Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Deputy Secretary, Local Government, Planning and Policy v Garrard (No 2) [2021] NSWCATOD 189 Hearing dates: 10 September 2021 and on the papers Date of orders: 22 November 2021 Decision date: 22 November 2021 Jurisdiction: Occupational Division Before: The Hon J Boland AM, Deputy President Decision: The Tribunal having found the respondent breached s 440(5) of the Local Government Act 1993 (NSW) and is guilty of misconduct as defined in s 440H of that Act orders that: 1. The applicant file and serve further evidence if any together with written submissions to be relied on for the Stage 2 hearing on or before 10 December 2021. 2. The respondent file and serve any evidence on which he seeks to rely together with written submissions in respect of the Stage 2 proceedings by 14 January 2022. 3. The applicant is as soon as practicable after receipt of these reasons to request the Independent Commission Against Corruption to further vary the order made on 29 June 2021 under s 112 of the Independent Commission Against Corruption Act 1988 (NSW) to permit publication of these reasons. 4. The parties are to provide to the Registrar on or before 17 December 2021 their mutually available dates in January 2022, February 2022 and March 2022 for the Stage 2 hearing. 5. The Registrar will after compliance with order 4 of these orders notify the parties of the date and time fixed for the hearing of the Stage 2 proceedings. Catchwords: LOCAL GOVERNMENT – Councillors – disclosure of interests Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Health Practitioner Regulation National Law (NSW) Independent Commission against Corruption Act 1988 (NSW) Local Government Act 1993 (NSW) Parramatta Local Environmental Plan 2011 (NSW) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Deputy Secretary, Local Government, Planning and Policy v Byrne [2021] NSWCATOD 53 Deputy Secretary, Local Government, Planning and Policy v Garrard [2021] NSWCATOD 75 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Gautam v Health Care Complaints Commission [2021] NSWCA 85 Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; [1992] 67 ALJR 170 Category: Principal judgment Parties: Deputy Secretary, Local Government, Planning and Policy (Applicant) Paul Garrard (Respondent) Representation: Counsel: M Cobb-Clark (Applicant) Solicitors: Office of Local Government (Applicant) Belling Legal (Respondent) File Number(s): 2020/00348023 Publication restriction: On 7 June 2021 an order was made prohibiting publication of the whole or any part of the report entitled "Departmental Report under section 440H of the Local Government Act 1993 (NSW) Councillor Paul Garrard Cumberland Council (formerly of Parramatta City Council) October 2020". That order was revoked on 15 December 2021. REASONS FOR DECISION Introduction 1. Councillor Paul Garrard is a councillor of the Cumberland Council having been elected to that position in 2017. Councillor Garrard was formerly a local councillor on the Parramatta City Council from 1974 to 2015. These reasons are in respect of disciplinary proceedings brought by the Deputy Secretary, Local Government, Planning and Policy in the Tribunal against Councillor Garrard. The reasons are in respect of a Stage 1 decision determined "on the papers" and deal only with whether the complaints against Councillor Garrard are established. A Stage 2 hearing to determine appropriate protective orders will be the subject of a hearing at which the parties will be present either by audio-visual link or in person. 2. For convenience, in these reasons, I will refer to the Deputy Secretary, Local Government, Planning and Policy, and to the functions previously conferred on the Chief Executive of the Office of Local Government as "the applicant", Councillor Garrard as "the respondent" and the Parramatta City Council as "the Council". 3. The respondent was interviewed by the Independent Commission Against Corruption (the ICAC) in March and August 2017 concerning allegations against him as part of an operation known as "Operation Sigma". In a letter dated 25 June 2018 addressed to the respondent the ICAC explained it had completed its investigation concerning allegations that the respondent had dishonestly exercised his official functions in relation to a development at Rosehill and Granville and "had corruptly received payments from Cherbel Demian". The ICAC notified the respondent that the matter was being referred to the Office of Local Government for any action the office may deem appropriate. The ICAC informed the respondent "Apart from the referral, the Commission will not be taking any further action in relation to the matter". 4. Following the referral, the applicant, on 8 February 2019, authorised an investigation and the preparation of a departmental report in respect of possible misconduct by the respondent while a councillor of Parramatta City Council. 5. The investigator, Mr Tony Day, was tasked with investigating whether the respondent breached the Council's Code of Conduct in respect of his participation in consideration of a development application at a meeting held on 26 August 2013, and whether he had committed "misconduct" within the meaning of s 440F of the Local Government Act 1993 (NSW) (the LGA) in respect of his participation in the consideration of the development application. 6. A final report of the investigator dated October 2020 was referred to the Tribunal on 4 December 2020 for consideration of whether the Tribunal should hear and determine disciplinary proceedings against the respondent. On 7 June 2021 Cole DCJ, Deputy President published reasons (see Deputy Secretary, Local Government, Planning and Policy v Garrard [2021] NSWCATOD 75) in which it was determined that the Tribunal would conduct proceedings into the matter. 