Wilkie v Councillor Conduct Tribunal [2022] QCAT 79

• [4] The applicant submitted frankly that the original application to the Tribunal was filed essentially as a holding exercise, to preserve his review rights and to enable him to consider his position and obtain legal advice. Having done so, and having participated in the conference, he now seeks to narrow the issues for review before the Tribunal. The first respondent neither consents to nor opposes the application. The second respondent opposes the application, on the basis that the decision under review is the decision of the first respondent as a whole, and that a review by the Tribunal involves a hearing de novo of the entire matter which was before the first respondent. Reference was made to the matter of Queensland Building and Construction Commission v Whalley [2018] QCATA 38.

• [5] One important matter which arises from the decision in Whalley is that it is necessary to give close attention to the terms of the Act which confers jurisdiction on the Tribunal to review a decision made under that Act. The relevant Act is the LG Act. The relevant provisions are in Chapter 5A, dealing with councillor conduct. The Chapter is about having complaints about the conduct of councillors investigated by the second respondent, who may apply to the first respondent to decide whether the councillor engaged in misconduct or inappropriate conduct, and if so, the action to be taken to discipline the councillor: s 150B. Misconduct is defined in s 150L in terms which would generally be constituted by a specific act or omission, although s 150L(3) provides that three instances of a particular specific conduct "taken together" is the misconduct.
• [6] The LG Act provides that a person may make a complaint about the conduct of a councillor to the assessor.[1] The assessor must investigate the conduct the subject of a complaint made,[2] and if after doing so is reasonably satisfied the councillor's conduct is misconduct, may make an application to the first respondent about the conduct.[3] The assessor must first give the councillor a notice "describing the nature of the conduct" and advising that an application to the first respondent is contemplated, and inviting a response from the councillor.[4]
• [7] The assessor may apply to the first respondent to decide whether the councillor has engaged in misconduct.[5] The application must include details of the alleged misconduct and any complaint received, and state why the assessor is reasonably satisfied the councillor has engaged in misconduct, with information about the facts and circumstances forming the basis of the assessor's reasonable satisfaction.[6] The councillor must be given a copy of the application, and the first respondent conducts a hearing, after which it must decide whether or not the councillor has engaged in misconduct and, if so, what action it will take to discipline the councillor.[7] In deciding what action to take, the first respondent may consider any previous misconduct of the councillor, and any allegation made in the hearing that was admitted or not challenged, and that the first respondent is reasonably satisfied is true.[8]
• [8] The LG Act provides in s 150AS that the first respondent must give notice of the decision, that is, a decision that falls within subsection (1), which provides:

(1) This section applies to a decision made by the conduct tribunal -

(a) under section 150AQ (1) (a) about whether or not a councillor has engaged in misconduct or inappropriate conduct (or both); or

(b) to take action mentioned in section 150AR (1) (b) to discipline the councillor for the misconduct or inappropriate conduct (or both).

• [9] The section goes on to provide that the first respondent must keep a written record of the decision and the reasons for the decision, and must give a notice that states the decision and briefly states the reasons for the decision to a list of persons, including the councillor.[9] The notice to the councillor must be a QCAT information notice for the decision.[10] A person who is entitled to be given a QCAT information notice may apply to the Tribunal as provided under the QCAT Act, for a review of the decision.[11]
• [10] The term "decision" is not defined, either in the Dictionary in Schedule 4 or in s 150C, which has definitions for the purpose of Chapter 5A. It appears to me however that the reference to "decision" in s 150AT must be a reference to the decision the subject of the notice given under s 150AS(3). That section applies to the decisions identified in s 150AS(1), which can be the decision whether or not the councillor has engaged in misconduct, or the decision to take particular disciplinary action, or both. Where the first respondent decides that there has been misconduct, and to impose particular disciplinary action, the first respondent has made at least two decisions. That however is not the crucial issue for present purposes.

