Davis v The Corporation of the City of Adelaide

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
DAVIS v THE CORPORATION OF THE CITY OF ADELAIDE & ORS
[2025] SASC 42
Judgment of the Honourable Justice Stein
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GENERALLY
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS
The applicant commenced judicial review proceedings against the respondents alleging a decision to refer complaints made about the applicant to investigation was infected by error. The application relied on an asserted failure by the respondents to afford the applicant procedural fairness, including on the basis the third respondent was in a position of conflict of interest, and that the decision to refer was unreasonable as the complaint was vexatious, frivolous and trivial.
The first to third applicants brought an interlocutory application seeking orders including for strike out or summary dismissal of the proceedings contending that there was no reasonable basis for any of the grounds of review.
The respondents contended the complaints policy was complied with, there were no further procedural fairness obligations owed to the applicant, there was no actual or apprehended bias on the part of the third respondent, and the Court could not be satisfied that the decision was not open to the decision maker in all of the circumstances.
Held (allowing the application and summarily dismissing the application for judicial review):
1. There is no reasonable basis for any of the grounds of review relied upon by the applicant.
Local Government Act 1999 (SA) ss 61, 75F, 262A, 262B; City of Adelaide Act 1998 (SA) ss 5, 20, 21, 23; Local Government (Elections) Act 1999 (SA); Uniform Civil Rules 2020 (SA) rr 144.2, 256.5, referred to.
Webb v Department for Correctional Services [2023] SASCA 110; Vansetten v State of South Australia [2020] SASC 158; Hart v Parole Board [2017] SASC 184; Kioa v West (1985) 159 CLR 550; Annetts v McCann (1990) 170 CLR 596; Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; Saraceni v Australian Securities and Investments Commission (2013) 211 FCR 298; C v Independent Commissioner Against Corruption (2020) 136 SASR 215; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Cornall v AB (a solicitor) (1995) 1 VR 372; Harradine v Chief Executive of the Department of Education [2021] SASC 139; QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 409 ALR 65; Stead v State Government Insurance Commission (1986) 67 ALR 21; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; Nathanson v Minister for Home Affairs (2022) 403 ALR 398; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, considered.

DAVIS v THE CORPORATION OF THE CITY OF ADELAIDE & ORS
[2025] SASC 42
Civil: Application

STEIN J: Mr Davis is a council member of The Corporation of the City of Adelaide (the “Council”). In mid-2024, a complaint was made about Mr Davis’ conduct during a Council meeting. Steps were taken to assess the complaint and determine whether an investigation should be conducted into any of the matters raised in the complaint. After a decision was made to refer aspects of the complaint to investigation, Mr Davis commenced judicial review proceedings against the Council, Mr Sedgman (CEO of the Council), Dr Lomax-Smith (the Lord Mayor) and Ms D’Agostino.[1] The City of Adelaide, Mr Sedgman and Dr Lomax-Smith (the “respondents”) have sought orders striking out or dismissing the judicial review application or, in the alternative, seeking summary judgment or, in the alternative, the removal of the second and third respondents as respondents to the proceedings.
[1] Ms D’Agostino of Norman Waterhouse prepared the preliminary assessment of the complaint. After commencing the proceedings, Mr Davis discontinued as against Ms D’Agostino.
Mr Davis relies on asserted denials of procedural unfairness and unreasonableness. The respondents assert there is no reasonable basis for any of the grounds of review.
For the reasons which I set out below, I have determined to summarily dismiss Mr Davis’ application for judicial review.
Background
Complaint against Mr Davis
On 12 June 2024, Dr Lomax-Smith, Lord Mayor, sent a letter to Mr Davis regarding a complaint of breaches against Mr Davis under the Council’s Council Members Complaints Policy (the “Complaints Policy”). The Lord Mayor’s letter to Mr Davis enclosed a copy of the complaint and the Complaints Policy and informed Mr Davis that, under the Complaints Policy, the Lord Mayor was responsible for managing the complaint. The Lord Mayor advised Mr Davis that she had engaged a third party to assist with the initial assessment of the complaint. Mr Davis was informed of his opportunity to respond to the complaint and given a timeframe of a fortnight within which to do so.
