Wykanak v NSW Local Government Pecuniary Interest Tribunal & Anor

LOWER COURT NSW Local Government Pecuniary Interest Tribunal JURISDICTION : LOWER COURT PIT 2/2000 FILE NUMBER(S) : LOWER COURT D P F Officer QC JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

30028 of 2002 Dominic Wykanak v NSW Local Government Pecuniary Interest Tribunbal & Anor

JUDGMENT 1 Master Malpass: The plaintiff is a councillor on the Waverley Council (the Council). He is a litigant in person. He had been involved in the campaign to oppose the then proposed Olympic Volleyball Stadium at Bondi Beach (the Stadium). The present proceedings are one of the many proceedings commenced by him (one of which was earlier proceedings in this Court brought against the Olympic Co-ordination Authority in relation to the Stadium prior to him becoming a councillor). 2 The present proceedings were commenced by Summons filed on 2 April 2002. The relief sought is that claimed in an Amended Summons filed in court on 30 April 2002. The plaintiff seeks relief pursuant to s 485 of the Local Government Act 1993 (the Act). This section confers an entitlement to appeal to this Court against a decision of the Pecuniary Interest Tribunal (the Tribunal). A statement of the grounds of the appeal was filed on 3 April 2002. 3 Before proceeding further, I shall briefly mention some background material to the appeal. 4 On 19 September 2000, the second defendant made a complaint pursuant to s 460 of the Act. It then notified both the Tribunal and the plaintiff of the decision to investigate the complaint. The complaint was investigated in accordance with s 462 (1). A report of the investigation was then prepared and it was presented to the Tribunal. After considering the report, the Tribunal gave notice of its decision to conduct a hearing into the complaint (the Notice). The Notice was dated 1 June 2001. 5 Following various preliminary hearings and other interlocutory activities, the hearing of the complaint commenced on 17 December 2001. The plaintiff was allowed to have the assistance of a Mr Ash. The complaint concerned a contravention of the pecuniary interest provisions of the Act. Evidence was taken and there is a transcript of the proceedings. During the hearing, the plaintiff was taken to have admitted a contravention of the provisions and the Tribunal proceeded to deal with what was then regarded as the only issue (the action to be taken under s 482). This concerned the question of penalty (there were submissions as to whether there should be counselling or a reprimand). The Tribunal reserved its decision on the matter. 6 Subsequently, the plaintiff sought leave to make further submissions. There were further applications. These involved inter alia an application to review an earlier decision, an application to re-open and withdraw the admissions. There was also an attempt to further agitate a question of the issue of subpoenas for the purposes of any hearing following a re-opening. The applications were heard on 4 February 2002. In the application for review, he argued that he had not been given the opportunity to be heard by the Tribunal prior to the making of that decision. 7 On 1 March 2002, the Tribunal delivered what were said to be Statements of Decisions (there were three of them). One of them dealt with the earlier decision made to conduct a hearing. One dealt with inter alia the application to re-open. The remaining one dealt with the questions of contravention and penalty. 8 The application for review was rejected. The application to re-open and to withdraw the admissions was also rejected. The Tribunal found that the complaint had been proved (inter alia it found that he had a pecuniary interest which he had failed to disclose at the meeting) and it reprimanded him. 9 Findings were made (independently of the admissions) which in the view of the Tribunal clearly established the case brought against him. Indeed, it was said that there had not been any serious contention to the contrary. The admissions were regarded as being clearly correct. 10 The approach taken by the plaintiff in the conduct of this appeal could be said to be unusual. Although numerous matters were propounded, in the main they were not directed to the decisions of the Tribunal following the hearing but to peripheral matters which took place prior thereto. He did not challenge the rejection of his application to re-open and withdraw his admissions. He avoided mention of the admissions. He was loath to make any concessions concerning his earlier proceedings. He said little about the matter of penalty and did not seek to identify any error in relation to it. 11 The plaintiff is a prolific producer of documentation. He has prepared many bundles of documents. These were presented as points of contention. The ultimate document was the further amended and clarified Points of Contention dated 14 October 2002. In addition to relying on this material, he has made oral submissions at great length. Indeed, the hearing of this meritless appeal took up more than a day (this was in addition to the numerous other times it was before the court). There were matters raised in both the grounds of appeal and the Points of Contention that were not raised or pressed. Indeed, during the hearing of the appeal it appeared that many were abandoned on the basis that they were clearly hopeless. 12 The second defendant has said that the appeal has been brought out of time (it is to be brought within 28 days after the day on which the Statement of Decision is provided to the person making the appeal). If that is the case, only a small number of days are involved. Although it is said that no explanation has been offered, no submissions are made in respect of any application to extend time to appeal against the decisions made on 1 March 2002. The plaintiff disputes that the appeal is incompetent and has not pressed for an extension of time. For present purposes, this question can be put aside. 13 During the course of the hearing of the appeal, it became apparent that the plaintiff was putting submissions which sought to challenge the decision made on 1 June 2001. Any appeal against that decision would be incompetent. It would be well out of time and no satisfactory explanation has been offered for the default. It could also be said that the submissions stand at odds with the nature of the process and the statutory scheme. The second defendant opposes any application for extension of time. No such application has been made. 14 A threshold question for the court was the nature of the appeal conferred by s 485. The court has been told that this is the first appeal brought pursuant to that provision. The section does not contain any express provision which provides assistance as to the nature of the appeal. It is not restricted to error of law. Subsection (1) simply says that a party to a proceeding before the Tribunal may appeal to the Supreme Court against any decision of the Tribunal in the proceeding. 15 It is not in dispute that s 75A of the Supreme Court Act 1970 has application to this appeal. This is a case where the decision or other matter under appeal has been given after a hearing. Accordingly, the appeal is to be by way of rehearing (subsection (5) ). 16 This does not mean that the plaintiff is entitled to a hearing de novo. Subject to the operation of subsections (7) and (8) the appeal is conducted on the evidence placed before the Tribunal. The parties are restricted to a litigation of the issues raised before the Tribunal, at least where the failure to raise the point may have affected the conduct of the hearing (Chilcotin Pty Ltd v Cenelarge Pty Ltd [1999] NSWCA 11).

