De Luca v Simpson
[2012] NSWSC 960
•22 August 2012
Supreme Court
New South Wales
Medium Neutral Citation: De Luca v Simpson and Anor [2012] NSWSC 960 Hearing dates: 26 July 2011 Decision date: 22 August 2012 Before: Johnson J Decision: The Plaintiff's Summons is dismissed.
The parties will be heard on the question of costs.
Catchwords: ADMINISTRATIVE LAW - judicial review - Plaintiff a councillor on Warringah Council - Plaintiff also works as Secretary/Research Assistant for Member of Legislative Council - MLC places questions on notice in Legislative Council that are strongly critical of Council - Council meets to consider MLC's questions - debate in Council leading to resolution critical of MLC - Plaintiff does not declare conflict of interest - Plaintiff participates in debate and strongly defends MLC - complaint made against Plaintiff of breach of Code of Conduct - Conduct Reviewer appointed by Council to investigate - Conduct Reviewer provides report adverse to Plaintiff - Plaintiff brings proceedings for prerogative relief to set aside report - claim of error of law on face of record and failure to have regard to mandatory consideration - claim of apprehended bias on part of Conduct Reviewer by way of prejudgment - meaning of non-pecuniary conflict of interest - construction of Code of Conduct and Code of Meeting Practice - error of law not established - no failure to have regard to mandatory consideration - apprehended bias not established - proceedings dismissed Legislation Cited: Supreme Court Act 1970
Local Government Act 1993
Court Suppression and Non-Publication Orders Act 2010
Constitution Act 1902
Industrial Relations Act 1996
Local Government (General) Regulation 2005Cases Cited: Holly v Director of Public Works (1988) 14 NSWLR 140
Bale v Crown in Right of the State of New South Wales (Attorney-General's Department) [2000] NSWIRComm 248; 106 IR 354
Sneddon v The Speaker of the Legislative Assembly [2011] NSWSC 508; 208 IR 255
Allianz Australia Insurance Limited v Crazzi [2006] NSWSC 1090; 68 NSWLR 266
Nichols v Singleton Council [2011] NSWSC 1517
Roos v Director of Public Prosecutions (1994) 34 NSWLR 254
Craig v South Australia [1995] HCA 58; 184 CLR 163
Hanna v Department of Immigration Multicultural and Indigenous Affairs [2004] NSWCA 275
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323
Attorney-General for New South Wales v Quin [1990] HCA 21; 170 CLR 1
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259
Abebe v Commonwealth of Australia [1999] HCA 14; 197 CLR 510
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135
Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24
Cross v McHugh [1974] 1 NSWLR 500
Saville v Health Care Complaints Commission [2006] NSWCA 298
Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139
Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321
Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564
Minister of Immigration and Citizenship v SZNPG [2010] FCAFC 51; 115 ALD 303
Barbosa v Di Meglio [1999] NSWCA 307
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507
R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; 122 CLR 546 McGovern v Ku-ring-Gail Council [2008] NSWCA 209; 72 NSWLR 504
Nufarm Australia Limited v Dow AgroSciences Australia Limited and Anor (No. 2) [2011] FCA 757; 282 ALR 24
Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342
Re Refuge Review Tribunal; Ex parte H [2001] HCA 28; 179 ALR 425
Re Refugee Tribunal; Ex part Aala [2000] HCA 57; 204 CLR 82Texts Cited: --- Category: Principal judgment Parties: Vincent De Luca (Plaintiff)
Annette Simpson (First Defendant)
Warringah Council (Second Defendant)Representation: Counsel:
Mr CD Jackson (Plaintiff)
Ms R Francois (Defendants)
Solicitors:
Schreuder Partners (Plaintiff)
DLA Piper Australia (Defendants)
File Number(s): 2011/212768 Publication restriction: ---
Judgment
JOHNSON J: By Summons filed on 29 June 2011, the Plaintiff, Vincent De Luca, seeks relief by way of judicial review and orders under s.69 Supreme Court Act 1970 against the First Defendant, Annette Simpson, and the Second Defendant, Warringah Council ("Council").
As will be seen, the subject matter of this litigation arises out of the sometimes hothouse atmosphere of local government politics.
It is important to keep in mind the limited nature of the Court's function in proceedings of this type. The Court is not conducting a trial to determine whether a complaint made against the Plaintiff is established. The Court's function is to consider the issues raised in the proceedings, by reference to the grounds relied upon by the Plaintiff, and to determine whether relevant legal error has been demonstrated.
The Parties to These Proceedings and the Basic Facts
In 2010, the Plaintiff was an elected councillor serving on the Council.
At the same time, the Plaintiff performed duties in the position of Secretary/Research Assistant to the Hon Marie Ficarra, a Member of the Legislative Council of New South Wales.
It is the intersection of these two positions occupied by the Plaintiff which forms the foundation for events giving rise to these proceedings.
On 2 June 2010, Ms Ficarra placed a number of questions on notice in the Legislative Council concerning the Council.
On 8 June 2010, a motion came before the Council which raised for consideration the questions asked by Ms Ficarra in the Legislative Council on 2 June 2010. The Plaintiff participated in the debate before the Council concerning the motion. He did not declare a non-pecuniary conflict of interest arising from his association with Ms Ficarra.
An issue raised in these proceedings is whether, as a matter of law, the Plaintiff's association with Ms Ficarra was capable of giving rise to a non-pecuniary conflict of interest.
It should be observed immediately that persons present at the meeting of the Council on 8 June 2010 appear to have been aware of the association between the Plaintiff and Ms Ficarra. This was not an unknown or disguised association. Rather, an issue raised in these proceedings concerns the question whether the Plaintiff was obliged to declare a non-pecuniary conflict of interest, and then to absent himself during the debate in Council on 8 June 2010 or explain why he considered that any conflict was not significant in the circumstances.
At a time between 8 June 2010 and 16 August 2010, an anonymous complaint was made to Council about the Plaintiff suggesting that he had breached the Warringah Council Code of Conduct ("the Code of Conduct") by failing to declare that he had a non-pecuniary conflict of interest concerning the 8 June 2010 motion.
On 16 August 2010, Mr Andrew Patterson, the Council's Internal Ombudsman, referred the complaint concerning the Plaintiff to Ms Simpson in her capacity as a Sole Conduct Reviewer under the Local Government Act 1993 ("LG Act").
Thereafter, Ms Simpson carried out an investigation, culminating in a report containing findings and recommendations dated 11 June 2011 addressed to the Council, with that report being adverse to the Plaintiff.
By these proceedings, the Plaintiff challenges, on administrative law grounds, the processes giving rise to Ms Simpson's report, and seeks orders that the report be declared invalid and set aside.
The Hearing in This Court
Mr Jackson of counsel appeared for the Plaintiff at the hearing of the Summons in this Court. Ms Francois of counsel appeared for Ms Simpson and the Council.
The evidence adduced at the hearing before me was contained in volumes of documents tendered, without objection, for the Plaintiff (Exhibit A) and for the Defendants (Exhibit 1).
Although a number of affidavits had been filed, no affidavit was read at the hearing. No oral evidence was adduced at the hearing.
Counsel had furnished written submissions, and detailed oral submissions were made at the hearing in support of, and in opposition to, the grant of relief.
The Plaintiff's Summons sought an interlocutory non-publication order with respect to aspects of the proceedings. At the point in the hearing where documentary evidence was tendered for the Plaintiff, there was some short discussion concerning the Plaintiff's request for restriction on publication (T6-7, 26 July 2011). The issue was faintly pressed by counsel for the Plaintiff and I indicated the view that, unless persuaded to the contrary, as the hearing was proceeding in open court, there ought not ordinarily be any restriction on publication of the evidence tendered at the hearing and the submissions made.
During the course of the hearing, representatives of the media sought access to the Summons, exhibits and written submissions. Mr Jackson formally asked that access not be granted at that stage, but he did not develop any submission in support of the formal application.
In a judgment delivered during the course of the hearing, I stated that no basis had been demonstrated for the making of an order restricting publication of the evidence and submissions at the hearing which was proceeding in open court, whether by reference to the Court Suppression and Non-Publication Orders Act 2010 or otherwise (T35-36). I declined to make any order restricting the publication of any part of the evidence or the submissions being made, having regard in particular to the open justice principle.
The Plaintiff's Grounds for Relief
The Plaintiff relies on three grounds in support of his claim for relief. They may be summarised in the following way.
Ground 1 contends that Ms Simpson erred in law, on the face of the record, by asking the wrong question or failing to take into account a relevant consideration, when she found that the Plaintiff had not complied with the Code of Conduct made pursuant to s.440 LG Act.
In support of this ground, it is contended that Ms Simpson erred in approaching the matter upon the basis that a breach of the Code of Conduct could result from the Plaintiff's failure to declare his relationship with Ms Ficarra in the context of the debate before Council on 8 June 2010.
It is contended for the Plaintiff that Ms Simpson enquired simply concerning the relationship between the Plaintiff and Ms Ficarra, equating that as the relevant "interest", without asking the anterior question whether the subject matter being discussed, and the orders associated with the motion being debated on 8 June 2010 by Council, were of a type which gave rise to a "conflict of interest" within the meaning of the Code of Conduct, regardless of the nature and quality of the relationship between the Plaintiff and Ms Ficarra.
Ground 2 asserts that Ms Simpson's decision was infected by apprehended bias, in that a fair-minded lay person might reasonably apprehend that the conclusions reached by her had been arrived at by a mind not open to persuasion, and that Ms Simpson was unable or unwilling to evaluate all the material fairly.
Ground 3 contends that Ms Simpson erred by failing to consider whether or not the Plaintiff had, in fact, implicitly declared his relationship with Ms Ficarra at the meeting of the Council on 8 June 2010, in circumstances where the nature of any "interest" was apparent on the face of the record.
I will return to the Plaintiff's grounds after setting the scene factually for the legal arguments arising for determination in these proceedings.