The complaint against Mr Davis dated 7 June 2024 was anonymous. The complainant asserted that Mr Davis had breached behavioural standards during discussion of item 17.1 at a Council meeting on 28 May 2024. Evidence for the complainant was said to be found in a YouTube recording of the meeting. First, it was said that Mr Davis had accused councillors of being a member of a faction in breach of Council Member Commitments 4(a), (b), (c) and 5. Second, the complaint alleged Mr Davis received and sent messages on his mobile phone in breach of Council Member Commitments 4(a), (c) and 5. Third, the complaint asserted that when the Lord Mayor asked Mr Davis to stop using his mobile phone, Mr Davis collapsed the quorum for the meeting by withdrawing, halting proceedings, and refusing to return to the meeting in breach of the Council Member Commitments.
The complainant asked not to be identified.
Mr Davis responded to the Lord Mayor by email dated 17 June 2024. He asserted that the Council needed to follow the Code of Conduct procedure and arrange a meeting with the complainant. Mr Davis stated he was happy to make submissions in person as well as meeting with the complainant. Mr Davis also made a complaint about other councillors and requested copies of all correspondence between those councillors since their election together with a study of all votes that have taken place. Mr Davis asserted a failure to provide the requested information would be to deny him procedural fairness.
The email sent by Mr Davis on 17 June 2024 was referred to the Acting Manager of Governance at the Council.
Dr Lomax-Smith deposed to sending correspondence to Mr Davis in her capacity as the person responsible for managing the complaint according to the Council’s Complaint Policy. Dr Lomax-Smith liaised with the Acting Manager of Governance at the Council to engage Norman Waterhouse Lawyers to provide assistance with the initial assessment of the complaint.
After receiving a text message from Mr Davis on 18 June 2024 requesting an opportunity to see her in relation to Codes of Conduct, Dr Lomax-Smith said that on 21 June 2024, Dr Lomax-Smith and Mr Sedgman met with Mr Davis. Dr Lomax-Smith prepared a set of notes immediately after the meeting which she exhibited to her affidavit. The notes taken by Dr Lomax-Smith recorded complaints made by Mr Davis about block voting by a faction and complaints by Mr Davis of unfair treatment, including ignoring aspersions made by other councillors in speeches. Mr Davis claimed Dr Lomax-Smith interrupted him, prevented him asking questions, the Council administration failed to ever answer his questions and Mr Davis was prevented from doing his job by debate being stifled and allowing the Council administration to refuse to answer questions.
On 1 July 2024, Dr Lomax-Smith wrote to Mr Davis in response to his email of 17 June 2024. The letter stated that the Council Member Complaints Policy did not require the Lord Mayor to arrange for Mr Davis to meet with the complainant, nor did it enable Mr Davis to require a meeting with the complainant and the complainant had requested their identity be kept confidential. The letter stated that if Mr Davis wished to respond to the complaint, he should do so in writing by 12 July 2024. Dr Lomax-Smith referred Mr Davis to the Complaints Policy and the requirements for making a complaint and attached a copy of the Complaints Policy. The letter pointed out how requests for access to documents could be made and observed that votes are only recorded if a division is taken.
On 2 July 2024, Mr Davis sent an email to the Lord Mayor to say he was happy to make his submission in person, asked who was the investigating officer and stated the Lord Mayor was conflicted and ought not be involved. In further correspondence that day, Mr Davis objected to the Lord Mayor being the investigating officer, requested she recuse herself, stated he could not respond properly without being given “this information”, and stated a failure to do so would be a failure to afford procedural fairness.
On 24 July 2024, Dr Lomax-Smith wrote to Mr Davis to request he identify why he asserted she had a conflict in dealing with the matter and reiterated that a third party had been engaged to assist in the assessment of the complaint. While observing that it was not the usual process to meet in person, Dr Lomax-Smith said she was willing to meet in person with the third party assisting the assessment of the complaint and asked if Mr Davis was available to attend a meeting on 29 July 2024. The letter also informed Mr Davis that no investigation officer had yet been assigned to the matter because it was being assessed in accordance with the Complaints Policy to determine what action was to be taken. Dr Lomax-Smith pointed out that a request to the Chief Executive Officer under s 61 of the Local Government Act 1999 (SA) (the “Local Government Act”) needed to be made by the elected member requiring access to the information and that a failure to forward his request for information to the Chief Executive Office did not deny Mr Davis procedural fairness.
