Valantine v Muswellbrook Shire Council

[2008] NSWSC 1300

CITATION:	VALANTINE v MUSWELLBROOK SHIRE COUNCIL & ORS [2008] NSWSC 1300
HEARING DATE(S):	28/08/2008
JUDGMENT DATE :	8 December 2008
JUDGMENT OF:	Adams J at 1
DECISION:	Decision of Conduct Committee set aside. The defendants to pay the plaintiff's costs. Further orders as agreed.
CATCHWORDS:	Alleged misconduct - conduct committee - independent investigation - procedural fairness - failure to provide contradictory statements - failure to fairly inquire - decision vitiated.
LEGISLATION CITED:	Local Government Act 1993
CATEGORY:	Principal judgment
PARTIES:	Michael Valantine (Plaintiff) Muswellbrook Shire Council (First Defendant) John Colvin (Second Defendant) Linda Lawler (Third Defendant) Steven McDonald (Fourth Defendant)
FILE NUMBER(S):	SC 30041/2008
COUNSEL:	R DeMeyrick SC (Plaintiff) J.A. Ayling SC (Defendants)
SOLICITORS:	Alex Irving (Plaintiff) Marsdens Law Group (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

ADAMS J

8 December 2008

2008/30041 Michael VALANTINE v MUSWELLBROOK SHIRE COUNCIL

JUDGMENT

HIS HONOUR:

Introduction

1 The plaintiff is a Councillor elected to the Muswellbrook Shire Council on 22 March 2004. He was Deputy Mayor of the Council from 11 September 2006 to 10 September 2007. Ms Jennifer Lecky is also a Councillor on the Council, having been elected in 2004 as an Independent. Ms Lecky made certain allegations against the plaintiff of impropriety she claimed occurred in November 2005.

2 Pursuant to its obligations under the Local Government Act 1993, the Council adopted a Code of Conduct that deals, inter alia, with alleged breaches by councillors of the Code. A Conduct Committee is provided for that, following an investigation, reports to the Council, which must decide what is to be done, if anything. A Conduct Committee was duly convened and a Ms Helen Colbey was retained to conduct an investigation. On 29 September 2007 an additional allegation of misconduct was made by Ms Lecky. In late November 2007 Ms Colbey completed her report, which was received by the Conduct Committee shortly afterwards.

3 The Conduct Committee informed the plaintiff on 10 December 2007 that it was considering the report in order to decide whether it discloses a prima facie breach of the Code of Conduct. The plaintiff was informed that the Committee would reports its findings to the full Council in a closed meeting on 11 February 2008. In answer to a request for a copy of the report, the plaintiff was informed that, if the Committee decided to make an adverse recommendation, the plaintiff would be provided with details of the “adverse comment and … [would] be afforded an opportunity to make a comment prior to the Committee releasing its recommendations”. The plaintiff protested through his solicitors about this procedure, contending that he should have the opportunity to peruse the material submitted to the Committee and make submissions about it before the Committee decided to make an adverse recommendation. On 25 January 2008, the Conduct Committee reported to the Council specifying, in respect of each of the allegations, that the investigator had identified “the areas of the Code of Conduct which have been breached” and recommended to Council that the Committee “be authorised to counsel the Councillors involved in this matter”, that a special workshop be conducted for Councillors to review the Code of Conduct to provide clearer guidelines on appropriate behaviour and an awareness session be conducted focusing on the need for confidentiality.

4 The draft report and recommendations were forwarded to the plaintiff on 29 January 2008 to permit him to make a written response to be considered by the Committee before the report was distributed to the Councillors with the relevant business paper on 6 February 2008. Following comments made by the plaintiff to the Committee on 5 February 2008, he was informed that the Committee had decided that further advice was necessary and, in the event that an amended report was prepared, it would be provided to the plaintiff before being placed on the business paper. That revised draft report was completed on 20 February 2008 and forwarded to the plaintiff on that day. It stated that the investigator had “made findings of fact and recommendations…upon those findings of fact, after undertaking proper enquiries”. The report was summarised and then, in terms, considered by the Committee which found that “the matter reported to it discloses a prima facie breach of the Code by the plaintiff” and that “in the circumstances [the plaintiff’s] action was inappropriate” in relation to both of allegations. The recommendations made by the Committee were in the same terms as those earlier communicated. On 29 February 2008 the plaintiff commented adversely on the procedures adopted by the Conduct Committee. On 17 March 2008 he was provided with a full copy of Ms Colbey’s report. On 9 April 2008 the plaintiff complained again about procedural unfairness and demanded that the investigation commence afresh with a reconstituted Conduct Committee. On 11 April 2008 proceedings were commenced in this Court by summons against the defendants for interim injunctive relief and for final orders seeking a declaration that the findings of the Conduct Committee were void, and an injunction preventing referral of the findings of the Committee to a meeting of the Council.

