Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Deputy Secretary, Local Government, under delegation from the Secretary, Department of Planning, Housing and Infrastructure v Saravinovski [2025] NSWCATOD 10 Hearing dates: 4 November 2024 Date of orders: 13 February 2025 Decision date: 13 February 2025 Jurisdiction: Occupational Division Before: Seiden SC DCJ, Deputy President Decision: (1) The respondent is guilty of misconduct as defined by s 440F(1)(b) of the Local Government Act 1993. (2) The respondent is reprimanded pursuant to s 482A(2)(b) of the Local Government Act 1993. (3) Subject to paragraph 46, no order as to costs. (4) Pursuant to s 64(1)(d) of the NCAT Act, disclosure of the matters referred to in the Departmental Report is restricted to the parties, save with respect to the matters disclosed and published in these written reasons for decision. (5) To the extent necessary, the non-disclosure and non-publication orders made by the Tribunal on 24 October 2024, are varied to accommodate order 4 herein. Catchwords: LOCAL GOVERNMENT — Councillors — alleged misconduct of a Councillor under the Local Government Act 1993 — failure to declare non-pecuniary interest — breach of applicable Codes of Conduct — appropriateness of reprimand Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Local Government Act 1993 (NSW) Cases Cited: Briginshaw v Briginshaw (1983) 60 CLR 336 Deputy Secretary of the Department of Local Government, Planning and Policy v Doueihi (No 2) [2022] NSWCATOD 3 Deputy Secretary, Local Government Planning and Policy v Byrne (No 2) [2021] NSWCATOD 112 Deputy Secretary, Local Government, Planning and Policy v Garrard (No 3) [2022] NSWCATOD 35 Executive Director, Local Government under delegation from the Secretary, Department of Planning, Industry and Environment concerning Paul Funnell [2023] NSWCATOD 82 Executive Director, Local Government under delegation from the Secretary, Department of Planning and Industry v Robinson (No 2) [2023] NSWCATOD 81 Executive Director, Local Government, under delegation from the Secretary, Department of Planning, Industry and Environment v Hindi (No 2) [2024] NSWCATOD 144 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 Office of Local Government v Neville [2018] NSWCATOD 31 Texts Cited: None cited Category: Principal judgment Parties: Deputy Secretary, Local Government under delegation from the Secretary, Department of Planning, Housing and Infrastructure (Applicant) Bill Saravinovski (Respondent) Representation: Counsel: M Cobb-Clark (Applicant) F Corsaro SC (Respondent) Solicitors: Office of Local Government (Applicant) Stewart Law (Respondent) File Number(s): 2024/00233480 Publication restriction: Orders made 24 October 2024 (1) Until further order or by variation of these orders: (a) pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act (NSW) 2013 (the NCAT Act), there is to be no publication of the matters referred to in the document styled Departmental Report and the evidence given before the Tribunal in relation to those matters; (b) pursuant to s 64(1)(b) of the NCAT Act, the publication or broadcast of any sound recording or transcript of the proceedings is restricted to the applicant and respondent; (c) pursuant to s 64(1)(a) of the NCAT Act, there is to be no disclosure of the name of any witness appearing in the proceedings (other than the name of the respondent). Orders made 12 February 2025 (4) Pursuant to s 64(1)(d) of the NCAT Act, disclosure of the matters referred to in the Departmental Report is restricted to the parties, save with respect to the matters disclosed and published in these written reasons for decision. (5) To the extent necessary, the non-disclosure and non-publication orders made by the Tribunal on 24 October 2024 are varied to accommodate order 4 herein. REASONS FOR DECISION Background 1. The respondent was a local councillor between 1983 and 2024; first at Rockdale City Council and then, since 2017, at Bayside Council (the Council). He was mayor from 2018 to 2024. 2. On 27 March 2024, the Deputy Secretary made a referral to the Tribunal under s 440J(2)(b) of the Local Government Act 1993 (NSW) (LG Act), with a cover letter and a report entitled Misconduct Departmental Report, dated March 2024 (the Departmental Report). The Deputy Secretary indicated in his letter that he was satisfied, on the basis of the Departmental Report, that the respondent engaged in misconduct, as defined in s 440F(1) of the LG Act. The applicant stated his view that the Tribunal is best placed to make a determination in relation to the alleged misconduct and that it is in the public interest for the matter to be subject to a hearing by the Tribunal. 3. On 21 June 2024 the Tribunal determined to conduct proceedings, pursuant to s 470A of the LG Act. 4. By the time of the hearing, the respondent was no longer a councillor. Nevertheless, the facts the subject of the Complaint occurred whilst the respondent was a councillor and these proceedings are therefore apposite. Section 440N(4) of the LG Act provides that the referral of the matter to the Tribunal applies in the same way as it applies to a councillor. 5. The context of the investigation is that in August 2017, the Council resolved to conduct an expression of interest (EOI) process to address a parking shortfall in Brighton-Le-Sands. In February 2018, following an evaluation process, Council rejected all expressions of interest. Relevantly however, a subsequent draft planning proposal (the Proposal) was provided by The Boulevarde Oasis Pty Ltd (the Company), which was considered. Ultimately, the Proposal was rejected. 