• [11] The crucial issue is whether the decision on whether or not there was misconduct is one decision in respect of all the allegations, or at least all that have been substantiated, or whether there is a separate decision in respect of each instance of conduct alleged to be misconduct. The second respondent's submissions is to the effect that the decision under s 150AS(1)(a) is a single decision for the entire proceeding before the first respondent, irrespective of how many separate instances of conduct alleged to be misconduct are covered by the application. The wording of s 150AS(1)(a) does not assist with that, because although it is expressed in the singular, in general in a statute the singular includes the plural.[12]
• [12] When the relevant provisions of the LG Act are considered as a whole, however, in my opinion they contemplate that, in a case where there is an application which covers a number of separate instances of conduct which are alleged to amount to misconduct, there will be a separate decision on whether each allegation amounts to misconduct. The general structure set out in the Act proceeds on the basis that there will be specific conduct which is able to be assessed as misconduct. This is suggested by the fact that s 150L(3) makes specific provision for three separate instances of particular conduct to amount to misconduct "taken together". The Act contemplates that ordinarily the process will be initiated by a complaint, which one would expect would be a complaint of specific conduct, and it is that conduct which the assessor must investigate.
• [13] The wording of s 150AJ seems to me to indicate that an application to the first respondent is made by reference to particular conduct alleged to amount to misconduct, and where there are a number of allegations that particular conduct amounted to misconduct, that suggests that they would ordinarily be dealt with individually.[13] The obligation to give reasons for the decision would be more meaningful if it applied to each separate allegation of misconduct, and the fact that provision is made for a review by the Tribunal of a decision on whether or not there has been misconduct operates more rationally if the right to review applies by reference to each particular allegation.
• [14] There is no reason why a person entitled to receive a notice under s 150AS(3) would want to review a decision which was favourable to that person, and when there were a number of separate allegations advanced in one application to the first respondent, it would not be satisfactory if a person with a right to apply for a review were to be exposed to having the findings on allegations which were favourable to that person also reviewed by the Tribunal, in effect as the price for a review of any decision.
• [15] The second respondent's submission, if correct, would mean that any review of the decision overall of whether or not there was misconduct would require the Tribunal to conduct a full review of all the allegations of misconduct. Given that the Tribunal is expected by the legislature to deal with matters in a way that is accessible, fair, just, economical, informal and quick,[14] that strikes me as an unlikely legislative intention, and one which is not supported by the purposes of the LG Act. Indeed, if a number of allegations of misconduct are found against a councillor and the councillor does not wish to pursue a review of the decision in respect of one or some of them, the review will be conducted even more efficiently. The fact that the Tribunal conducts a review by a hearing de novo does not mean that the parties cannot confine the issues in dispute between them.[15]
• [16] In my opinion therefore the applicant is entitled to apply to the Tribunal to review the decision of the first respondent on those allegations of misconduct which were decided adversely to him, or such of them as he chooses, and that will not open up for review those allegations of misconduct on which the decision of the first respondent was favourable. The decision under s 150AQ(1)(b) is clearly a separate decision, and that has been made subject to review, which right the applicant has exercised.

• [17] The respondents have raised no other submissions as to why the discretion under s 64 should not be exercised. I therefore order that the application to review a decision filed by the applicant on 25 March 2021 be amended to identify that the decisions to be reviewed are the decisions to find that there was misconduct by the applicant in respect of allegations 4, 8, 9, 10, 11, 12 and 13 in the application by the second respondent to the first respondent, and the decision to discipline the applicant for that misconduct.
• [18] The directions of the Tribunal of 26 November 2021 also provided for the preliminary issues identified in direction 2 of the Tribunal's directions of 8 October 2021 are to be determined by me. The two preliminary issues were:

(a) The scope of the reviewable decision for the purposes of s 17(2) of the QCAT Act, and in particular whether the allegations which were not substantiated by the first respondent are to be reviewed by the Tribunal; and
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> (b) Whether all or part of the audio recording of the hearing before the first respondent should be listened to by the Member constituting the Tribunal for the purposes of hearing the review.

• [19] It follows from what I have decided above that, subject to the amendment I have ordered, the review is confined in accordance with the amendment, and allegations not substantiated by the first respondent are not included in the review. As to the second, I can see no reason why the Member who conducts the review should have to listen to the audio recording of the hearing before the first respondent. The hearing in the Tribunal is a hearing de novo, although the way in which that hearing is conducted is a matter to be resolved by the Tribunal.
• [20] Reviews can be conducted by reference to the material already gathered, and if part of that material consists of an audio recording of evidence given at the hearing before the first respondent, playing the relevant part of the recording may be a convenient way to put that evidence before the Tribunal. The fact that there is a hearing de novo does not mean that all oral evidence has to be called again, although calling oral evidence may be appropriate in a particular case, or with a particular witness. The procedure for the review is at the discretion of the Tribunal, subject to the LG Act, the QCAT Act and the rules.[16] For the sake of completeness, I should add that, if a person who gave evidence at the hearing before the first respondent is also giving evidence before the Tribunal, that person may (subject to the discretion of the Member conducting the hearing) be cross-examined on a prior inconsistent statement in the hearing before the first respondent.
• [21] The second "preliminary issue" is not really a preliminary issue to be decided in the abstract, and should depend on the way in which the hearing proceeds, as determined by the Member conducting it. All I can usefully say is that it is not necessary for the Member to listen to the whole audio recording.
• [22] All questions of costs are reserved to the Member who hears and determines the review.

[1] LG Act s 150O. The assessor, ie the second respondent, may also investigate the councillor's conduct on the assessor's own initiative.

[2] LG Act s 150T(1), unless there is a decision not to under s 150Q(3).

[3] LG Act s 150W(1)(c). The second respondent may also decide to do other things.

[7] LG Act s 150AQ(1)(a)(ii), (b). The possible disciplinary action is covered by s 150AR.

[12] Acts Interpretation Act 1954 (Qld) s 32C(a).

[13] It appears from the terms of the decision that each allegation was an allegation of misconduct in itself; this was not a case where it was alleged that there was a course of conduct, of which 14 particulars were given, which taken together amounted to misconduct.

[14] The QCAT Act s 3(b). See also s 4(b), (c).

[15] That follows from the QCAT Act s 4(b), and the general thrust of Part 6 Divisions 1A, 2, 3 and 4 of the QCAT Act. Insofar as Whalley (supra) suggests that the parties cannot confine the issues in a review, I respectfully disagree.

[16] The QCAT Act s 28(1). I also note in particular s 28(3)(b)-(e).