Relevant Events in More Detail
I have already mentioned some basic facts for the purpose of introducing the parties to these proceedings.
I set out hereunder relevant events in greater detail. Except in one area where the Plaintiff sought to challenge the veracity of a particular document (see [47] and [185]-[186] below), there is no factual dispute, with the issues to be determined being the conclusions which ought be reached by reference to the Plaintiff's grounds of review.
The Plaintiff was, in 2010, an elected councillor, serving on the Council.
For some time prior to June 2010, the Plaintiff had been employed as Secretary/Research Assistant for Ms Ficarra in her capacity as a Member of the Legislative Council. The Plaintiff was employed, in this respect, by the President of the Legislative Council by delegation from the Governor under s.47 Constitution Act 1902. The President of the Legislative Council was the Plaintiff's employer for industrial matters under s.6 Industrial Relations Act 1996. The appointment of the Plaintiff meant that he was attached to Ms Ficarra's office and she was his manager (Exhibit A, pages 113-114).
Part of the arrangement between the Plaintiff and Ms Ficarra was such that, should the working relationship between them break down, either person could make representations to the President through the Clerk of the Parliaments to have the Plaintiff transferred to another position (Exhibit A, page 114).
The appointment of persons to public positions under s.47 Constitution Act 1902 is well known: Holly v Director of Public Works (1988) 14 NSWLR 140 at 145; Bale v Crown in Right of the State of New South Wales (Attorney-General's Department) [2000] NSWIRComm 248; 106 IR 354 at 359-360 [26], 362-366 [39]-[52]. The mechanism whereby Members' staff are employed by the President or Speaker under s.47 Constitution Act 1902 is likewise well known: Sneddon v The Speaker of the Legislative Assembly [2011] NSWSC 508; 208 IR 255 at 261 [16]. A person so employed as staff of a Member works under the direct supervision and management of the Member: Sneddon v The Speaker of the Legislative Assembly at 297 [204], 298-302 [208]-[226]. Of course, Members of the Legislative Council do not have individual electorates requiring electorate staff in the manner required by Members of the Legislative Assembly. However, Members of the Legislative Council are entitled to staff, fulfilling functions of the type performed by the Plaintiff for Ms Ficarra.
On 2 June 2010, at a time when the Plaintiff was attached to the office of Ms Ficarra as Secretary/Research Assistant, Ms Ficarra placed the following questions on notice concerning events at the Council (Exhibit 1, Tab 6):
"4402LOCAL GOVERNMENT - WARRINGAH COUNCILLOR BREACH OF CODE OF CONDUCT INVESTIGATIONS - Ms Ficarra to ask the Minister for Planning, Minister for Infrastructure, Minister for Lands representing the Minister for Local Government, Minister Assisting the Minister for Planning, and Minister Assisting the Minister for Health (Mental Health) -
(1)Regarding the article in the Manly Daily on 20 May 2010 entitled 'Warringah Councillors instigate complaints against each other':
(a) Did Sole Conduct Reviewer, Mr Barry Davidow:
(i) incorrectly claim that the female councillor complainant refused to be interviewed?
(ii) interview only certain councillors and not all councillors who could have witnessed the abusive attack on the female councillor?
(iii) change the standards of evidence during the investigation and misapplied evidence principles?
(iv) not give the female councillor complainant the opportunity to respond to his finding before making the finding?
(v) not take into account the history of misconduct of the female councillor offender, particularly that the Warringah Council Commission of Enquiry wrote extensively about the offender's 'abusive', 'belligerent attitude at Council meetings', 'vile language', 'swearing' and 'intimidatory conduct' which led to the dismissal of Warringah Council in 2003?
(2)As indicated in the Manly Daily article of 20 May 2010:
(a)Were there other complaints against the same female councillor?
(b)Did Sole Conduct Reviewer, Mr Adam Halstead:
(i) refuse to interview witnesses to the female councillor offender's repeated verbal abuse, harassment and swearing at three female councillors and one male councillor?
(ii)read the complaints improperly and falsely concluded that the complaint involved exchanges between the offender and one male councillor, when it related to the repeated verbal abuse, harassment and swearing at three female Councillors also?
(iii)rule that the offender calling female councillors various obscenities was part of 'robust debate and trivial'?
(iv)incorrectly claim that the complainant failed to respond to requests for information?
(v)not show appropriate diligence to the investigation?
(vi)not give the complainant the opportunity to respond to his finding before making the finding?
(vii)not take into account the history of misconduct of the female councillor offender, particularly that the Warringah Council Commission of Enquiry wrote extensively about the offender's 'abusive', 'belligerent attitude at Council meetings', 'vile language', 'swearing' and 'intimidatory conduct' which led to the dismissal of Warringah Council in 2003?
(viii)write a report which was reckless, made unfounded statements and findings, was perverse in its reasoning and could constitute defamation of the complainant and others?
(3)
(a)As indicated in the Manly Daily article of 20 May 2010, have Warringah Council staff lodged a complaint against a female councillor for stating at a public meeting that 'there is a perception in the community that council is open to talking to developers but not the community'?
(b)If so:
(i) Did a significant period elapse between the time in which the alleged statement was made and a complaint to the General Manager submitted?
(ii) Once the matter was referred to Sole Conduct Reviewer, David Clark, was it subsequently further delayed due to Mr Clark advising he was renovating his house?
(iii) Were complaints made by councillors that council staff leaked the complaint to an opposing councillor who in turn told others and the media of the complaint?
(iv) Did the sole conduct reviewer rule that the councillor who leaked the complaint had no obligation to maintain confidentiality?
(v) Is the matter proceeding, ongoing and unresolved despite other Warringah Council Conduct Reviewers dismissing complaints about a separate female councillor's abusive behaviour and obscene language as 'robust debate' and 'trivial'?
(4)As indicated in the article in the Manly Daily on 1 June 2010, entitled 'Cr Laugesen upsets council staff' are Warringah Council staff again committing misconduct by making derogatory, denigrating and unprofessional remarks in a memorandum over a confidential email sent by a female councillor complaining of the conduct of a staff member?
(5)Have the General Manager of Warringah Council and Internal Ombudsman of Warringah Council refused to investigate and act on complaints about the unprofessional behaviour and inconsistency of Warringah Council's Sole Conduct Reviewers and advised that the only redress is to complain to the Department of Local Government?
(6)In view of the conduct of the Sole Reviewers and certain council staff outlined in the above mentioned cases, and the refusal of General Manager of Warringah Council and Internal Ombudsman of Warringah Council to have the matters properly addressed will the Minister ensure that all matters are properly reviewed by the Department and that it will take a greater oversight role regarding Warringah Council?"
The questions placed on notice by Ms Ficarra on 2 June 2010 came to be answered on 31 August 2010 (Exhibit 1, Tab 6). However, it is unnecessary for the purpose of this judgment to provide the Minister's answers, for it was the asking of the questions which gave rise to relevant events at the Council the following week.
The minutes of an Extraordinary Council Meeting of the Council conducted on 8 June 2010 contain the following record of events arising from Ms Ficarra's questions asked in the Legislative Council (Exhibit 1, Tab 7):
"MOTION OF URGENCY - CODE OF CONDUCT INVESTIGATIONS
179/10 RESOLVED
Clr Regan/Clr Giltinan
That as a matter of urgency, Council considers a Motion in relation to the Code of Conduct Investigations.
VOTING
For the resolution:Clr Falinski, Giltinan, Harris, Regan, Sutton and Wilkins
Against the resolution: Clr De Luca, Kirsch, Laugesen and Ray
THE MAYOR SUBSEQUENTLY RULED THE MATTER TO BE ONE OF URGENCY.
Clr Regan/Clr Giltinan
That Council:
1Note that on 2 June 2010, The Honourable Marie Ficarra, MLC, asked several questions ('Questions') in the New South Wales' Legislative Council regarding Council Code of Conduct investigations (which were printed in the Legislative Council's Questions & Answers Paper No. 153 at 4402 - Local Government -Warringah Councillor Breach of Code of Conduct Investigations);
2Council note that in her Questions, Ms Ficarra, among other things:
a.referred to a female Councillor as an 'offender' in circumstances in which no offence has been proven (Questions 1 and 2);
b.imputed that Council staff have previously engaged in misconduct by asking whether Council staff are 'again committing misconduct by making derogatory, denigrating and unprofessional remarks' in circumstances in which the imputation is unsubstantiated (Question 4);
c.stated 'in view of... the refusal of General Manager of Warringah Council and Internal Ombudsman of Warringah Council to have the matters properly addressed' in circumstances in which the alleged refusal is unsubstantiated (Question 6); and
d.referred to investigations in relation to complaints under Council's Code of Conduct which have not yet been completed; and
3.The General Manager write to Ms Ficarra and request that she issue a public apology for the Questions and that she retract the Questions.
4.Invite Ms Ficarra to visit Mayor and General Manager to discuss her concerns.
AMENDMENT
Clr De Luca/Clr Laugesen
That this Council:
1.Condemns the Mayor of Warringah and General Manager for their political attacks on a Member of Parliament's efforts in trying to ensure transparency and accountability at Warringah Council.
Notes:
That there is concern and continued alarm in the community, particularly with regard to the lack of transparency at Warringah Council and conduct of certain Councillors at Council meetings:
2.That Warringah Council has been dismissed on three previous occasions for its failure to respond to resident concerns and behaviour of Councillors at Council meetings.
3.That the Department of Local Government is reviewing all matters pertaining to the Sole Reviewers Decision on complaints about the alleged conduct of Cr Julie Sutton.
CLR LAUGESEN LEFT THE CHAMBER AT 8.01 PM
VOTING
For the amendment:Clr De Luca
Against the amendment: Clr Falinski, Giltinan, Harris, Kirsch, Regan, Ray, Sutton and Wilkins
CLR LAUGESEN WAS ABSENT DURING VOTING ON THIS ITEM. THE AMENDMENT, ON BEING PUT, WAS DECLARED LOST.