Preliminary assessment
On 28 August 2024, the Lord Mayor wrote to Mr Davis to inform him that Norman Waterhouse had undertaken a preliminary assessment regarding the three allegations. A copy of that assessment was enclosed.
The preliminary assessment by Norman Waterhouse considered the first allegation to be frivolous or vexatious on the basis that merely asserting someone was part of a faction would not support a breach of the Behavioural Support Policy.
The preliminary assessment referred to the Council’s Code of Practice for Meeting Procedures, in particular to the use of mobile phones, and concluded that the second allegation warranted investigation as, if the alleged conduct did occur, taken at its highest, the allegation could constitute a breach. The preliminary assessment concluded the third allegation warranted further investigation. It related to, and it was considered appropriate that it be addressed together with, the second allegation.
The preliminary assessment recommended that the Lord Mayor, as the person responsible for managing the complaint, determine to take no further action in relation to the first allegation and determine that an investigation be conducted in relation to the second and third allegations. The letter of the Lord Mayor advised Mr Davis that, as the person responsible for managing the complaint, the Lord Mayor agreed with the preliminary assessment and had referred the investigation of the second and third allegations to a third party.
Concerns notices
Separately, and before the complaint was made, on 3 November 2023, Sykes Bidstrup, acting for Dr Lomax-Smith sent to Mr Davis a concerns notice pursuant to s 12A of the Defamation Act 2005 (SA) asserting that Mr Davis defamed Dr Lomax-Smith on two dates in October 2023. On 19 June 2024, Sykes Bidstrup sent to Mr Davis another concerns notice asserting further circumstances of defamation during a Council meeting on 11 June 2024.
Relevant legislation and policies
City of Adelaide Act
Under the City of Adelaide Act 1998 (SA) (the “CouncilAct”), the Adelaide City Council comprises the Lord Mayor and eight other members.[2] The Lord Mayor is, among other things, the principal elected member of the Council.[3]
[2] City of Adelaide Act 1998 (SA), s 20.
[3] City of Adelaide Act 1998 (SA), s 21.
Section 23 of the Council Act requires the Council to prepare a Code of Conduct to be observed by the members of the Council.
Section 5 of the Council Act provides that the Council Act, the Local Government Act and Local Government (Elections) Act 1999 (SA) (the “Elections Act”) will be read together and construed as if the three Acts constituted a single Act.
Local Government Act
Section 75F of the Local Government Act provides that a council may prepare and adopt policies designed to support appropriate behaviour by members of the council. Such a behavioural support policy may set out guidelines and specify directions relating to behaviour.
Section 262A of the Local Government Act provides that a council must deal with complaints of breach of behavioural standards or any behavioural support policy of a council.
Section 262B of the Local Government Act provides that a council must prepare and adopt a policy relating to the management of members of the council. A behavioural management policy must address specific matters enumerated in the Local Government Act.
Council Complaints Policy
The Complaints Policy adopted by the Council on 27 February 2024 provides that the Complaints Policy has been prepared and adopted pursuant to s 262B of the Local Government Act and constitutes the Council’s Behavioural Management Policy under that section of the Local Government Act. It forms part of the Behavioural Management Framework for Council members.
The Complaints Policy provides that where a formal complaint is made, it is to be given to the person responsible for managing the complaint and the person complained about within a specified number of business days of receipt or as soon as reasonably practicable. The person complained about will be informed that an assessment will be undertaken in accordance with the Complaint Policy and invited to provide a response.
