VALANTINE v MUSWELLBROOK SHIRE COUNCIL & ORS [2008] NSWSC 1300

New South Wales Supreme Court

CITATION : VALANTINE v MUSWELLBROOK SHIRE COUNCIL & ORS [2008] NSWSC 1300

HEARING DATE(S) : 28/08/2008

JUDGMENT DATE : 8 December 2008

JUDGMENT OF : Adams J at 1

Decision of Conduct Committee set aside. DECISION : The defendants to pay the plaintiff's costs. Further orders as agreed.

CATCHWORDS : Alleged misconduct - conduct committee - independent investigation - procedural fairness - failure to provide contradictory statements - failure to fairly inquire - decision vitiated.

LEGISLATION CITED : Local Government Act 1993

CATEGORY : Principal judgment

Michael Valantine (Plaintiff) Muswellbrook Shire Council (First Defendant) PARTIES : John Colvin (Second Defendant) Linda Lawler (Third Defendant) Steven McDonald (Fourth Defendant)

FILE NUMBER(S) : SC 30041/2008

COUNSEL : R DeMeyrick SC (Plaintiff) J.A. Ayling SC (Defendants)

SOLICITORS : Alex Irving (Plaintiff) Marsdens Law Group (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

ADAMS J

8 December 2008

2008/30041 Michael VALANTINE v MUSWELLBROOK SHIRE COUNCIL

JUDGMENT

HIS HONOUR:

Introduction 1 The plaintiff is a Councillor elected to the Muswellbrook Shire Council on 22 March 2004. He was Deputy Mayor of the Council from 11 September 2006 to 10 September 2007. Ms Jennifer Lecky is also a Councillor on the Council, having been elected in 2004 as an Independent. Ms Lecky made certain allegations against the plaintiff of impropriety she claimed occurred in November 2005. 2 Pursuant to its obligations under the Local Government Act 1993, the Council adopted a Code of Conduct that deals, inter alia, with alleged breaches by councillors of the Code. A Conduct Committee is provided for that, following an investigation, reports to the Council, which must decide what is to be done, if anything. A Conduct Committee was duly convened and a Ms Helen Colbey was retained to conduct an investigation. On 29 September 2007 an additional allegation of misconduct was made by Ms Lecky. In late November 2007 Ms Colbey completed her report, which was received by the Conduct Committee shortly afterwards. 3 The Conduct Committee informed the plaintiff on 10 December 2007 that it was considering the report in order to decide whether it discloses a prima facie breach of the Code of Conduct. The plaintiff was informed that the Committee would reports its findings to the full Council in a closed meeting on 11 February 2008. In answer to a request for a copy of the report, the plaintiff was informed that, if the Committee decided to make an adverse recommendation, the plaintiff would be provided with details of the "adverse comment and … [would] be afforded an opportunity to make a comment prior to the Committee releasing its recommendations". The plaintiff protested through his solicitors about this procedure, contending that he should have the opportunity to peruse the material submitted to the Committee and make submissions about it before the Committee decided to make an adverse recommendation. On 25 January 2008, the Conduct Committee reported to the Council specifying, in respect of each of the allegations, that the investigator had identified "the areas of the Code of Conduct which have been breached" and recommended to Council that the Committee "be authorised to counsel the Councillors involved in this matter", that a special workshop be conducted for Councillors to review the Code of Conduct to provide clearer guidelines on appropriate behaviour and an awareness session be conducted focusing on the need for confidentiality. 4 The draft report and recommendations were forwarded to the plaintiff on 29 January 2008 to permit him to make a written response to be considered by the Committee before the report was distributed to the Councillors with the relevant business paper on 6 February 2008. Following comments made by the plaintiff to the Committee on 5 February 2008, he was informed that the Committee had decided that further advice was necessary and, in the event that an amended report was prepared, it would be provided to the plaintiff before being placed on the business paper. That revised draft report was completed on 20 February 2008 and forwarded to the plaintiff on that day. It stated that the investigator had "made findings of fact and recommendations…upon those findings of fact, after undertaking proper enquiries". The report was summarised and then, in terms, considered by the Committee which found that "the matter reported to it discloses a prima facie breach of the Code by the plaintiff" and that "in the circumstances [the plaintiff's] action was inappropriate" in relation to both of allegations. The recommendations made by the Committee were in the same terms as those earlier communicated. On 29 February 2008 the plaintiff commented adversely on the procedures adopted by the Conduct Committee. On 17 March 2008 he was provided with a full copy of Ms Colbey's report. On 9 April 2008 the plaintiff complained again about procedural unfairness and demanded that the investigation commence afresh with a reconstituted Conduct Committee. On 11 April 2008 proceedings were commenced in this Court by summons against the defendants for interim injunctive relief and for final orders seeking a declaration that the findings of the Conduct Committee were void, and an injunction preventing referral of the findings of the Committee to a meeting of the Council. 5 Interim orders were made by consent and it is necessary to determine the question of substantive relief.