5 Interim orders were made by consent and it is necessary to determine the question of substantive relief.

Determination of misconduct allegations

6 It is agreed that the Code of Conduct governs, so far as it goes, the procedures that should have been followed in the consideration of Ms Lecky’s complaints against the plaintiff.

7 The Code provides for the establishment of a Conduct Committee to comprising the Mayor, the General Manager and at least one person independent of Council. Councillors are required to report suspected breaches of the Code to the General Manager in the first instance and, where appropriate, the General Manager is to report the matter to the Conduct Committee. The following are the provisions relating to the procedures of the Committee –

“11.11 Council’s Conduct Committee is responsible for making enquiries into allegations of breaches of the Code of Conduct by councillors and must either:

· determine not to make enquiries into the allegation and give the reason/s in writing

· make enquiries into the alleged breach to determine the particular factual matters, or

· engage an independent person to make enquiries into the allegation to determine the particular factual matters.

11.12 Enquiries made by the general manager, an independent person or the Conduct Committee will follow the rules of procedural fairness. The enquirer must:

· inform the person/s against whose interests a decision may be made of any allegations against them and the substance of any adverse comment in respect of them

· provide the person/s with a reasonable opportunity to put their case

· hear all parties to a matter and consider submissions

· make reasonable enquiries before making a recommendation

· ensure that no person is involved in enquiries in which they have a direct interest

· act fairly and without bias, and

· Conduct the enquiries without undue delay.

11.13 Council’s Conduct Committee must decide whether a matter reported to it discloses a prima facie breach of this Code. The Conduct Committee will reports its findings, and the reasons for these findings, in writing to the counsel, the complainant and the person subject of the complaint.
11.14 The Conduct Committee may recommend that council take any actions provided for in this Code of Conduct that the Committee considers reasonable in the circumstances.”

8 The Code provides that where the Council finds that a councillor has breached the Code it may decide by resolution to censure the councillor, require the councillor to apologise, counsel the councillor, make public findings of the inappropriate conduct or refer the matter to an appropriate investigative body, such as ICAC or the police, if the matter is serious. Certain further actions can be taken by the Council under various provisions of the Local Government Act. I am not concerned with those consequences but they are potentially serious including, following a request by Council to the Director General of the Department of Local Government, suspension of a councillor from civic office.

9 Although the Code provides for the Council to take the steps I have mentioned where it finds that a councillor has breached the Code and clearly envisaged a finding one way or the other, it nowhere states in terms that the Council is required to determine whether, in any particular case, the Code has been breached. It is submitted by the defendants that the Council is, as a matter of interpretation of the Code, not obliged to make any decision on whether a councillor has breached the Code. In this case, the Conduct Committee, as I have mentioned, concluded merely that there was a prima facie breach of the Code by the plaintiff in two nominated respects but did not recommend that the Council find that the Code had been breached, confining itself to recommendations that the councillors (presumably including the complainant) should be counselled. However, a decision to counsel is, by the Code, dependent upon a finding by the Council that a councillor has breached the Code. Furthermore, the only counselling contemplated by the Code is of the misbehaving councillor. It is difficult to see, therefore, how the recommendation of the Conduct Committee is justified by the Code. On the other hand, it may well be that the Committee can make general recommendations of the type also made. Be that as it may, the plaintiff complains that the process followed by the Conduct Committee was fundamentally flawed and that, therefore, the relief sought should be granted.

10 It will be seen that under sub-cl 11.11 the Conduct Committee must either itself make enquiries into the alleged breach “to determine the particular factual matters” or “engage an independent person to make enquiries into the allegation to determine the particular factual matters”. The outcome of an enquiry is, firstly, a determination of the facts, obviously those alleged in the complaint. Sub-cl 11.13 deals overall with the responsibility of the Committee, requires it to decide whether a matter reported “discloses a prima facie breach” of the Code and permits it to make recommendations to the Council as to what it should do.