7. I note at the outset of these reasons that a number of orders have been made under the Independent Commission against Corruption Act 1988 (NSW) (ICAC Act) dealing with confidentiality of evidence before it. However, on 29 June 2021, earlier orders made under s 112 of the ICAC Act were varied by Commissioner Rushton SC to permit the applicant to use evidence given to the ICAC on 16 March 2017 by Mr Allan Chrara (Mr Chrara) and any exhibits shown to him on that day in any investigation and disciplinary proceedings "so as to permit the NSW Civil and Administrative Tribunal to have access to and use the evidence in disciplinary proceedings against Paul Garrard". It is unclear whether this variation extends to the publication of reasons by this Tribunal which are based substantially on the evidence given by Mr Chrara before the ICAC and the respondent in an interview with the Office of Local Government (OLG). 8. For the reasons that follow, I am satisfied that the respondent breached the relevant Code of Conduct and that his conduct in respect of the development application constitutes "misconduct" for the purposes of s 440F of the LGA. The application 1. On 7 December 2020 the applicant filed a General application form in the Tribunal. Paragraph 4 of the application sets out the grounds for the application as follows: "It is alleged, by reference to the Departmental Report and Annexures to the report: 1. Clr Paul Garrard, while a Councillor of the Parramatta City Council (now of Cumberland Council): a. contravened Parramatta City Council's Code of Conduct in respect of his participation in the consideration of a Development Application (DA78/2013) at a Council meeting held on 26 August 2013; and b. committed "misconduct" within the meaning of section 440F of the Act in respect of his participation in the consideration of DA 78/2013." Background and procedural history 1. On 15 and 24 August 2012 the respondent and Mr Allan Chrara attended pre-lodgement meetings of the Council in respect of a proposed development for a residential flat building on land at Rosehill. The respondent asserted in his evidence to the OLG he regularly attended such meetings. This assertion is called into issue in the investigator's report based on a random sample of minutes of pre-lodgement meetings. The respondent's attendance at the meeting was noted as "Applicant attendee". 2. On 15 February 2013 the respondent transferred the sum of $28,000 to Mr Chrara. It is asserted by the respondent that this sum was for an unascertained share in a racehorse investment to be undertaken at some time in the future. Mr Chrara's sworn evidence before the ICAC was that a horse was to be purchased after the sale of the Rosehill property and a share in the syndicate offered to other persons at the time of purchase. 3. The respondent asserts that at around February 2013 he provided further cash sums to Mr Chrara for the future purchase of a racehorse. Mr Chrara's evidence before the ICAC was that there were two cash sums given to him by the respondent ($15,000 and later $7,000). Mr Chrara asserted that he used the sum of $28,000, received from the respondent, without his knowledge, for personal expenses and payment of the deposit for the development application. 4. On 26 August 2013 the respondent was present at a meeting of the Council. The respondent made no declaration of any interest in respect of any item then before the Council. Before the Council was Mr Chrara's development application for the construction of 51 units on the land at Rosehill. Some of the proposed development had a height of three stories and some of six stories. The respondent moved a motion for the variation of the building height restriction in cl 4.3 of the Parramatta Local Environmental Plan 2011 (NSW) (the LEP), which was approved, and the Council granted development consent to the development application. The respondent was one of the councillors who voted to approve the development application. The respondent's submissions of 28 February 2020 state that the height variation issues were the subject of a report by the Independent Design Review Committee which attracted variation of the LEP by the Council. 5. The respondent asserts at some time in June 2014 he advised Mr Chrara that he no longer wished to participate in the proposed horse syndicate and that he sought repayment of his investment. Mr Chrara's evidence before the ICAC was that the respondent advised he could not afford to participate in the syndicate at or shortly after the sale of the Rosehill property and Mr Chrara agreed to repayment to the respondent. 6. On 2 July 2014, following the sale of the Rosehill property, an amount of $364,000 (being the deposit from the sale) was paid into a bank account controlled by Mr Chrara. Mr Chrara's evidence is that the profit on the sale of the Rosehill property was about $6M. On the same day, Mr Chrara purchased a bank cheque in the sum of $50,000 payable to the respondent. Mr Chrara gave the bank cheque to the respondent's wife. The bank cheque was deposited into the respondent's account on 3 July 2014. Decision to conduct the matter "on the papers" 1. At a directions hearing conducted on 23 June 2021 directions were made including a direction that the parties provide an agreed statement of facts or facts in dispute by 3 September 2021 and that the matter was stood over for further directions on 10 September 2021 including for consideration of whether the hearing on liability (Stage 1) could be determined on the papers or whether the matter would proceed by way of hearing. 2. On 3 September 2021 the parties provided a comprehensive agreed statement of facts. I also had the benefit of detailed written submissions provided to the Tribunal for the purposes of the preliminary hearing to determine whether the Tribunal should accept the matter and the investigator's report. Both parties supported the liability stage of the proceedings being determined on the papers. 