Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Re referral by Executive Director, Local Government, under s 440J of the Local Government Act 1993, concerning Mr Funnell, a former Councillor [2023] NSWCATOD 17 Hearing dates: 31 January 2023 Date of orders: 17 February 2023 Decision date: 17 February 2023 Jurisdiction: Occupational Division Before: Cole, DCJ, Deputy President Decision: (1) The Tribunal determines that it will conduct proceedings into this matter. (2) The matter is listed for a directions hearing on Tuesday 7 March 2023 at 9:30am. Catchwords: LOCAL GOVERNMENT — Councillors — referral of alleged misconduct of a Councillor under the Local Government Act 1993 Legislation Cited: Local Government Act 1993 (NSW) Cases Cited: R v Riley, Christopher [2020] NSWCCA 283 Ishak Cicek and anor. v The Estate of the late Mark Solomon and ors (No 3) [2013] NSWSC 1492 R v Warwick (No 80) [2020] NSWSC 115 In Re referral by Executive Director, Local Government, under s 440J of the Local Government Act 1993, concerning Mr Hindi, a former Councillor [2022] NSWCATOD 152 Category: Procedural rulings Parties: Executive Director, Local Government under delegation from the Secretary, Department of Planning, Industry and Environment (Applicant) Paul Funnell (Respondent) Representation: Counsel: M Cobb-Clark (Applicant) Solicitors: Office of Local Government (Applicant) Barron Law (Respondent) File Number(s): 2022/00259417 Publication restriction: Nil REASONS FOR DECISION 1. The Executive Director, Local Government ('the Executive Director'), under delegation from the Departmental Chief Executive, the Secretary, Department of Planning and Environment ('the Secretary'), referred the alleged misconduct of Mr Funnell, a former Councillor of Wagga Wagga City Council, to the Tribunal, under s 440J(2)(b) and s 440N(3) of the Local Government Act 1993 (NSW) ('the Act'), by letter dated 25 August 2022 and received by the Tribunal on 29 August 2022. 2. The letter was expressed to constitute the Executive Director's report under s 440J(3) of the Act. The letter was accompanied by a General application form, which sets out the orders sought, and the grounds for the seeking of those orders, together with two volumes of material regarding the allegations against Mr Funnell. Mr Funnell was a Councillor at the time of the events the subject of the allegations. Mr Funnell ceased to be a Councillor on 4 December 2021. 3. Pursuant to s 470A of the Act, after considering a report presented to it under s 440J of the Act, the Tribunal must decide whether or not to conduct proceedings into the matter. Hearing 1. Both the Executive Director and Mr Funnell provided written submissions to the Tribunal in relation to the question of whether the Tribunal ought to conduct proceedings into the matter. 2. The parties were heard in relation to the question on 31 January 2023. Relevant Statutory Provisions 1. The Act provides, in s 440J: 440J Alternatives to disciplinary action by the Departmental Chief Executive (1) The Departmental Chief Executive may before, during or after an investigation into an allegation of misconduct by a councillor decide to take no further action against the councillor, if satisfied that no further action is warranted. (2) The Departmental Chief Executive may, instead of taking disciplinary action against a councillor— (a) refer the matter to the council concerned with recommendations as to how the council might resolve the matter, by alternative dispute resolution or otherwise, or (b) refer the matter to the Civil and Administrative Tribunal for consideration. (3) A matter is referred to the Tribunal under this section by means of a report presented to the Tribunal by the Departmental Chief Executive. A report may contain or be accompanied by such material and observations as the Departmental Chief Executive thinks fit. (4) The Departmental Chief Executive is to notify the councillor concerned of any decision to refer the matter to the Tribunal. (5) The regulations may make provision for or with respect to the reference of matters to the Tribunal under this section. 