Upon receipt of a formal complaint, the person managing the complaint will perform an assessment and determine what action will be taken. Alternatives include:
·refuse to deal with the complaint;
·determine to take no further action;
·refer the matter to an alternative dispute resolution mechanism;
·require the person complained about to undertake training, counselling or coaching;
·refer the matter to another body or agency;
·enquire into a complaint in accordance with council member complaint guidelines;
·conduct an investigation themselves;
·delegate the conduct of an inquiry to any person or body considered appropriate in the circumstances.
To assess the formal complaint, the person responsible for managing the complaint should discuss the complaint with the complainant, the person complained about, and any witnesses. The person responsible for managing the complaint may engage a third party to assist with the investigation.
If the person complained about wishes to provide a response to the formal complaint to assist the assessment, they must do so within 10 days of receipt of the complaint or such longer period as the person responsible for managing the complaint may allow. The person responsible for managing the complaint will take into consideration any response provided by the person complained about when determining what action will result from the assessment.
The result of the assessment will be communicated to the person complained about and the complainant with reasons in writing within a specified number of business days of the due date of a response from the person complained about. At the conclusion of the assessment, the person responsible for managing the complaint may make recommendations.
Where the assessment results in a decision to conduct an investigation, the person responsible for managing the complaint will engage a third party to conduct the investigation.
The Complaints Policy contains requirements for the conduct of investigations. The person conducting the investigation must, among other things, prepare a draft report setting out findings, conclusions and recommended actions. They must provide a copy of the draft report to the parties to the complaint with an opportunity to make submissions in relation to the draft report.
If either party is dissatisfied with the outcome of a formal action, either may refer the matter to the Ombudsman.
The person conducting the investigation will have regard to any submissions made when preparing the final report.
Investigations will result in one or more of outcomes being:
·no breach found;
·breach found and actions agreed;
·breach found and actions not agreed.
The Complaints Policy sets out what will occur in the case of each alternative.
The Complaints Policy relevantly provides that the person responsible for managing the complaint means the Lord Mayor, subject to any resolution of the Council to the contrary.
Legal Principles
Judicial review – summary judgment application
Rule 256.5(2) of the Uniform Civil Rules 2020 (SA) (the “UCR”) provides that where a respondent applies for summary judgment in relation to a judicial review application, no further steps are required to be taken by any party other than for the purposes of the application until it has been determined. The Court must dismiss the action for judicial review unless the Court is satisfied there is a reasonable basis for it.[4] The applicant bears the onus of demonstrating a reasonable basis for the judicial review proceedings.[5]
[4] Uniform Civil Rules 2020 (SA), r 256.5(3).
[5] Webb v Department for Correctional Services [2023] SASCA 110 at [48] (Lovell, Bleby and David JJA).
There is no practical difference between r 144.2 and r 256.5(3)(a) of the UCR[6] save and except that the onus to satisfy the Court there is a reasonable basis rests on the applicant.[7] Exercise of the power to determine an action summarily requires a practical assessment of whether the applicant has real, as opposed to merely fanciful, prospects of success. The Court need not be satisfied that the action is bound to fail or is hopeless. However, the Court should be cautious not to do injustice by summarily determining an action, particularly if there are disputed issues of fact or law, merely because the Court considers the application is unlikely to succeed.[8] If the Court is satisfied there is no reasonable basis to exercise a discretion to grant the relief sought, even if a ground of review were to be made out, the Court should dismiss the applicant’s claim.[9]
[6]    Vansetten v State of South Australia [2020] SASC 158 at [68] (Doyle J).
[7]    Hart v Parole Board [2017] SASC 184 at [8] (Stanley J) (writing in respect of the Supreme Court Rules 2006 (SA) which are similar to UCR rr 144.2 and r 256.5).
[8]    Vansetten v State of South Australia [2020] SASC 158 at [68] (Doyle J).
[9]    Vansetten v State of South Australia [2020] SASC 158 at [69] (Doyle J).
Procedural fairness principles
There is a common law duty to accord procedural fairness in making administrative decisions which affect the rights, interests and legitimate expectations of a person. That duty is subject to the clear manifestation of a contrary statutory intention.[10] Where legislation confers power on a public official to prejudice a person’s rights, interests or legitimate expectations, unless excluded by plain words, rules of procedural fairness regulate the exercise of the power.[11]
[10] Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584 (Mason J).
