Wy Kanak v NSW Local Government Pecuniary Interest Tribunal & 1 Or

[2004] NSWCA 196

Reported Decision: 134 LGERA 176

Court of Appeal

CITATION:	Wy Kanak v NSW Local Government Pecuniary Interest Tribunal & 1 Or [2004] NSWCA 196
HEARING DATE(S):	16/06/04
JUDGMENT DATE:	6 July 2004
JUDGMENT OF:	Mason P at 1; Beazley JA at 2; Ipp JA at 3
DECISION:	(1) The appeal succeeds to a limited extent (2) The finding by the Tribunal that the appellant contravened s 451(1) should be set aside (3) The findings that the appellant contravened s 451(2) and s 451(3) remain unaltered (4) The penalty imposed by the Tribunal that the appellant be reprimanded for his breaches of the Act remains unaltered (5) The Director-General pay the appellant's costs of the appeal.
CATCHWORDS:	LOCAL GOVERNMENT - Tribunal finding that, contrary to s 451 of the Local Government Act 1993 (NSW), a councillor had failed to declare a pecuniary interest in a matter before the council - Whether discrepancy between complaint and notice - Procedure under the Local Government Act 1993 (NSW) - Whether motion itself sufficiently disclosed pecuniary interest - Whether further requirement of oral disclosure - Where finding by Tribunal that notice of pecuniary interest had been given in the motion - Whether matter should be remitted for sentencing afresh. ND
LEGISLATION CITED:	Local Government Act 1993 (NSW) ss 9(1) & (2), 367, 451, 454, 460, 462, 466, 468, 469, 478(1) & (2), 485(1) Local Government Amendment Act 2000 (NSW)
PARTIES :	Dominic Wy Kanak (Appellant) NSW Local Government Pecuniary Interest Tribunal (First Respondent) Director-General NSW Department of Local Government (Second Respondent)
FILE NUMBER(S):	CA 40112/03
COUNSEL:	J Keys (Appellant) Submitting Appearance (First Respondent) M A Robinson (Second Respondent)
SOLICITORS:	For Self (Appellant) I V Knight, Crown Solicitor (First & Second Respondents)

LOWER COURTJURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S):	SC 30028/02
LOWER COURT JUDICIAL OFFICER :	Malpass M

CA 40112/03
SC 30028/02

MASON P
BEAZLEY JA
IPP JA

Tuesday 6 July 2004

DOMINIC WY KANAK v NSW LOCAL GOVERNMENT PECUNIARY INTEREST TRIBUNAL & ANOR

Judgment

1 MASON P: I agree with Ipp JA.

2 BEAZLEY JA: I agree with Ipp JA.

3 IPP JA: On 1 March 2002 the first respondent (to which I shall refer to as the Tribunal) held that a complaint made against the appellant by the Director-General of the Department of Local Government (the second respondent, to whom I shall refer to as the Director-General), pursuant to s 460 of the Local Government Act 1993 (NSW) (“the Act”), had been proved, and the appellant had contravened s 451 of the Act. Section 451 provided (at the relevant time):

(1) A councillor or a member of a council committee who has a pecuniary interest in the matter with which the council is concerned and who is present at a meeting of the council or committee at which the matter is being considered must disclose the interest to the meeting as soon as practicable.

(2) The councillor or member must not take part in the consideration or discussion of the matter.
(3) The councillor or member must not vote on any question relating to the matter.“

4 It is apparent from the Tribunal’s reasons for its decision that the finding of contravention that it made entailed a finding that the appellant had breached each of sub-sections (1), (2) and (3) of s 451.

5 The Tribunal ordered, by way of penalty for the appellant’s breaches, that he be reprimanded.

6 The appellant appealed to the Supreme Court, pursuant to s 485(1) of the Act, against the finding of contravention made by the Tribunal and the penalty imposed.