1. The Act provides, in s 470A: 470A NCAT to decide whether or not to conduct proceedings into a referred matter relating to misconduct (1) After considering a report presented to it under section 438HA or 440J in relation to a referred matter, the Civil and Administrative Tribunal may decide to conduct proceedings into the matter. (2) If the Civil and Administrative Tribunal decides not to conduct proceedings into a referred matter, it must provide a written statement of its decision, and the reasons for its decision— (a) to the councillor to whom the report relates, and (b) to the council concerned, and (c) to the Departmental Chief Executive. The allegations 1. The grounds for the application are set out in the General application form as follows: Grounds for Application Ground 1 That on or about 14 September 2020, Paul Funnell, while he was a councillor of Wagga Wagga City Council (Council), committed misconduct for the purposes of s 440F(1)(b) of the Local Government Act 1993 (Act) by contravening cl 9.6 of Council's Code of Conduct (Code). Particulars a. As at 14 September 2020, Paul Funnell was a councillor of Council. b. An ordinary meeting of Council occurred on 14 September 2020. c. On the agenda for confidential deliberation by Council was a complaint made pursuant to the Procedures for the Administration of the Model Code of Conduct (Procedures) against Paul Funnell. d. On 14 September 2020, consideration of the complaint concerning Clr Funnell was deferred to the next Council meeting. e. At about 10.05 pm on 14 September 2020 (after the Council meeting), Paul Funnell left a voicemail on the phone of Peter Thompson, General Manager of Council, in words to the following effect: "G'day Peter – Paul Funnell. I know it's late, I'm back at work. Let me tell you I work harder than you do, and I earn far less. If you can't take a phone call that's your prerogative, but after reading the resolution tonight, if this goes ahead, if you defer this, get ready for legal action and you can play your little toy card. Use this recording. Do whatever you like. You're a disgrace and you're just running cover and I will prove it. I think you better just dismiss this whole situation – thank you." f. The conduct of leaving the voicemail on Mr Thompson's phone was calculated to impede or disrupt Council's consideration of the complaint made against Paul Funnell, which is a matter under the Procedures. g. In the premises, Paul Funnell breached cl 9.6 of the Code. h. Consequently, Paul Funnell committed misconduct for the purposes of s 440F(1)(b) of the Act. Ground 1a (alternative to Ground 1) That on or about 14 September 2020, Paul Funnell, while he was a councillor of Council, committed misconduct for the purposes of s 440F(1)(b) of the Act by contravening cl 3.1(e) of the Code. Particulars a. Particulars a to e of Ground 1 are repeated. b. The conduct of leaving the voicemail on Mr Thompson's phone comprised or involved intimidation by Paul Funnell of Mr Thompson. c. In the premises, Paul Funnell breached cl 3.1(c) of the Code. d. Consequently, Paul Funnell committed misconduct for the purposes of s 440F(1)(b) of the Act. Ground 2 That on or about 28 September 2020, Paul Funnell, while he was a councillor of Council, committed misconduct for the purposes of s 440F(1)(b) of the Act by contravening cl 9.6 of the Code. Particulars a. As at 28 September 2020, Paul Funnell was a councillor of Council. b. An ordinary meeting of Council occurred on 28 September 2020. c. On the agenda for confidential deliberation by Council was a complaint made pursuant to the Procedures against Paul Funnell. d. During the Council meeting, Paul Funnell made a statement in words to the following effect: "I have been instructed by legal counsel to read the following and not to participate any further. This is a first and final notice to all Councillors, that if the current matter proceeds beyond this notification the appropriate legal action will be entered into against each individual Councillor who participates. This notification applies to Councillors, not the entity known as Wagga Wagga City Council. Regards, Walsh & Blair." e. After this statement was made, three councillors of Council in addition to Paul Funnell left the meeting, and the Council was left inquorate. f. The conduct of making the statement was calculated to impede or disrupt Council's consideration of the complaint made against Paul Funnell, which is a matter under the Procedures. g. In the premises, Paul Funnell breached cl 9.6 of the Code. h. Consequently, Paul Funnell committed misconduct for the purposes of s 440F(1)(b) of the Act. Ground 2a (alternative to Ground 2) That on or about 28 September 2020, Paul Funnell, while he was a councillor of Council, committed misconduct for the purposes of s 440F(1)(b) of the Act by contravening cl 3.1(e) of the Code. a. Particulars a to d of Ground 1 are repeated. b. The conduct of making the statement referred to at particular 2d comprised or involved intimidation by Paul Funnell of the other members of Council. c. In the premises, Paul Funnell breached cl 3.1(c) of