11 The determinations referred to in sub-cl 11.11 are not merely prima facie. That sub-clause does not suggest any such qualification. Comparison with the qualified findings with which sub-clause 11.13 deals confirms this conclusion. There is nothing that suggests that the Council is bound by the factual determinations made either by the Committee or the independent investigator. However, it seems to me that the Council must be able to rely on the previous determination and, for that matter, on the Conduct Committee’s conclusion as to whether there has been a prima facie breach of the Code for the purpose of its consequential resolutions. Providing the Council gives the particular councillor a fair hearing as to whether it should rely on the outcome of the Conduct Committee procedure and what action, if any, it should take, it is not required to undertake an independent hearing of its own. If, however, it needs to do so because it would be for any reason unfair or inappropriate to rely on the prior determinations and decisions of the Conduct Committee, then it should, of course, conduct its own enquiry. It is difficult to conceive, however, that as a practical matter the Council as a whole would conduct a trial of the issues between the complainant and the councillor in question, though I would not doubt that, if it decided to do so, it could. On the face of it, the Code envisages that the Council will adopt the determinations of the underlying facts but consider for itself whether a prima facie breach of the Code found by the Conduct Committee indeed constitutes a breach and, if so, what should occur.

12 The defendants submit that the Conduct Committee has only two functions: first, to decide whether a prima facie breach of the Code is disclosed; and, secondly, make a recommendation as to any future action that the Council should take. I do not agree with this contention. It seems to me that sub-cl 11.11, which is mandatory language, requires that there be a determination of the underlying facts, either by the Conduct Committee itself or an independent person engaged by it to do so. They are stated as exclusive alternatives. This conclusion is fortified, it seems to me, by the requirement in sub-cl 11.12 that the “independent person or the Conduct Committee will follow the rules of procedural fairness”, including the enumerated procedures. The independent person and the Conduct Committee are therefore placed in the same position in respect of the obligations to provide procedural fairness. This is not surprising if one or other of them is required to make the specified determinations. By way of analogy, an investigating police officer does not need to follow any rules of procedural fairness (though of course, he or she must be fair) since his or her task is the gathering of information. Typically, perhaps, exclusively, the rules of procedural fairness relate to decision makers though, of course, the decision in question might be, in some respects, a preliminary one. Here, it cannot be argued, I think, that the Conduct Committee is not a decision maker. By parity of reasoning, it seems to me that the independent person is also a decision maker. There is nothing in the language of sub-cl 11.11 that suggests their determinations have a different status; rather, the opposite is the case.

13 On the face of the draft report, the Committee complied with the provisions of the Code in that it relied on the findings of the “investigator” and concluded that there had been prima facie breaches of the Code by the plaintiff. There is a question whether Ms Colbey was “engage[d] as [an independent person]” within sub-cl 11.11. Of course, if she was not, then the Conduct Committee needed to make the required determination of facts for itself, though no doubt it could rely on the facts disclosed in the investigator’s report. The Conduct Committee itself stated that she was “engage[d as] an independent person to make enquiries pursuant to clause 11.11”.

14 Ms Colbey stated –

“On 27 September 2007 I was appointed by the Code of Conduct Committee of the Muswellbrook Shire Council to Conduct an investigation and provide an investigation report into a complaint made by Councillor (Cr) Jennifer Lecky concerning the alleged Conduct or Cr Michael Valantine.”

The letter of appointment is regrettably both brief and vague. It stated in substance –

“This is to confirm that the Council wishes to engage your services to conduct the investigation.”


As a matter of form, the engagement should have been made either by or upon the decision of, the Conduct Committee rather than the Council but it appears, at all events, that the Conduct Committee did make the decision itself. No point about this is taken by the either party and I think that I should assume that the General Manager, whose letter I have quoted, acted pursuant to a decision of the Conduct Committee. However this may be, there is nothing further in the formal documentation that specifies whether, on the one hand, Ms Colbey was retained for the purpose of investigating the allegations or, on the other hand, was engaged as an independent person herself to make the factual determinations. If the former is the case, then I do not think it would have been necessary for Ms Colbey to comply with the requirements of procedural fairness although, of course, it was essential that the Conduct Committee should do so in dealing with Ms Colbey’s report, both in respect of determining the factual matters as well as making its decision as to whether a prima facie breach of the Code was disclosed and what recommendations it should make to the Council.