3. Section 470B of the LGA is relevant to whether a matter should be determined on the papers. It provides as follows: 470B Circumstances in which NCAT may dispense with hearing (1) After considering a report presented to it under section 438HA or 440J and any other document or other material lodged with or provided to the Tribunal in relation to the report, the Civil and Administrative Tribunal may determine the proceedings without a hearing if— (a) the Departmental Chief Executive and the councillor to whom the report relates have agreed that the proceedings may be determined without a hearing, and (b) there are no material facts in dispute between the Departmental Chief Executive and the councillor, and (c) in the opinion of the Tribunal, public interest considerations do not require a hearing. 1. As noted above, the parties agreed the proceedings could be determined without a hearing, and submitted that, following the provision of the comprehensive agreed statement of facts, there were no material facts in dispute. As the parties agreed that Stage 2 should be conducted as an in person hearing, I was satisfied that public interest considerations did not require a hearing be conducted into liability. In reaching this decision I took into account first that the evidence includes the transcripts of the extensive interviews of Mr Chrara undertaken by the ICAC and the respondent by the OLG, secondly that the real issues likely to be in dispute are the protective/disciplinary orders to be made at the conclusion of the proceedings, and finally that dealing with the matter on the papers would accord with the principles in s 36 and s 38 of the Civil and Administrative Tribunal Act 2013 (NSW). Relevant provision of the LGA 1. These disciplinary proceedings are agitated under s 440(5) of the LGA in force at the relevant time as well as s 440F. 2. Section 440 of the LGA in force at 26 August 2013 provided: 440 Codes of conduct (1) The regulations may prescribe a model code of conduct (the model code) applicable to councillors, members of staff of councils and delegates of councils. (2) Without limiting what may be included in the model code, the model code may: (a) relate to any conduct (whether by way of act or omission) of a councillor, member of staff or delegate in carrying out his or her functions that is likely to bring the council or holders of civic office into disrepute, and (b) in particular, contain provisions for or with respect to conduct specified in Schedule 6A. (3) A council must adopt a code of conduct (the adopted code) that incorporates the provisions of the model code. The adopted code may include provisions that supplement the model code. (4) A council's adopted code has no effect to the extent that it is inconsistent with the model code as in force for the time being. (5) Councillors, members of staff and delegates of a council must comply with the applicable provisions of: (a) the council's adopted code, except to the extent of any inconsistency with the model code as in force for the time being, and (b) the model code as in force for the time being, to the extent that: (i) the council has not adopted a code of conduct, or (ii) the adopted code is inconsistent with the model code, or (iii) the model code contains provisions or requirements not included in the adopted code. (6) A provision of a council's adopted code is not inconsistent with the model code merely because the provision makes a requirement of the model code more onerous for persons required to observe the requirement. (7) A council must, within 12 months after each ordinary election, review its adopted code and make such adjustments as it considers appropriate and as are consistent with this section. (8) Nothing in this section or such a code gives rise to, or can be taken into account in, any civil cause of action, but nothing in this section affects rights or liabilities arising apart from this section. (9) This section applies to an administrator of a council (other than an administrator appointed by the Minister for Primary Industries under section 66) in the same way as it applies to a councillor. 1. Section 440F of the LGA defined "misconduct" as follows: 440F Definitions (1) In this Division: misconduct of a councillor means any of the following: (a) a contravention by the councillor of this Act or the regulations, (b) a failure by the councillor to comply with an applicable requirement of a code of conduct under section 440, (c) a failure by a councillor to comply with an order issued by the Director-General under this Division, (d) an act of disorder committed by the councillor at a meeting of the council or a committee of the council. (2) However, a contravention of the disclosure requirements of Part 2 is not misconduct. Note— A contravention of the disclosure requirements of Part 2 is dealt with under other provisions of this Chapter. (3) A reference in this Division to misconduct includes a reference to misconduct that consists of an omission or failure to do something. 1. At the relevant time, the departmental investigator's report notes that the Council had adopted a Code of Conduct consistent with the Model Code of Conduct. The investigator asserts the following provisions of the Code are relevant to the respondent's conduct: "General conduct 3.1 You must not conduct yourself in carrying out your functions in a manner that is likely to bring the council or holders of civic office into disrepute. Specifically, you must not act in a way that: a) contravenes the Act, associated regulations, council's relevant administrative requirements and policies b) is detrimental to the pursuit of the charter of a council c) is improper or unethical d) is an abuse of power or otherwise amounts to misconduct e) causes, comprises or involves intimidation, harassment or verbal abuse f) causes, comprises or involves discrimination, disadvantage or adverse treatment in relation to employment g) causes, comprises or involves prejudice in the provision of a service to the community. (Schedule 6A) 3.2 You must act lawfully, honestly and exercise a reasonable degree of care and diligence in carrying out your functions under the Act or any other Act. (section 439) … Development decisions 3.7 You must ensure that development decisions are properly made and that parties involved in the development process are dealt with fairly. You must avoid any occasion for suspicion of improper conduct in the development assessment process. 