the Code. d. Consequently, Paul Funnell committed misconduct for the purposes of s 440F(1)(b) of the Act. 1. The relevant part of the Code of Conduct for Local Councils in NSW, adopted by the Council in 2019, and in force at the time of the events the subject of the allegations ('the Code'), provided, in clause 3.1 and clause 9.6: 3.1 You must not conduct yourself in a manner that: a) is likely to bring the council or other council officials into disrepute b) is contrary to statutory requirements or the council's administrative requirements or policies c) is improper or unethical d) is an abuse of power e) causes, comprises or involves intimidation or verbal abuse f) involves the misuse of your position to obtain a private benefit g) constitutes harassment or bullying behaviour under this code, or is unlawfully discriminatory. … 9.6 You must not engage in conduct that is calculated to impede or disrupt the consideration of a matter under the Procedures. 1. Both Ground 1 and Ground 2 of the allegations refer to the Procedures for the Administration of the Model Code of Conduct for Local Councils in NSW ('the Procedures'). The procedure for the making of a complaint against a Councillor, and the management of such a complaint, are set out in the Procedures. The Executive Director's submissions 1. Written submissions were filed on behalf of the Executive Director, and oral submissions were also made at the hearing of the threshold issue. 2. The Executive Director submitted, in effect, that the Act did not provide for the Secretary or his delegate to exercise his powers to take disciplinary action under s 440I of the Act in relation to a former councillor, but only in relation to a serving councillor. It was submitted that the only course open to the Secretary or his delegate once a person has ceased to be a councillor, is to refer the matter to the Tribunal under s 440N(3) of the Act, which provides: 440N Investigation of former councillors (1) The Departmental Chief Executive may conduct an investigation for the purpose of determining whether a former councillor engaged in misconduct during the period in which the former councillor was a councillor. (2) For that purpose, sections 440H and 440M apply as if a reference in those sections to a councillor includes a reference to a former councillor. (3) The Departmental Chief Executive may before, during or after an investigation into an allegation of misconduct by a former councillor decide to refer the matter to the Civil and Administrative Tribunal for consideration. (4) Section 440J applies to the referral of the matter to the Tribunal in the same way as it applies to a referral of a matter relating to a councillor to the Tribunal. 1. The Executive Director submitted that the words alleged to have been spoken by Mr Funnell in a voice message to the phone of the General Manager on 14 September 2020 were recorded, and that recording has been retained. Mr Funnell has not denied saying those words, and there seems to be no dispute that he said them. 2. In relation to Ground 1, set out above at [8], it was submitted, in effect, on behalf of the Executive Director, that the speaking of those words into the General Managers voicemail by Mr Funnell is capable of characterisation and interpretation as conduct calculated to impede or disrupt Council's consideration of the complaint made against Mr Funnell, as alleged in Ground 1, and, further, as conduct constituting a breach of clause 9.6 of the Code, and misconduct as defined in s 440F(1)(b) of the Act. I note that the complaint the subject of the voicemail was not subsequently referred to the Tribunal. 3. In relation to Ground 1a, it was submitted, in effect, that the conduct alleged is capable of being characterised and interpreted as involving the intimidation of the General Manager and constituting a breach of clause 3.1(c) of the Code as well as misconduct. 4. The Executive Director submitted that there is no dispute about whether the words alleged to have been spoken by Mr Funnell at the Council meeting of 28 September 2020 were, in fact, spoken. The words were recorded in the transcript of the Council meeting and Mr Funnell has not denied saying them. 5. In relation to Ground 2, set out above at [8], it was submitted, in effect, that the speaking of those words in the Council meeting is conduct capable of characterisation and interpretation as being calculated to impede or disrupt Council's consideration of the complaint made against Mr Funnell and a breach of clause 9.6 of the Code, as well as misconduct as defined in s 440F(1)(b) of the Act. 6. In relation to Ground 2a, set out above at [8], it was submitted that the conduct alleged involved the intimidation by Mr Funnell of the other members of the Council and constituted a breach of clause 3.1 of the Code as well as misconduct. 