Flaherty v Office of Local Government [2024] NSWCATOD 68

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Flaherty v Office of Local Government [2024] NSWCATOD 68 Hearing dates: 27 May 2024 Date of orders: 27 May 2024 Decision date: 29 May 2024 Jurisdiction: Occupational Division Before: T Simon, Principal Member Decision: (1) The application is dismissed because the Tribunal has no jurisdiction. (2) Any application for costs must be made on or before 11 June 2024 and will be dealt with in due course. Catchwords: LOCAL GOVERNMENT – Councillors – jurisdiction –-– misconduct – vacate civic office Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 (NSW) Local Government Act 1993 (NSW) Cases Cited: Chief Commissioner for Business Franchise Licences (Tobacco) v Century Impact P/L [1996] NSWSC 555 (21 November 1996) Tickle Industries Pty Limited v Hann & Anor [1974] HCA 5; (1974) 130 CLR 321 at 331 Texts Cited: Nil Category: Principal judgment Parties: Elizabeth Flaherty (Applicant) Office of Local Government (First Respondent) Upper Hunter Shire Council (Second Respondent) Representation: Solicitors: N Ikners (First Respondent)

J Preston, Agent (Applicant) G McDonald, General Manager (Second Respondent) File Number(s): 2024/00169384 Publication restriction: Nil

Reasons for decisions 1. On 1 May 2024, Mr McDonald, who is the General Manager of Upper Hunter Shire Council wrote to Ms Flaherty, who was a Local Government Councillor, informing her that her absence from three consecutive ordinary Council meetings had triggered a vacancy of her role as councillor in accordance with s 234(1)(d) of Local Government Act 1993 (NSW). On 1 May 2024, Ms Flaherty made an application to this Tribunal seeking to challenge the vacancy on the basis that it was invalid. On 6 May 2024, Ms Flaherty also lodged a application for a stay order, seeking to prevent the respondents from appointing a new Councillor or conducting affairs of Council without Ms Flaherty as a validly elected Councillor. 2. The matter was listed for hearing to determine whether the Tribunal had jurisdiction to hear the application. Having considered the submissions the Tribunal finds that it does not have jurisdiction to hear and determine the applications and the applications were dismissed.