3.8 In determining development applications, you must ensure that no action, statement or communication between yourself and applicants or objectors … PART 4 CONFLICT OF INTERESTS 4.1 A conflict of interests exists where a reasonable and informed person would perceive that you could be influenced by a private interest when carrying out your public duty. 4.2 You must avoid or appropriately manage any conflict of interests. The onus is on you to identify a conflict of interests and take the appropriate action to manage the conflict in favour of your public duty. 4.3 Any conflict of interests must be managed to uphold the probity of council decision-making. When considering whether or not you have a conflict of interests, it is always important to think about how others would view your situation. 4.4 Private interests can be of two types: pecuniary or non-pecuniary. … What are non-pecuniary interests? 4.10 Non-pecuniary interests are private or personal interests the council official has that do not amount to a pecuniary interest as defined in the Act. These commonly arise out of family, or personal relationships, or involvement in sporting, social or other cultural groups and associations and may include an interest of a financial nature. 4.11 The political views of a councillor do not constitute a private interest. Managing non-pecuniary conflict of interests 4.12 Where you have a non-pecuniary interest that conflicts with your public duty, you must disclose the interest fully and in writing, even if the conflict is not significant. You must do this as soon as practicable. 4.13 If a disclosure is made at a council or committee meeting, both the disclosure and the nature of the interest must be recorded in the minutes. This disclosure constitutes disclosure in writing for the purposes of clause 4.12. 4.14 How you manage a non-pecuniary conflict of interests will depend on whether or not it is significant. 4.15 As a general rule, a non-pecuniary conflict of interests will be significant where a matter does not raise a pecuniary interest but it involves: a) a relationship between a council official and another person that is particularly close, for example, parent, grandparent, brother, sister, uncle, aunt, nephew, niece, lineal descendant or adopted child of the person or of the person's spouse, current or former spouse or partner, de facto or other person living in the same household b) other relationships that are particularly close, such as friendships and business relationships. Closeness is defined by the nature of the friendship or business relationship, the frequency of contact and the duration of the friendship or relationship c) an affiliation between the council official and an organisation, sporting body, club, corporation or association that is particularly strong. 4.16 If you are a council official, other than a member of staff of council, and you have disclosed that a significant non-pecuniary conflict of interests exists, you must manage it in one of two ways: a) remove the source of the conflict, by relinquishing or divesting the interest that creates the conflict, or reallocating the conflicting duties to another council official b) have no involvement in the matter, by absenting yourself from and not taking part in any debate or voting on the issue as if the provisions in section 451(2) of the Act apply 4.17 If you determine that a non-pecuniary conflict of interests is less than significant and does not require further action, you must provide an explanation of why you consider that the conflict does not require further action in the circumstances. … Improper and undue influence 5.8 You must not use your position to influence other council officials in the performance of their public or professional duties to obtain a private benefit for yourself or for somebody else. A councillor will not be in breach of this clause where they seek to influence other council officials through the appropriate exercise of their representative functions. 5.9 You must not take advantage (or seek to take advantage) of your status or position with or of functions you perform for council in order to obtain a private benefit for yourself or for any other person or body" The Statement of Agreed Facts 1. As earlier noted, the parties provided an agreed statement of facts signed by their legal representatives. The facts set out in the agreed statement are based on matters set out in the investigator's report and include the matters I have set out above under the heading "Background and procedural history". A full copy of the agreed statement of facts is annexed to these reasons and marked "Appendix A". 2. I note however, that some of the matters asserted as fact are based on evidence given by the respondent to the OLG (items 7, 8, 14, 15, 19). The matters include assertions in relation to cash payments of which there is no corroborative evidence. The transcript of the OLG interview does not indicate that the evidence given by the respondent was sworn evidence. Matters in issue in the Stage 1 proceedings 1. The matters in issue before me are narrow. The respondent acknowledges that he had a non-pecuniary interest which, with hindsight, he should have declared. Thus, it remains for me to be independently satisfied: 1. that the respondent breached the provisions of the Council's Code of Conduct; and 2. that his conduct constitutes "misconduct" as defined in the LGA. What is a non-pecuniary interest? 