7. In summary, it was argued, on behalf of the Executive Director, that there is a reasonably arguable case in relation to the conduct alleged. 8. It was further argued that the conduct set out in both Ground 1 and Ground 2 was self-evidently serious conduct. It was submitted that the intimidation by Mr Funnell of the General Manager, in an effort to affect the progress of a complaint against Mr Funnell, is obviously serious and warrants the conduct of proceedings. The statement Mr Funnell read out at the Council meeting had the effect of causing three councillors to leave the meeting. As a result, the meeting lacked a quorum and could not continue. It was argued that this conduct was calculated to disrupt the Council's proceedings, and did, in fact, disrupt those proceedings. Mr Funnell's submissions 1. Written submissions were filed on behalf of Mr Funnell, and oral submissions were made at the hearing of the threshold point. 2. It was submitted, on behalf of Mr Funnell, that the words the subject of Ground 1 were trivial, and the complaint ought to be dismissed on that basis. 3. The written submissions with respect to the voicemail the subject of Ground 1 said: 11. The words attributed to then-Councillor Funnell in the telephone message could be described as initially apologetic for calling so late. He then, quite fairly, puts Mr Thompson on notice that he intends to pursue legal action should the matter proceed. He acknowledges the message is being recorded, which demonstrates Counsellor Funnell's firm belief he is doing nothing improper. To call someone "a disgrace" might not be welcome to that person but was not calculated to impeded or disrupt the consideration of a matter under the procedures. Similarly, no such intent was meant by suggesting Mr Thompson should "just dismiss the whole situation". This comment must be considered along with the earlier reference to legal proceedings ("Get ready for legal action"). Councillor Funnell was simply adding relevant information which should be considered by Counsel; that legal action may result if the matter proceeded [sic]. To do so was quite proper. 1. It was submitted that the words "attributed" to Mr Funnell on 28 September 2020 in the Council meeting "could also be described as trivial". The written submissions further said: 12. …The legal statement prepared for and read by Councillor Funnell on 28 September 2020 was not in any way intended to dissuade counsellors from carrying out their lawful functions. Rather, acting on legal advice, Councillor Funnell gave fair notice that he might exercise his legal rights against both the council and the individual councillors. Councillor Funnell had been given legal advice to give fair notice to all concerned so they could make their own informed decisions. Individual councillors made their own choices as to how they reacted to that notice. That was entirely the decision of those individuals. 1. In oral submissions, it was said that a failure to warn the Councillors of potential future legal proceedings could have been characterised as unfair. 2. It was submitted that the "pursuit of this trivial complaint by members of Council seems vexatious and driven by personal motives for some form of retribution against Mr Funnell". 3. Mr Funnell sought to have this matter dismissed, and submitted that there was little to be gained by the matter continuing. Submissions of the Executive Director in response 1. It was pointed out, on behalf of the Executive Director, that the decision to refer this matter to the Tribunal was a decision of the Executive Director, acting under delegated power. To the extent that Mr Funnell's submissions reflect a perception that the pursuit of the issues raised could be attributed to any members of the Council, that perception is misconceived. The Executive Director makes decisions independent of the Council and the councillors. It cannot fairly be said that this matter represents a vexatious pursuit of Mr Funnell. 2. It was further submitted that Mr Funnell's submissions largely addressed the central issues raised by the referral, rather than the threshold question of whether the Tribunal ought to decide to conduct proceedings into the matter. Consideration 1. No basis has been put forward for the allegation that this referral has been brought about by members of Council, or that the referral is "vexatious and driven by personal motives for some form of retribution against Mr Funnell". On the basis of the material before the Tribunal, the referral has been made by the Executive Director under the Act in the usual manner. 