Supreme Court New South Wales Medium Neutral Citation: De Luca v Simpson and Anor [2012] NSWSC 960 Hearing dates: 26 July 2011 Decision date: 22 August 2012 Before: Johnson J Decision: The Plaintiff's Summons is dismissed. The parties will be heard on the question of costs. Catchwords: ADMINISTRATIVE LAW - judicial review - Plaintiff a councillor on Warringah Council - Plaintiff also works as Secretary/Research Assistant for Member of Legislative Council - MLC places questions on notice in Legislative Council that are strongly critical of Council - Council meets to consider MLC's questions - debate in Council leading to resolution critical of MLC - Plaintiff does not declare conflict of interest - Plaintiff participates in debate and strongly defends MLC - complaint made against Plaintiff of breach of Code of Conduct - Conduct Reviewer appointed by Council to investigate - Conduct Reviewer provides report adverse to Plaintiff - Plaintiff brings proceedings for prerogative relief to set aside report - claim of error of law on face of record and failure to have regard to mandatory consideration - claim of apprehended bias on part of Conduct Reviewer by way of prejudgment - meaning of non-pecuniary conflict of interest - construction of Code of Conduct and Code of Meeting Practice - error of law not established - no failure to have regard to mandatory consideration - apprehended bias not established - proceedings dismissed Legislation Cited: Supreme Court Act 1970 Local Government Act 1993 Court Suppression and Non-Publication Orders Act 2010 Constitution Act 1902 Industrial Relations Act 1996 Local Government (General) Regulation 2005 Cases Cited: Holly v Director of Public Works (1988) 14 NSWLR 140 Bale v Crown in Right of the State of New South Wales (Attorney-General's Department) [2000] NSWIRComm 248; 106 IR 354 Sneddon v The Speaker of the Legislative Assembly [2011] NSWSC 508; 208 IR 255 Allianz Australia Insurance Limited v Crazzi [2006] NSWSC 1090; 68 NSWLR 266 Nichols v Singleton Council [2011] NSWSC 1517 Roos v Director of Public Prosecutions (1994) 34 NSWLR 254 Craig v South Australia [1995] HCA 58; 184 CLR 163 Hanna v Department of Immigration Multicultural and Indigenous Affairs [2004] NSWCA 275 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 Attorney-General for New South Wales v Quin [1990] HCA 21; 170 CLR 1 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 Abebe v Commonwealth of Australia [1999] HCA 14; 197 CLR 510 Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135 Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24 Cross v McHugh [1974] 1 NSWLR 500 Saville v Health Care Complaints Commission [2006] NSWCA 298 Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 Minister of Immigration and Citizenship v SZNPG [2010] FCAFC 51; 115 ALD 303 Barbosa v Di Meglio [1999] NSWCA 307 Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; 122 CLR 546 McGovern v Ku-ring-Gail Council [2008] NSWCA 209; 72 NSWLR 504 Nufarm Australia Limited v Dow AgroSciences Australia Limited and Anor (No. 2) [2011] FCA 757; 282 ALR 24 Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 Re Refuge Review Tribunal; Ex parte H [2001] HCA 28; 179 ALR 425 Re Refugee Tribunal; Ex part Aala [2000] HCA 57; 204 CLR 82 Texts Cited: --- Category: Principal judgment Parties: Vincent De Luca (Plaintiff) Annette Simpson (First Defendant) Warringah Council (Second Defendant) Representation: Counsel: Mr CD Jackson (Plaintiff) Ms R Francois (Defendants) Solicitors: Schreuder Partners (Plaintiff) DLA Piper Australia (Defendants) File Number(s): 2011/212768 Publication restriction: --- Judgment 1JOHNSON J: By Summons filed on 29 June 2011, the Plaintiff, Vincent De Luca, seeks relief by way of judicial review and orders under s.69 Supreme Court Act 1970 against the First Defendant, Annette Simpson, and the Second Defendant, Warringah Council ("Council"). 2As will be seen, the subject matter of this litigation arises out of the sometimes hothouse atmosphere of local government politics. 3It is important to keep in mind the limited nature of the Court's function in proceedings of this type. The Court is not conducting a trial to determine whether a complaint made against the Plaintiff is established. The Court's function is to consider the issues raised in the proceedings, by reference to the grounds relied upon by the Plaintiff, and to determine whether relevant legal error has been demonstrated. The Parties to These Proceedings and the Basic Facts 4In 2010, the Plaintiff was an elected councillor serving on the Council. 5At the same time, the Plaintiff performed duties in the position of Secretary/Research Assistant to the Hon Marie Ficarra, a Member of the Legislative Council of New South Wales. 6It is the intersection of these two positions occupied by the Plaintiff which forms the foundation for events giving rise to these proceedings. 