7 Section 485 does not confine appeals to questions of law and appeals in terms thereof are “all grounds” appeals.

8 Master Malpass heard the appellant’s appeal and dismissed it.

9 The appellant now appeals to this Court against the decision of the Master on the following grounds:

“1. The Tribunal failed to comply with s 469 of the Local Government Act 1993 because of a discrepancy between the Complaint and the Notice.
2. The Tribunal misunderstood what the appellant was admitting in that context.
3. What happened in the Tribunal did not amount to waiver of the matters sought to be raised based on s 469.”

10 The Tribunal has filed a submitting appearance in this appeal. The second respondent, the Director-General, resists the appeal.

11 During the course of argument, the appellant applied for leave to appeal on two other grounds, firstly, that the Tribunal should not have found that he had a relevant pecuniary interest and, secondly, that the Tribunal should not have found that he was in breach of s 451 as, at the relevant time, he honestly and reasonably believed that he did not have such a pecuniary interest. The Court refused to grant the leave sought and indicated that it would give its reasons for its decision when handing down its judgment on the appeal. My reasons for joining in that decision are set out below.

12 The procedure laid down by the Act for the making and hearing of complaints by the Tribunal was, at the relevant time, as follows. Section 460(1) provided that the Director-General might make a complaint that a person has or may have contravened Pt 2 of Ch 14 of the Act. Section 451 was part of Pt 2 of Ch 14. Section 460(2) provided that a complaint must give particulars of the grounds of complaint. Section 462 empowered the Director-General to investigate a complaint. Section 466(1) provided that the Director-General must give to the person against whom the complaint is made “notice of the nature of the complaint and whether any action has been, or is intended to be, taken concerning the complaint”. Section 468 provided that the Director-General must present a report to the Tribunal of an investigation into a complaint carried out by the Director-General. Section 469 provided that the Tribunal might, “after considering a report presented to it, conduct a hearing into the complaint concerned”.

13 On 19 September 2000, the Director-General made a complaint to the Tribunal pursuant to s 460. The complaint stated that the appellant “did contravene Ch 14, Pt 2 of the [Act]”. No reference was made to any particular section of the Act. Particulars of “grounds of complaint” were, however, stated to be as follows:

“It is alleged by the Director General … , that contrary to Ch 14, Pt 2 of the [Act, the appellant]:
‘At the meeting of 11 September 1999 took part in the consideration and discussion of and voted on a motion that he, together with Councillors Main and Copeland submitted to the Waverley Council regarding the rejection of the Olympic volleyball stadium on Bondi Beach’”.

Thus, the contravening conduct alleged was the participation in the consideration and discussion of the motion identified and voting on it. Such conduct, if the appellant (being a councillor) had a pecuniary interest in the motion considered and discussed, would have constituted contraventions of each of sub-sections (2) and (3) of s 451.

14 The complaint of 19 September 2000 was investigated and on 22 May 2001 the Director-General forwarded a report on the investigation to the Tribunal. The Tribunal decided to conduct a hearing into the complaint.

15 On 10 June 2001 the Tribunal gave notice to the appellant of its decision to conduct a hearing. The notice described the complaint as being that:

“[The appellant] being a councillor of Waverly Council committed breaches of s 451 of [the Act] with respect to consideration by the Council at a Council meeting held on 28 September 1999 of matters relating to a proposed Olympic Volleyball stadium on Bondi Beach set out in paragraphs 2.5 and 2.6 of a notice of motion dated 21 September 1999 and submitted by [the appellant] jointly with two other councillors.”

The notice specified the following as “particulars of the breaches alleged”:

“[The appellant], being a councillor who had a pecuniary interest in maters (sic) with which the council was concerned and being present a (sic) meeting of the council at which the matters were being considered;

· failed to disclose that interest to the meeting;

· took part in the consideration and discussion of the matters; and

· voted on questions relating to the matters

contrary to the provisions of s 451 of the Act.”