2. In Re referral by Executive Director, Local Government, under s 440J of the Local Government Act 1993, concerning Mr Hindi [2022] NSWCATOD 152, the following factors were identified as relevant to the question of whether the Tribunal should decide to conduct proceedings under the Act following a referral under s 440J(2)(b): (1) Whether a reasonably arguable (prima facie) case has been established. (2) Whether the misconduct alleged is more serious than trivial or trifling conduct. (3) Whether any circumstance exists which would make the conduct of proceedings unfair to the respondent, or contrary to the public interest. 1. When considering these factors, the evidence before the Tribunal should be taken at its highest, consistent with the practice in relation to the consideration of other interlocutory and evidentiary issues (see, for example, R v Riley, Christopher [2020] NSWCCA 283, Ishak Cicek and anor. v The Estate of the late Mark Solomon and ors (No 3) [2013] NSWSC 1492 and R v Warwick (No 80) [2020] NSWSC 115.) Has a reasonably arguable case been established? 1. It is reasonably arguable that the words allegedly spoken by Mr Funnell into Mr Thompson's voicemail on 14 September 2020 are, on their face, in the circumstances apparent on the material before the Tribunal, capable of characterisation and interpretation in the manner alleged in Grounds 1 and 1a of the grounds for the application. A reasonably arguable case that Mr Funnell committed misconduct as defined in s 440F(1)(b) of the Act by contravening clause 9.6 of the Code has been established. A reasonably arguable case that Mr Funnell breached clause 3.1(e) of the Code has also been made out. 2. It is also reasonably arguable that the words allegedly spoken by Mr Funnell at the Council meeting on 28 September 2020, and set out in the particulars to Ground 2, are capable of characterisation and interpretation as having been calculated to impede or disrupt Council's consideration of the complaint made against Mr Funnell. A reasonably arguable case that Mr Funnell breached clause 9.6 of the Code, and thereby committed misconduct as defined in s 440F(1)(b) of the Act, has been established. 3. It is also reasonably arguable that Mr Funnell, by speaking the words alleged, breached clause 3.1 of the Code, which also constitutes misconduct as defined in the Act. Is the conduct alleged more serious than trivial or trifling conduct? 1. The allegations are not trivial or trifling. They involve allegations of conduct causing, comprising or involving the intimidation of the General Manager and of Councillors, and intimidation is a serious matter. They also involve allegations of conduct calculated to impede or disrupt the consideration of a complaint against Mr Funnell, which is also a serious matter. Circumstances rendering the conduct of proceedings unfair or contrary to the public interest 1. It was submitted on behalf of Mr Funnell that these proceedings, effectively, have no utility, because Mr Funnell is no longer a Councillor and the range of orders which could be made, were the Tribunal to conduct proceedings, is limited. No specific unfairness was identified. 2. The purposes of the Act are set out in s 7: 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. Having regard to the purposes of the Act, in particular s 7(e) of the Act, the public interest lies in the protection of an accountable system of local government. 2. The Act provides, in s 8A, as a guiding principle for councils, that Councils should act "fairly, ethically and without bias". Any intimidation of Council staff or Councillors has the potential to compromise the achievement of this principle. The impeding or disruption of the consideration of a complaint against a Councillor also has that potential. 3. The public interest will be best served by the conduct of proceedings into this matter by the Tribunal. Conclusion and Orders 1. A reasonably arguable case has been established and the allegations are not trivial or trifling. A decision to conduct proceedings into the matter is in the public interest. No unfairness has been demonstrated. 2. I make the following orders: 1. The Tribunal determines that it will conduct proceedings into this matter. 2. The matter is listed for a directions hearing on Tuesday 7 March 2023 at 9:30am. ********** 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 February 2023