6. The Amended Grounds for Application, filed 05 November 2024 (the Complaint), comprise 3 Grounds. The gravamen of the Complaint is that the respondent had a close personal relationship with a person who was involved in the management of the Company, Mr Al Abrahim, also known as Mr Ali Ibrahim (the Director). The applicant further contends that the respondent failed to properly disclose and manage his conflict of interest and engaged in inappropriate conduct towards Council officers at the meetings where the Proposal was discussed, contravening the requirements of the Council's 2016 and 2019 Code of Conduct (2016 Code) (2019 Code) in force at the relevant times. The Grounds 1. The following are the amended grounds. For convenience the Tribunal has renamed the grounds. First Ground That on or about 12 May 2021, Councillor Bill Saravinovski, a councillor of the Council, committed misconduct for the purposes of s 440F(1)(b) of the Act, by contravening Pt 5 of the 2019 Code, which is an applicable requirement of a code of conduct. Particulars b. On or about April 2021 Council received a draft Planning Proposal lodged by The Boulevarde Oasis Pty Ltd. c. Mr Al Abrahim, also known as Mr Ali Ibrahim, is listed as a company Director and Secretary of The Boulevarde Oasis Ply Ltd from 24 May 2017. d. As at 12 May 2021, Clr Bill Saravinovski was a councillor of Council. e. During the Council meeting on 12 May 2021, Council was considering Item 8.2, a report on the draft Planning Proposal lodged by Mr Ibrahim, through The Boulevarde Oasis Pty Ltd, in relation to the Boulevarde car park site in Brighton-Le-Sands. f. During the Council meeting, Clr Bill Saravinovski made a disclosure to the following effect: Councillor Saravinovski declared a Less-Than-Significant-Pecuniary Interest in Item 8.2 on the basis that in 2018, as Mayor, he and Council staff were briefed at Council by the applicant and his consultants. Furthermore, three months ago, he attended a social gathering at a residential address in Beverly Park. He stated he would leave the Chamber for consideration and voting on the matter g. The social gathering referred to in the disclosure was Mr Ibrahim's engagement party. h. The conflict of interest disclosure made by Clr Saravinovski did not fully disclose the nature of his conflict of interest, because he failed to disclose the extent of his social media contact with Mr Ibrahim prior to the Council meeting on 12 May 2023, which included exchanges of social telephone calls and text and electronic messages, and social meetings between 2016 and 2021. i. Clr Saravinovski at that time had a conflict of interest in respect of his consideration of Item 8.2 arising from his close personal relationship with Mr Ibrahim. j. By failing to fully disclose a less than significant or significant non-pecuniary conflict of interest in respect of the consideration of Item 8.2, CIr Saravinovski contravened the requirements of Pt 5 of the 2019 Code to identify and appropriately manage a non-pecuniary interest, and to disclose that interest fully and in writing. Second Ground That on or about 12 September 2018, Councillor Bill Saravinovski, a councillor of the Council, committed misconduct for the purposes of s 440F(1)(b) of the Act, by contravening Parts 3 and/or 6 of the 2016 Code, which is an applicable requirement of a code of conduct. Particulars b. As at 12 September 2018, CIr Bill Saravinovski was a councillor of the Council, and held the position of Mayor. c. On 12 September 2018 there occurred a meeting between CIr Saravinovski, Mr Ali Ibrahim (a developer) and Council officers, including Mr Michael McCabe (the then Director of Planning), Ms Samantha Urquhart and Ms Kathy Pasalich. d. The purpose of the meeting was to discuss Mr Ibrahim's proposal to redevelop the Boulevarde car park in Brighton-Le-Sands. e. During that meeting, CIr Saravinovski: i. became angry towards Council officers; ii. yelled and/or swore at the Director of Planning; iii. inadvertently knocked a water bottle across the meeting room; and iv. expressed anger at alleged inaction by Council staff with regard to the development of the Boulevarde car park and Mr Ibrahim's proposal. g. Part 3 of the 2016 Code provides that "You must not conduct yourself in a manner that is likely to bring Council or holders of civic office into disrepute. Specifically, you must not act in a way that... (e) causes, comprises or involves intimidation, harassment or verbal abuse... You must treat others with respect at all times". Third Ground That on or about 18 September 2019, Councillor Bill Saravinovski, a councillor of the Council, committed misconduct for the purposes of s 440F(I)(b) of the Act, by contravening 7.6 of the 2019 Code, which is an applicable requirement of a code of conduct. Particulars b. As at 18 September 2019, Clr Bill Saravinovski was a councillor of the Council, and held the position of Mayor. c. On 18 September 2019 there occurred a General Manager's briefing session at which Council officers, Ms Pasalich and Samatha Urquhart presented information to councillors on the possible redevelopment of the Boulevarde car park at Brighton-Le-Sands. d. During the course of that presentation, Clr Saravinovski: i. shouted and/or yelled at the presenter; ii. became angry towards the presenters; and iii. interrupted and/or spoke over the presenters. h. Clause 7.6 of the 2019 Code provides that a Councillor must not engage in inappropriate interactions, including by "(f) Councillors and administrators being overbearing or threatening to council staff". Statement of agreed facts 1. As mentioned above, the applicant relied on the Departmental Report, which contains various annexures, including: transcripts of evidence from various witnesses (including transcripts of compulsory examinations); surveillance material; and other materials, such as company searches. Because of the confined nature of the Complaint, only a small portion of the Departmental Report was, ultimately, relevant. 