1. The expression "non-pecuniary interest" is defined in the relevant Code of Conduct which I have set out above at [23]. The obligations on a councillor who has a non-pecuniary interest and the legal status of the Code are succinctly explained in Deputy Secretary, Local Government, Planning and Policy v Byrne [2021] NSWCATOD 53 at [58]-[60] as follows: "Part 5 of the Code of Conduct applies where a councillor has a private or personal interest which does not constitute a "pecuniary interest" as defined and otherwise managed in accordance with the LG Act and Part 4 of the Code of Conduct. Clause 5.4 confirms that the onus is on the councillor to identify any non-pecuniary conflict of interest that they may have in matters that they deal with, to disclose it fully, and to take appropriate action to manage the conflict. How a non-pecuniary conflict of interest is managed depends on whether it is "significant": if it is, it is to be managed by not participating in consideration or decision-making in relation to that matter, similarly to how a pecuniary interest would be managed (cl 5.10); and if not, by written disclosure (cl 5.11). The Code of Conduct has effect and applies in accordance with the provisions of s 440 of the LG Act: while not legislation, as a code of conduct adopted by the Council it must incorporate the provisions of the model code prescribed by the regulations, and any provisions which supplement the model code must be consistent with the prescribed model code: LG Act, s 440(3), (4). Councillors must comply with the applicable provisions of a council's adopted code: LG Act, s 440(5). Clause 5.1 states what a "non-pecuniary interest" is, and how a relevant non-pecuniary interest might commonly arise, such as in family or personal relationships or other connections through sporting, social, religious or cultural associations. A financial interest which does not meet the definition of a "pecuniary interest" in cl 4.1 of the Code of Conduct, or the LG Act, may also be included in the range of non-pecuniary interests relevant for Part 5 of the Code of Conduct." Standard of proof 1. It is well established that the applicant bears the onus of proof in these proceedings. It is also not in doubt that the standard of proof is the civil standard applicable in a Tribunal setting. Generally, matters determined under the LGA, given the serious consequences for the councillor, must be established to the Briginshaw standard (see Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] [1992] HCA 66; 67 ALJR 170; Gautam v Health Care Complaints Commission [2021] NSWCA 85 per Payne JA at [86]-[87]). The Code of Conduct Breach Evidence 1. It is not in dispute that the respondent paid the sum of $28,000 to Mr Chrara on about 15 February 2013 and that Mr Chrara asserted in his evidence to the ICAC this was for the purposes of the respondent participating in a horseracing syndicate. 2. Nor is it in dispute that Mr Chrara's evidence to the ICAC was that he received further cash sums from the respondent for the proposed horseracing syndicate. As noted above, the ICAC transcript notes that there is no documentary evidence which corroborates Mr Chrara's evidence of the cash payments. 3. At the time the development application was before the Council on 26 August 2013 for variation of the height requirements (a motion moved by the respondent) and approval of the development application, the respondent did not disclose his relationship with Mr Chrara, in particular that he had provided $28,000 by way of bank cheque to him nor did he disclose any cash payments made to Mr Chrara. Consideration of breach of the Code of Conduct 1. I commence my consideration of this topic and the question of misconduct by referring to the aims of the LGA as found in s 7 as follows: 7 Purposes of Act The purposes of this Act are as follows— (a) to provide the legal framework for the system of local government for New South Wales, (b) to set out the responsibilities and powers of councils, councillors and other persons and bodies that constitute the system of local government, (c) to provide for governing bodies of councils that are democratically elected, (d) to facilitate engagement with the local community by councils, councillors and other persons and bodies that constitute the system of local government, (e) to provide for a system of local government that is accountable to the community and that is sustainable, flexible and effective. 1. Also important are the objects of the legislation as set out in s 8 and s 8A of the LGA and in particular s 8A(2)(e) which provides as follows: (2) Decision-making The following principles apply to decision-making by councils (subject to any other applicable law)— …. (e) Council decision-making should be transparent and decision-makers are to be accountable for decisions and omissions. 1. Also relevant to my determination of the two issues in these proceedings is s 439(1) of the LGA. It provides as follows: (1) Every councillor, member of staff of a council and delegate of a council must act honestly and exercise a reasonable degree of care and diligence in carrying out his or her functions under this or any other Act. 1. I am satisfied that, viewed objectively, the respondent's failure to disclose his relationship with Mr Chrara and payment of funds to him while at the same time moving the motion on 26 March 2013 and voting in favour of the development application was conduct in breach of cl 3.1(a) of the Code of Conduct. It was conduct which was not in accordance with the objects in s 8A of the LGA. 2. In considering whether the respondent's conduct was improper and unethical I note that those words are not defined in the LGA. The phrase "improper and unethical" is included in the definition of unsatisfactory professional conduct in