Lew v Blacher - [2024] VSCA 304

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0118

COUNCILLOR ALEXANDER LEW	Applicant
v
YEHUDI BLACHER IN HIS CAPACITY AS AN ARBITER APPOINTED PURSUANT TO SECTION 142 OF THE LOCAL GOVERNMENT ACT 2020 & ANOR (ACCORDING TO THE ATTACHED SCHEDULE)	Respondents

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JUDGES:	KENNEDY, KAYE and KENNY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	11 November 2024
DATE OF JUDGMENT:	11 December 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 304
JUDGMENT APPEALED FROM:	[2023] VSC 604 (Gray J)

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ADMINISTRATIVE LAW – Judicial review – Internal arbitration of allegation of misconduct by Councillor – Finding of misconduct arising from content of social media post on Councillor’s private account relating to a matter for decision by Council – Whether trial judge erred in finding the expression ‘in performing the role of a Councillor’ applied to the Councillor’s conduct – Whether ‘decision making’ involved acquisition of information about ‘the diversity of interests and needs of the municipal community’ – Democratic nature of local government – Arbitrator the sole contradictor – No breach of Hardiman principle – Application for appeal to appeal granted – Appeal dismissed.

Constitution Act 1975 s 74A; Local Government Act 2020 ss 4, 8, 9, 28, 139, 142, 143, 144; Local Government (Governance and Integrity) Regulations 2020 r 12, Schedule 1.

R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, applied; R v A2 (2019) 269 CLR 507, applied.

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Counsel
Applicant:		Ms K Foley SC, with Ms R Walsh
First Respondent:		Ms E A Bennett SC, with Mr A F Solomon-Bridge
Second Respondent:		No appearance
Solicitors
Applicants:	Kingston Reid
First Respondent:	Victorian Government Solicitor’s Office
Second Respondent:	Barry Nilsson

KENNEDY JA
KAYE JA
KENNY JA:

Introduction

The applicant, Alexander Lew, was a Councillor of Stonnington City Council (‘Stonnington Council’) from October 2020 to December 2022.
The first respondent, Yehudi Blacher, was appointed an arbiter under s 142 of the Local Government Act 2020 (‘LGA’) following an application by the second respondent, Polly Morgan, at that time also a Stonnington Council Councillor, for an internal arbitration pursuant to s 143 of the LGA. Her application concerned a Facebook post made by the applicant on 25 July 2021.
The applicant made his post following a Facebook post by Brendan Corr to the ‘Residents living in the Electorate of Higgins, Melbourne’ Facebook group, which Mr Corr described as a ‘local politically-focussed FB group’. Mr Corr’s Facebook post alleged that the applicant had a conflict that should have precluded him from any involvement in Stonnington Council’s review of the location of a proposed netball stadium.
The applicant used his personal Facebook account to respond in the comments under that Facebook post. The applicant’s comments included the following:
I don’t care that you now have this vendetta against me and that you will probably haunt me until your co-morbidly riddled body eventually packs up and is wheeled out of your [street name] mansion. The only reason you have not been thoroughly disowned by each and every councillor…

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.

Continue reading Lew v Blacher

Details

AGLC: Lew v Blacher [2024] VSCA 304
Case: [2024] VSCA 304
Decision Date: 11 December 2024

CaseChat Overview and Summary

The case of Lew v Blacher involved an application for judicial review of an internal arbitration process that found a Councillor guilty of misconduct. The misconduct arose from a social media post made on the Councillor’s private account about a matter that was pending before the Council. The applicant, Mr Lew, sought to overturn the arbitration decision on the basis that the expression ‘in performing the role of a Councillor’ did not apply to the conduct in question. The Supreme Court of Victoria was tasked with deciding whether the expression ‘in performing the role of a Councillor’ encompassed the social media post and whether the process involved ‘decision making’ that required an understanding of the municipal community’s diversity of interests and needs.

The court examined whether the social media post was part of the Councillor’s role as a Councillor and thus subject to the internal arbitration process. The court found that the expression ‘in performing the role of a Councillor’ was broad enough to include the social media post as it related to a matter for decision by the Council. The court also determined that the process did involve decision-making, which required the Councillor to acquire information about the community's diverse interests and needs. The court held that the democratic nature of local government necessitated a broad interpretation of the Councillor’s role, and the Arbitrator, being the sole contradictor, was not in breach of the Hardiman principle.

The appeal was granted, and the application for judicial review was dismissed. The court held that the internal arbitration process was valid and that the findings of misconduct were correct. The court affirmed that the Arbitrator’s role and the interpretation of the Councillor’s duties were within the bounds of the legislation and the democratic principles of local government. The Supreme Court found no error in the trial judge’s decision, and the appeal was dismissed with no orders for costs.

Orders