16 As I have pointed out, the complaint of 19 September 2000 only alleged that the appellant took part in the consideration and discussion of the motion and voting on it, and these matters involved only breaches of ss 451(2) and (3). The notice of 1 June 2001, however, informed the appellant that it was being alleged that he failed to disclose a pecuniary interest (as well as that he took part in the consideration and discussion of the motion and voted on it). Thus, the notice informed the appellant that a breach of s 451(1) was alleged as well as breaches of ss 451(2) and (3).

17 The first ground of the appeal raises the question whether the allegation in respect of s 451(1) was “beyond the authority vested in [the Tribunal] by virtue of s 460 because the complaint by the Department of Local Government did not include such an allegation”. That is to say, the first ground relies on the omission in the complaint of 19 September 2000 of any allegation in relation to s 451(1). The first ground does not challenge the findings that the appellant contravened ss 451(2) and (3).

18 Mr Robinson, who appeared for the Director-General, submitted that s 478(2) of the Act empowered the Tribunal, in the proceedings initiated by the complaint of 19 September 2000, to deal with the additional complaint contained in the notice of 1 June 2001 (that is, that the appellant had contravened s 451(1)).

19 Sections 478 (1) and (2) provide:

“ 478 Additional Complaints

(1) The Pecuniary Interest Tribunal may in proceedings before it deal with one or more complaints about a person.

(2) If, during any such proceedings, it appears to the Pecuniary Interest Tribunal that, having regard to any matters that have arisen, another complaint could have been made against the person concerned:

(a) whether instead of or in addition to the complaint which was made, and
(b) whether or not by the same complainant,

the Pecuniary Interest Tribunal may take that other complaint to have been referred to it and may deal with it in the same proceedings.”

20 Ms Keys, who appeared for the appellant, responded by submitting, in effect, that:

(a) The “proceedings” relevantly before the Tribunal were the proceedings initiated by the complaint of 19 September 2000, namely, proceedings involving contraventions of ss 451(2) and (3) alone.

(b) The notice informing the appellant that, in addition, a breach of s 451(1) was alleged was given to him prior to the hearing of the proceedings relating to the complaint of 19 September 2000.

(c) Accordingly, the Tribunal could not have taken the complaint involving a breach of s 451(1) to have been referred to it “during” the proceedings relating to the complaint of 19 September 2000 (as the notice had been given prior to the hearing of those proceedings).

(d) Therefore, s 478(2) was not of application and the Tribunal was not entitled to deal with the additional complaint in respect of s 451(1) “in the same proceedings” as initiated by the complaint of 19 September 2000.

21 In my view, the appellant’s argument in regard to the first ground of appeal cannot be accepted. Although the appellant was given notice of the additional complaint before the hearing of the proceedings relating to the complaint of 19 September 2000, it is undoubtedly the case that, “during” the proceedings initiated by the complaint of 19 September 2000, the Tribunal decided to take the additional complaint as having been referred to it. The Tribunal then dealt with the additional complaint in the proceedings initiated by the complaint of 19 September 2000.

22 Accordingly, the Tribunal acted squarely within the power conferred by s 478(2).

23 I would add that Ms Keys (correctly) accepted that ample notice had been given to the appellant of the additional complaint and there was no breach of natural justice in this respect.

24 Accordingly, I would not uphold the first ground of appeal.

25 The second ground of appeal is that the Tribunal “misunderstood what the appellant was admitting in that context”, that is, in the context of ground 1. The third ground of appeal is that “what happened in the Tribunal did not amount to waiver of the matters sought to be raised based on s 469.” These grounds can be dealt with together. First, however, they need some explanation.

26 On 11 September 1999 the appellant was elected as a councillor for the Council of Waverley. Earlier that year he had been involved in a campaign opposing the construction of a proposed Olympic volleyball stadium at Bondi Beach. He had also commenced litigation in the Supreme Court against the Olympic Co-ordination Authority and the Minister for Urban Affairs and Planning in relation to the proposed stadium. When the Council meeting of 28 September 1999 was held, the appellant had a potential liability for the defendants’ costs of that action and was likely to have had an actual liability in respect of his own costs.