other legislation (see Health Practitioner Regulation National Law (NSW) s 139B(1)(l)). Decisions made under s 139B(1)(l) explain that the words are to be given their natural and ordinary meaning. This is discussed in Health Care Complaints Commission v Achurch [2019] NSWCATOD 20 and is apposite to the interpretation in the Code. The Tribunal explained: "41. "Improper" and "unethical" are not defined in the National Law and should be given their ordinary meaning. The word "improper" means, relevantly, "not proper," and "not in accordance with propriety of behaviour, manners, etc.: improper conduct" (Macquarie Dictionary Online; see also Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [51]). "Unethical" means, relevantly, "contrary to moral precept; immoral" or "in contravention of some code of professional conduct" (Macquarie Dictionary Online; see also Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [52]). In this disciplinary context, impropriety may refer to a breach of the standards of conduct that would be expected of a person in the position of the respondent (see Health Care Complaints Commission v Liu [2016] NSWCATOD 133 at [54])" 1. I am satisfied the conduct was improper and breached cl 3.1(c) of the Code and was an abuse of power under cl 3.1(d) of the Code of Conduct. I note that in his response to the draft report the respondent states that he was acting with care and honesty and "seeking to ensure that property developments are properly made". He states he was "not promoting improper concessions or preferential treatment as a matter of fact". I do not accept the respondent's submission which is contrary to the evidence. The respondent had a significant non-pecuniary interest in his arrangements with Mr Chrara. The inference is clearly available on the evidence from his attendance at the pre-development meeting, moving the motion to amend the draft LEP and approving a development which netted a very significant profit to Mr Chrara that the respondent's conduct was improper and unethical. 2. I am also satisfied the failure to disclose the relationship and financial arrangements between himself and Mr Chrara demonstrated a reasonable lack of care and diligence in participating in the approval of the development application and was in breach of cl 3.2 of the Code. I make a similar finding about a breach of cll 3.7 and 3.8 noting again it was the respondent who moved the motion, without disclosure of his relationship with Mr Chrara and their joint financial interests, to override the height restrictions affecting the development at the Rosehill property. 3. I note that the respondent concedes in his response to the draft report that, with the benefit of hindsight, on and after 15 February 2013, he had a disclosable non-pecuniary conflict of interest by reason of his participation in the horse syndicate. He acknowledges he had a conflict of interest which he did not identify or disclose at the relevant time. 4. The provisions of the Code of Conduct in relation to conflict of interest reflect the position at common law when considering apprehended, as distinct from, actual bias. This is clearly explained by the plurality in the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6] as follows: "Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide[13]. That principle gives effect to the requirement that justice should both be done and be seen to be done[14], a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle." 1. The plurality at [8] note the requirement of a "logical connection between the matter and the feared deviation from the course of deciding the case on its merits". Here the respondent's significant non-pecuniary interest raised a conflict of interest. A fair-minded lay observer might reasonably apprehend the respondent might not bring an impartial mind to the application to vary the height restriction and approve the development application in circumstances where the respondent was engaged in significant financial transactions with Mr Chrara. 2. In referring to Ebner, I take into account the discussion in Deputy Secretary, Local Government, Planning and Policy v Byrne at [62]-[64] which explains where the wording of the Code of Conduct departs from the two "mights" test enunciated in Ebner and respectfully adopt that discussion as applicable to this matter. 3. I am independently satisfied that the respondent had a conflict of interest which he should have declared. The failure to disclose the non-pecuniary conflict of interest was a breach of the requirements under cll 4.16 and 4.17 of the Code of Conduct. The non-pecuniary interest was a substantial financial arrangement with Mr Chrara in existence at the time the development application was before the Council. 4. In summary, I am satisfied that the evidence discloses multiple breaches of the Code of Conduct by the respondent. Misconduct under s 440H 1. I have earlier set out s 440H of the LGA. It is submitted in the departmental report that the respondent's failure to disclose his friendship and financial dealings with Mr Chrara constitutes a significant breach of the non-pecuniary interest provisions and matters put by the respondent in his response in respect of disclosure in annual returns are not relevant. Thus, it is asserted on behalf of the applicant that the respondent's conduct constituted a breach of the Code of Conduct and constitutes "misconduct" as defined in the LGA. Evidence 1. The report relied on by the applicant notes a number of "gaps" or discrepancies in the evidence including the different evidence given to the ICAC by Mr Chrara and the respondent to the OLG. The report notes, and it is not in dispute, there is no corroborative evidence of the cash payments which the respondent says he made to Mr Chrara, and there is a discrepancy in the evidence of Mr Chrara and the respondent as to whether there were one or two cash payments. 