certificate of an amount owing) was never functus officio.
5. The Plaintiff submitted that, whether s 48 applied depended upon a proper construction of the Code itself. The Code demonstrated an intention, especially by the terms of clauses 12.9 and 13.2, that once a course had been taken by the General Manager the decision was final. The Plaintiff relied upon what was said in Brennan v New South Wales Land and Housing Corporation; New South Wales Land and Housing Corporation v Brennan [2011] NSWCA 298; (2011 83 NSWLR 23 at [54] where it is suggested that there needs to be shown inconsistency between provisions of the Code and the Act to demonstrate a contrary intention for the purpose of s 5 of the Interpretation Act.
6. I do not consider that the doctrine of functus officio has any application to the powers of the General Manager contained in clause 12.8 of the Code. Any doubt about what s 48 of the Interpretation Act and it earlier equivalent provision means must be regarded as settled by both Parkes Rural Distributions and Kurtovic. The Court of Appeal in Brennan was dealing with essentially competing provisions for service, one in the Regulation and one in the Interpretation Act. In the present matter there are no competing provisions. There is no inconsistency between the Code and the Interpretation Act. The task is to discern if anything in the Code means that s 48 does not apply. I do not consider that what appears in clauses 12.9 and 13.2 means that, if a final resolution of a complaint has not been achieved by a different course taken by the General Manager, there is no power to refer the matter to a committee/reviewer.
7. That is not to say that any subsequent referral could not be held to be outside power in a given situation. The referral in the present case did not come about as a result of a simple change of heart by the General Manager nor even from a view that the previous Acting General Manager had erred in taking a different course under the Code. There were two significant matters.
8. The first is that the Mayor's complaint was referred to the Review Committee in different circumstances from its first consideration by the then Acting General Manager. I have already made reference to the obvious deterioration in relations between the Mayor and the Plaintiff with claims and counter claims being made between them. What had not come about from the previous approach was any resolution of the matters. Further, the Plaintiff had made allegations against the Mayor.
9. Secondly, and not unconnected with the first matter is the fact that the Plaintiff himself wanted the issues between himself and the Mayor dealt with by an outside body. The letter written by the Plaintiff to the General Manager on 21 June 2010 makes that clear. Both ICAC and the Department declined to act and both suggested that the appropriate course was a resolution under the provisions of the Code.
10. It is of some significance that when the draft report was provided to the Plaintiff for response on 21 June 2011 no complaint was made by his solicitors, who responded on his behalf on 28 July 2011, that the Mayor's Complaint should not have been referred to the sole reviewer. Nor was complaint made at any other time, including when the Plaintiff was first interviewed by the sole reviewer on 8 February 2011, until the Plaintiff filed a Notice of Motion on 7 January 2013 to amend the proceedings to raise this matter.
11. There was no error in the referral by the General Manager in September 2010. He did not lack jurisdiction to do so and his referral was not unreasonable in the changed circumstances.

(b) Procedural fairness

1. In the final report the sole reviewer set out at paragraphs 20-37 the details of the enquiries that she made. It is not necessary to set out all of these enquiries. It is sufficient to note that, after what is recorded at paragraph 32, she spoke on 9 May 2011 with a staff member of the Department of Local Government), the sole reviewer sent her draft report to the Plaintiff for comment. Thereafter her final report detailed the following: 33. On 2nd August, 2011 the reviewer spoke with a WSC Councillor via telephone conference. 34. On 5th August 2011 the reviewer spoke with a former staff member of Technical Services via telephone conference. 35. On 9th August, 2011 the reviewer met with a WSC Councillor. 36. On 9th August, 2011 the reviewer met with the WSC Manager of Administration and Governance and the WSC Director, Corporate Services. 37. On 12th August 2011 the reviewer met with the WSC Mayor.
2. Having made those enquiries, and without further reference to the Plaintiff, the sole reviewer produced her report on 25 August 2011.
3. In addition to the chronology provided by the sole reviewer the report shows that the sole reviewer made further enquiries after the Plaintiff's response to the draft report was received on 28 July 2011. The report reads: 83. …In line with procedural fairness, Councillor Mauger was given the opportunity to respond to the draft report on this matter dated 21 June 2011. … A response dated 28 July 2011 was received by the sole reviewer. The contents of this response was considered and where appropriate further interviews were conducted to establish facts relevant under the WSC Code of Conduct. (emphasis added)
4. It is necessary to look at the conclusions in the Report to see how that course played out.