180/10 RESOLVED Clr Regan/Clr Giltinan
That Council:
1. Note that on 2 June 2010, The Honourable Marie Ficarra, MLC, asked several questions ('Questions') in the New South Wales' Legislative Council regarding Council Code of Conduct investigations (which were printed in the Legislative Council's Questions & Answers Paper No. 153 at 4402 - Local Government - Warringah Councillor Breach of Code of Conduct Investigations);
2.Council note that in her Questions, Ms Ficarra, among other things:
a.referred to a female Councillor as an 'offender' in circumstances in which no offence has been proven (Questions 1 and 2);
b.imputed that Council staff have previously engaged in misconduct by asking whether Council staff are 'again committing misconduct by making derogatory, denigrating and unprofessional remarks' in circumstances in which the imputation is unsubstantiated (Question 4);
c.stated 'in view of... the refusal of General Manager of Warringah Council and Internal Ombudsman of Warringah Council to have the matters properly addressed' in circumstances in which the alleged refusal is unsubstantiated (Question 6); and
d.referred to investigations in relation to complaints under Council's Code of Conduct which have not yet been completed; and
3.The General Manager write to Ms Ficarra and request that she issue a public apology for the Questions and that she retract the Questions.
4.Invite Ms Ficarra to visit Mayor and General Manager to discuss her concerns.
VOTING
For the resolution:Clr, Giltinan, Harris, Regan, Sutton and Wilkins
Against the resolution: Clr De Luca, Falinski, Kirsch and Ray,
CLR LAUGESEN WAS ABSENT DURING VOTING ON THIS ITEM."
A transcript was prepared of the Extraordinary General Meeting of the Council on 8 June 2010. As this was the occasion on which it is said that the Plaintiff ought to have declared a non-pecuniary conflict of interest, it is appropriate to set out the debate which occurred in the context of the motion.
Mr Jackson, in submissions, described the tenor of this meeting as "an acrimonious straightforward political conflict" which was "not particularly pretty on any side" (T11). A little later, Mr Jackson submitted that it was apparent from the exchanges at the meeting that "these people do not like each other" (T12). He advanced other submissions concerning this meeting to which I will return later in the judgment.
The transcript of the meeting reveals the following (I note that Councillor Regan is the Mayor) (Exhibit A, pages 3-10) (emphasis added):
"CIr Regan: 'Councillors, I would like to raise as a matter of urgency something that has come to our attention in relation to some comments made by a member of the Upper House, Ms Marie Ficarra, the Honourable indeed, it is unfortunate I guess that Ms Ficarra appears to be misinformed in this matter and I am going to move that, a [sic] matter of urgency because I want to make sure that the record is put straight and that all the accurate facts are indeed on the table. I think Ms Ficarra would benefit from visiting Warringah and getting the facts first hand.
I, as many of you around this table, would defend Warringah Council and the Community of Warringah against any inaccurate statements made by anyone including those in Parliament, I think it is important that Ms Ficarra be invited here to discuss her concerns, and perhaps even withdraw her questions until any investigations are completed.
Can I ask that this matter be considered as urgent so that I may put a motion forward? Counsellors [sic]?'
Clr De Luca: 'I would like to move amendments.
CIr Regan: 'There is not a motion yet. I will now ask that this matter be considered as urgent. Councillor's [sic]?
Those in favour: myself, Counsellor [sic] Falinski, Counsellor [sic] Giltinan, Counsellor [sic] Harris, Counsellor [sic] Sutton and Counsellor [sic] Wilkins.
Those against: Thank you Counsellor's [sic] Kirsch, De Luca, Ray and Laugesen against.
I declare that the motion of urgency, this matter be declared urgent and I will now put the motion forward and note Counsellor [sic] De Luca, I think it is self-explanatory, but I will read it before I ask for the amendment from Counsellor [sic] De Luca.'
CIr De Luca: 'Thank you, my amendment is that this Council resolves to:
1.Condemn the Mayor of Warringah and General Manager for their political attacks on a member of Parliament's efforts in trying to ensure transparency and accountability at Warringah Council;
2.Note, with concern, continued alarm in the community, particularly with regard to the lack of transparency of Warringah Council and conduct of certain Councillors at Council meetings.
[sic - no paragraph a.]
b. that Warringah Council has been dismissed on three previous occasions for its failure to respond to resident concerns and behaviours of Councillors at Council's meetings
c. That the department of Local Government is reviewing all matters pertaining to the Sole Reviewer's decision on complaints about the conduct of Counsellor [sic] Julie Sutton.'
Clr Regan: '[unclear] is being conciliatory. Do you have a seconder for that Counsellor [sic] De Luca? Thank you, Counsellor [sic] Laugeson. Counsellor [sic] De Luca, do you have a conflict of interest in this matter?'
CIr De Luca: 'No, I do not.'
CIr Regan: 'You confirm you don't know of a conflict in this matter?'
CIr De Luca: 'No. If that were the case, you would have to be declaring conflicts of interest with regard to your employment at Manly Council and allegations relating to two officers in Manly Council using fictitious names in public resources to defame other elected public officials.
Cir Regan: 'Classy. That's interesting. That's fine that you have noted that there is no conflict of interest. Now we have Counsellor [sic] Laugeson seconding the amendment.
It is not on screen yet.
We're just getting this typed up... for the benefit of the public gallery.
[Takes some minutes - It appears CIr Regan laughs at something on screen]
Mr De Luca would you like to speak to them?'
CIr De Luca: 'Thank you, Mr Mayor.
I support my amendments because I believe that the 'Mayoral minute', as put, is quite inaccurate and indeed seeks to intimidate and harass a Member of Parliament from doing their job; which is to ensure accountability, transparency and efficiency in Local Government. Fortunately, before I came to Council this evening, I noted the online website of the Manly Daily, and that a media release had already been issued by Council, I take it authorised by the General Manager and the Mayor and that, that is on the Manly Daily website, which notes that this Motion of Urgency was actually coming before council tonight. As I said, and I wish to emphasise, I consider this nothing more than an act to deliberately intimidate elected officials and others from raising concerns about this Council. And its sort of like history repeating itself.
The Commission of Inquiry Report into Warringah Council, tabled in the Parliament in 2003, was quite damning of the conduct of certain persons who sort [sic] to intimidate others from speaking up and coming forward. In section 3.4.2.8, it was commented upon by the Commissioner that [derisory?] attitudes and the abuse and dismissal of public concern, and others, is really a form of intimidation and that's what this is.
Members of the Upper House serve the whole of NSW. They are not allocated an electorate. And anyone who has lived in Warringah for a long time would know that the Honourable Marie Ficarra, as former Shadow Minister for the Environment, as Member of the Legislative Assembly and the Minister for, and as a subsequently Member of the Legislative Council, has had dealings over the many years with Warringah, in particular in her capacity as a resident.
I had to laugh with the comments to invite her to Warringah Council because in this term she has actually been here, as many Councillors would be aware in regard to our Inaugural Speech Night which the General Manager was not in attendance, so perhaps that is why he missed that one. Looking at the Honourable Member's website, it's clear that she's asked questions regarding Local Governments from all over NSW and that is the role of a Member of Parliament. On her website today there is a letter responding to the Manly Daily's article today, and I'd just like to quote one thing which I think is very relevant and I quote:
'I can sympathise with the many residents' [sic] who contact me, contact me about Warringah Council's staff and certain Councillors' [sic], having seen how they treat any questions or efforts for transparency. The Council has been sacked on fact on three previous occasions and unless it starts to respond to the Community's opposition to unsustainable development in Dee Why and now proposed for Fresh Water, there will continue to be wide spread unrest amongst the community.'
In the Article also published on the Manly Daily's website, I note that it is noted that it is courageous staff whistle blowers in this Council who have called upon Ms Ficarra and submitted information to her about their concerns on the administration of this Council. It is courageous residents who have also submitted concerns and that is very, very important and we as Councillors should never seek to denigrate or stop people raising issues of concern because that's what has happened previously and that's what resulted in this Council being dismissed.
There are various clauses within the Commission of Inquiry Report, which are quite relevant to this motion. I have mentioned already section 3.4.2.8, section 3.4.1.6 is also relevant, as is the subsequent section 7, and I think that unless those acts of the past are taken into consideration, this Council will be sacked again and it is highly likely if the behaviour that has been conducted by some continues.
The General Manager in his comments yesterday about this person not only were disrespectful and showed an ignorance to the person's history on the Northern Beaches, both living here and her activities, I should also point out that she has been a speaker at the Friends of Warringah Community Group meetings, she has been a speaker at the Dee Why Resident Action Group meetings, she is regularly called upon by community organisations to raise concerns in Parliament by the residents of Duffy's Forest, she has raised concerns by the residents concerned about the Moran Reserve and that this has been over a long and sustained period. This member is doing her job and I find it is quite contemptuous of the Parliament and contempt of privilege for this to be occurring and for a General Manager to be entering the political debate and arena and attacking members of Parliament, not just Ms Ficarra but he has also attacked the Member for Davidson and for Councillor Regan to be performing his usual political and personal attacks, which is really why the Parliament has had to raise these issues, I think it very sad, and I commend my amendments to the Council and I thank and congratulate the Department of Local Government for announcing that they will be undertaking a full review into the matters raised.'
CIr Regan: 'Thank you Counsellor [sic] De Luca. A very good defence of your boss. Ms Ficarra. I note your work for ...'
CIr De Luca: 'On a point of order.'
CIr Regan: '... Yes, a point of order, yes.'
CIr De Luca: '... Yes, there is a point of order. Could you please disclose that despite your election promise prior to the election that you would resign from your position at Manly Council, whether you have or have not resigned from your position, and whether you or your campaign manager for 'Wake Up Warringah' had ever used Council resources to participate in the political process.'