27 On 21 September 1999, the appellant submitted to the general manager of the Waverley Council a motion containing a series of proposed resolutions. The resolutions were contained in paragraphs numbered from 1 to 2.6. Paragraph 2.1 referred to the legal proceedings commenced by the appellant against the Olympic Co-ordination Authority and the Minister for Urban Affairs and Planning. The proposed resolution in paragraph 2.5 of the motion was:

“That Council join, fund and assist current legal proceedings maintained by [the appellant] against the [Olympic Co-ordination Authority] and the Minister for Urban Affairs and Planning.”

The proposed resolution in paragraph 2.6 was:
“That Council provide suitable and adequate funding, administrative support and office resources to residents and users of Bondi Beach currently campaigning to oppose the volleyball stadium at Bondi Beach.”

28 The minutes of the Council’s meeting of 28 September 1999 record that, at an early stage of the meeting, “the mayor called for declarations of interest and none were received”.

29 Subsequently, after a number of other matters had been dealt with, the meeting came to the appellant’s motion.

30 Before speaking to the motion, the appellant asked the mayor (the chair) whether the meeting would “move through the document point by point”. A speaker objected, complaining that the motion as a whole was in direct breach of the Act. The speaker said:

“If you’re a councillor you can’t vote to write yourself out a big fat blank cheque, and that is, that is exactly why the provision is in there, to stop councillors giving themselves large amounts of money, and the fact that motion is being moved, you gave a very clear opportunity for any councillor to declare a potential conflict of interest of pecuniary interest …”

The mayor refused to agree to the appellant’s proposal that the motion be dealt with paragraph by paragraph.

31 The appellant then proposed a motion that paragraphs 2.5 and 2.6 of his substantive motion (containing the proposed resolutions from paragraphs 1 to 2.6) be struck out. The mayor ruled that he could not propose such an amending motion as he was the proposer of the substantive motion. The only persons who were prepared to propose and second the motion were two councillors who had joined with the appellant in proposing the substantive motion itself. After some debate, the motion for an amendment was put, and the mayor ruled the amendment out of order. A councillor then moved a procedural motion that the appellant’s substantive motion be put to the vote and that procedural motion was carried.

32 The appellant’s substantive motion was accordingly then put to the vote before the Council. The appellant proceeded to speak in support of it. In the course of his speech the appellant said that he no longer “pressed” paragraphs 2.5 and 2.6 of the notice of motion. The mayor and the Council, in effect, ignored this statement (no doubt because the motion to amend the substantive motion by deleting paragraphs 2.5 and 2.6 had been ruled out of order). The substantive motion was then put and declared lost.

33 In the course of the hearing before the Tribunal, the appellant was questioned about what had occurred at the Council meeting. He admitted that when the mayor asked for declarations of interest he did not say anything. He later said:

“I have admitted that when the mayor called for declarations of interest, as it shows, none came forward. I’m saying that in my circumstances there were mitigating circumstances … Another [thing] that I would like [to] add is that I thought that a motion such as the one that was framed that clearly linked the interest of the councillor to what was being discussed was more or less like a disclosure, because on the face of the motion my name is mentioned. It is very public and the motion has been out on the agenda with the public for the statutory time that the agenda is published. So I am saying a mitigating circumstance is that on the face of the motion there is a disclosure.”

34 Thus, although the appellant admitted that he did not respond when the mayor called for declarations of interest, he said (albeit in a somewhat garbled fashion) that, nevertheless, the motion that he had proposed itself contained a disclosure of his pecuniary interest.

35 On two further occasions during the hearing before the Tribunal, the appellant admitted that he had had the opportunity during the Council meeting to declare his interest but he had made no declaration.