2. The parties agreed to the following facts and provided cross references to the relevant aspects of the Departmental Report: "(1) Bill Saravinovski was a local councillor on Bayside Council (Council) from 2017 until 2024. (2) Mr Saravinovski was a local councillor on Rockdale City Council from 1983 until the dissolution of that Council in 2017. (3) On 12 September 2018, Mr Saravinovski attended a meeting in the General Manager's office in Council's offices. Also in attendance were Council staff including Michael McCabe, Samantha Urquhart and Kathy Pasalich. (4) The purpose of the meeting was to discuss a proposal to redevelop the Council carpark located at The Boulevarde, Brighton Le Sands (Carpark). (5) During the meeting, Mr Saravinovski became angry and yelled towards Council staff, because of his concerns about how the proposal for the Carpark was being handled by Council staff. Mr Saravinovski also inadvertently knocked a water bottle off the desk in the direction of the Council staff. (6) Mr Saravinovski's behaviour during the meeting on 12 September 2018 constituted a failure to treat Council staff with respect required by cl 3 of the Council's Code of Conduct dated 2016. (7) Accordingly, Mr Saravinovski committed misconduct for the purposes of s 440F(1)(b) of the Local Government Act 1993 (LGA). (8) On about 18 September 2019, Mr Saravinovski and other councillors and Council staff attended a General Manager's briefing session. During the briefing session, Ms Pasalich and Ms Urquhart presented information to councillors concerning the possible redevelopment of the Carpark and surrounding properties. (9) During the course of the presentation, Mr Saravinovski repeatedly and loudly interjected and spoke over the top of Ms Pasalich and Ms Urquhart as they were presenting. (10) As a consequence, of Mr Saravinovski's behaviour during the presentation, the General Manager decided to terminate the presentation. Mr Saravinovski understood that his behaviour was inappropriate in the circumstances and apologised unreservedly to the General Manager and Mr McCabe for it and asked for those apologies to be passed on to the presenting staff. (11) Mr Saravinovski's behaviour during the presentation was overbearing of the Council staff's conduct of the presentation. This constituted an inappropriate interaction between Mr Saravinovski and Council staff, and therefore constituted a breach of cl 7.6(f) of Council's Code of Conduct dated 2019 (2019 Code). (12) Accordingly, Mr Saravinovski committed misconduct for the purposes of s 440F(1)(b) of the LGA. (13) On about 12 May 2021, there was a Council meeting. Item 8.2 on the agenda for that meeting was consideration of a report on a draft planning proposal lodged by a company directed by Mr Ali Ibrahim (Mr Ibrahim). (14) At the Council meeting, Mr Saravinovski made a disclosure to the following effect: "Councillor Saravinovski declared a Less-Than-Significant Pecuniary Interest in Item 8.2 on the basis that in 2018, as mayor, he and Council staff were briefed by the applicant and his consultants. Furthermore, three months ago, he attended a social gathering at a residential address in Beverly Park. He stated he would leave the Chamber for consideration and voting on the matter." (15) The parties agree that the reference to a "Less-Than-Significant Pecuniary Interest" is an inadvertent error and should have been a reference to a "Less-Than-Significant Non-pecuniary Interest". (16) The reference to a social gathering at a residential address in Beverly Park was to Mr Ibrahim's engagement party. Prior to that time, Councillor Saravinovski bona fide was of the belief that his relationship with Mr Ibrahim was not particularly close to constitute friendship amounting to a non-pecuniary conflict of interest requiring disclosure under the Council's Code of Conduct. (17) Clause 5.6 of the 2019 Code required Mr Saravinovski to disclose his relevant private interest he had in relation to the matter fully and in writing. Clause 5.7 of the 2019 Code stated that a disclosure recorded in the minutes of a Council meeting constituted disclosure in writing for the purposes of cl 5.6 of the 2019 Code. (18) Mr Saravinovski failed to disclose his private interest in relation to the matter fully, because he failed to disclose the extent of his social contact with Mr Ibrahim prior to the Council meeting on 12 May 2021, which included exchanges of social telephone calls and text and electronic messages, and social meetings between them on various dates between 2016 and 2021. This constituted a breach of cl 5.6 of the 2019 Code. (19) Accordingly, Mr Saravinovski committed misconduct for the purposes of s 440F(1)(b) of the LGA." 1. I pause to note that some of these sub paragraphs contain conclusions of mixed fact and law. Insofar as the parties have