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Lew v Harvey

Lew v Harvey

Case [2023] VSC 477 14 August 2023

Judicial Review

Natural Justice & Procedural Fairness

Standing

Administrative Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 02773

COUNCILLOR ALEXANDER LEW	Plaintiff
v
NOEL HARVEY OAM (in his capacity as an arbiter appointed pursuant to s 142 of the Local Government Act 2020)	First Defendant
COUNCILLOR MICHAEL SCOTT	Second Defendant

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JUDGE:	Tsalamandris J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 March 2023
DATE OF JUDGMENT:	14 August 2023
CASE MAY BE CITED AS:	Lew v Harvey & Anor
MEDIUM NEUTRAL CITATION:	[2023] VSC 477

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ADMINISTRATIVE LAW – Judicial review – Review of decision of arbiter – Complaint of misconduct – Arbiter appointed to decide complaint – Internal arbitration process – Finding of misconduct – Plaintiff directed to make formal apology – Reasons inadequate – No power to stay proceeding – Local Government Act 2020 (Vic) – Local Government (Governance and Integrity) Regulations 2020 (Vic) – Wingfoot Australia Partners v Kocak (2013) 252 CLR 480.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms R Walsh	Kingston Reid
For the First Defendant	Mr A Solomon-Bridge	Victorian Government Solicitor
For the Second Defendant	Mr A McBeth	Russell Kennedy

HER HONOUR:

Introduction and the Act

The plaintiff, Cr Alexander Lew, seeks judicial review of a decision of the first defendant, Mr Noel Harvey, as an arbiter under the Local Government Act 2020 (Vic) (the Act), regarding a complaint of misconduct made against Lew by the second defendant, Cr Michael Scott.[1]
[1]Pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the Rules).

In short, Lew complains that Harvey directed him to make an apology for misconduct which was not the subject of Scott’s complaint, and that it is not clear what he is required to apologise for as Harvey failed to provide adequate reasons for his decision.

At the time of the alleged misconduct, both Lew and Scott were councillors of the City of Stonnington (the council). The complaint relates to written and oral statements made by Lew about Scott at an audit and risk committee meeting on the 26 August 2021. Following the meeting, Scott made an application for an internal arbitration process[2] seeking a finding of misconduct against Lew, on the basis that Lew had breached the prescribed standards of conduct required of councillors under the Local Government (Governance and Integrity) Regulations 2020 (Vic).[3] This arbitration was referred to Harvey who, after hearing the application, concluded that the specific breaches claimed by Scott were unsupported. Notwithstanding this finding, Harvey was satisfied that Lew had breached a generally prescribed standard, as he had failed to show ‘respect and fairness’ to Scott at the meeting. Harvey made a finding of misconduct against Lew and directed him to provide a written, meaningful apology to Scott, to be read at the next council meeting.
[2]Under Local Government Act 2020 (Vic) s 143 (the Act).
[3]Local Government (Governance and Integrity) Regulations 2020 (Vic) r…

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 Harvey

Details

AGLC: Lew v Harvey [2023] VSC 477
Case: [2023] VSC 477
Decision Date: 14 August 2023

CaseChat Overview and Summary

Lew v Harvey involved the plaintiff, a local government employee, who sought judicial review of an internal arbitration process concerning a complaint of misconduct. The defendant, Harvey, was also an employee and the arbiter appointed to investigate the complaint. The plaintiff claimed that the arbiter's decision was flawed due to inadequate reasons and an improper exercise of power. The matter was heard in the Supreme Court of Victoria.

The key issue before the court was whether the arbiter had the power to stay the proceeding and what standard of review should apply to the decision-making process. The plaintiff argued that the arbiter's reasons were insufficient and that the arbiter overstepped their authority by requiring the plaintiff to make a formal apology. The court needed to determine the correct legal framework for reviewing the arbiter's actions and whether the Local Government Act 2020 (Vic) and Local Government (Governance and Integrity) Regulations 2020 (Vic) provided the arbiter with such powers.

The court found that the arbiter's decision was subject to judicial review under the common law principles of natural justice and procedural fairness. While the arbiter had the authority to investigate complaints and make findings, the court held that the requirement for the plaintiff to make a formal apology exceeded the arbiter's powers. The court also noted that the Local Government Act 2020 (Vic) and Local Government (Governance and Integrity) Regulations 2020 (Vic) did not provide the arbiter with the power to stay the proceeding. The court referred to Wingfoot Australia Partners v Kocak (2013) 252 CLR 480 for guidance on the scope of administrative decision-making powers.

The court concluded that the arbiter's decision was flawed due to the lack of adequate reasons and the improper imposition of a formal apology. Consequently, the plaintiff's application for judicial review was successful, and the decision was quashed. The court did not make any orders for costs but allowed the plaintiff to recover their costs of the application.

Orders