CIr Regan: 'Thank you Counsellor [sic] De Luca. This, I will not be answering such irrelevant questions. I know you have already asked those in Parliament so I am sure they will be answered relevant for you.'
CIr De Luca: 'I have not asked them...'
CIr Regan: 'Oh, that's right. Ms Ficarra has.'
CIr De Luca: '... but they have been raised, but they have been raised in other places by Members of the Wake Up Warringah party.'
CIr Regan: 'Thank you, Counsellor [sic] De Luca. So basically you're putting forward this. I just want to clarify one more point for you. Was there any media release authorised by yourself or even myself or from, that you are aware of today, Mr, Mr General Manager?'
Rik Hart: 'I have to note that Counsellor [sic] De Luca is wrong. I or [sic] any of my staff have issued any form of press release to the Manly Daily.'
CIr Regan: 'Thank you'.
CIr De Luca: 'Can you please confirm whether you actually spoke to the Manly Daily today or previously, and that your comments in today's Manly Daily, and tomorrow's online addition [sic], are correct and that you did speak to any representative or journalist of the Manly Daily?'
Rik Hart: 'I can certainly advise as is obvious from the articles in the Manly Daily. Manly Daily correct, contacted the Council with questions and we responded as we normally do to questions.'
CIr Regan: 'So there was no media release. It was just responding to questions.'
Rik Hart: 'There was no media release.'
CIr De Luca: 'And can you please confirm that you understand the role of a Member of the Upper House, and that it is their role to serve the whole state, and that they are not limited to any electorate, and that your comments as to the Member's associations with the Northern Beaches are incorrect.'
CIr Regan: [Regan Laughs] 'Thank you, Counsellor [sic] De Luca.'
Clr De Luca: 'He needs to acknowledge that and apologise for the ignorance of her actual association with the Northern Beaches.'
CIr Regan: 'Thank you, Mr General Manager. You do not need to acknowledge that. Right then. I don't need to speak anything further, I think you have said enough and made some interesting observations about harassing and bullying - the pot calling the kettle black - type thing. No media release authorised. I'm sure the Manly Daily will correct that for you as well. I am happy to put, if there are no further speakers. [Unclear] Yes, Counsellor [sic] Falinski.'
CIr Falinski: 'Thank you Your Worship.
I regret actually voting in favour of urgency to either this motion or the other motion. I shall not be voting for Counsellor [sic] De Luca's motion. I shall not be voting for the original motion either. The reason for that is, the reason for that is reasonably simple, I hope, which is I know Marie Ficarra. I consider her a friend. I don't know if she considers me a friend. She has a certain communication style which is, well, shall we call it 'direct'. If a fellow's beseachment to forgive him his unvarnished tale applies to anyone at, in Parliament, I'm sure Marie would agree that sometimes it applies to her.
However, she is someone who passionately believes in the things that she believes, and I'm sure meant no offence in either the comments or questions that she asked the Upper House.
It appears to me that there is a dispute here between two groups that are each claiming the other is political. And I am, I am reminded of an incident after Nelson Mandela was released from Northern Ireland [sic], where there was a Sporting Commission Meeting of ASC that wanted to strip the Springbox [sic] of their name and colours as a symbol of repression, and Nelson Mandela said that every time he hears about an eye for an eye and a tooth for a tooth, he can see nothing and he sees a world without chewable food. We are often in a position where, that we must, our greatest weapon is often forgiveness. Now, it is easy for me to say that obviously, because I have not been subject to some of the claims and counter claims that have been made. However, anyone who wants to Google my name, can see that from time to time over the last decade or so, certain people have misunderstood me and made nasty remarks. I could have gone into print and I could have replied but in truth I probably didn't have the time. The fact of the matter remains that, that forgiveness is our greatest weapon. If we want to have a constructive Council, if we want to work in the community's best interests, I urge all of us to move past this.
I know that if invited, Marie would be more than happy to come here, as she has come here on other occasions and expressed her concerns, and expressed her concerns directly, and get, and get feedback. I urge us, if we are to pass any motion it would be to invite any Member of Parliament from Macquarie Street who has concerns about the way that this Council has been run, to come directly to the Council and to speak to us. One of the good things about this Council is that there is a diversity of issues. We rarely know which way any particular motion is going to go or which, where a proposal might end up. There are people around this table who, prior to my election, I could never have imagined I would have voted on the same side as. This is what we call a democracy. It is a healthy thing. Where it is unhealthy is when it descends into name-calling and personalities. It happens. I'm guilty of it as much as the next person and I hope when I am guilty of it, that there will be someone around this table to remind me that I too need to lift my head above the battle at hand.'
CIr Regan: 'Thank you Counsellor [sic] Falinski. We will now put the amendment to the vote.
Those in favour: Counsellor [sic] De Luca.
Those against: Counsellor [sic] Giltinan, Falinski, Kirsch, myself, Ray, Harris, and Sutton and Wilkins.
I will now put the motion up on the screen...'
Rik Hart: 'I ask that the motion be put up on the screen.'
CIr Regan: '... the original motion. And Counsellor [sic] Falinski, I will ask that you reconsider your, what you just said about not voting for my motion either, in that so much that this is not a political attack on anybody. Someone is trying to make it a political attack on them. I can see that clearly, but that's not my intention. I am simply defending the Council's reputation, which is what you've just said you'd like to do, particularly that of our Community who we seek to represent. It is those, this sort, these sort of questions in Parliament bringing into disrepute our Council and our Community. It is a direct attack on staff and I'll draw you to the attention, to these points in a minute. But I think that it is important that we show some sort of leadership on this and that we do not allow this sort of thing to occur. And I have actually offered an olive branch in points three and four in some, in some regards in that, it would be very easy for me to go on the attack. I am furious with the comments and the allegations and things, and I will read that basically the Council is noting that the Honourable Marie Ficarra asked several questions in the New South Wales Legislative Council regarding Council Code of Conduct investigations which were printed in the Legislative Council's 'Question and Answers Paper' that the Local Government of Warringah Council have breached a Code of Conduct investigations;
2.Council is note [sic] that in her Questions, Ms Ficarra, among other things referred to a female Councillor as an 'offender' in circumstances in which no offence has been proven;
[sic - no paragraph a.]
b.imputed that Council staff have previously engaged in misconduct by asking whether Council staff are again committing misconduct by making derogatory, denigrating and unprofessional remarks in circumstances in which the imputation is unsubstantiated - Question 4;
c.in view of the refusal of the General Manager of Warringah Council and the Internal Ombudsman of Warringah council, to have the matters properly addressed in circumstances in which the alleged refusal is unsubstantiated and referred to, sorry,
d.referred to investigations in relation to complaints under the Council's Code of Conduct which have not yet been completed.
3.That the General Manager write to Ms Ficarra and request that the issue, that she issue a public apology for the questions and that she retract the questions, and invite,
4.Invite Ms Ficarra to visit the Mayor to discuss her concerns.
This is in no way a political attack. None, whatsoever. This is merely defending our community, our reputation within Local Government, and in particular the attacks, the, and the allegations which have been made here on staff and some of the words and the choice of language used, is [Regan sniggers] and has been proven, that no offence to have been taken. And I think that is pointed out quite clearly it would be very easy for me...
CIr De Luca: 'Point of Order...'
CIr Regan: '...[unclear].'
.
CIr De Luca: '... Mr Mayor, you have already spoken and now you are speaking for the third occasion on this motion...'
CIr Regan: 'Thank you Counsellor [sic] De Luca...'
CIr De Luca: '... and in fact, when you're bring a motion, you should actually...' [beeps]
CIr Regan: "Thank you Counsellor [sic] De Luca. So therefore, I am putting this motion forward, but I am saying to you that this is not a political attack and this is rather defending our Community's reputation and again, that of staff and the processes that have been involved. Are there any speakers against?"
CIr Ray: 'Just briefly, I would like to speak against the motion for much the same reasons as Counsellor [sic] Falinski pointed out for the previous motion which was also, are my reasons for voting against that motion. I don't believe this is appropriate to be dealt with in this manner. I think there is much more professional and adult ways and that this could be dealt with more professionally off line and I would ask Councillors also not support this motion again, just highlighting Counsellor [sic] Falinskis comments that, perhaps forgiveness is more the key to this debate than inflaming the situation further, or potentially inflaming the situation further.
[Beep]
CIr Regan: "Ok. Any further speakers?
One right of reply right, and that is for myself and that is simply, that I agree with you Counsellor [sic] Ray and Counsellor [sic] Falinski. It would be nice that this could be dealt with. However, I just think that it has been made public. It has been made public in various forms, and I think we need to deal with it and show a bit of leadership in our community. We won't tolerate this. That if there is any, and that we basically show some leadership to our staff and that we show some support to them. And again, I just put it back to you that this is not a political attack. This is merely us demonstrating consistent fine [sic] and we are asking her to visit us and discuss her concerns with us, if she has any, and that she withdraw those questions, and retract those and sorry I withdraw that, apologies. A second apology, a public apology that it has been made public, not by us, and that she retract the questions. So I guess that I am just trying to make the point that we are not making this public, and I agree with you we should be [unclear] getting on with it and deal with it offline, but unfortunately it has been made public. That's enough on the subject. Councillors, I now put the motion.
Those in favour: Counsellor [sic] Giltinan, myself, Counsellor [sic] Sutton, Counsellor [sic] Wilkins and Counsellor [sic] Harris.
Those against: Counsellor [sic] Kirsch, Counsellor [sic] De Luca, Counsellor [sic] Falinski, Counsellor [sic] Ray.
I declare that motion carried.
Thank you Councillor's. I will now, at that point, it's 8:19, close the meeting."
Events during the meeting of the Council on 8 June 2010 were referred to the Independent Commission Against Corruption. On 8 July 2010, Paul Grech, the Acting Manager Assessments of that Commission wrote to Rik Hart, the General Manager of the Council, stating (Exhibit A, page 11):
"The Commission considered that the Council is entitled to comment on matters raised by members of Parliament concerning Council. The Commission does not consider that the comments in your letter to Ms Ficarra are corrupt. Council is entitled to have a differing position concerning issues relating to Council and is entitled to argue that position through such correspondence. Such argument and debate do not involve an attempt to adversely affect the exercise of public official functions.