agreed to the facts, I am satisfied that there is indeed a basis for the facts in the evidence. Legislation 1. Sections 440F, 440J, 440N, 470A and 482A of the LG Act provides as follows: 440F Definitions (1) In this Chapter— 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, (c) a failure by a councillor to comply with an order issued by the Departmental Chief Executive under this Division, (d) an act of disorder committed by the councillor at a meeting of the council or a committee of the council, (e) an act or omission of the councillor intended by the councillor to prevent the proper or effective functioning of the council or a committee of the council. … 440J Alternatives to disciplinary action by the Departmental Chief Executive … (2) The Departmental Chief Executive may, instead of taking disciplinary action against a councillor— … (b) refer the matter to the Civil and Administrative Tribunal for consideration. … 440N Investigation of former councillors … (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. 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. (3) (Repealed) 482A Decision of NCAT—misconduct matters (1) This section applies where a matter has been referred to the Civil and Administrative Tribunal under section 438HA or 440J. (2) The Tribunal may, if it finds that the behaviour concerned warrants action under this section— (a) counsel the councillor, or (b) reprimand the councillor, or (c) suspend the councillor from civic office for a period not exceeding 6 months, or (c1) disqualify the councillor from holding civic office for a period not exceeding 5 years, or (d) suspend the councillor's right to be paid any fee or other remuneration, to which the councillor would otherwise be entitled as the holder of the civic office, in respect of a period not exceeding 6 months (without suspending the councillor from civic office for that period). (3) In determining which action, if any, to take against a councillor, the Tribunal may take into account any previous incidents of misconduct by the councillor, any disciplinary action previously taken against the councillor and any other relevant matters. (4) In this section, councillor includes a former councillor. Code of Conduct 1. Part 3 and 6 of the Council's 2016 Code provides as follows: PART 3 General Obligations General Conduct 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) 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) You must treat others with respect at all times. … PART 6 Relationship between Council Officials Obligations of Councillors and administrators Each Council is a body politic. The Councillors or administrator/s are the governing body of the Council. The governing body has the responsibility of directing and controlling the affairs of the Council in accordance with the Act and is responsible for policy determinations, for example, those relating to workforce policy. Councillors or administrators must not: a) direct Council staff other than by giving appropriate direction to the General Manager in the performance of Council's functions by way of Council or committee resolution, or by the Mayor or administrator exercising their power under section 226 of the Act (section 352) b) in any public or private forum, direct or influence or attempt to direct or influence, any other member of the staff of the Council or a delegate of the Council in the exercise of the functions of the member or delegate (Schedule 6A if the Act) c) contact a member of the staff of the Council on Council related business unless in accordance with the policy and procedures governing the interaction of Councillors and Council staff that have been authorised by the Council and the General Manager – refer to clause 6.8 below. d) contact or issue instructions to any of Council's contractors or tenderers, including Council's legal advisers, unless by the Mayor or administrator exercising their power under section 226 of the Act. This does not apply to Council's external auditors or the Chair of Council's audit committee who may be provided with any information by individual Councillors reasonably necessary for the external auditor or audit committee to effectively perform their functions. 1. Clauses 5.1, 5.2, 5.4, 5.6, 5.7, 5.8, 5.9, 5.10 and 7.6 of the 2019 Bayside Council Codes of Conduct relevantly provide that: Non-pecuniary conflicts of interest What is a non-pecuniary conflict of interest? 5.1 Non-pecuniary interests are private or personal interests a council official has that do not amount to a pecuniary interest as defined in clause 4.1 of this code. These commonly arise out of family or personal relationships, or out of involvement in sporting, social, religious or other cultural groups and associations, and may include an interest of a financial nature. 5.2 A non-pecuniary conflict of interest exists where a reasonable and informed person would perceive that you could be influenced by a private interest when carrying out your official function in relation to a matter. … 5.4 Non-pecuniary conflicts of interest must be identified and appropriately managed to uphold community confidence in the probit of council decision-making. The onus is on you to identify any non-pecuniary conflict of interest you may have in matters that you deal with, to disclose the interest fully and in writing, and to take appropriate action to manage the conflict in accordance with this code. … Managing non-pecuniary conflicts of interest 5.6 Where you have a non-pecuniary conflict of interest in a matter for the purposes of clause 5.1, you must disclose the relevant private interest you have in relation to the matter fully and in writing as soon as practicable after becoming aware of the non-pecuniary interest and on each occasion on which the non-pecuniary interest arises in relation to the matter. In the case of member of council staff other than the general manager, such a disclosure is to be made to the staff member's manager. In the case of the general manager, such a disclosure is to be made to the mayor. 