[11] Annetts v McCann (1990) 170 CLR 596 at 698 (Mason CJ, Deane and McHugh JJ).

Procedural fairness requires a decision maker to adopt a procedure which is reasonable in the circumstances. This generally includes giving to a person whose interest may be affected by the exercise of the power a reasonable opportunity to be heard.[12]
[12] Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 at [82] (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ).
Where there is a statutory power to conduct an inquiry, generally speaking, giving a person whose interests may be affected a reasonable opportunity to be heard requires putting that person on notice of the nature and purpose of the inquiry, the issues to be considered and the nature and content of information the person undertaking the inquiry might take into account as a reason for coming to a conclusion adverse to the person.[13]
[13] Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 at [83] (French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ).
Not every investigatory power will attract a duty of procedural fairness. Where there is no power to make findings or recommendations, it is less likely there will be an obligation to accord procedural fairness. The overriding question will be whether the exercise of the investigative power carries a capacity to destroy or prejudice the rights or interests of the person affected by the exercise of the power so as to attract procedural fairness.[14]
[14] Saraceni v Australian Securities and Investments Commission [2013] FCAFC 42; (2013) 211 FCR 298 at [101]-[102] (Jacobson J, Gilmour J agreeing).
Investigative decision making processes which occur in stages often require preliminary decisions to be made which may affect the interests of individuals adversely. However, that does not mean that procedural fairness is required in relation to “every discernible effect”.[15] Where a decision-making process involves a number of stages before a final decision is made, procedural fairness requirements are met if the decision-making process, when viewed in its entirety, accords procedural fairness.[16] Where there is power to investigate conduct to determine whether there is sufficient basis to justify referral of the conduct to a separate disciplinary body, the decision making process may be properly characterised as forming an entire process entailing procedural fairness at the second stage.[17]
[15] C v Independent Commissioner Against Corruption [2020] SASCFC 57; (2020) 136 SASR 215 at [77] (Bleby J, Stanley J agreeing).
[16] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564 at 576 (Mason CJ, Dawson, Toohey and Gaudron JJ).
[17] See, for example, Cornall v AB(a solicitor) [1995] VICSC 7; (1995) 1 VR 372.
Bias
When an assertion of actual or apprehended bias is made, the relevant test is whether a fair-minded lay observer might reasonably apprehend that the decision maker might not bring an impartial and unprejudiced mind to the matter.[18] It is necessary to identify what factor it is said might lead a decision maker to resolve a question other than on its legal and factual merits and to explain the logical connection between that factor and the feared deviation from deciding the question on its merits.[19] The reasonableness of that apprehension is to be considered from the perspective of a fair-minded lay observer.[20]
[18] Harradine v Chief Executive of the Department of Education [2021] SASC 139 at [5] (Livesey J); QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 409 ALR 65 at [37] (Kiefel CJ and Gageler J).
[19] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 409 ALR 65 at [37]-[38] (Kiefel CJ and Gageler J).
[20] QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 409 ALR 65 at [38] (Kiefel CJ and Gageler J).
Materiality
Generally speaking, a denial of procedural fairness must be material to the decision in order to justify a grant of relief.[21] Materiality of a breach of procedural fairness requires consideration of how the decision was made and whether the decision could have been different if the relevant obligation been complied with as a matter of reasonable conjecture.[22] It is not necessary to show how the applicant may have taken advantage of the opportunity lost by the failure to accord procedural fairness nor must the applicant prove the nature of any evidence or submissions that may have been put.[23]
[21] Stead v State Government Insurance Commission [1986] HCA 54; (1986) 67 ALR 21 at 24 (Mason, Wilson, Brennan, Deane and Dawson JJ); Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421 at [45]-[46] (Bell, Gageler and Keane JJ); Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398 at [45] (Gageler J).
[22] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398 at [32]-[33] (Kiefel CJ, Keane and Gleeson JJ); at [45] (Gageler J).
[23] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 403 ALR 398 at [39] (Kiefel CJ, Keane and Gleeson JJ).