Ms Colbey considered that she was indeed a fact finder since the following passage appears in the executive summary containing the conclusion to which she came –

“ The requisite standard
Although in a matter such as this, proof is required only on the balance of probability, given the potential seriousness of any adverse finding against Cr Valantine, such a finding should not be made unless it is supported by commensurably strong evidence.
This is to give effect to what is frequently referred to as the Briginshaw principle (from the decision of the High Court of Australia in Briginshaw v Briginshaw (1938) 60 CLR 336) which requires that the more serious complaint, the stronger the evidence must be to establish the complaint on the balance of probabilities. My use of in this report of the phrase ‘the required standard’ should be understood in this sense.”

Though Ms Colbey’s conclusions are expressed as “the investigator’s view”, they are clearly determinations “on the balance of probabilities” that particular events occurred.

15 I should mention that Ms Colbey also expressed the view that the impugned conduct “constitutes a breach of the Code of Conduct”. Accepting that Ms Colbey was indeed engaged as an “independent person” under sub-cl 11.11, making a decision or expressing a view as to whether the Code of Conduct was breached was outside the scope of her authority. The Code distinguishes fact finding from the finding of a prima facie breach of the Code. The latter is solely the responsibility of the Conduct Committee. Be that as it may, as already appears, the Conduct Committee itself independently considered whether there was a prima facie breach of the Code. Accordingly, I do not think anything of significance follows from Ms Colbey’s making the unauthorised findings.

16 Taking into account the whole of the circumstances, including especially the language used by the Conduct Committee in characterising its decision as engaging Ms Colbey “as an independent person to make enquiries pursuant to cl 11.11” and the use actually made of her report by the Conduct Committee, I think that in substance, if not in language, Ms Colbey was indeed engaged as an independent person within the meaning of sub-clause 11.11. It follows, therefore, that she was obliged to follow the rules of procedural fairness in determining the relevant factual matters.

17 The plaintiff complains that he was not accorded procedural fairness either by Ms Colbey or by the Conduct Committee. It is to this complaint that I now turn.

The enquiry

18 The Council provided what were called background documents to Ms Colbey. They included a copy of a letter written by Mr Colvin, the Mayor, on 24 July 2007 informing him the General Manager had received a written allegation of misconduct which he had referred to the Conduct Committee. The allegation is stated as follows –

“It has been alleged by Cr Lecky that an incident occurred during your attendance at the Local Government Association Conference held in Mudgee held in November 2005. Cr Lecky has alleged that following the return of the council delegates to Gulgong after the social evening at Poet’s Corner Winery you followed her to her room. It is alleged that you turned the light off and gave her a tonguey [sic] kiss. Cr Lecky alleges she quickly made it clear that she did not consent to the kiss.
The substance of the allegation made by Cr Lecky is that your alleged conduct was improper and that you failed to treat her with respect.”

19 Also contained in the background material are handwritten notes of a number of conversations between the Mayor, Mr Colvin, and Cr Lecky and the plaintiff largely dealing with how the matter would or should proceed. Amongst other things, in a conversation with Mr Colvin on 26 September 2007, Cr Lecky told Mr Colvin that she did not respect his decision to vote for the plaintiff as Deputy Mayor. Mr Colvin noted his reiteration of his opinion that he did not “necessarily respect her decision to stand against me for the mayoralty last year” and somewhat laconically, “here the conversation ended”. These exchanges rather suggest that, politically at least, they were not in the same camp. Of greater significance is a note made by Mr Colvin on 1 November 2005 as follows –

“31 Oct 2005
Cr Lecky asked to see me behind closed doors and claimed that she had been tongue kissed by Cr Valantine on night of 24 Oct at the LGA conf at their accn “Green Gables”, Gulgong. Cr Valantine according to Cr Lecky turned the light out and the reported incident then took place.
On 01/11/05 I rang Cr Lecky at 10.50 hrs and said if she felt she had been assaulted one of her options was to go to police – she said she felt more “invaded” than assaulted and didn’t want to make a big fuss about it.”

20 It appears that the Mayor took no action. Cr Lecky then made a written complaint on 17 May 2007 which she handed to Mr Colvin on that day. Cr Lecky explained the delay in complaining as follows –

“The invasion of my space made me unable to sleep for a week and I then went to the Mayor, Cr Colvin and explained what happened. One of my reasons as well as personal was that I was afraid that as a representative of our council he [I think the plaintiff] could bring disrepute to our council. Most men seem to think this behaviour comical but after all this time it still festers and diminishes my respect for Cr Valantine. Cr Colvin rang me the following day and told me that if I wanted to I could make charges against Michael at the police station.
This matter has caused me untold angst and is something hard for me to resolve when there has been no resolve. While attending the Women in Local Government Conference somebody referred to the Eleanor Roosevelt quote “No one can make you feel inferior without your consent”. I feel that I have consented to this behaviour unwillingly as I have not reported this matter and I now seek resolution at whatever level and in whatever forum it needs.”