36 When it was put to the appellant that he should not have voted, he said:

“Yes, I admit that in the public eye I should have declared and the result of that then would have been like to leave the chamber and not vote and not participate and leave it to the other councillors, so I am prepared to say that as well.”

It was then put to him “it is not only the public eyes (sic), it is what the legislation requires. Do you acknowledge that?” The appellant replied, “Well, I acknowledge that there was a point in the legislation that requires me to do something and I didn’t do it”.

37 The Tribunal, in its reasons, when dealing with what had occurred in the hearing before it, said:

“[The appellant] at the hearing on 17 December admitted the case against him. That admission was clearly correct. There could be, in the [Tribunal’s] opinion, no real doubt but that [the appellant] had a pecuniary interest in the resolution which he proposed to the council at the said meeting in that he had a reasonable likelihood or expectation of appreciable financial gain if the full resolution was passed. That interest could not be said to be remote or insignificant.”

38 In reliance on the admission it so found the appellant had made, the Tribunal found the case against the appellant proved. The Tribunal stated:

“At the hearing of this matter on 17 December, [the appellant] admitted the allegations made against him. He was content that the matter proceed for determination by the Tribunal on the question of penalty alone.”

39 The appellant’s grounds of appeal two and three, read together, raise the argument that, during the hearing before the Tribunal, the appellant only admitted that he had remained silent when the mayor, at the commencement of the meeting, had called for declarations of interest.

40 In support of these grounds, Ms Keys submitted that a proper disclosure of the appellant’s pecuniary interest had been made in the motion itself and, therefore, the fact that the appellant had not orally made the disclosure was irrelevant. She submitted that the appellant had in fact complied with his statutory obligations in regard to disclosure of pecuniary interests. Thus, any admission he had made to the contrary was an admission of law and was not binding on him.

41 Mr Robinson, on the other hand, submitted that, properly construed, the appellant’s admissions before the Tribunal amounted to an admission that he had breached s 451(1) by failing to disclose a financial interest, and the Tribunal was entitled to rely on this admission.

42 In my opinion Ms Keys’ submissions should be upheld. While the appellant admitted in the hearing before the Tribunal that he had made no oral disclosure of his pecuniary interest at the Council meeting, he did not admit that he had made no disclosure whatever. As I have pointed out, at the Council meeting, the appellant asserted, or attempted to assert, that what he had stated in his notice of motion should be regarded as a disclosure of his pecuniary interest. The appellant did not admit that he had contravened s 451(1), and the Tribunal erred in determining that he had made such an admission.

43 In any event, I consider that, by its very terms, the appellant had disclosed his pecuniary interest in the motion and it was not open to the Tribunal to rely on a purported admission by the appellant that he had not made such a disclosure.

44 My reasons for concluding that the appellant had made proper disclosure of his pecuniary interest are as follows.

45 Section 367(1) of the Act provided:

“The general manager of a council must send to each councillor, at least 3 days before each meeting of the council, a notice specifying the time and place at which and the date on which the meeting is to be held and the business proposed to be transacted at the meeting.”

46 Section 367(3) provided that:

“A notice under this section and the agenda for, and the business papers relating to, the meeting may be given to a councillor in electronic form but only if all councillors have facilities to access the notice, agenda and business papers in that form.”

47 In my opinion s 367 is to be construed as meaning that the general manager of a council, when giving notice of a meeting of the council to each councillor, was required to provide the councillor with the notice, agenda and business papers relating to the meeting in question. In my opinion, the business papers were required to include the motions to be considered by the council at the meeting in question.

48 The Act further provided, by ss 9(1) and (2), that a council was required to give notice to the public of the times and places of its meetings and to have available for the public at its offices and at each meeting copies (for inspection or taking away by any person) of the agenda and the associated business papers (such as correspondence and reports) for the meeting. These notice provisions did not apply to a meeting the agenda of which includes the receipt of information or discussion of matters that, in the opinion of the general manager, was likely to take place when the meeting was closed to the public. There was, however, nothing in the agenda of the meeting of the Council of 28 September 1999 that suggested that the meeting should be closed to the public. The transcript of that meeting indicates that, in fact, members of the public were present.