Unreasonableness
In order to establish that an administrative decision is unreasonable, it is necessary to show that a purported exercise of power is so unreasonable that no reasonable repository of the power could have exercised the power in that way.[24] When a court reviews an administrative decision which is asserted to be unreasonable, the Court is concerned with justification, transparency and intelligibility in the decision making process but also whether the decision falls within a range of acceptable, defensible outcomes.[25] Where the decision is made by an administrative decision maker and the exercise of the power is legitimately informed by considerations of policy, there will be practical difficulties in establishing that the decision is unreasonable in the sense required.[26] Judicial officers should not lightly interfere with official decisions on the grounds of unreasonableness.[27] It is generally harder to be satisfied that an administrative body has acted unreasonably when the discretion is wide or affected by policies of which the court has no experience.[28]
[24] Ministerfor Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [106] (Gageler J).
[25] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [105] (Gageler J).
[26] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [108] (Gageler J).
[27] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [106] (Gageler J).
[28] Minister for Immigration and Citizenship v Li [2013] HCA 18; (2013) 249 CLR 332 at [111] (Gageler J), quoting, Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 at 541 (Brennan J).
Mr Davis’ submissions
Mr Davis challenges the Lord Mayor’s decision to refer the second and third allegations for further investigation.
Mr Davis seeks an order quashing the decision on the grounds of procedural unfairness and unreasonableness.
Mr Davis deposed to meeting with the Lord Mayor and the Chief Executive Officer prior to 28 August 2024 and raising issues with the complaint and the handling of the complaint. Mr Davis’s affidavit asserts that the Lord Mayor had a conflict of interest and she should not have been associated with the complaint (by reason of the concerns notices issued against him). Mr Davis pointed to what he characterised as the trivial, vexatious nature of the complaint; his right to use his phone in acting as an elected member on Council; that the complaint should not be progressed as it would be a complete waste of ratepayer money; that other councillors’ conduct breached the behavioural support policy; that he had raised complaints of bullying and harassment which had been dismissed without further investigation and the Lord Mayor had continually failed to manage bullying against him and others within the Council.
Mr Davis contended that the concerns notices created a potential reasonable apprehension of bias such that the Lord Mayor should have recused herself from handling the complaint.
Mr Davis complained that in conducting the preliminary assessment there was a failure to consider submissions he made in response to the complaint. Mr Davis contended there was a failure to consider his complete response which represented a significant procedural error affecting the integrity of the investigation and prejudicing his ability to defend himself effectively.
Mr Davis contended that it was unreasonable for the Lord Mayor not to have determined that the nature of the complaint regarding the use of his mobile phone was trivial compared to more substantive matters addressed by the Council and the complaint appeared to be motivated by personal grievances, rather than procedural breach. Mr Davis contended that the alleged actions of sending a few text messages did not breach the Council’s prohibitions. Mr Davis contended there was no evidence the complaint met the threshold for further action and the failure to assess that properly constituted an unreasonable decision-making process.
Mr Davis’ position was that the Lord Mayor failed to apply the Complaints Policy correctly and her failure to consider grounds for dismissing the complaint demonstrated unreasonableness resulting in improper use of Council resources and an unjustifiable continuation of the complaint process.
Respondents’ submissions
The respondents contended that the only procedural fairness obligations which the respondents had to accord to Mr Davis were those set out in the Complaints Policy. The procedural fairness obligations in relation to the preliminary assessment had to take into consideration the entirety of the complaints process addressed in the Complaints Policy. The respondents pointed to the staged process envisaged by the Complaints Policy, observing that the investigation is yet to be conducted. The respondents submitted that the respondents complied with the Complaints Policy and nothing further was required.
In relation to the assertions of bias, the respondents submitted there was no evidence the Lord Mayor acted improperly or other than in accordance with the Complaints Policy. Further, the issuing of concerns notices did not create an actual or apprehended bias on the basis the exercise of a personal right by the Lord Mayor was distinct from her role in her capacity as delegate of the power in the Council to address complaints against members. The Lord Mayor’s involvement in the complaint handling process was described as limited, militating against any conclusion of actual or apprehended bias. Alternatively, while denied, if there was any denial of procedural fairness, it was contended it was not material to the decision.