2. Further, there is no evidence, other than the respondent's evidence (which appears was not on oath or affirmation), that sometime in 2014 he notified Mr Chrara that he wished to withdraw from the horse syndicate and sought repayment of funds advanced. 3. Given the evidential "gaps" I am satisfied it is not open on the civil standard applicable to Tribunal proceedings that any findings can be made about the respondent's relationship with Mr Chrara when he attended the pre-development meetings. My findings are confined to established factual matters and/or where supported by corroborative evidence (the $28,000 payment and the payment of $50,000 to the respondent after the sale of the Rosehill property). This evidence supports findings that the respondent breached the Code of Conduct and that his conduct constitutes misconduct as defined in the LGA provision in force at the relevant time. Conclusions 1. I am satisfied that the respondent was in breach of the Code of Conduct adopted by the Parramatta City Council when he moved the motion to vary the height requirements for the Rosehill development and voted in favour of the development application for the Rosehill property. This occurred when he had a friendship with the developer, and was engaged in a financial transaction with him involving significant sums of money. His conduct constitutes "misconduct" as defined in the LGA. Further conduct of the proceedings 1. These proceedings are to be listed for a Stage 2 hearing. I have included in these reasons a timetable for the filing of evidence and written submissions by both parties. The matter will be listed for hearing of Stage 2 at a date and time to be notified by the Registrar. To that end the parties are requested to provide the Registrar a list of their mutually available dates in January 2022, February 2022 and March 2022. Publication of the reasons 1. The Tribunal works on the principle of "open justice" and its hearings and reasons are generally open and available to the public. 2. At the commencement of these reasons I set out the variation to the order made by the ICAC under s 112 of the ICAC Act. That variation makes it clear that this Tribunal is entitled to rely on evidence given before the ICAC by Mr Chrara. It does not explicitly permit publication of this Tribunal's reasons. 3. I am satisfied that it is in the public interest for the Tribunal's reasons to be published. Although the conduct the subject of the allegations occurred in 2013, the reasons provide a timely reminder of the importance of proper disclosure in compliance with the Code of Conduct and a deterrent against similar breaches by other councillors. However, for abundant caution, I have directed that the applicant provide a copy of these reasons to the ICAC with a request that a further variation is made to the s 112 order to permit publication of these reasons. Orders 1. The Tribunal having found the respondent breached s 440(5) of the Local Government Act 1993 (NSW) and is guilty of misconduct as defined in s 440H of that Act orders that: 1. The applicant file and serve further evidence if any together with written submissions to be relied on for the Stage 2 hearing on or before 10 December 2021. 2. The respondent file and serve any evidence on which he seeks to rely together with written submissions in respect of the Stage 2 proceedings by 14 January 2022. 3. The applicant is as soon as practicable after receipt of these reasons to request the Independent Commission Against Corruption to further vary the order made on 29 June 2021 under s 112 of the Independent Commission Against Corruption Act 1988 (NSW) to permit publication of these reasons. 4. The parties are to provide to the Registrar on or before 17 December 2021 their mutually available dates in January 2022, February 2022 and March 2022 for the Stage 2 hearing. 5. The Registrar will after compliance with order 4 of these orders notify the parties of the date and time fixed for the hearing of the Stage 2 proceedings. Annexure a Statement of Agreed Facts No. Fact Evidentiary Reference 1. Councillor Garrard is a councillor of Cumberland Council. Departmental Report dated October 2020 (Report) p A159 2. Councillor Garrard was a local councillor on Parramatta City Council from 1974 until 2015. Parramatta History and Heritage, Paul J Garrard 3. Upon the creation of Cumberland Council, Clr Garrard served on the community representative panel from 2015 until 2017. Report p A162 4. Councillor Garrard was elected to Cumberland Council in 2017 and has been a councillor since then. Report p A162 5. On about 15 August 2012, Clr Garrard attended a pre-lodgement meeting at Parramatta City Council to discuss a proposed development application (DA) by Alan Chrara (Mr Chrara) in relation to a property owned by Mr Chrara at 19-21 Prospect St Rosehill (Property). Mr Chrara also attended the meeting. Report p A169, p A194 6. On about 24 August 2012, Clr Garrard attended a further pre-lodgement meeting at Parramatta City Council to discuss the DA. Mr Chrara also attended the meeting. The fee for this meeting was waived by Council. Report p A194 7. In about late 2012, Mr Chrara approached Clr Garrard to ask him whether Clr Garrard wished to be involved in a syndication of a racehorse that Mr Chrara proposed to purchase. Councillor Garrard agreed to participate in the syndicate. Report p A171 8. Councillor Garrard and Mr Chrara agreed that Clr Garrard would contribute a total of $50,000 to the horseracing syndicate. Report p A171 9. On about 15 February 2013, Clr Garrard withdrew $28,000 from his bank account as a bank cheque. Report p A269 10. On about 18 February 2013, Mr Chrara deposited $28,000, being the bank cheque from Clr Garrard, into his Arab Bank account. Report p A135 11. On about 18 February 2013, Mr Chrara lodged the DA. The DA attracted a lodgement fee of $18,123.10. Report p A4 12. Mr Chrara used the $28,000 