5.7 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 on each occasion on which the non-pecuniary conflict of interest arises. This disclosure constitutes disclosures in writing for the purpose of clause 5.6. 5.8 How you manage a non-pecuniary conflict of interest will depend on whether or not it is significant. 5.9 As a general rule, a non-pecuniary conflict of interest will be significant where it does not involve a pecuniary interest for the purposes of clause 4.1, but it involves: a a relationship between a council official and another person who is affected by a decision or a matter under consideration that is particularly close, such as a current or former spouse or de facto partner, a relative for the purposes of clause 4.4. or another person from the council official's extended family that the council official has a close personal relationship with, or another person living in the same household b other relationships with persons who are affected by a decision or a matter under consideration 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 the contact and the duration of the friendship or relationship. c an affiliation between the council official and an organisation (such as a sporting body, club, religious, cultural or charitable organisation, corporation or association) that is affected by a decision or a matter under consideration that is particularly strong. The strength of a council official's affiliation with an organisation is to be determined by the extent to which they actively participate in the management, administration or other activities of the organisation. d membership, as the council's representative, of the board or management committee of an organisation that is affected by a decision or a matter under consideration, in circumstances where the interests of the council and the organisation are potentially in conflict in relation to the particular matter e a financial interest (other than an interest of a type referred to in clause 4.6) that is not a pecuniary interest for the purpose of clause 4.1 f the conferral or loss of a personal benefit other than one conferred or lost as a member of the community or a broader class of people effected by a decision. 5.10 Significant non-pecuniary conflicts of interest must be managed in one of two ways: a by not participating in consideration of, or decision making in relation to, the matter in which you have the significant non-pecuniary conflict of interest and the matter being allocated to another person for consideration or determination, or b if the significant non-pecuniary conflict of interest arises in relation to a matter under consideration at a council or committee meeting, by managing the conflict of interest as if you had a pecuniary interest in the matter by complying with clauses 4.28 and 4.29. … Inappropriate interactions 7.6 You must not engage in any of the following inappropriate interactions: … f councillors and administrators being overbearing or threatening to councillors or administrators. Burden of proof 1. The rules of evidence do not apply in this hearing: Civil and Administrative Tribunal Act 2013 (NSW), s 38(1). 2. Nevertheless, the rule of "comfortable satisfaction" determined in Briginshaw v Briginshaw (1983) 60 CLR 336 at 362-3, with regard to the required strength of the evidence, has been applied due to the severity of the allegations and gravity of the consequences of the Tribunal's findings: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 at 450. Consideration as to conduct First Ground 1. The Tribunal is satisfied that on about 12 May 2021, there was a Council meeting, at which time there was consideration of the Proposal lodged by the Company. At that meeting, the respondent made the following disclosure, as recorded in the minutes of the Council meeting: "Councillor Saravinovski declared a Less-Than-Significant [Non-]Pecuniary Interest in Item 8.2 on the basis that, in 2018, as mayor, he and Council staff were briefed by the applicant and his consultants. Furthermore, three months ago, he attended a social gathering at a residential address in Beverly Park. He stated he would leave the Chamber for consideration and voting on the matter." 1. The questions for the Tribunal are whether a disclosure was required and, if so, if there was full disclosure. 2. Clause 5.4 of the 2019 Code provides, inter alia, that the onus was on the respondent to identify any non-pecuniary conflict of interest he may have had and to disclose the interest fully and in writing. 3. Non-pecuniary conflicts of interests are private or personal interests of a council official, that commonly arise out of family or personal relationships: cl 5.1 of the 2019 Code. The test is whether a reasonable and informed person would perceive that the Council officer could be influenced by the private interest, when carrying out an official function in relation to a matter: cl 5.2 of the 2019 Code. 4. Clause 5.9(b) of the 2019 Code provides a non-pecuniary conflict of interest may arise with relationships with persons who are affected by a decision or a matter under consideration 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 the contact and the duration of the friendship or relationship. 