Allegation 1

1. This was the allegation about expenses incurred for attending the dinner at Condoblin. Paragraphs 86-88 of the report dealt with this matter. Paragraph 88 suggests that the first enquiries made with the Manager of Administration and Governance were made before the Plaintiff had the opportunity to respond. What appears to be his response is contained in that paragraph. Paragraph 89 then reads: On checking the minutes and recording the Manager of Administration and Governance advised that no such evidence was found. Further, paragraph 91 commences: To conclude, the Manager of Administration and Governance advised that in circumstances where approval is sought during a council meeting that a Motion would be put forward and moved with corresponding minutes reflecting the approval.
2. After further discussion the sole reviewer found the complaint sustained. In circumstances where the chronology shows clearly that the reviewer met with the WSC Manager of Administration and Governance on 9 August 2011 (item 36 of the report) a failure to afford procedural fairness to the Plaintiff cannot be excluded. The sole reviewer does not identify whether she used any information obtained from that Manager after the draft report was sent to the Plaintiff in determining this complaint.
3. I have had regard to the judgment of Gleeson CJ in Lam at [37] - [38]. If the sole reviewer obtained further information from that Manager after receiving the Plaintiff's response to the draft report the Plaintiff could well have had an expectation and reliance that she would alert him to that information so that he could respond to it. It is impossible to say that any information is of "no moment" as the Defendant submitted because the sole reviewer does not identify what, if any, further information she obtained and relied upon to find the allegation sustained.
4. It is no answer for the Defendant to say that this report was before the Council for discussion and the Plaintiff was present. The Plaintiff did not know, as the Court and the parties still do not know, whether and what further information was used and relied upon by the sole reviewer.
5. The Plaintiff was denied procedural fairness in relation to this allegation.

Allegation 2

1. This allegation was not found to be sustained.

Allegation 3

1. This allegation was that the Plaintiff had inappropriately approached and interacted with Council staff on a number of occasions. The discussion by the sole reviewer in her report at paragraphs 103-111 does not provide any indication that any of the conferences with persons identified in paragraphs 33-37 of the report had anything to do with this particular enquiry. No specific complaint was made by the Plaintiff in submissions regarding these paragraphs. In the circumstances, the Plaintiff does not show that he was denied procedural fairness in relation to the investigation of that allegation.

Allegation 4

1. This was the allegation that the Plaintiff referred to the Mayor as a "maggot" during a dinner after a Council meeting.
2. The sole reviewer found this allegation sustained on the basis of an admission by the Plaintiff that he did refer to the Mayor as a "maggot" and that he "might have to cop a slap over the wrist or apologise for it". That finding was consistent with the finding of the Acting General Manager when the Mayor's complaint was first considered.
3. The Plaintiff does not show he was denied procedural fairness in relation to this allegation.