7On 2 June 2010, Ms Ficarra placed a number of questions on notice in the Legislative Council concerning the Council. 8On 8 June 2010, a motion came before the Council which raised for consideration the questions asked by Ms Ficarra in the Legislative Council on 2 June 2010. The Plaintiff participated in the debate before the Council concerning the motion. He did not declare a non-pecuniary conflict of interest arising from his association with Ms Ficarra. 9An issue raised in these proceedings is whether, as a matter of law, the Plaintiff's association with Ms Ficarra was capable of giving rise to a non-pecuniary conflict of interest. 10It should be observed immediately that persons present at the meeting of the Council on 8 June 2010 appear to have been aware of the association between the Plaintiff and Ms Ficarra. This was not an unknown or disguised association. Rather, an issue raised in these proceedings concerns the question whether the Plaintiff was obliged to declare a non-pecuniary conflict of interest, and then to absent himself during the debate in Council on 8 June 2010 or explain why he considered that any conflict was not significant in the circumstances. 11At a time between 8 June 2010 and 16 August 2010, an anonymous complaint was made to Council about the Plaintiff suggesting that he had breached the Warringah Council Code of Conduct ("the Code of Conduct") by failing to declare that he had a non-pecuniary conflict of interest concerning the 8 June 2010 motion. 12On 16 August 2010, Mr Andrew Patterson, the Council's Internal Ombudsman, referred the complaint concerning the Plaintiff to Ms Simpson in her capacity as a Sole Conduct Reviewer under the Local Government Act 1993 ("LG Act"). 13Thereafter, Ms Simpson carried out an investigation, culminating in a report containing findings and recommendations dated 11 June 2011 addressed to the Council, with that report being adverse to the Plaintiff. 14By these proceedings, the Plaintiff challenges, on administrative law grounds, the processes giving rise to Ms Simpson's report, and seeks orders that the report be declared invalid and set aside. The Hearing in This Court 15Mr Jackson of counsel appeared for the Plaintiff at the hearing of the Summons in this Court. Ms Francois of counsel appeared for Ms Simpson and the Council. 16The evidence adduced at the hearing before me was contained in volumes of documents tendered, without objection, for the Plaintiff (Exhibit A) and for the Defendants (Exhibit 1). 17Although a number of affidavits had been filed, no affidavit was read at the hearing. No oral evidence was adduced at the hearing. 18Counsel had furnished written submissions, and detailed oral submissions were made at the hearing in support of, and in opposition to, the grant of relief. 19The Plaintiff's Summons sought an interlocutory non-publication order with respect to aspects of the proceedings. At the point in the hearing where documentary evidence was tendered for the Plaintiff, there was some short discussion concerning the Plaintiff's request for restriction on publication (T6-7, 26 July 2011). The issue was faintly pressed by counsel for the Plaintiff and I indicated the view that, unless persuaded to the contrary, as the hearing was proceeding in open court, there ought not ordinarily be any restriction on publication of the evidence tendered at the hearing and the submissions made. 20During the course of the hearing, representatives of the media sought access to the Summons, exhibits and written submissions. Mr Jackson formally asked that access not be granted at that stage, but he did not develop any submission in support of the formal application. 21In a judgment delivered during the course of the hearing, I stated that no basis had been demonstrated for the making of an order restricting publication of the evidence and submissions at the hearing which was proceeding in open court, whether by reference to the Court Suppression and Non-Publication Orders Act 2010 or otherwise (T35-36). I declined to make any order restricting the publication of any part of the evidence or the submissions being made, having regard in particular to the open justice principle. The Plaintiff's Grounds for Relief 22The Plaintiff relies on three grounds in support of his claim for relief. They may be summarised in the following way. 23Ground 1 contends that Ms Simpson erred in law, on the face of the record, by asking the wrong question or failing to take into account a relevant consideration, when she found that the Plaintiff had not complied with the Code of Conduct made pursuant to s.440 LG Act. 24In support of this ground, it is contended that Ms Simpson erred in approaching the matter upon the basis that a breach of the Code of Conduct could result from the Plaintiff's failure to declare his relationship with Ms Ficarra in the context of the debate before Council on 8 June 2010. 