17 Where there has been a hearing on the merits, the court can only receive further evidence if special grounds are shown. It was not said that there were any special grounds in this case and no attempt was made to tender fresh material. 18 The authorities demonstrate that in an appeal by way of rehearing, the powers of the appellate court are exercisable only where the appellant can demonstrate some legal, factual or discretionary error, unless the statute indicates that the powers may be exercised whether or not there was error at first instance (Allesch v Maunz (2000) 203 CLR 172 at 179-180). 19 The second defendant contends that the plaintiff must first demonstrate such error. The question was not argued by the plaintiff and it seems to me to be one on which the court should have the benefit of full argument (particularly in the light of the language used in s 485 (1) ). In any event, this appeal can be disposed of without resolving it.

20 The subject matter of the complaint concerned a meeting of the Council held on 28 September 1999 and a motion put at that meeting regarding rejection of the Stadium. In relation to that motion, it was contended that the plaintiff took part in the consideration and discussion of it and voted on it but did not disclose his pecuniary interest in the matters with which the Council was concerned. The pecuniary interest concerned the matter of costs in the earlier proceedings in this Court.

21 Numerous matters have been agitated during the course of the submissions made by the plaintiff. The statement of grounds relied on by the plaintiff contains the following:- "In accordance with Supreme Court rules 51Ar5 the Plaintiff in the Appeal against the decision of the NSW Local Government Pecuniary Interest Tribunal relies (but not exclusively) on the common law grounds for judicial review which include: 'ultra vires' - lack of jurisdiction; lack of procedural fairness; acting under dictation; real or apprehended bias; inflexible application of a policy; taking into account irrelevant considerations; failing to take into account relevant considerations; extraneous (improper) purpose; error of law on the face of the record; no evidence; bad faith; and 'Wednesbury' unreasonableness. The Plaintiff believes that the NSW Local Government Pecuniary Interest Tribunal and Director General NSW Department of Local Government should take a submitting appearance in the proceedings." 22 It would be flirting with the near impossible (and also unproductive) to embark on the formidable task of expressly dealing with each and every one of the innumerable matters argued by the plaintiff. It suffices to say that I regard each and every one of them as being without substance. However, apart from briefly dealing with matters raised in the grounds of appeal, I shall specifically mention certain of the arguments that were presented in oral submissions. 23 Before proceeding further I should briefly refer to the relevant statutory scheme (that was then in operation) and make some further observations as to its application in this case. 24 Chapter 14 of the Act is headed "Honesty and disclosure of interests". It imposes duties of conduct and of disclosure. Section 442 defines "pecuniary interest". Section 444 prescribes what disclosures must be made by a councillor. Section 448 identifies interests that do not have to be disclosed. There are to be written returns of interests in accordance with s 449. There must be a disclosure of pecuniary interests in accordance with s 451. Section 451 imposes a requirement upon a councillor who has a pecuniary interest in any matter with which the council is concerned and who is present at a meeting of council at which the matter is being considered to disclose the nature of the interest to the meeting as soon as practicable. It also imposes a requirement that the councillor must not take part in the consideration or discussion of the matter and must not vote on any question relating to the matter. Section 453 provides that a disclosure made at a meeting must be recorded in the minutes of the meeting. Chapter 14 has application to every councillor, member of staff of a council and delegate of a council. 25 Section 442 was in the following terms:- " 442 What is a "pecuniary interest"? (1) For the purposes of this Chapter, a pecuniary interest is an interest that a person has in a matter because of a reasonable likelihood or expectation of appreciable financial gain or loss to the person or another person with whom the person is associated as provided in section 443. (2) A person does not have a pecuniary interest in a matter if the interest is so remote or insignificant that it could not reasonably be regarded as likely to influence any decision the person might make in relation to the matter or if the interest is of a kind specified in section 448." 