21 It appears that Ms Lecky sought, at the end of July 2007, to speak to the Conduct Committee and addressed the Committee on her complaint. On 29 September 2007, some two months later, she made a further written statement containing the following –

“During the preparation of the [earlier statement] I had forgotten to include the behaviour of the offender at a previous Morpeth Strategic Weekend. I was sitting listening and talking to other Councillors after we had returned from dinner. It was later than 2am when Michael unrolled a large wall mounted fire hose and fired water at me. Even though I tried to run away from the line of water I was soaked through and had to use the strip heaters in my room to dry clothes to wear the next day.”

22 Ms Lecky explained the delay in making this complaint –

“The preparation of my original statement was indeed a stressful time and considering the length it amazed me that it took two days to prepare. It seemed to my responsibility to report and raise the concerns I had given to Council a long time before. When you are restricted to presenting pertinent facts it is difficult because of the angst and anger that I feel about the event.”

23 Ms Lecky also complained about what she describes as the “unwieldy and unfeeling process applied by the Code of Conduct Committee by my complaints”, expressing distress that the “process of the Conduct Committee” asked her what she wanted to do about the matter rather than (as I understand her complaint) itself instigating enquiries.

24 The report then contains a number of emails between Ms Colbey and Ms Lecky arranging to meet for an interview and a transcript of that interview. It is not necessary to set it out here. Mainly, it comprises a lengthy statement by Ms Lecky as to what happened and her attitude to what happened, why she made her complaints and the course of events. Ms Colbey did not attempt to test Ms Lecky’s account by any kind of cross-examination or probing questions. Rather, her approach was simply to encourage Ms Lecky to tell her story after some introductory questions. Ms Lecky also got a statement on 10 October 2007 from another councillor, Mr Ogg, concerning the “fire hose” complaint. Amongst other things, Mr Ogg said that he saw the plaintiff walk to the stairwell then return with a fire hose that he unreeled, turned on and aimed at Ms Lecky, saturating her clothes. He commented that his actions were completely unprovoked by Ms Lecky, that he obviously thought it was a great joke, that he thought his conduct was inappropriate and unwarranted and observed that Ms Lecky was visibly embarrassed. He added that it was “evident that Cr Valantine was in ‘high spirits’ and was showing signs of being inebriated”.

25 Ms Colbey corresponded with Mr Irving, the plaintiff’s solicitor, who had earlier been in communication with the General Manager concerning the complaint. On 17 October 2007 she informed him of her appointment to “undertake an investigation and provide…an investigation report relating to complaints raised by Cr Lecky about the alleged Conduct of Cr Valantine“. The statements of complaint made by Ms Lecky were forwarded with this letter and the particular issues arising out of those complaints were specified. It is most unfortunate that Ms Colbey did not precisely state what she considered to be her role, in particular, that she was making enquiries pursuant to sub-cl 11.11 of the Code of Conduct. It may be, perhaps, that she did not herself precisely understand her status in terms of the Code.

26 Ms Colbey obtained, amongst others, a statement from Ms Terrace, also a councillor, dated 12 October 2007 concerning what she had seen on the evening in October 2005 when the “kissing” matter allegedly occurred. She was staying in the same accommodation as the plaintiff and Ms Lecky, the three of them staying up after the evening’s entertainment for several hours talking. As it happened, Mr Colvin had been present but went to bed sometime earlier. Ms Terrace said she did not notice anything untoward or any flirtatious or similar conduct by the plaintiff towards Ms Lecky. As it happened, as the three of them walked out of the lounge room to go to their bedrooms, she did not observe what the plaintiff and Ms Lecky did. The following morning she recalled that Ms Lecky was concerned about using her mobile telephone but there was (she implied) no complaint about the plaintiff’s conduct the previous night or any suggestion of any concern about it. She said that she noticed nothing untoward about the plaintiff’s demeanour.