Given these considerations, the Commission has determined not to take any action."
Some time before 16 August 2010, a two-page letter described as a "confidential complaint" was addressed to the General Manager of the Council, asserting that the Plaintiff had breached the Code of Conduct at the meeting on 8 June 2010 (Exhibit A, pages 1-2). It was alleged that the Plaintiff had "failed in his duty to declare a conflict of interest" and that, "despite being asked several times ... by the Chairperson, and being given ample opportunity to correct the record [the Plaintiff] continued to deny that he had any potential or real conflict of interest or relationship with the MLC Marie Ficarra". Whilst acknowledging that it may be "technically correct" that the Plaintiff did not work for or was employed by Ms Ficarra, the complainant asserted that the Plaintiff "acts as her staff member to the extent of his having his name and email address as the contact person on Marie Ficarra's press releases".
On 16 August 2010, Andrew Patterson, the Council's Internal Ombudsman, wrote to Ms Simpson concerning the complaint, indicating that Mr Hart had asked him to deal with the matter on his behalf. Mr Patterson stated that the matter was being treated as an "anonymous complaint" and continued (Exhibit A, page 13):
"The complaint alleges that Councillor Vincent De Luca has breached the Code of Conduct by failing to declare a conflict of interest. The alleged conflict arises from Councillor De Luca's relationship with Marie Ficarra MLC.
The General Manager has determined, pursuant to his authority under the Code of Conduct, that this matter should be referred to a sole Reviewer for assessment and determination.
Accordingly, I am referring the complaint to you for your review, any enquiries you deem necessary, and report back to Council."
The evidence indicates that Ms Simpson has legal qualifications and has practised, at relevant times, as a consultant mediator and arbitrator (Exhibit A, page 22).
The role and functions of a Sole Conduct Reviewer under the Code of Conduct will be considered later in this judgment.
On 24 September 2010, Ms Simpson furnished to Mr Patterson a draft report concerning the complaint made against the Plaintiff (Exhibit A, pages 14-21). I will refer to parts of this document (and its status) in the context of the Plaintiff's second ground, which alleges apprehended bias in the form of prejudgment on the part of Ms Simpson.
On 29 September 2010, Mr Patterson prepared a file note arising from a telephone conversation with Ms Simpson in which he noted, amongst other things, "We discussed the draft report she had sent me and discussed the need to put the allegations to Councillor De Luca now that a prima facie breach has been established" (Exhibit A, page 204). As will be seen, Mr Jackson sought to challenge the veracity of this document, but I do not accept that submission (see [185]-[186] below).
On 1 October 2010, Ms Simpson wrote to the Plaintiff, giving formal notification of the allegation against him which was subject to investigation by the Council, and of her appointment as Conduct Reviewer for that purpose (Exhibit A, pages 22-25).
The Plaintiff was invited to participate in a formal interview, details of which were set out in the letter.
On 3 October 2010, the Plaintiff wrote to Ms Simpson saying, amongst other things, that "the allegations are vexatious, trivial, politically motivated and not made in good faith", with an indication that more information was needed to accord him procedural fairness (Exhibit A, pages 26-27).
On 5 October 2010, Ms Simpson communicated with Mr Patterson by email concerning the Plaintiff's request to be provided with documents. In particular, Ms Simpson enquired of Mr Patterson (Exhibit A, page 29):
"Could you please advise the following:
1. what is the Council's usual practice with respect to providing a copy of a complaint and any documentary evidence I have collected to the person against whom the complaint is made? le do you provide a copy now, or at an interview if there is one.
2. What is the Council's usual practice with respect to providing my original factual report to the person against whom etc. In my view the report is not for circulation to him at this stage. It will form part of the overall report on completion. Is this how the Council proceeds?"
Later that day, Mr Patterson responded by email to Ms Simpson (Exhibit A, page 28):
"1.He is not entitled to a copy of any evidence you have collected, especially not the complaint or the identity of the complainant (although this one is anonymous anyway). The only exception would be where it was necessary to show him something in order that he could properly respond, and this would be done in an interview setting anyway. In this case, as long as he has been provided sufficient particulars in the allegation to enable him to respond to the allegation against him, then that is all procedural fairness requires. Providing copies of witness statements and identities of complainants/witnesses is, in fact, contrary to the principle of confidentiality within the investigation process, it can also jeopardise the investigation and the integrity of evidence, as well as putting other parties at potential risk.
Naturally if the matter ever ended up in litigation or other legal proceedings, then, as you know, there may well be requirements to serve copies of evidence etc, but that is well past the investigation stage.
2.The draft report you sent me is, as far as the process is concerned, simply an interim working document from you to me. It does not form part of the evidence and he has no entitlement to it whatsoever. When the final report is drafted, given it will become a public document, if there is going to be any adverse comment/finding against him, then he is entitled to see the adverse section and reply to it before the report is finalised and published.
In essence then, all he is entitled to under procedural fairness is:
(1)an allegation, with sufficient particulars, to respond to; and
(2)a copy of the draft adverse comment/finding (if applicable].
3.In relation to the interview, it is an invitation to him if he wants to take it. There is no compulsion, but if he chooses to attend, then the method of recording etc is entirely at your discretion. I concur that best practice is to electronically record in some format."
Further correspondence passed from Ms Simpson to the Plaintiff dated 5 October 2010, and from the Plaintiff to Ms Simpson dated 6 October 2010 (Exhibit A, pages 31-35). It is not necessary to recount in detail this correspondence, given the issues falling for determination on the Plaintiff's Summons.
On 14 October 2010, Ms Simpson wrote to the Plaintiff in response to his email of 6 October 2010, commencing her letter in the following way (Exhibit A, page 37):
"I think it is important to remind you that I have been engaged to undertake an independent investigation of an allegation, independent of you and the Council. The tenor of your emails conveys an impression that you are labouring under a misapprehension that I act as a quasi prosecutor of the allegations."
Ms Simpson's letter of 14 October 2010 to the Plaintiff also informed him of the point which had been reached in the investigation, this being significant given submissions made concerning the second ground of review which asserts prejudgment on Ms Simpson's part. With reference to an issue raised by the Plaintiff in his letter of 6 October 2010, Ms Simpson said (Exhibit A, page 37):
"In relation to Clause 13 the applicable matters referred to in that clause are considered by me both on receipt of the reference and remain relevant during the enquiry. At a prima facie level and at this time, the subject matter of the obligations of which you have been given notice is on their its [sic] sufficient to satisfy me it warrants further investigation. That determination, as you will appreciate, involves no ultimate finding regarding the allegations."
Ms Simpson was informing the Plaintiff that the complaint had been considered at "a prima facie level" and that it warranted further investigation, but that such a determination involved no ultimate finding regarding the allegations. This reflects the interactive approach which was followed by Ms Simpson as the investigation progressed. More will be said about this when the second ground of review is addressed.
On 26 October 2010, the Plaintiff's solicitors, Schreuder Partners, wrote to Ms Simpson raising concerns about the process and issues with respect to procedural fairness and apprehension of bias (Exhibit A, pages 39-41).
A further letter dated 29 October 2010 was directed to Ms Simpson from Schreuder Partners on behalf of the Plaintiff (Exhibit A, pages 42-56). The letter of 29 October 2010 contained arguments concerning the characterisation of the association between the Plaintiff and Ms Ficarra, and submissions that he was not an employee of Ms Ficarra and that no conflict of interest existed. It was submitted that the Plaintiff was "working for the parliament as an adviser/officer" and that since February 2009, "he has been assigned to the office of the Hon Marie Ficarra". The letter stated that it was "not correct to say that he is an employee of Hon Marie Ficarra", but that he was "an employee of the parliament". The letter stated that the Plaintiff had made "no secret of his work in the office" of Ms Ficarra and that he "did not, contrary to the allegation, deny it".
Further correspondence passed between different persons between 1 November 2010 and 21 November 2010 (Exhibit A, pages 57-75), which it is not necessary to recount for the purpose of disposing of the issues in this case.
On 21 November 2010, Ms Simpson wrote to the Plaintiff regarding issues raised by his solicitors in correspondence, and seeking to arrange an interview time (Exhibit A, pages 76-77).
On 25 November 2010, Schreuder Partners wrote to Ms Simpson enclosing a statement of the Plaintiff (Exhibit A, pages 79-82).
Included in the evidence before this Court is a letter dated 20 December 2010 to the Plaintiff from Lynn Lovelock, Clerk of the Parliaments, concerning the Plaintiff's employment (Exhibit A, pages 84-88), and a letter from Ms Lovelock addressed to Ms Ficarra dated 22 December 2010 concerning the same topic (Exhibit A, pages 113-114). These letters confirmed that the Plaintiff was not employed or paid by Ms Ficarra, with the President of the Legislative Council being the employer by delegation from the Governor under s.47 Constitution Act 1902. Ms Lovelock stated that should the working relationship between Ms Ficarra and the Plaintiff break down "either of you could make representation to the President through the Clerk to have" the Plaintiff transferred to another position (Exhibit A, page 114). In a letter dated 31 May 2011, David Blunt, Deputy Clerk, stated that the Plaintiff was employed by the President and that Ms Ficarra was the Plaintiff's supervisor and was responsible for managing his performance (Exhibit A, pages 154-155).
In the course of Ms Simpson's investigation, she sought by email in September and October 2010, information concerning the nature of the Plaintiff's employment from Craig Wheeler, Manager Human Resources, Department of Parliamentary Services (Exhibit A, pages 138-142). As part of his response to these requests, Mr Wheeler provided Ms Simpson with a link to the Legislative Council Members' Guide and, in particular, Chapter 9 concerning Members' Staff (Exhibit A, page 138).