5. Clause 5.6 of the 2019 Code required the respondent to disclose a relevant private interest in relation to the Proposal fully and in writing. The disclosure recorded in the minutes of a Council meeting constituted disclosure in writing, so the real question is whether the disclosure was a full disclosure. 6. The Tribunal is satisfied as to the following: 1. The Proposal was considered by Council on about May 2021. 2. As director of the Company making the Proposal, Mr Ibrahim would be affected by the decision of Council in relation to the Proposal under consideration. 3. The respondent had, between 2016 and 2021, repeated and not infrequent social contact with the Director by way of telephone calls and text and electronic messages, and meetings. 4. The respondent attended a "social gathering at a residential address in Beverly Park". 5. The social gathering was the Director's engagement party. 6. Prior to his attendance at the social gathering the respondent held a bona fide belief that his relationship with the Director was not sufficiently close to constitute to a non-pecuniary conflict of interest requiring disclosure under the 2019 Code. 1. As a result of the foregoing, the Tribunal is satisfied that because of the degree of social contact, a reasonable and informed person would perceive that the applicant "could be influenced" by the private interest. The relationship between the respondent and the Director, having regard to the extent of social contact and the nature of social contact, including attending the Director's engagement party was a disclosable private interest. Accordingly, pursuant to clause 5.4, the respondent was required to identify his private interest and make a full written disclosure. 2. Contrary to cl 5.4 of the 2019 Code, the respondent failed to identify his private interest which is based on the extent of his personal relationship with the Director, who is a person who might be affected by a decision of the Council. The respondent failed to take steps to manage this personal interest which would have, at least, required disclosing it, fully, in writing. Contrary to cl 5.6 of the 2019 Code, the respondent failed to disclose, fully, his private interest in relation to the Proposal, in that he failed to disclose the extent of his social contact with the Director prior to the Council meeting on 12 May 2021; disclosing only his attendance at a social gathering. 3. The Tribunal is satisfied that on or about 12 May 2021, the respondent, when a councillor of the Council, committed misconduct for the purposes of s 440F(1)(b) of the LG Act, which required him to comply with an applicable requirement of a Code of Conduct, by contravening Pt 5 of the 2019 Code, by: 1. failing to identify a private interest; and 2. failing to fully disclose the nature of the private interest. Second Ground 1. The Second ground concerns events on 12 September 2018. The Tribunal is satisfied as to the following: 1. There was a meeting in the General Manager's office on 12 September 2018. 2. The respondent attended the meeting. Also in attendance were Council staff. 3. During the meeting, the respondent became angry and yelled towards Council staff. A water bottle was also knocked off the desk, during this time. 4. The Tribunal also notes the parties' agreement that the reason for the conduct was because of the respondent's concerns about how the Proposal was being handled by Council staff and whilst the Tribunal accepts this, it does not detract from the conduct. 1. Rule 3.1 of the 2016 Code relevantly provides: "You must not conduct yourself 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) is likely to bring Council or holders of civic office into disrepute … (e) causes, comprises or involves intimidation, harassment or verbal abuse... You must treat others with respect at all times". 1. The Tribunal is satisfied that acting in an angry manner and yelling towards Council staff is intimidatory behaviour and also constitutes harassment and verbal abuse. 2. Accordingly, the respondent, when a councillor of the Council, committed misconduct for the purposes of s 440F(1)(b) of the LG Act, which required him to comply with an applicable Code of Conduct, by failing to treat Council staff with respect contrary to Part 3 of the Council's 2016 Code of the LG Act. 3. Part 6 of the 2016 Code was also referenced in the Second Ground, however, it was not particularised. As a result, I do not find that a breach of this Part has occurred. Third Ground 1. The Third Ground concerns a meeting on 18 September 2019. 2. The Tribunal is satisfied as to the following: 1. On about 18 September 2019, the respondent and other councillors and Council staff attended a General Manager's briefing session. 2. During the briefing session, Council staff presented information to councillors concerning the possible redevelopment of the Carpark and surrounding properties. 3. During the course of the presentation, the respondent repeatedly and loudly interjected and spoke over the top of the staff who were making the presentation. 4. The presentation was terminated early. 