27 In the meantime, on 6 September 2007 Mr Irving wrote to the General Manager requesting a copy of the complaint made by Ms Lecky to the Council, copies of all correspondence forwarded to the plaintiff by the Council, copies of any statements from any witnesses or any other documents which the Committee proposed to rely upon. Of course, this letter had been written before Ms Colbey’s engagement and before her first communication with Mr Irving on 17 October 2007. On 13 September 2007, the General Manager responded, in substance, providing the first two items requested but saying that no further information would be provided since there was a “jurisdictional issue” that needed to be considered by the Committee which would then determine what further action it might take. The General Manager undertook to forward any further information relevant to the matter if the Committee proposed to take further action. It seems that Mr Irving was informed of Ms Colbey’s appointment on the day it was made and wrote on 20 September 2007 to her seeking the additional material not hitherto provided, adding in particular “we require details of when Cr Lecky first complained of the matter, to whom and what was said”. Mr Irving reminded Ms Colbey of the necessity to adhere to the requirements of procedural fairness imposed by the Code. On 4 October 2007 the General Manager sent to the plaintiff a copy of the “fire hose” complaint.

28 On 30 October 2007 Mr Irving sent to Ms Colbey statements from the plaintiff and a Mr Rush. So far as the “fire hose” incident is concerned, the plaintiff said that he sprayed water lightly at a number of the councillors, that at the time it was treated as a joke and no one complained to him then or since until Ms Lecky’s statement of 29 September 2007. So far as the kissing allegation is concerned, the plaintiff flatly denied that this occurred. He placed these complaints in the context of Council politics and suggested that this provided a motive for Ms Lecky’s complaints, in particular referring to when they were made. The statement of a Mr Martin Rush, a barrister who, at the relevant time, was President of the Muswellbrook branch of the Australian Labour Party, confirmed the political context in which the allegations were made. The most important part of Mr Rush’s statement, however, was his recollection of Ms Lecky’s account to him of the plaintiff’s misconduct. Mr Rush’s recollection of her complaints differed markedly from the account in her statements –

“11. Cr Lecky indicated to me that she would under no circumstances support Cr Valantine [to be elected as deputy mayor]. Cr Lecky said to me that Cr Valantine splashed her with a hose at the Morpeth conference and that he had ‘pashed’ her at Gulgong.
12. The conversation meandered across a variety of subjects but turned again to Cr Valantine’s Conduct. Cr Lecky said to me:
‘[Cr Valantine] came into my room after the Morpeth conference. It was dark. I was in my underwear. I was very embarrassed. He gave me a big sloppy kiss. He obviously thought I was Cr Cindi Terrace. I have no interest at all in Cr Valantine. I do not consider myself a prude but I don’t know what he was doing.
I said: “I thought you said it happened at Gulgong?”
Cr Lecky said: “It was at Morpeth, he came into my room. It was dark but I knew it was him. I was changing my clothes because he had wet them. He gave me a big sloppy kiss. Both he and Cr Terrace were drunk….’
13. I said to Cr Lecky: ‘I am sure you said it happened at Gulgong earlier but in any event there is an appropriate way to handle it and that is to make a complaint. It’s not helpful to the Party for allegations to be bandied around. If you believe it to have happened then you should make a formal complaint. But, if not, it is unacceptable to spread it round. Cr Valantine is entitled to have the matter determined impartially and the matter brought to an end. You two need to work together and you need to resolve the matter one way or another’.
Cr Lecky’s application to the ALP was not accepted at that time.”

29 It will be seen that Mr Rush’s account of Mr Lecky’s complaint differs markedly and significantly both from her earlier verbal complaint to Mr Colvin and her later written complaints. This difference concerned not only where the incident allegedly occurred but the sequence of events. If Mr Rush’s recollection was correct it created a substantial obstacle in accepting Ms Lecky’s credibility and reliability.

30 On 10 November 2007 Mr Irving wrote to Ms Colbey forwarding a signed statement from Mr Rush (the earlier statement having been unsigned) and stating –

“We assume that the material you will rely on in preparation of your report will be:
1. Statement of Cr Jennifer Lecky dated the 17th May 2007;
2. Statement of Cr Jennifer Lecky dated the 29th September 2007;
3. Statement of Cr Michael Valantine;
4. Statement of Martin Rush.
Please confirm.”