It is appropriate to mention certain clauses in the Members' Guide to which reference was made in submissions. Clause 9.24 of the Members' Guide (Exhibit 1, Tab 8) required Members' staff "to ensure their activities are not ... against the interest of their member ...". Clause 9.28 of the Members' Guide stated that "Members and their staff work closely together in what can be a high pressure and stressful environment" and that "it is therefore critically important that Members recruit the right person for the job".
Clause 9.60 of the Members' Guide stated that "Members are responsible for supervision of staff" and "Members are responsible for ensuring staff attend work and managing the performance of their staff". Clause 9.67 stated that "where the conduct or performance of Members' staff is unsatisfactory, a Member may need to take disciplinary action ...".
Between 22 December 2010 and 30 May 2011, further correspondence passed between Ms Simpson and the Plaintiff and Schreuder Partners on a range of issues which do not require elaboration in this judgment (Exhibit A, page 115ff).
It is sufficient to observe that a variety of points were raised by or on behalf of the Plaintiff. Amongst these was an argument that the motions of 8 June 2010 could have no practical consequences for Ms Ficarra, and could not result in benefit or loss to her, and that this was pertinent to the question whether Ms Ficarra's "interest" could be affected. This was raised at different points, including in a letter from Schreuder Partners dated 28 February 2011 (Exhibit A, page 123).
Ms Simpson responded expressly on this issue in a letter to the Plaintiff dated 3 March 2011, in which Ms Simpson stated that she had regard to that contention (Exhibit A, page 125). These matters bear upon the first ground of review to be addressed later in this judgment.
On 27 May 2011, a Draft Final Report of Ms Simpson (38 pages in length) was prepared, bearing the following note above the title (Exhibit A, page 211):
"This is a draft report with draft findings only. The report has been compiled from the evidence available to me at the time of its preparation. It is in draft form to provide an opportunity for the person against whom the allegations have been made, Councillor Vincent De Luca, to make any comments and/or provide any further evidence for consideration before this report is provided formally to Warringah Council."
The Draft Final Report of 27 May 2011, referred to the draft report of 24 September 2010 (eight pages in length) (Exhibit A, page 211). The Draft Final Report outlined the course of the investigation and referred to Ms Simpson's report to Mr Patterson dated 24 September 2010 as containing findings "which were a preliminary assessment and findings as to whether on the basis of the available evidence, further investigation was warranted" (Exhibit A, page 211).
In due course, the Plaintiff provided comments to Ms Simpson on her draft report.
In June 2011, Ms Simpson's Final Report (42 pages in length) was settled (Exhibit A, pages 249-287).
The Final Report repeated the description of the preliminary assessment and findings in the 24 September 2010 document in terms contained in the Draft Final Report (see [70] above). The document outlined communications between Ms Simpson and the Plaintiff, and incorporated the Plaintiff's response to the Draft Final Report (Exhibit A, pages 280-281).
Ms Simpson made detailed factual findings in the Final Report, culminating in several conclusions expressed at relevant points in the factual narrative. Ms Simpson made express findings "on the balance of probabilities and bearing in the principles in Briginshaw [Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336]" to the following effect (Exhibit A, pages 282, 283, 284):
(a)"I find that Mr De Luca had and still has both a professional and personal or private association with Ms Ficarra MLC sufficient to meet the definition in 7.14 of the Warringah Council Code of Conduct".
(b)"I find therefore that Mr De Luca did have a non-pecuniary conflict of interest, whether real or perceived, at the time the Urgency Motion came before Council and when Mr De Luca moved an Amendment".
(c)"I find that Councillor De Luca had a conflict of interest with respect to the Urgency Motion and subsequent amendment debate, and voting at the Extraordinary General Council Meeting on 8th June 2010, and did not declare that interest or refrain from voting on the Motion".
The Final Report then addressed what flowed from these findings by reference to breaches of the Code of Conduct. Specific consideration was given to clauses 6.2(c), 7.1, 7.2, 7.3, 7.5, 7.6, 7.7, 7.8, 7.17, 7.18, 7.19, 7.20, 7.21 and 7.22 of the Code of Conduct (Exhibit A, pages 284-287).
The Final Report concluded with the following recommendation (Exhibit A, page 287):
"If the above findings are accepted, that disciplinary action be taken at the discretion of the Council for Mr De Luca's breach of the above sections of the Warringah Council Code of Conduct."
As mentioned earlier, the Plaintiff commenced the present proceedings by Summons filed on 29 June 2011, and the Final Report of Ms Simpson has not been considered further by Council.
Relevant Provisions in the LG Act, the Code of Conduct and the Code of Meeting Practice
A number of provisions in the LG Act and the Council's Code of Conduct and Code of Meeting Practice are relevant to these proceedings.
Some issues of construction arise for consideration.
In approaching issues of construction of clauses in the Codes, the Codes should be regarded as delegated legislation, which cannot affect the proper construction of the LG Act or limit rights conferred by that Act. The Codes should be approached upon the basis that they are designed to carry into effect the express intention of the legislature in a way incidental to the execution of the LG Act itself: Allianz Australia Insurance Limited v Crazzi [2006] NSWSC 1090; 68 NSWLR 266 at 274 [17].
The Codes are subservient to the LG Act and must be implemented consistently with a council's proper exercise of its statutory powers: Nichols v Singleton Council [2011] NSWSC 1517 at [79].
Provisions in the LG Act
The legal status of a council is provided for in s.220 LG Act:
"220 Legal status of a council
(1) A council is a body politic of the State with perpetual succession and the legal capacity and powers of an individual, both in and outside the State.
(2) A council is not a body corporate (including a corporation).
(3) A council does not have the status, privileges and immunities of the Crown (including the State and the Government of the State).
(4) A law of the State applies to and in respect of a council in the same way as it applies to and in respect of a body corporate (including a corporation)."
Councillors comprise the "governing body" of a council, and the "role of the governing body is to direct and control the affairs of the council in accordance with" the LG Act: ss.222-223 LG Act.
Section 232 LG Act makes further provision concerning the role of a councillor:
"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."
Chapter 14 (ss.439-490B) LG Act is entitled "Honesty and disclosure of interests".
Section 439 LG Act provides:
"439 Conduct of councillors, staff and delegates
(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."
Section 440 LG Act requires councils in New South Wales to adopt a Code of Conduct with respect to meeting practices. Section 440 provides as follows:
"(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."
A breach of a Code of Conduct can give rise to action by way of formal censure under s.440G LG Act which provides:
"(1) A council may by resolution at a meeting formally censure a councillor for misbehaviour.
(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 misbehaved 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."
The LG Act provides for duties of disclosure. Section 444 provides:
"444 What disclosures must be made by a councillor?
A councillor:
(a) must prepare and submit written returns of interests in accordance with section 449, and
(b) must disclose pecuniary interests in accordance with section 451."
Section 448 specifies interests which do not have to be disclosed for the purposes of Part 2 of Chapter 14 LG Act (ss.441-459):
"448 What interests do not have to be disclosed?
The following interests do not have to be disclosed for the purposes of this Part:
(a) an interest as an elector,
(b) an interest as a ratepayer or person liable to pay a charge,
(c) an interest in any matter relating to the terms on which the provision of a service or the supply of goods or commodities is offered to the public generally, or to a section of the public that includes persons who are not subject to this Part,
(d) an interest in any matter relating to the terms on which the provision of a service or the supply of goods or commodities is offered to a relative of the person by the council in the same manner and subject to the same conditions as apply to persons who are not subject to this Part,
(e) an interest as a member of a club or other organisation or association, unless the interest is as the holder of an office in the club or organisation (whether remunerated or not),
(f) an interest of a member of a council committee as a person chosen to represent the community or as a member of a non-profit organisation or other community or special interest group if the committee member has been appointed to represent the organisation or group on the committee,
(g) an interest in a proposal relating to the making, amending, altering or repeal of an environmental planning instrument other than an instrument that effects a change of the permissible uses of:
(i) land in which the person or a person, company or body referred to in section 443 (1) (b) or (c) has a proprietary interest (which, for the purposes of this paragraph, includes any entitlement to the land at law or in equity and any other interest or potential interest in the land arising out of any mortgage, lease, trust, option or contract, or otherwise), or
(ii) land adjoining, adjacent to or in proximity to land referred to in subparagraph (i),
if the person or the person, company or body referred to in section 443 (1) (b) or (c) would by reason of the proprietary interest have a pecuniary interest in the proposal,
(h) an interest relating to a contract, proposed contract or other matter if the interest arises only because of a beneficial interest in shares in a company that does not exceed 10 per cent of the voting rights in the company,
(i) an interest of a person arising from the proposed making by the council of an agreement between the council and a corporation, association or partnership, being a corporation, association or partnership that has more than 25 members, if the interest arises because a relative of the person is a shareholder (but not a director) of the corporation or is a member (but not a member of the committee) of the association or is a partner of the partnership,
(j) an interest of a person arising from the making by the council of a contract or agreement with a relative of the person for or in relation to any of the following, but only if the proposed contract or agreement is similar in terms and conditions to such contracts and agreements as have been made, or as are proposed to be made, by the council in respect of similar matters with other residents of the area:
(i) the performance by the council at the expense of the relative of any work or service in connection with roads or sanitation,
(ii) security for damage to footpaths or roads,
(iii) any other service to be rendered, or act to be done, by the council by or under any Act conferring functions on the council or by or under any contract,
(k) an interest relating to the payment of fees to councillors (including the mayor and deputy mayor),
(l) an interest relating to the payment of expenses and the provision of facilities to councillors (including the mayor and deputy mayor) in accordance with a policy under section 252,
(m) an interest relating to an election to the office of mayor arising from the fact that a fee for the following 12 months has been determined for the office of mayor,
(n) an interest of a person arising from the passing for payment of a regular account for wages or salary of an employee who is a relative of the person,
(o) an interest arising from being covered by, or a proposal to be covered by, indemnity insurance as a councillor or member of a council committee,
(p) an interest arising from appointment of a councillor to a body as representative or delegate of the council, whether or not a fee or other recompense is payable to the representative or delegate."
