Deputy Secretary, Local Government, Planning and Policy v Byrne [2021] NSWCATOD 53

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Deputy Secretary, Local Government, Planning and Policy v Byrne [2021] NSWCATOD 53 Hearing dates: 19 February 2021 Date of orders: 04 May 2021 Decision date: 04 May 2021 Jurisdiction: Occupational Division Before: L Pearson, Principal Member Decision: (1) The Tribunal finds that Allegations 1, 2, 3 and 6, and Allegations 4 and 5 in part, are established. Clr Byrne's failure to comply with applicable provisions of the Code of Conduct, as found in relation to those Allegations, was misconduct as defined in s 440F(1)(b) of the Local Government Act 1993 (NSW) (the "LG Act"). As alleged in Allegation 5, Clr Byrne committed an act of disorder at a meeting of the Council, which is misconduct as defined in s 440F(1)(d) of the LG Act. (2) The next step is to consider whether Clr Byrne's behaviour as found warrants action by the Tribunal under s 482A of the LG Act. The matter is listed at 4:15pm on 10 May 2021 by telephone for directions for further progress of the matter. Catchwords: OCCUPATIONS — local government councillors — non-pecuniary conflict of interest — conduct and statements at Council meetings — whether allegations duplicitous — whether breach of Code of Conduct — whether act of disorder — whether misconduct Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Defamation Act 2005 (NSW) Health Practitioner Regulation National Law (NSW) Legal Profession Act 2004 (NSW) (repealed) Local Government Act 1993 (NSW) Local Government (General) Regulation 2005 (NSW) Workplace Relations Act 1996 (Cth) (repealed) Cases Cited: Barrak v City of Parramatta Council [2019] NSWCA 213 Canturi v Sita Coaches Pty Ltd (2002) 116 FCR 276; [2002] FCA 349 Concrete Constructions Pty Ltd v Plumbers and Gasfitters Employees' Union (No 2) (1987) 15 FCR 64 De Luca v Simpson [2012] NSWSC 960 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Kumar v Legal Services Commissioner [2015] NSWCA 161 Law Society of New South Wales v Mattila [2017] NSWCATOD 166 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 Office of Local Government v Shelley [2018] NSWCATOD 103 Office of Local Government v Toma [2016] NSWCATOD 21 R v Byrnes (1995) 183 CLR 501; [1995] HCA 1 Woods v The Legal Ombudsman [2004] VSCA 247 Texts Cited: Inner West Council, "Code of Meeting Practice" (2018) Inner West Council, "Model Code of Conduct" (12 March 2019) Inner West Council, "Procedures for the Administration of the Model Code of Conduct" (2018) Category: Principal judgment Parties: Deputy Secretary, Local Government, Planning and Policy (Applicant) Darcy Byrne (Respondent) Representation: Counsel: M Cobb-Clark (Applicant) I Latham (Respondent)