31 It seems that, unfortunately, Ms Colbey did not respond to this letter.

32 On 13 October 2007 Ms Colbey emailed Ms Lecky. Referring to having received Mr Rush’s statement, she brought to Ms Lecky’s attention that part of his statement which I have set out above and asked Ms Lecky to respond. Ms Colbey also informed Ms Lecky of the substance of the statement from Ms Terrace, and again gave Ms Lecky “an opportunity to make any written submissions to me in response”. Ms Lecky confirmed her account of events and added –

“Martin Rush’s entire statement was extracted from a 2-hour mobile phone conversation during the delivery of my grandson…on 19 June 2006. I was at the hospital and most concerned because it was a most distressing delivery.
His conversation would not stop and I was most certainly at least distracted. The phone conversation was trying to elicit support for Michael and request me not to stand against Cr Colvin for mayor. At that stage he couldn’t understand my opposition to Michael. Although a number of passages contained in Mr Rush’s statement are similar to statements I made they have been used out of sequence and context. Mr Rush’s statement is neither factually based on first hand observation or witnessing either of the events but only a very loose report of a phone conversation with myself. I understand that Mr Rush is a close personal friend of Mr Valantine.
And I am also aware that Mr Rush is assisting Mr Valantine professionally on a matter before the Government and Related Employees Tribunal. I believe that Mr Rush’s statement does not add any further credibility to Mr Valantine’s defence of his actions.”

33 It will be seen that Ms Lecky’s response was to say, not only that she was distracted and possibly confused at the time of her conversation with Mr Rush but also that he had confused what she said. Furthermore, she suggests that Mr Rush was not an independent witness and has either fabricated his account or his recollection had been affected by his association with Mr Valantine.

34 Amongst the reasons given by Ms Colbey for “preferring the evidence of Cr Lecky over the denial of Cr Valantine” is that she “found her to be a credible person…and appeared to be genuinely embarrassed when discussing the alleged incident, raising the obvious question as to why she would put herself through such an ordeal if it were not true”. So far as the latter question is concerned, the plaintiff had presented evidence suggesting a motive for a false allegation, Ms Colbey said about this –

“I am not satisfied that the inferences from Cr Valantine and Mr Rush that Cr Lecky has fabricated the alleged incident for political means has been made out to the required standard although I accept the evidence provided as to the political framework and environment …”

Ms Colbey points out that the relevance of the political context alleged was significantly reduced by virtue of the report made in October 2005 to the Mayor, before the events described by the plaintiff and Mr Rush in their statements.

35 Ms Colbey concluded that Ms Lecky’s version of events “has remained consistent over the 2 year period since it first occurred” and was “indirectly corroborated by her disclosure to the Mayor within one week of the incident”. Of course, the question of consistency was directly raised by Mr Rush’s statement. Ms Colbey thought that Ms Lecky’s response to Mr Rush’s statement was “plausible”, although she said that she did “not know whether Cr Lecky confused the locations of Morpeth and Gulgong… or, as Cr Lecky asserts, that Mr Rush had taken her conversation out of context”. However, this is to considerably understate the extent of the conflict between the two accounts. If Mr Rush’s recollection was correct, Ms Lecky had described the “kissing” incident in very different terms, which could not be reconciled by the supposition of any confusion on her part. Moreover, the two events were linked in that she said to Mr Rush (as he recalled it) that the “kissing” incident occurred when she had returned to her room to get changed, it was dark and she was in her underclothes. This is no mere confusion of location.

36 Of course it is not for me to decide whether the conclusions of Ms Colbey were correct, let alone whether it was open to her on the material that she had. The question is whether she followed the requirements of procedural fairness and the Code in reaching her conclusions.

37 Clause 11.12, specifying the procedural fairness requirements of the Code required Ms Colbey to provide the plaintiff “with a reasonable opportunity to put [his] case…hear all parties to a matter and consider submissions”. She was also required to make “reasonable enquiries before making a recommendation”. Although this requirement in terms refers to a “recommendation”, it must also refer to a determination of the facts.

38 These requirements were not satisfied. If Mr Rush’s recollection of his conversation with Ms Lecky was both credible and reliable it plainly casts, as I have already said, considerable doubt upon the credibility and reliability of Ms Lecky’s complaint. Ms Lecky’s response to Mr Rush’s statement was to attack both his credibility and reliability and also to suggest that in the circumstances she might herself have been somewhat confused. Much therefore depended upon what weight should be given to Mr Rush’s account. Had he been asked, Mr Rush may well have been able to respond to Ms Lecky’s assertions about the nature and circumstances of their conversation. In the circumstances, the plaintiff was denied a reasonable opportunity to put his case because he was not informed of Ms Lecky’s response to Mr Rush’s statement and therefore placed in a position to provide, if he wished to do so, further material from Mr Rush. Independently, the duty to make “reasonable enquiries” obliged Ms Colbey to raise the matter herself with either Mr Rush directly or through Mr Irving. It might have been that Ms Colbey’s conclusion would not have changed but, at least, she would have followed the process required of her by the Code of Conduct. On the other hand, Mr Rush’s further information may have lead to a different conclusion about whether Ms Lecky’s complaints should be accepted.