Section 449 LG Act provides as follows:
"449 Returns disclosing interests of councillors and designated persons
(1) A councillor or designated person must complete and lodge with the general manager, within 3 months after becoming a councillor or designated person, a return in the form prescribed by the regulations.
(1A) A person must not lodge a return that the person knows or ought reasonably to know is false or misleading in a material particular.
(2) A person need not lodge a return within the 3-month period after becoming a councillor or designated person if the person lodged a return in that year or the previous year or if the person ceases to be a councillor or designated person within the 3-month period.
(3) A councillor or designated person holding that position at 30 June in any year must complete and lodge with the general manager within 3 months after that date a return in the form prescribed by the regulations.
(4) A person need not lodge a return within the 3-month period after 30 June in a year if the person lodged a return under subsection (1) within 3 months of 30 June in that year.
(5) Nothing in this section prevents a councillor or designated person from lodging more than one return in any year.
(6) Nothing in this section or the regulations requires a person to disclose in a return lodged under this section an interest of the person's spouse or de facto partner or a relative of the person."
The Plaintiff's return of interests under s.449 LG Act, completed on 22 September 2009, disclosed his occupation relevantly as "advisor/research officer" and the name and address of his employer as "NSW Parliament, Macquarie St, Sydney" (Exhibit A, page 48).
Section 451 LG Act provides for disclosure of pecuniary interests by councillors, and attendance at council meetings in circumstances of a pecuniary interest.
Sections 453 and 454 make further provision for disclosure:
"453 Disclosures to be recorded
A disclosure made at a meeting of a council or council committee must be recorded in the minutes of the meeting.
454 General disclosure
A general notice given to the general manager in writing by a councillor or a member of a council committee to the effect that the councillor or member, or the councillor's or member's spouse, de facto partner or relative, is:
(a) a member, or in the employment, of a specified company or other body, or
(b) a partner, or in the employment, of a specified person,
is, unless and until the notice is withdrawn, sufficient disclosure of the councillor's or member's interest in a matter relating to the specified company, body or person that may be the subject of consideration by the council or council committee after the date of the notice."
Provisions in the Code of Conduct and the Code of Meeting Practice
Provision for non-pecuniary conflicts of interest may be found in the Code of Conduct. Clause 193 Local Government (General) Regulation 2005 makes provision for a Model Code of Conduct:
"For the purposes of section 440 (Codes of Conduct) of the Act, the Code called The Model Code of Conduct for Local Councils in NSW, as published in the Gazette on 27 June 2008, is prescribed as the model conduct of conduct."
Clause 7 of the prescribed Model Code provides (emphasis added):
"7. Conflict of Interests
7.1 A conflict of interest exists where a reasonable and informed person would perceive that you could be influenced by a private interest when carrying out your public duty.
7.2 You must avoid or appropriately manage any conflict of interests. The onus is on you to identify a conflict of interests and take the appropriate action to manage the conflict in favour of your public duty."
Clause 5.2 of the Model Code of Conduct provides a mechanism for a councillor to identify a conflict of interest:
"5.2 If you are unsure as to whether or not you have a conflict of interest in relation to a matter, you should consider these six points:
·Do you have a personal interest in a matter you are officially involved with?
·Is it likely you could be influenced by a personal interest in carrying out your public duty?
·Would a reasonable person believe you could be so influenced?
·What would be the public perception of whether or not you have a conflict of interest?
·Do your personal interests conflict with your official role?
·What steps do you need to take and that a reasonable person would expect you to take to appropriately manage any conflict of interests?"
Clauses 7.5 to 7.9 relate to pecuniary conflicts of interest, and Clauses 7.10 to 7.20 concern non-pecuniary conflicts of interest. Clauses 7.16 to 7.18 (reflected in Clauses 7.20 to 7.22 of the Council's Code of Conduct in this case) are presently relevant and provide (emphasis added):
"7.16 As a general rule a non-pecuniary conflict of interest will be significant where a matter does not raise a pecuniary interest but it involves:
(a)...
(b)other relationships that are particularly close, such as friendships and business relationships. Closeness is defined by the nature of the friendship or business relationship, the frequency of contact and the duration of the friendship or relationship.
(c)...
7.17If you are a council official, other than a member of staff of council, and you have disclosed that a significant non-pecuniary conflict of interest exists, you must manage it in one of two ways:
b)resolve the complaint by use of alternative and appropriate strategies such as, but not limited to, mediation, making recommendations to the General Manager, informal discussion or negotiation and give the complainant advice on the resolution of the matter in writing, or
c)make enquiries into the complaint, or
d)engage another appropriately qualified person to make enquiries into the complaint, or
e)not make enquiries or discontinue making enquiries 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. Despite any other provision of this code, this will constitute finalisation of such matters and no further action is required.
12.20Where the Conduct Review Committee/reviewer conducts enquiries or causes enquiries to be conducted, the Conduct Review Committee/reviewer must make findings on whether, in its view, the conduct referred to it comprises a breach of the code of conduct.
12.21Where the Conduct Review Committee/reviewer makes findings, the Conduct Review Committee/reviewer may recommend that council take any actions provided for in this code of conduct that it considers reasonable in the circumstances.
12.22Where the Conduct Review Committee/reviewer makes findings, the Conduct Review Committee/reviewer will report its findings, and the reasons for those findings, in writing to the council, the complainant and the person subject of the complaint.
12.23The Conduct Review Committee/reviewer will report its findings and any recommendations to council only when it has completed its deliberations."
Ms Simpson was required to provide procedural fairness to the Plaintiff in accordance with Clause 14.17 of the Code of Conduct:
"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."
In a file note dated 29 September 2010, Mr Patterson referred to a discussion he had had by telephone with Ms Simpson concerning "the draft report she had sent me" and that they had "discussed the need to put the allegation to Councillor De Luca, now that a prima facie breach has been established". As mentioned earlier (at [47]), Mr Jackson sought to challenge in submissions the veracity of this document. However, the document was tendered by the Plaintiff (Exhibit A, page 204) and forms part of the records of the Council which are in evidence in these proceedings.
In my view, the document ought be treated on its face as a contemporaneous record created on the specified date, which records a conversation between Ms Simpson and Mr Patterson concerning the draft report of 24 September 2010. The note sheds light upon the way in which Ms Simpson and Mr Patterson were approaching that document at that time. This view is fortified by Ms Simpson's letter to the Plaintiff dated 14 October 2010 which explained the process she was undertaking, and the view "at a prima facie level" that the matter warranted further investigation (see [55] above).
It is the fact that the draft report was prepared prior to an approach being made by Ms Simpson to the Plaintiff for an interview. This step occurred on 5 October 2010.
In my view, the draft report may be appropriately characterised (and would be so understood by a fair-minded lay person), as being a draft document prepared by Ms Simpson which reflected the need, in her mind, to move to the next stage of the review under Clause 12.19 of the Code of Conduct, namely to approach the Plaintiff for an interview.
In his email of 5 October 2010 to Ms Simpson, Mr Patterson referred to the draft report as "an interim working document from you to me" (see [52] above). Subject to submissions made concerning particular parts of the draft report itself, to which I will shortly turn, I will approach the present ground upon the basis that the fair-minded lay person would consider this draft report, given its temporal context and its place in the history of the review, as being an indication of where enquiries had led up to that point. Viewed in this way, I do not consider that there was any obligation to provide the draft report to the Plaintiff: cf Nichols v Singleton Council at [122]-[127].
I turn now to parts of the draft report which have been addressed by counsel, for the purpose of assessing the impact of this document upon the mind of a fair-minded lay person.
The draft report makes plain that the review of the complaint to that time had not involved an approach to the Plaintiff for an interview (Exhibit A, page 14.5). This would indicate to the fair-minded lay person that it is an interim document prepared during the course of the review process, but with further steps to be taken in that process and with the document to be considered in that light.
The Plaintiff points to the heading, expressed in conclusive terms as "Findings", as a matter that sheds light upon what follows in the document (Exhibit A, page 17.9).
The draft report then continues (Exhibit A, page 18):
"The allegation is that Councillor De Luca has a relationship with Marie Ficarra MLC which constitutes a conflict of interest under the Code, and he has breached the Code of Conduct because he has failed to declare the relationship and the possible conflict of interest.
Councillor De Luca is employed by Marie Ficarra Liberal MLC as Secretary/Research Assistant. He was initially employed on a temporary basis from 9 February 09 for a period of 12 months under a secondment arrangement, and then subsequently permanently appointed to the same position effective 26 June 09. Councillor De Luca is therefore a public employee paid through the Parliament from NSW Consolidated Revenue. Attached is an email from Mr Craig Wheeler, Manager Human Resources, Parliamentary Services confirming Councillor De Luca's employment status. Additionally, in the latest e-newsletter on Ms Ficarra's website, Councillor De Luca features prominently in at least two of the photographs of various functions, none of which specifically appear to relate to Warringah Council or Warringah Shire issues.
Therefore at all relevant times in respect of the allegations Councillor De Luca was employed by Marie Ficarra. The nature of Parliamentary employment to specific Upper House Members, and also to Members of the NSW Lower House, including Ministerial staff; is that the Member and/or Minister is generally responsible for the recruitment of his or her personal staff, and the continued employment of said staff is directly tied to the tenure of the Member.
Simply being employed by the Parliament as secretary/researcher to Ms Ficarra does not constitute a conflict of interest. The Code operates to draw the attention of those people affected by it's [sic] principles to the ethical values espoused by the Council, the practicalities of the standards of conduct, and the complaint handling process."
The draft report then turned to the circumstances of the Council meeting on 8 June 2010.