26 In the present case, the plaintiff had brought proceedings in this Court prior to him becoming a councillor. At the time of the meeting, at the very least, he had potential liability in respect of costs of those proceedings (subsequently this ripened into an actual liability in excess of $65,000). He and two other councillors gave notice of the relevant motion. The relevant resolution did identify the proceedings and the parties thereto but there was no disclosure of the nature of the interest had by the plaintiff. Clause 2.5 thereof required that the Council join, fund and assist the legal proceedings. If the resolution was passed, the plaintiff had at the very least an expectation of appreciable financial gain in respect of the costs of the proceedings. 27 There was evidence before this Court that at the meeting the plaintiff had a very clear opportunity to declare his interest and that he did not take that opportunity to do so. The evidence establishes that he remained silent. 28 The evidence reveals that subsequently the matter of his interest was raised by another councillor and that the plaintiff then sought to have clauses 2.5 and 2.6 excised from the resolution. His attempt to do so was unsuccessful. 29 There seems to be no dispute that he remained present at the meeting and that when the motion was put, he voted in favour of it. The resolution was defeated. 30 For completeness, I should mention that the proceedings were dismissed by Windeyer J on 8 March 2000 and that an order for costs was made against the plaintiff. 31 Part 3 of Chapter 14 deals with complaints concerning non-disclosure. Section 460 enables a person to make a complaint to the Director-General. Section 462 enables the Director-General to investigate a complaint. Section 463 gives the Director-General a power to decide to take no action concerning the complaint. Section 465 requires the Director-General to notify the Tribunal of a decision to investigate a complaint or to refer a complaint for investigation to an authority. Section 468 requires the Director-General to present a report to the Tribunal of an investigation into a complaint. Section 469 enables the Tribunal to conduct a hearing into the complaint (after consideration of the report). Section 470 prescribes what the Tribunal must do if it decides not to conduct a hearing into the complaint (it must provide a written statement of its decision including reasons). Division 2 contains provisions concerned with the conduct of proceedings before the Tribunal. Section 482 enables the Tribunal, if it finds a complaint against a councillor is proved, to counsel, reprimand, suspend or disqualify the councillor. 32 In the present case, the complaint was made by the Director-General himself. Accordingly, provisions contained in subsection (2) of s 460 did not have application (including the requirement that the complaint must be verified by statutory declaration). 33 Following the taking of evidence and a short adjournment, the Tribunal was advised that there had been discussions between the parties and that the plaintiff was prepared to admit a formal contravention of the legislation and that the Director-General took the view that it was not a matter that fell at the serious end of the spectrum. The plaintiff said that "if we are going to cut to the chase in this matter", he could certainly admit that he didn't say anything at the meeting when a call had been made for declarations of interest. The Tribunal then indicated that its view as to penalty was not dissimilar from that expressed by the Director-General (I should add that in a submission made during this appeal, the plaintiff erroneously contended that this expression of view by the Tribunal was evidence of bias). The submissions on penalty were then made (including a submission from the plaintiff concerning mitigating circumstances) and the Tribunal reserved its decision. As has been earlier said, then followed further submissions and further applications from the plaintiff (including an attempt by the plaintiff to qualify what had been said by way of admission). 34 In reaching the decision that the plaintiff should be reprimanded, the Tribunal said that it had regard to all of the circumstances and that appears to be the case. The circumstances included the nature and circumstances of the non-disclosure, the Tribunal's concern as to the plaintiff's reluctance to acknowledge his wrongdoing and the steps taken by him subsequent to the hearing on 17 December 2001. 35 The material shows that the plaintiff did his best to make the proceedings a drawn out and protracted affair. What eventuated was time consuming and an unnecessary expenditure of resources. It was a matter that could have been dealt with expeditiously had the plaintiff wished to take that course. If he had chosen to take the path of co-operation and frankness, he may have placed himself in a position entitling him to a different result (such as merely being counselled). 36 I now turn to matters raised in the grounds of appeal. 37 The plaintiff has made complaints which he describes as involving the Tribunal acting under dictation and being inflexible in application of policy. They were not mentioned during oral submissions and it is unclear how the plaintiff intended to rely on them. The material does not give any support to them. In my view, there is no substance whatsoever in any of these complaints.