39 There is, furthermore, the problem that Ms Colbey did not respond to the enquiry by Mr Irving of 15 November 2007 as to the material upon which she intended to rely for the preparation of her report. Ms Colbey did not disclose that she had interviewed Ms Lecky – although no doubt Mr Irving might have expected that this would be done – and, more importantly, she did not provide the text of Ms Lecky’s response to Mr Rush’s statement. The silence of Ms Colbey in response to his letter would have led reasonably to the conclusion that Mr Rush’s statement was accepted on the face of it, since if there had been a contradictory response by Ms Lecky, Mr Irving could reasonably have expected that he would have been informed of it. Accordingly, not only was the plaintiff not given a reasonable opportunity to put his case and there was a failure to make reasonable enquiries, the plaintiff’s solicitor was effectively misled about the course of Ms Colbey’s enquiry. Nor was Mr Irving supplied with a copy of Ms Terrace’s statement.

40 I should add, I think, a comment about the approach taken by Ms Colbey to the suggestion of fabrication implicit in the statements of the plaintiff and Mr Rush. Ms Colbey said that she was not satisfied that the inference of fabrication “has been made out to the required standard”. Ultimately, the question for Ms Colbey is whether the complaints were made out, as she rightly said, on the balance of probabilities. A countervailing inference might well not be established more probably than not, let alone to the Brigenshaw standard. This does not mean that such an inference, to the extent that it is likely to be true, should be disregarded in evaluating whether the complaint is established to the required standard. The Code of Conduct is silent on the question of the onus of proof but it is obvious that no adverse decision can be made unless the fact finder is satisfied on the balance of probabilities that the complaint is true. It cannot be that the person against whom the complaint is made must establish his or her innocence.

The Conduct Committee

41 I have mentioned briefly above the approach of the Conduct Committee to Ms Colbey’s report. Since the Committee approached the matter upon the basis that the decision as to whether the particular factual matters capable of amounting to a breach was made by Ms Colbey, it is scarcely surprising that they did not seek from the plaintiff a response to Ms Colbey’s report in that respect. If the Conduct Committee was not to determine those matters for itself, but only whether prima facie breach of the Code had been committed the material upon which Ms Colbey relied to come to her determination was immaterial. So considered, it was not a breach of the rules of natural justice for the Conduct Committee not to have passed on to the plaintiff the entire report of Ms Colbey, though it would have been consistent with good practice to have done so and there was no good reason for it not to have done so.

42 Somewhat more problematical, perhaps, is the fact that Mr Colvin, the Mayor, provided a written response to a series of questions directed to him by Ms Colbey. (I note incidentally that that material also was not provided to the plaintiff though it was, in some respects, supportive of Ms Lecky’s statement and contradicted Ms Terrace’s account.) It is submitted on the plaintiff’s behalf that it was inappropriate for Mr Colvin to have sat on the Conduct Committee as he was a witness to certain of the events. Whether his evidence was indeed controversial is not known, though I repeat that the plaintiff was not given an opportunity to respond to it. If it were necessary for the Conduct Committee to have considered whether the complaints were true, I think there would have been a substantial difficulty posed by Mr Colvin’s membership of the Committee unless the facts asserted by him were not controversial. However, the Conduct Committee’s role was in my view to determine whether, on the facts found by Ms Colbey, there was a prima facie breach of the Code by the plaintiff. The fact, therefore, that Mr Colvin was a witness to certain of the surrounding events was immaterial and there could be no legitimate objection to his having been a member of the Committee.

Conclusion

43 The determination of Ms Colbey was arrived at in a substantial breach of the Code and the rules of procedural fairness. Accordingly, the Conduct Committee’s determination, which depended entirely on the report so far as the facts were concerned, cannot stand. There was some debate before me as to the actual form of orders that I should make in the event that the plaintiff’s case was substantially made out. It seems to me that the appropriate course is to direct the parties to bring in Orders as agreed. If no agreement can be reached, leave to apply on three days’ notice is given to both parties for me to determine the form of the orders. The defendants must pay the plaintiff’s costs

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