5. After the incident, the respondent apologised unreservedly to the General Manager and another and asked for those apologies to be passed on to the presenting staff. 1. Clause 7.6(f) of the 2019 Code requires councillors not be overbearing or threating to councillors or administrators. The respondent's conduct, of repeatedly interrupting to the point that the presentation was terminated early, was overbearing. 2. That the respondent issued an apology does not detract from the conduct, though it is relevant to the protective orders, as discussed below. 3. The Tribunal is satisfied that on 18 September 2019, the respondent, when a councillor of the Council, committed misconduct for the purposes of s 440F(1)(b) of the LG Act, which required him to comply with an applicable Code of Conduct, by contravening 7.6(f) of the 2019 Code, which is an applicable requirement of a code of conduct. Principles relevant to protective orders 1. As the Tribunal determined in Office of Local Government v Neville [2018] NSWCATOD 31, the following principles are relevant to the Tribunal's determination of appropriate protective orders: "36. …As with professional disciplinary matters, the Tribunal's jurisdiction is at least in part protective, both of the public and of the maintenance of high standards in the ranks of the particular occupation, here local councillors: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637-638. … 39. Secondly, there are important but indirect effects of a disciplinary order. These were recognised by Basten JA in NSW Bar Association v Meakes [2006] NSWCA 340 in relation to barristers. These considerations are relevant (by analogy) to orders made in respect of a local councillor and include: (1) The order reminds other councillors of the public interest in the maintenance of high standards; (2) The order may give emphasis to the unacceptability of the conduct involved; and (3) By speaking to the public at large, the order seeks to maintain confidence in the standard of conduct of local councillors. 40. Thirdly, there is a 'public interest in having the respondent's conduct denounced as unacceptable', and that orders made by the Tribunal would 'make plain that conduct of the kind engaged in is unacceptable': Health Care Complaints Commission v Do [2014] NSWCA 307 at [39]. 41. Fourthly, the availability of a range of statutory disciplinary options implies the necessity to consider whether those short of depriving the constituents of their representative can adequately punish the councillor's failure to comply with the statutory obligations and vindicate the public interest in maintaining the honesty of municipal administration: Mehajer v Chief Executive of the Office of Local Government [2014] NSWSC 1804 at [13]. 42. Fifthly, whether the proposed orders will prevent the respondent from exercising any functions as a councillor, and the impact of this on constituents: Mehajer at [13], [15] and [21]. 43. Sixthly, whether there have been any previous offences: Mehajer at [15]; Phillips v Director-General, Department of Premier and Cabinet [2014] NSWCATOD 48 at [52]. 44. Seventhly, the acknowledgement if any, or apology or remorse for, the conduct by a respondent, and the lack of any insight into the conduct on their part. 45. Eighthly, the longer the experience as councillor the greater should be the councillor's understanding and knowledge of their duties and obligations. That is not to say that misconduct of an inexperienced councillor should be excused. All councillors must act honestly and exercise a reasonable degree of care and diligence in carrying out his or her functions under the Act (s 439(1)) and comply with the Council's code of conduct (s 440(5))." 1. The above factors have been considered in other cases, albeit expressed slightly differently. The factors that must be considered when determining the appropriate protective order to be made, include: 1. The seriousness of the misconduct: Executive Director, Local Government, under delegation from the Secretary, Department of Planning, Industry and Environment v Hindi (No 2) [2024] NSWCATOD 144 at [52], [61]; Executive Director, Local Government under delegation from the Secretary, Department of Planning, Industry and Environment concerning Paul Funnell [2023] NSWCATOD 82 at [20]; Deputy Secretary, Local Government, Planning and Policy v Garrard (No 3) [2022] NSWCATOD 35 (Garrard) at [15], [56]-[58]; Deputy Secretary of the Department of Local Government, Planning and Policy v Doueihi (No 2) [2022] NSWCATOD 3 at [50]; Deputy Secretary, Local Government Planning and Policy v Byrne (No 2) [2021] NSWCATOD 112 (Byrne) at [73]-[81]. 2. Specific deterrence to the individual: Executive Director, Local Government under delegation from the Secretary, Department of Planning and Industry v Robinson (No 2) [2023] NSWCATOD 81 at [57]; Garrard at [69]; Byrne at [94]-[95]. 3. General deterrence to those in the profession: Executive Director, Local Government under delegation from the Secretary, Department of Planning and Industry v Robinson (No 2) [2023] NSWCATOD 81 (Robinson) at [57]; Garrard at [65], [69]; Byrne at [94]. 4. Whether the respondent has shown genuine remorse or regret for the misconduct: Robinson at [58]; Byrne at [77]. 