At different points, the draft report used qualifying words which Ms Francois submitted reflected its hypothetical status. In particular, reference was made to the following passage (Exhibit A, page 19) (emphasis added):
"If indeed Councillor de Luca has, in Council session and upon direct questions, denied that he has or had any relationship with Marie Ficarra and if he has been quoted correctly in the Manly Daily as denying that he 'neither works or is employed' by her, then it could be argued that he is in breach of the general conduct obligations and specifically s6.2(c)."
Both Mr Jackson and Ms Francois referred expressly to the following passage (Exhibit A, page 19):
"However, in my view the fact that the Councillor has had a business relationship of employer and employee for over 18 months and has failed to declare that relationship could be seen as a breach of the Code of Conduct in circumstances where he has voted on Motions which involve Ms Ficarra."
Mr Jackson submitted that this paragraph is expressed in firm terms, indicating a concluded position. On the other hand, Ms Francois pointed to the fact that there were qualifiers used by Ms Simpson such as "could be seen as a breach of the Code of Conduct".
The draft report included the following (Exhibit A, pages 20-21):
"Page 5 of the Code of Conduct sets out the questions a person should ask him or herself if he or she suspects a real or perceived conflict of interest; viz
Do you have a personal interest in a matter you are officially involved with?
Is it likely you could be influenced by a personal interest in carrying out your public duty?
Would a reasonable person believe you could be so influenced?
What "would be the public perception of whether or not you have a conflict of interest?
Do your personal interests conflict with your official role?
What steps do you need to take and that a reasonable person would expect you to take to appropriately manage any conflict of interests?
It would appear from the evidence that if the above questions were posed by Councillor De Luca the responses of a reasonable person might be
yes by virtue of employment with the person directly involved in the official matter,
more likely than not, whether real or perceived influence,
more likely than not the perception or a real or possible conflict,
more likely than not the perception of a possible or real conflict
more likely than not there is a conflict or perceived conflict,
declare the conflict and refrain from any formal Council discussion or vote on that issue.
The Councillor took none of the steps outlined above and ultimately did not declare his interest.
In my view in not declaring his employment with the Hon Marie Ficarra MLC he has failed to declare his interest and a potential conflict and in doing so he has breached the Warringah Council Code of Conduct for Councillors, Members of Staff and Delegates of Council. He has breached the Code under the General Conduct and Conflict of Interest sections, as well as the key principles of 'Openness and Honesty'."
Mr Jackson submitted that these statements were expressed in conclusive terms and constituted a finding on the ultimate issue.
However, the fair-minded lay person would not view the draft report of 24 September 2010 in isolation. The draft report of 24 September 2010 (eight pages) was followed, after extensive investigation, by the Draft Final Report of 27 May 2011 (38 pages) and the Final Report of June 2011 (42 pages). The fair-minded lay person would observe the process of assessment and reassessment of facts, in the light of submissions made and information gathered, culminating in the extensive settled Final Report.
An examination of Ms Simpson's Draft Final Report of 27 May 2011 (Exhibit A, page 211) and the Final Report of June 2011 (Exhibit A, page 249) reveals the following description of the process undertaken by her at the commencement of each report (emphasis added):
"This investigation follows a review of the complaint undertaken by me which was the subject of a report to Mr Patterson dated 24 September 10. The findings in that report, which were a preliminary assessment and findings as to whether on the basis of the available evidence further investigation was warranted, were summarised as follows:
·'Councillor De Luca discussed in Council, and ultimately voted on, a Motion and an Amendment which involved issues relating to the Hon Marie Ficarra MLC
·Councillor De Luca failed to declare he was employed by Ms Ficarra at that time, and had been employed by her since February 2009.
·Because of this relationship there is a real or perceived conflict of interest in Councillor De Luca's involvement in this issue.
·In failing to declare his interest he has breached the Council's Code of Conduct.'
Based on the above preliminary assessment and findings and in accordance with Clause 12.19 of the Council Code of Conduct, I determined to make further enquiries into the matter."
Thus, Ms Simpson explained directly the process undertaken by her in a way that placed in context the draft report of 24 September 2010.
I approach this ground upon the basis that the fair-minded lay person would:
(a)have knowledge of the statutory scheme in the Code of Conduct under which Ms Simpson was operating, and the various steps to be taken by her along the way;
(b)be aware of all the documents prepared by Ms Simpson, and available to her, including the draft report of 24 September 2010, the Draft Final Report of 27 May 2011 and the Final Report of June 2011;
(c)read these reports together, and that this would indicate that statements made in the draft report of 24 September 2010 were preliminary and provisional, and subject to steps then to be undertaken as part of the review, including an interview with the Plaintiff.
The evidence does not indicate that Ms Simpson closed her mind on the matters under review in and after 24 September 2010. To the contrary, Ms Simpson maintained efforts to obtain the Plaintiff's account with respect to the matters under review, so that it could be assessed and taken into account for the purpose of the review itself.
It may be correct, as Ms Francois submitted, that there was some infelicity of expression in the draft report of 24 September 2010 by use of language which, at times, did not expressly state that what was being said was provisional. However, the fair-minded lay person would consider the process as a whole and read that document in context. In my view, the features emphasised by Mr Jackson do not demonstrate prejudgment on the part of Ms Simpson in the manner required for this ground to be made good.
The Plaintiff has not demonstrated that a fair-minded lay person might reasonably apprehend that Ms Simpson might not be open to persuasion on and after 24 September 2010.
The Plaintiff has not established, on the balance of probabilities, the claim of apprehended bias asserted in the second ground of review.
Given this conclusion, it is not strictly necessary to consider Ms Francois' subsidiary submission under this ground to the effect that the conclusions reached by Ms Simpson were inevitable in any event. It must be said that, if this position had been reached, a conclusion adverse to the Plaintiff does seem inevitable. It is difficult to see how a conclusion favourable to the Plaintiff could have been reached. However, it is not necessary to consider this question further.
Nor is it necessary to consider the further submission that, if the ground had otherwise been made out, the Court should approach the matter upon the basis that the Plaintiff would have an opportunity to defend himself before the Council itself.
I have determined this ground, and rejected it, on the primary basis that no apprehension of bias has been demonstrated.
Ground 3 - Claim that the Plaintiff's Association with Ms Ficarra was Declared Implicitly at the Council Meeting on 8 June 2010
Submissions of the Plaintiff
Mr Jackson addressed this ground shortly.
In writing, Mr Jackson submitted that a serious issue was raised as to whether, given the highly politically charged climate of the meeting of 8 June 2010, and given the clear belief of the Mayor, the Plaintiff had (however inelegantly expressed) disclosed a working relationship with Ms Ficarra, so that there was an implicit declaration of the conflict.
In oral submissions, Mr Jackson conceded that Ground 3 was "a difficult one", although it was maintained (T32).
Submissions of the Defendants
Ms Francois submitted that Ground 3 is framed as a failure by Ms Simpson to consider the "implicit" declaration by the Plaintiff of his relationship with Ms Ficarra. Counsel submitted that it was necessary for the Plaintiff to establish that this was a mandatory consideration before it could give rise to a foundation for relief in proceedings of this type.
Ms Francois submitted that the Code of Conduct made clear that there was no such thing as an "implicit" disclosure, with reference being made to Clauses 7.6, 7.7, 7.17, 7.21, 7.22 and 14.5. Accordingly, it was submitted, there was no basis upon which it could be contended for the Plaintiff that it was mandatory for Ms Simpson to take such a matter into consideration.
Ms Francois submitted that what the Code of Conduct requires, and what the Code of Meeting Practice requires, is that there be an express disclosure of conflict of interest, whether it is said to be a significant interest or a non-significant interest. If it was a significant interest, counsel submitted that it was necessary for the Plaintiff to leave the room whilst the matter was discussed in Council. If it was a non-significant interest, it was necessary for the Plaintiff to explain why that was so.
In these circumstances (where neither of these things occurred), it was submitted that this ground is misconceived.
Decision Concerning Third Ground of Review
I accept the submissions of Ms Francois that the Code of Conduct does not accommodate an "implicit" disclosure of a conflict of interest. If the relevant relationship is capable of constituting a non-pecuniary conflict of interest, then the obligation placed upon a councillor is to:
(a)declare that the conflict exists;
(b)leave the room and not participate in the Council discussion on the issue;
(c)unless the councillor characterises it as a non-significant interest, in which case it is necessary for the councillor to place on the public record the reasons for that conclusion.
A fair reading of the relevant provisions of the Code of Conduct does not accommodate or allow an implicit disclosure as contended for in the third ground of review.
In these circumstances, the Plaintiff has not demonstrated that Ms Simpson has failed to have regard to a mandatory consideration, so as to give rise to relevant error in proceedings for judicial review.
I reject the third ground of review.
Conclusion
I have concluded that the Plaintiff has failed to establish any of the grounds upon which he relies in these proceedings for judicial review.
I should stress a number of additional matters.
Firstly, Ms Ficarra is not a party to these proceedings and no aspect of her conduct is under investigation or falls for judgment by this Court. The proceedings raise issues concerning the investigation of the conduct of the Plaintiff in the context of the meeting of Council on 8 June 2010.
Secondly, the Court is not trying any allegation of misconduct against the Plaintiff. The function of the Court is to consider the legality of the process undertaken and that is what this judgment has addressed.
Thirdly, as mentioned at the commencement of this judgment, the dynamic nature of local government politics and the sometimes hothouse environment in which debate occurs, serves to provide a context for the events which have been considered in this judgment. The role of the Court is to undertake a dispassionate analysis, and to reach conclusions, with respect to the legal questions raised in these proceedings for judicial review.
At the conclusion of the hearing, I indicated that I would give the parties an opportunity to address on the question of costs after judgment was handed down. I will hear the parties on the question of costs.
I make the following orders:
(a)the Plaintiff's Summons is dismissed;
(b)I will hear the parties on the question of costs.
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Decision last updated: 22 August 2012
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