49 Thus, the appellant was entitled to assume that, prior to the meeting, his motion would be circulated to each councillor, would be before each councillor at the meeting while the meeting was being conducted, would be made available to the public prior to the meeting, and the public would have access to the motion during the meeting itself.

50 The reference in paragraph 2.1 of the appellant’s motion to the proceedings he had “recently commenced” against the Olympic Co-ordination authority and the Minister for Urban Affairs and Planning unambiguously identified the legal proceedings referred to in paragraph 2.5 of the motion. That is to say, paragraph 2.5 informed the reader that the appellant was seeking a resolution that the Council “join, fund and assist” the legal proceedings referred to in paragraph 2.1. This was a statement in clear terms that the appellant had a pecuniary interest in the resolution proposed in paragraph 2.5

51 Similarly, paragraph 2.6, provides in clear terms that the Council provide “a suitable and adequate funding, administrative support and office resources to residents and users of Bondi Beach currently campaigning to oppose the volleyball stadium at Bondi Beach”. It does not appear to have been in dispute that it was common knowledge amongst councillors and members of the public in the Waverly area that, at the time, the appellant was campaigning against the construction of the volleyball stadium at Bondi Beach. The Tribunal, in its reasons, noted that the appellant was a newly elected councillor who had been elected on a platform that included opposition to the volleyball stadium.

52 The Tribunal, in its reasons, accepted that notice of the appellant’s financial interests had been given in the motion. Paragraph 47 of the Tribunal’s reasons stated:

“The breaches in the present case and the steps leading up to them were transparent. The notice of motion signed by [the appellant] on or about 21 September 1999 made it abundantly clear that he had, as plaintiff in the proceedings set out in the notice of motion, a financial interest in a resolution that the council, amongst other things, fund those proceedings. There was nothing hidden. The basic facts and circumstances were transparently in writing.”

53 This finding by the Tribunal is fundamentally inconsistent with a finding that notice of the appellant’s relevant pecuniary interest had not been given.

54 Mr Robinson, however, submitted that, contrary to s 451:

(a) The notice of motion did not disclose the “nature” of the appellant’s pecuniary interest.

(b) The appellant did not disclose the nature of his pecuniary interest to the meeting “as soon as practicable”.

(c) The disclosure was not made orally.

55 Mr Robinson submitted that disclosure had to be made of the “nature” of the pecuniary interest rather than the more limited concept of the interest itself. This submission was based on an amendment to s 451 made by the Local Government Amendment Act 2000 (NSW) whereby the word “interest” was qualified by the words “the nature of”. The section in the form that was operative at the time of the Council meeting cannot, however, be construed by reference to a later amendment. In any event, paragraphs 2.5 and 2.6 (particularly when read with paragraph 2.1) of the appellant’s motion did, adequately, disclose the nature of his pecuniary interest. The interest the appellant had in the proposed resolution that the Council “join, fund and assist” the legal proceedings in which he was personally involved (as the motion itself disclosed) was self-evident. The interest the appellant had in the proposed resolution that the Council provide “a suitable and adequate funding, administrative support and office resources to residents and users of Bondi Beach currently campaigning to oppose the volleyball stadium at Bondi Beach” in circumstances where it was public knowledge that the appellant was, himself, campaigning to oppose the volleyball stadium, speaks for itself.

56 I have pointed out that the appellant was entitled to assume that his motion was delivered to each councillor and that each councillor would be in possession of the motion during the meeting. On that basis, there was a disclosure of the nature of the appellant’s pecuniary interest to the meeting “as soon as practicable”.