5. The likelihood of the respondent engaging in similar misconduct again: Byrne at [85]. Consideration of protective orders 1. The parties jointly submit that a reprimand is the most appropriate response to a finding of misconduct in this case. Section 482A(2)(b) of the LG Act empowers the Tribunal to reprimand a councillor (which, pursuant to s 482A(4) of the LG Act, includes a former councillor). Other protective orders that are relevant to a former councillor include disqualifying them from holding civic office for up to five years and counselling them: ss 482A(2)(c1) and 482A(2)(a) of the LG Act. 2. The relevant principles have been set out above. In brief, the Tribunal's jurisdiction is protective and serves the public interest. Protective orders not only provide guidance and affect, directly, the particular councillor, they also remind other councillors of the importance of upholding applicable codes of conduct and provide guidance as to the standards of acceptable (and unacceptable) conduct. They also maintain confidence in the conduct of councillors. 3. The respondent's misconduct was serious in that there are three instances of misconduct, two of which involve acting in an overbearing or intimidatory manner to staff and another which relates to failing to identify and fully disclose a conflict of interest. On the one hand, each of the incidents are related in some way to the Proposal of the car park planning solution and this suggests the misbehaviour is confined. On the other hand, the misconduct surfaced on three separate occasions over a span of more than two years, marking this as a persistent issue. 4. Insofar as the First Ground is concerned, despite the fact that the respondent held a bona fide belief that there was, prior to his attending the engagement party, no conflict and nothing to disclose, this was unwarranted given the plethora of social communications between the Director and the respondent over many years. The belief demonstrates a lack of care towards the rules designed to avoid conflict of interests. 5. Insofar as the Second Ground is concerned, the Tribunal notes that the reason for the misconduct was because of the respondent's concerns about how Council was approaching an important issue. However, even assuming the respondent's concerns were genuine, this does not excuse or justify the behaviour. Insofar as the Third Ground is concerned, it is to the respondent's credit that he quickly realised he had acted inappropriately and took steps to make an apology. However, this cannot wipe out the inappropriate conduct in the first place. Together, the conduct involved in the Second and Third Grounds shows a lack of restraint and respect towards staff, which is particularly concerning because it was repeated. 6. Nevertheless, the respondent had been a councillor for decades and whilst he was experienced enough to have understood the inappropriateness of his conduct and to have exercised restraint, it may be taken that this misconduct was anomalous. Further, the respondent has cooperated with the applicant in seeing this matter determined efficiently and has shown some insight into the inappropriateness of his behaviour, through the apology and explanations (albeit, not excuses) for his conduct. The likelihood of his engaging in similar misconduct again is therefore low. 7. Accordingly, the Tribunal is satisfied that a reprimand is the appropriate protective order. A reprimand will serve to rebuke the wrongful conduct of the respondent and serves as both general and specific deterrence. Costs 1. Unless an application is made for costs within 14 days of this decision, there is to be no order as to costs. In the event an application is made, a timetable for progressing the application will be set. Non-disclosure orders 1. On 24 January 2024, the Independent Commission Against Corruption (ICAC) permitted the use of material in the Departmental Report for the purpose of its use by the Tribunal in the conduct of disciplinary proceedings. On 21 June 2024, the Tribunal made orders prohibiting the publication of matters contained in the Departmental Report for the purpose of deciding whether or not the Tribunal should conduct proceedings into the Departmental Report. On 24 October 2024, the Tribunal made further orders restricting the disclosure and publication of the material in the Departmental Report and evidence given before the Tribunal. At that time, it was foreshadowed that, in due course, the Tribunal would publish reasons for its decision in relation to the substantive application, including references to relevant evidence and material findings of fact. In keeping with the original orders of ICAC, as detailed in Deputy Secretary, Local Government, under delegation from the Secretary, Department of Planning, Housing and Infrastructure v Saravinovski [2024] NSWCATOD 170, disclosure and publication of the evidence in these proceedings, including the Departmental Report, is to be restricted to the parties; other than in respect of disclosures in these reasons for decision. Orders 1. The respondent is guilty of misconduct as defined by s 440F(1)(b) of the Local Government Act 1993. 2. The respondent is reprimanded pursuant to s 482A(2)(b) of the Local Government Act 1993. 3. Subject to paragraph 46, no order as to costs. 4. Pursuant to s 64(1)(d) of the NCAT Act, disclosure of the matters referred to in the Departmental Report is restricted to the parties, save with respect to the matters disclosed and published in these written reasons for decision. 5. To the extent necessary, the non-disclosure and non-publication orders made by the Tribunal on 24 October 2024, are varied to accommodate order 4 herein. ********** 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: 13 February 2025