received from Clr Garrard to pay the DA lodgement fee. Mr Chrara did not otherwise have funds available to pay the DA lodgement fee. Report p A137 13. Mr Chrara did not disclose to Clr Garrard that he had used the $28,000 received from Clr Garrard to pay the DA lodgement fee. Report p A137 14. About two or three weeks after the DA was lodged, Clr Garrard gave Mr Chrara $15,000 in cash. Report pp A117-118; A177 15. Councillor Garrard's stated purpose in giving the $15,000 to Mr Chrara was to make a further payment towards the $50,000 contribution to the horseracing syndicate. Report pp A177-A178 16. About two or three weeks after Clr Garrard gave the $15,000 to Mr Chrara, Clr Garrard gave Mr Chrara a further $7,000 in cash. Report p A117; A191 17. Councillor Garrard's stated purpose in giving the $7,000 to Mr Chrara was to make a further payment towards the $50,000 contribution to the horseracing syndicate. Report p A119 18. Mr Chrara told Mr Garrard that the racehorse would not be purchased until Mr Chrara sold his property (that was the subject of the DA). Report pp A126-A127 19. Councillor Garrard told Mr Chrara that he no longer wished to participate in the syndicate and asked for a refund of his money. Mr Chrara agreed to provide that refund. Report p A181 20. On 26 August 2013, the DA was put before Parramatta City Council for approval. Report p A296 21. The DA was referred to the Council because the DA sought a variation to the development standards in the Parramatta Local Environmental Plan of greater than 10%. Report pp A296-A297 22. Councillor Garrard proposed a motion that the Council as the consent authority grant development consent to the DA (Motion). Report pp A296-A297 23. Councillor Garrard voted in favour of the Motion. Report p A296 24. Councillor Garrard did not disclose any non-pecuniary conflict of interest that he had in relation to the Motion. Report p A179 25. As at 26 August 2013, the Parramatta City Council Code of Conduct, adopted at the Council meeting on 25 February 2013 (Code), was in force. Report pp A27-A79 26. Clause 4.12 of the Code required councillors, among others, to disclose fully in writing, as soon as practicable, a non-pecuniary interest that conflicts with the person's public duty, even if that conflict is not significant. Report p A33 27. Clause 4.15 of the Code explained that significant non-pecuniary conflicts of interest might include, among other things, relationships that are particularly close, including business relationships. Closeness is defined by the nature of the business relationship, the frequency of contact and the duration of the relationship. Report p A33 Clause 4.16 of the Code required council officials who have disclosed that a significant non-pecuniary conflict of interest existed to manage that conflict of interest by either: 28. (a) removing the source of conflict by relinquishing or divesting the interest that creates the conflict, or reallocating the conflicting duty to another conflict official; or Report p A33 (b) having no involvement in the matter, by absenting himself or herself and not taking any part in the debate or voting on the issue as if the provisions of s 451(2) of the Local Government Act 1993 (LGA) applied. 29. On about 2 July 2014, Mr Chrara received $364,500 into his bank account. Report p A282 30. The money received by Mr Chrara on 2 July 2014 represented payment of the deposit for the sale of the Property. Report pp A127-A128 31. Later on, 2 July 2014, Mr Chrara purchased a bank cheque for $50,000. Report p A282 32. Later on, 2 July 2014, Mr Chrara provided the $50,000 bank cheque to Clr Garrard's wife. Councillor Garrard subsequently deposited the cheque. Report p A131 33. On about 8 February 2019, the Chief Executive of the Office of Local Government (OLG) authorised Tony Day, Principal Investigator OLG, to conduct an investigation and prepare a departmental report pursuant to s 440H of the LGA into the matters concerning Clr Garrard specified in the instrument of approval. Report p A2 34. On about 26 February 2020, a copy of the draft departmental report was provided to Clr Garrard for his comment. Report p A353 35. On about 18 April 2020, Clr Garrard provided submissions in response to the draft departmental report, which were considered in the final departmental report. Report p A357 ADDEnDUM 1. These reasons were published to the parties only on 22 November 2021 because of the non-publication direction made by the ICAC under s 112 of the ICAC Act and the non-publication order made by the Tribunal on 7 June 2021. 2. On 6 December 2021 the Senior Investigator – Legal, Investigations and Performance Group, Office of Local Government wrote to the Tribunal concerning the reasons published to the parties on 22 November 2021 and attached a variation of a direction made by Commissioner S Rushton SC of the ICAC. 3. On 1 December 2021 Commissioner Rushton SC further varied the direction made on 16 March 2017 as follows: "I, Stephen Rushton SC, Commissioner of the Independent Commission Against Corruption, being satisfied that it is in the public interest to do so, hereby vary the direction made on 16 March 2017 pursuant to section 112 of the Independent Commission Against Corruption Act 1988 concerning evidence given to the Commission on that day by Allan Chrara, and any exhibits shown to Allan Chrara ("the evidence") so as to permit reasons of the NSW Civil and Administrative Tribunal ("the Tribunal") given on 22 November 2021 in proceedings against Paul Garrard (Case reference: 2020/00348023), and any other reasons given by the Tribunal in respect of that matter to be published". 1. Accordingly, the reasons for decision of the Tribunal dated 22 November 2021 are now to be published, as is the usual practice, on NSW Caselaw and the non-publication order made on 7 June 2021 is revoked. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 December 2021