57 There is nothing in s 451 that expressly required the disclosure to take place orally.

58 Some guidance as to whether the legislature intended to allow a disclosure of the kind required by s 451 to be made in writing may be found from s 454, which provided:

“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.”

59 Section 454 provided for the written disclosure by a councillor of a potential conflict of interest of a particular type that might arise in the course of the councillor’s duties. An oral disclosure of the interest described in s 454 was insufficient. The section provided for a “general notice” which was sufficient disclosure of the interest until the notice was withdrawn. The enduring quality of the general notice explains why it was required to be in writing. A written disclosure was more likely to avoid the kinds of dispute that might arise were such notice to be given orally.

60 The disclosure that was required by s 451 is of a different kind of conflict of interest, namely, a pecuniary interest in a matter with which the council was concerned. Interests of this kind, by s 451, were required to be disclosed at each meeting where the matter in question was being considered. The disclosure was not of the “general” or enduring kind as the disclosure contemplated by s 454. It was called for whenever a pecuniary interest arose. There was, therefore, less reason for such disclosure to be made in writing. It could have been made orally. But the fact that it could have been made orally did not automatically preclude it from being made in writing. Section 454 shows that, as a general rule, the legislature contemplated that disclosures of conflicts of interest could be made in writing, and, indeed, there is no rational reason that would preclude that from being done.

61 In my view, there is no reason to construe s 451 as precluding a written disclosure of the nature of the interest, as long as the other requirements of the section are complied with.

62 In the circumstances I am not persuaded by the argument advanced on the Director-General’s behalf in regard to this issue. In my view, the Tribunal erred in finding that the appellant had contravened s 451(1), as did the Master when coming to the same conclusion.

63 Accordingly, I would uphold the appeal in regard to the finding that the appellant breached s 451(1).

64 Ms Keys accepted that, should the first ground not be successful, and subject to the applications for leave to appeal on other grounds, the findings that the appellant breached ss 451(2) and (3) must stand.

65 I turn now to the applications for leave to appeal. The first ground was that the Tribunal erred in finding that the appellant had a pecuniary interest that needed to be disclosed. This ground rested on the appellant’s attempts at the Council meeting to have paragraphs 2.5 and 2.6 deleted from his motion. In my view, that ground had no prospect of success. After the attempt to delete paragraphs 2.5 and 2.6 had failed, the appellant spoke in favour of the motion as a whole. The pecuniary interest that the appellant had in the motion, was, as I have said, self-evident.

66 The second ground in respect of which leave to appeal was sought was based on the argument that the appellant honestly and reasonably believed that he had no pecuniary interest in the motion. The appellant never testified to this effect and in my view there is no evidence that could support this ground.

67 It remains to deal with the penalty imposed. It is relevant to observe in this regard that both Mr Robinson and Ms Keys were not in favour of the matter being remitted to the Master or the Tribunal for sentencing afresh. In any event, in my view, it would be unnecessary to do so and such an order would give rise to unnecessary costs. I take into account the fact that, on the evidence, the appellant was well aware of his duties under s 451(2) and, despite that awareness, persisted in speaking and voting in favour of his motion. In my view his conduct in this regard justifies the penalty of a reprimand. Therefore, I would not alter the penalty imposed.

68 It remains to deal with the question of costs. Mr Robinson accepted that costs should follow the event. The appellant was successful in the appeal to the extent that the finding that he contravened s 451(1) of the Act should be set aside. I consider that the second respondent, the Director-General, therefore, should pay the costs of the appeal.

69 In summary I propose the following orders:

1. The appeal succeeds to a limited extent.

2. The finding by the Tribunal that the appellant contravened s 451(1) should be set aside.

3. The findings that the appellant contravened s 451(2) and s 451(3) remain unaltered.

4. The penalty imposed by the Tribunal that the appellant be reprimanded for his breaches of the Act remains unaltered.

5. The Director-General pay the appellant’s costs of the appeal.

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Last Modified: 07/08/2004