Golder v Councillor Conduct Tribunal - [2023] QCAT 371

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Golder v Councillor Conduct Tribunal & Anor [2023] QCAT 371

PARTIES:

TYSON GOLDER

(applicant)

v

COUNCILLOR CONDUCT TRIBUNAL
(FIRST RESPONDENT)

AND

THE INDEPENDENT ASSESSOR, OFFICE OF THE INDEPENDENT ASSESSOR

(second respondent)

APPLICATION NO/S:

GAR046-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

19 June 2023

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

1. The application for miscellaneous matters (to amend grounds of application for review) filed 16 May 2023 is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision of Councillor Conduct Tribunal – application to amend grounds of review – where Independent Assessor opposes the application to amend – where application to amend refused – scope of review

Local Government Act 2009 (Qld) s 150AJ, s 150AS, s150AT

Queensland Civil and Administrative Tribunal Act 2009

(Qld) s 3, s 17, s, 18, s 19, s 20, s 21, s 28, s 32, s 64

Camp Seabee Properties Pty Ltd v Commissioner of State Revenue [2014] QCAT 258

QBCC v Whalley [2018] QCATA 38

Wilkie v Councillor Conduct Tribunal [2022] QCAT 79

APPEARANCES & REPRESENTATION:

This matter was determined on the papers, based on the written submissions of the parties’ representatives, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

Applicant:

B McMillan of Counsel, instructed by Gilshenan & Luton Legal Practice

First Respondent:

Second Respondent:

Excused from appearing

S Singh, Solicitor, Crown Law

REASONS FOR DECISION

What is this application about?

A decision of the Councillor Conduct Tribunal (CCT) published 22 December 2020 is under review.
Before the matter is finally heard, Cr Golder seeks to amend his application for review[1] to narrow its scope to only the adverse findings of the CCT. The Independent Assessor (IA) opposes the amendment.
[1]Filed pursuant to section 150AT of the Local Government Act 2009 (Qld) (LGA).
The issue arose just prior to the hearing listed for 23 May 2023, necessitating an adjournment and an intervening period for response and reply to submissions before the issue of whether to permit the amendment could be determined.
The Tribunal’s decision on the application to amend and the reasons for it follow.

The decision under review

On 23 November 2018 the conduct of its Mayor, Cr Golder, was referred to the IA for investigation. The conduct was described by the IA as “one allegation” of misconduct arising from statements made by Cr Golder in a meeting with two constituents, Mr and Mrs Dare that took place on 7 November 2017 (the meeting).
Following an investigation, on 4 October 2019 the IA referred to the matter to the CCT[2] because it was reasonably satisfied that Cr Golder engaged in misconduct by making statements in the meeting that were, variously, dishonest, unauthorised or misleading as follows:
[2]Pursuant to section 150AJ of the LGA.

Reference

Alleged statement

IA concern regarding the statement

(e)(i)

Cr Golder stated he was there in his personal capacity, not there as a council and…

Reference	Alleged statement	IA concern regarding the statement
(e)(i)	Cr Golder stated he was there in his personal capacity, not there as a council and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] QCAT 371
Decision Date

CaseChat Overview and Summary

Tyson Golder has applied to the Queensland Civil and Administrative Tribunal (QCAT) for a review of a decision made by the Councillor Conduct Tribunal (CCT). The CCT had found that Cr Golder engaged in misconduct by making certain statements during a meeting with two constituents. Cr Golder seeks to amend the grounds of his review application to challenge only the adverse findings made by the CCT. The Independent Assessor (IA) opposes the amendment. The primary issue before QCAT was whether to permit the amendment to the grounds of review. Cr Golder argued that the amendment would ensure the most economical, fair, and efficient manner of exercising the Tribunal's jurisdiction by limiting the review to only the adverse findings. The IA opposed the amendment, asserting that it would fragment the decision under review and be inconsistent with the Tribunal's review powers. QCAT found that permitting the amendment at that stage in the proceedings would risk disadvantaging the IA, delay the proceedings, and not meaningfully save costs or the Tribunal's time. The application to amend was dismissed. The Tribunal's role on review is to consider the circumstances afresh and produce the correct and preferable decision, standing in the shoes of the original decision maker. While narrowing the scope of review can achieve efficiency, it must also be consistent with achieving justice and not disadvantage any party. In this case, the application to amend was made late, the parties had already addressed all issues in the CCT hearing, and the evidence submitted included four hours of video from the CCT hearing. For those reasons, QCAT declined to exercise its discretionary power to permit the amendment.

Orders