38 There is no evidence of real bias. The allegations of apprehended bias and of bad faith are without substance and nothing was said to support them. Nothing was said to identify any "Wednesbury" unreasonableness or make those considerations relevant to this appeal.

39 I am not satisfied that the Tribunal took into account considerations that were irrelevant. I am not satisfied that the Tribunal failed to take into account matters that were relevant.

40 In my view there has been no denial of procedural fairness. The plaintiff has had more than a full opportunity to be heard. Indeed, he seems to have been afforded extraordinary latitude and indulgence in circumstances where he has made voluminous and unnecessary applications and submissions. A narrative of the protracted history of the complaint process may be found in the principal Statement of Decision of the Tribunal. 41 I am not satisfied that there has been any error either of fact or of law which would justify the disturbing of the decision of the Tribunal.

42 Orally, there were various arguments presented as going to questions of jurisdiction of the Tribunal or it acting ultra vires. In some respects, the same argument was put in relation to both questions. 43 There was reference made to ss 430, 431 and 433 of the Act. It was then said that there was non-compliance with the mandatory requirements of s 433 (which relates to report of investigation). The problem with this submission (as was the case with so many of the other submissions), was its lack of relevance. Section 433 appears in Part 5 of Chapter 13 of the Act and concerns investigation of complaints about councils and officers of councils. The complaint in this case involved the provisions of Part 3 of Chapter 14 and the investigation provisions contained in s 462. 44 There were submissions which were founded on the alleged presence of material in the Notice, which was said not to earlier appear in the complaint. In some way, this was said to demonstrate not only that the Tribunal had acted beyond its powers but that there was also bias. In my view, the substance of the two documents was similar. Even if a different view were to be taken on this matter, the submissions were otherwise untenable. 45 There was a submission to the effect that there was a failure to provide requested particulars. This Court was referred to a request for particulars "matters" in the Notice (which were described therein as the matters set forth in 2.5 and 2.6 of the motion before council). The Notice in fact set out the contents of the motion in full. 46 The thrust of these submissions seemed to be that the failure to give these particulars disadvantaged the plaintiff both in his conduct of the proceedings and in making an application for legal aid. 47 In my view, he did not need the requested particulars and I am unable to see how he was disadvantaged (and I leave aside the question of how this matter could in any way enhance his prospects in this appeal). Indeed, his action in relation to such request is illustrative of the conduct that made the dealing with this complaint such a burdensome task. 48 I shall briefly refer to some of the other arguments, all of which in my view were either untenable or did not assist him. There was a misconceived submission that by reason of the provisions of s 448 his pecuniary interest did not need to be disclosed. There was another submission to the effect that he merely had a conflict of interest and not a pecuniary interest. There was another submission that he did in fact disclose the interest. It was all said to be in the public domain and that the terms of the motion linked the interest so that it was more or less like a disclosure. These submissions were unsustainable in the light of the material. There was yet a further submission which seemed to be to the effect that there were mitigating circumstances attending his failure to disclose the interest. These were taken into account in reaching the decision on penalty. There was a misconceived allegation of non-compliance with s 460. This overlooked the contents of subsection (3) of that provision and the fact that the complaint was made by the Director-General. 49 I should also mention that the plaintiff has placed emphasis on an earlier decision made by the Tribunal in the case of Hamparsum. The decision in that case saw the subject of the complaint being exonerated. I do not consider that the decision assists the plaintiff in the present case. It was a decision made by the Tribunal pursuant to s 470 (it decided not to conduct a hearing). 50 The plaintiff bears the onus of demonstrating that the decisions of the Tribunal should be disturbed. In my view, the plaintiff has failed to discharge that onus. 51 The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings. The Exhibits may be returned.

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