Allegation 5

1. This complaint relates to the booking by the Plaintiff of the WSC theatrette for a meeting on 19 June 2009.
2. The Plaintiff's complaint about this matter arises from the conclusion of the reviewer at paragraph 120 of her report where she says: The reviewer finds that Councillor Mauger was deceptive with regards to his involvement of booking the WSC theatrette and has breached the WSC code of conduct clause 6, general conduct obligations 6.1(a) and (c) and Improper and undue influence clause 8.8.
3. As noted earlier, the Plaintiff submitted that no complaint of deceptive behaviour appeared in the Mayor's memorandum which commenced the investigation and resulted in the referral to the sole reviewer. The Plaintiff submitted that clause 14.1 of the Code limited the jurisdiction of the sole reviewer to the matters in the original complaint.
4. The fifth matter raised by the Mayor was: Could a costing on the use of the Theatrette by "We Still Care" Group be made available and who is paying for such as Clr Mauger hosted the evening. It is clear that the complaint is that the Plaintiff booked the theatrette and did not pay for it. From the outset the reason for the non-payment asserted by the Plaintiff was that it related to Council business which was sufficient to justify non-payment.
5. In the notes of interview between the sole reviewer and the Plaintiff, where his solicitor was present, the following exchange occurred: E The Theatrette booking. Mr Ian Scandrett was involved with the Theatrette ... but it is noted to be booked on behalf of yourself. J That is what I was told. E What is your role in the "We Still Care" group? J Nothing. I am not part of "We Still Care". I gave my approval for that for all ratepayers in the Shire not particularly "We Still Care". That particular meeting was held for the benefit of all ratepayers. E It comes back to you. It appears that you were booking the Theatrette for a Council function and the $100 was to be waivered. Were you actually attending that meeting as a Councillor... J I attended as a Councillor but I organised the facility for the benefit of the ratepayers of the shire so they could hear the arguments of the ... of the subdivision outside and the proposal to rezone that subdivision so it was for the public not just... E I have seen - there are further documents that.... Who made the decision about it to be not charged? This is to Ian Scandrett. Why was it you that they felt was booking the Theatrette. J I had to book it as a Councillor for a public meeting. E The public cannot approach the Council to book .... J I don't have… for $67. E It says that the $100 fee is still outstanding. J Because I have the thing saying it was free. E If it was realised that you were actually booking it for yourself not for a Council function but it was for Ian Scandrett. J He spoke to me during the course of the day and I said I was only too happy to book it for a Council function so that the ratepayers could be made aware - not just a particular group. E Do you have the power to waiver the fee? J No I don't have the power to waive it at all. I don't have … if we had information at the time - I don't feel I should have to pay the $100 in relation to it. Why is it booked up to me? E You just said that you as a Councillor had booked it so that the fee would be waivered. J I just confirmed the booking. E Why did Ian Scandrett say that you were and asked you to book? J I had to book. E Did you have to book it without it then being as no charge. J I wanted it to be booked - I felt it was my duty as a Councillor to book it for the ratepayers and residents. E It should not have been booked free of charge because it was not actually Council business as it.... with Council at all. J Councillors attended that meeting - some Councillors attended with me. E So it was not actually a Council function. J Again - as I understand it it was recorded as a Council function. I will need to go back and study this one. It says I am responsible for paying the $100? E Do you feel you were making it as a Councillor? J I believe that I was making it as a Councillor for the benefit of the ratepayers and residents of the shire - for their information. E .... I don't know who he is or what his involvement is. J I would like to see that proved in court. E Did he ask you if it was OK? J It was probably him that approached me but I will have to check with Mr Scandrett in relation to ... E There was no public risk insurance or risk assessment prepared. J That is I will need to look at this and come back to you. E If it would... J That is how I understood it. E Now… J I don't want to comment on this any further until I discuss it further. E It says that the account has not been paid and it has been handed to Councillor Mauger by the Mayor. Have you given it to the hall... or committee. J I will not answer that
6. The issue of why the theatrette was booked, for whom or which group it was booked and the Plaintiff's involvement were all matters to be determined by the Mayor's complaint. The sole reviewer did not go outside the proper bounds of her enquiry contrary to clause 14.1 of the Code of Conduct.
7. To the extent that it is alleged there was procedural unfairness to the Plaintiff relating to the finding of deceptive conduct, the questions asked of the Plaintiff by the reviewer as set out above clearly identified what was being suggested. Further, the draft report forwarded to the Plaintiff in June 2011 contained what is now paragraph 120 of the final report as paragraph 103 of the draft report in identical terms. The Plaintiff was clearly put on notice of the finding that was intended to be made and he was given the opportunity to respond to it. Indeed, solicitors acting on his behalf wrote to the sole reviewer on 28 July 2011 saying this: 7. The booking fee is only $100. The implication is that Councillor Mauger conspired with Mr Scandrett to mislead the booking officer so as to avoid a booking fee of $100. This allegation is emphatically denied by Councillor Mauger. We are instructed that Mr Ian Scandrett is a man of substantial means and there is absolutely no reason whatsoever why he would attempt to take such elaborate steps to avoid a hiring fee of $100. 8. The sole reviewer finds that Councillor Mauger's conduct was deceptive. Mr Barry Paull came to a different conclusion. In any event, the facts do not support a finding that Councillor Mauger breached clauses 6.1(a) and (c) and clause 8.8.
8. The letter makes clear that the Plaintiff knew that what was being suggested was that he had misled the booking office to avoid paying the fee. The Plaintiff was not denied procedural fairness in relation to that allegation or that finding.