The respondents submitted that legal unreasonableness requires the Court to conclude the outcome was not open to the decision maker, not simply that the Court may have come to a different view. The respondents contended that it cannot be said the complaint is trivial when Mr Davis has admitted breaching the behavioural support policy. There was no failure to consider mandatory considerations nor were irrelevant considerations taken into account. Further, the respondents pointed to the consideration given to whether it was appropriate to take no further action in relation to the complaint on the basis it was trivial or frivolous, but the recommendation was made to investigate two of the allegations.
Consideration
Mr Davis bears the onus to demonstrate a reasonable basis for the judicial review proceedings in circumstances in which the respondents have applied for summary judgment.[29]
[29] Uniform Civil Rules 2020 (SA), r 256.5(3); Webb v Department for Correctional Services [2023] SASCA 110 at [48] (Lovell, Bleby and David JJA).
Procedural fairness
As set out above, once a formal complaint is received, the person responsible for managing the complaint is to perform an assessment and determine the action to be taken resulting from that assessment. In this case, the solicitor from Norman Waterhouse was engaged to assist with the assessment and provide a recommendation.
The Complaints Policy contains express provisions which give the person complained about, if they so wish, an opportunity to provide a response to the formal complaint. As set out above, if there is an investigation, the process requires cooperation by the complainant and person complained about and a draft report is to be provided by the investigator with the opportunity for parties, including the person complained about, to provide submissions about the draft report. Those submissions are to be taken into account in any final report produced by the investigator. The Complaints Policy enables reference to the Ombudsman if a person is dissatisfied with the outcome.
Procedural fairness requirements must be considered in the context of the express two stage process established in the Complaints Policy. The Complaints Policy envisages a preliminary assessment which can result in a recommendation for referral for investigation and, if so, then a separate investigation. The assessment process is the first stage only in the complaints process.
I do not consider there is a basis for reading into the Complaints Policy any procedural fairness requirements exceeding those expressly provided for in the Complaints Policy. At the stage of assessment, the person complained about is entitled to provide a response to the formal complaint. The Complaints Policy process for handling complaints expressly and clearly envisages a more extensive mechanism to address procedural fairness in the case of investigations as opposed to the assessment stage of dealing with complaints. For example, the Complaints Policy does not require a draft of the assessment to be provided to the person complained about prior to determination of that assessment in contrast with the opportunity to comment on a draft report before finalisation of an investigation. The differences are explicable by the different potential outcomes. The best potential outcome of an assessment process is the complaint being dismissed, the worst potential outcome is reference to investigation during which process the person will have the opportunity to take part and make submissions including on the draft report.
In this case, Mr Davis was invited to provide his response to the complaint in accordance with the Complaints Policy. Mr Davis was given the opportunity to respond to the complaint and he responded by email. He was given the opportunity to meet with the Lord Mayor as he requested and he took up that opportunity. Mr Davis did not provide substantive responses to the second and third allegations in his written response or in the meeting with the Lord Mayor other than, in effect, to assert the complaint was trivial. His response did not deny his use of the phone or leaving the Chamber. His failure to provide a more substantive response does not give rise to any failure to accord procedural fairness on the part of the respondents.
Rather than expressly engaging with the content of the complaint against him, Mr Davis’ response raised complaints about a number of councillors and the Lord Mayor, requested copies of certain communications between named councillors since their election and requested a study of votes of councillors. He asserted the failure to address those matters constituted a breach of procedural fairness. Mr Davis accepted the materials he requested related to the first allegation against him. However, Norman Waterhouse recommended against proceeding to investigation on the first allegation and the Lord Mayor accepted that recommendation. It follows that any asserted failure (if substantiated) to provide requested materials touching upon the first allegation was and remains irrelevant to Mr Davis’s submissions of failure to accord procedural fairness vis à vis the assessment and the decision to proceed to investigation of allegations 2 and 3.