(c) Errors of law

1. These errors are said to be (1) that the finding of deceptive behaviour in relation to allegation 5 went beyond the matters that should have been investigated; (2) that the sole reviewer did not comply with the second part of cl 14.9 of the Code; and (3) that the sole reviewer did not comply with cl 13.1 of the Code.
2. The first of these errors has been dealt with when considering matters of procedural fairness.
3. In relation to the second asserted error, the sole reviewer said at paragraph 128 of the report: The reviewer finds all four sustained allegations to be of a serious nature and should be treated as such.
4. That finding is a clear indication that the sole reviewer has not overlooked the second part of cl 14.9. It is not necessary for the sole reviewer to traverse each of the matters listed to say whether or not each is applicable and, if so, how it should impact on any recommendation. The conclusion that the breaches were serious, the identification of the parts of the Code and the Local Government Act that were breached (see paragraphs 98, 111, 115 and 120), and the recommendations made demonstrate that the sole reviewer had regard to any relevant matters in the second part of clause 14.9.
5. As far as the third asserted error is concerned, in the light of what appears in paragraphs 98, 111, 115 and 120 of the Report, and in the absence of any additional submissions demonstrating how the sole reviewer failed to comply with cl 13.1, this allegation is rejected.

Conclusion

1. The Plaintiff has been successful only in showing that he was denied procedural fairness in relation to allegation 2 of the Mayor's Complaint. The Defendant submitted that the Court would, in its discretion, decline to make any declarations if error was established, by reason of the delay, the fact that the errors would have had little impact on the outcome of the reviews, and (on the error here found) that the Plaintiff had the opportunity to fix the matter when the report was discussed at the Council meeting when he was present.
2. The Defendant referred to what was said by the joint judgment in Stead v State Government Insurance Office (1986) 161 CLR 141 at 145 that not every breach of the rules of natural justice invalidates a decision. In the present case the Plaintiff does not seek to quash or invalidate the decision, only to have it declared unlawful.
3. The finding in relation to allegation 2 was not trivial. The findings were that the Plaintiff's behaviour had breached ss 252, 253 and 254 of the Local Government Act. The findings were undoubtedly detrimental to the Plaintiff's reputation.
4. There was no undue delay. The Council's resolution arising from the sole reviewer's report was 16 November 2011. The Summons was filed on 21 August 2012 and the Notice of Motion to add the Mayor's Complaint (which included allegation 2) was filed 7 January 2013. I accept that there was some delay in commencement of the proceedings and amending them but that delay should not disentitle the Plaintiff to a declaration in relation to allegation 2.
5. I have already determined that the Plaintiff could not reasonably have dealt with the matter at the Council meeting.
6. No errors of law are demonstrated.
7. The parties should bring in Short Minutes to reflect these reasons. I will hear the parties on costs.

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