The Complaints Policy requirements were satisfied in the way in which the complaint against Mr Davis was managed. Mr Davis was afforded the procedural fairness contemplated by the Complaints Policy at the assessment stage of the complaint. The second and third allegations have not yet been progressed to the stage of investigation. Mr Davis will have the opportunity to put submissions in accordance with the Complaints Policy and to provide any response to the draft report prior to publication.
It follows that I do not consider Mr Davis has established a reasonable basis for judicial review in relation to this complaint of failure to accord procedural fairness.
Bias
Mr Davis contended there was a failure to accord procedural fairness on account of actual or apprehended bias by the Lord Mayor. It was implicit in Mr Davis’ submissions that Mr Davis considered the fact the Lord Mayor had issued defamation concerns notices rendered the Lord Mayor incapable of impartially dealing with Mr Davis. Mr Davis failed to articulate the basis upon which he asserted that issuing the particular concerns notices arising out of alleged conduct in unrelated Council meetings would create actual or apprehended bias in the context of the Lord Mayor making the particular decision she made in her capacity as delegate of the Council to address complaints. Mr Davis’ assertion of actual or apprehended bias did not articulate the connection between the concerns notices and how that might lead the Lord Mayor to make her decision other than on a proper basis in the specific context that decision was made. As set out above, the Lord Mayor was acting as delegate under the Complaints Policy. She received a recommendation from the independent third party appointed to assess the complaint and determined to adopt the recommendations. That resulted in one allegation being dismissed and two of the three allegations being referred to an independent investigator for investigation. The Lord Mayor did not relevantly make any findings about the merits of the complaint. Taking into account that context, I do not consider a fair-minded lay observer might reasonably apprehend that, by reason of the concerns notices, the Lord Mayor might not bring an impartial and unprejudiced mind to the decision whether to accept the recommendations of the independent third party assessing the complaint.[30]
[30] Harradine v Chief Executive of the Department of Education [2021] SASC 139 at [5] (Livesey J); QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 409 ALR 65 at [37] (Kiefel CJ and Gageler J).
It follows that Mr Davis has failed to establish a reasonable basis for his complaints arising from assertions of bias.
Materiality
I add that if I had formed the view there were any failures to accord procedural fairness in the particular circumstances, I would have concluded that compliance with procedural fairness could have made no difference to the outcome as a matter of reasonable conjecture. That is because the preliminary assessment was conducted independently of the Lord Mayor, the preliminary assessment recommended dismissing one allegation and recommended investigation of the second and third allegations. The Lord Mayor accepted those recommendations, dismissed the first allegation and referred the second and third allegations to an investigation to be conducted independently.
Unreasonableness
Mr Davis contended strongly that the complaint against him was trivial such that the decision should have been made to dismiss the remaining two allegations rather than to refer them for investigation.
In order to make out unreasonableness, it is necessary for Mr Davis to demonstrate that the decision to refer the two remaining allegations for investigation was so unreasonable that no reasonable repository of the power to make that decision could have so exercised the power.

Mr Davis referred to the context of the complaint being one relating to texting in the Council chamber. In addressing the preliminary assessment of all of the allegations, Norman Waterhouse assessed the complaint and considered whether the complaint disclosed a basis for investigation under the Complaints Policy. The written report specifically addressed whether it was appropriate to determine to take no further action, including because the complaint was trivial, frivolous or vexatious. That conclusion was reached in relation to the first allegation, in contradistinction to the remaining allegations. Express consideration was thus given to the issue of triviality about which Mr Davis complained. I consider it was reasonably open to the decision maker to reach such a decision in light of the Complaints Policy.
It follows that Mr Davis has not persuaded me that the decision to refer allegations 2 and 3 to investigation was so unreasonable that no reasonable repository of such a power could have exercised the power.
Accordingly, I am not persuaded that Mr Davis has a reasonable basis for the judicial review proceeding.
Conclusion and orders
It follows from my reasons above that I am not satisfied there is a reasonable basis for Mr Davis’ application judicial review. I order that Mr Davis’ judicial review be summarily dismissed pursuant to r 265.5 of the UCR.

[2025] SASC 42

25 March 2025