25It is contended for the Plaintiff that Ms Simpson enquired simply concerning the relationship between the Plaintiff and Ms Ficarra, equating that as the relevant "interest", without asking the anterior question whether the subject matter being discussed, and the orders associated with the motion being debated on 8 June 2010 by Council, were of a type which gave rise to a "conflict of interest" within the meaning of the Code of Conduct, regardless of the nature and quality of the relationship between the Plaintiff and Ms Ficarra. 26Ground 2 asserts that Ms Simpson's decision was infected by apprehended bias, in that a fair-minded lay person might reasonably apprehend that the conclusions reached by her had been arrived at by a mind not open to persuasion, and that Ms Simpson was unable or unwilling to evaluate all the material fairly. 27Ground 3 contends that Ms Simpson erred by failing to consider whether or not the Plaintiff had, in fact, implicitly declared his relationship with Ms Ficarra at the meeting of the Council on 8 June 2010, in circumstances where the nature of any "interest" was apparent on the face of the record. 28I will return to the Plaintiff's grounds after setting the scene factually for the legal arguments arising for determination in these proceedings. Relevant Events in More Detail 29I have already mentioned some basic facts for the purpose of introducing the parties to these proceedings. 30I set out hereunder relevant events in greater detail. Except in one area where the Plaintiff sought to challenge the veracity of a particular document (see [47] and [185]-[186] below), there is no factual dispute, with the issues to be determined being the conclusions which ought be reached by reference to the Plaintiff's grounds of review. 31The Plaintiff was, in 2010, an elected councillor, serving on the Council. 32For some time prior to June 2010, the Plaintiff had been employed as Secretary/Research Assistant for Ms Ficarra in her capacity as a Member of the Legislative Council. The Plaintiff was employed, in this respect, by the President of the Legislative Council by delegation from the Governor under s.47 Constitution Act 1902. The President of the Legislative Council was the Plaintiff's employer for industrial matters under s.6 Industrial Relations Act 1996. The appointment of the Plaintiff meant that he was attached to Ms Ficarra's office and she was his manager (Exhibit A, pages 113-114). 33Part of the arrangement between the Plaintiff and Ms Ficarra was such that, should the working relationship between them break down, either person could make representations to the President through the Clerk of the Parliaments to have the Plaintiff transferred to another position (Exhibit A, page 114). 34The appointment of persons to public positions under s.47 Constitution Act 1902 is well known: Holly v Director of Public Works (1988) 14 NSWLR 140 at 145; Bale v Crown in Right of the State of New South Wales (Attorney-General's Department) [2000] NSWIRComm 248; 106 IR 354 at 359-360 [26], 362-366 [39]-[52]. The mechanism whereby Members' staff are employed by the President or Speaker under s.47 Constitution Act 1902 is likewise well known: Sneddon v The Speaker of the Legislative Assembly [2011] NSWSC 508; 208 IR 255 at 261 [16]. A person so employed as staff of a Member works under the direct supervision and management of the Member: Sneddon v The Speaker of the Legislative Assembly at 297 [204], 298-302 [208]-[226]. Of course, Members of the Legislative Council do not have individual electorates requiring electorate staff in the manner required by Members of the Legislative Assembly. However, Members of the Legislative Council are entitled to staff, fulfilling functions of the type performed by the Plaintiff for Ms Ficarra. 35On 2 June 2010, at a time when the Plaintiff was attached to the office of Ms Ficarra as Secretary/Research Assistant, Ms Ficarra placed the following questions on notice concerning events at the Council (Exhibit 1, Tab 6): "4402LOCAL GOVERNMENT - WARRINGAH COUNCILLOR BREACH OF CODE OF CONDUCT INVESTIGATIONS - Ms Ficarra to ask the Minister for Planning, Minister for Infrastructure, Minister for Lands representing the Minister for Local Government, Minister Assisting the Minister for Planning, and Minister Assisting the Minister for Health (Mental Health) - (1)Regarding the article in the Manly Daily on 20 May 2010 entitled 'Warringah Councillors instigate complaints against each other': (a) Did Sole Conduct Reviewer, Mr Barry Davidow: (i) incorrectly claim that the female councillor complainant refused to be interviewed? (ii) interview only certain councillors and not all councillors who could have witnessed the abusive attack on the female councillor? (iii) change the standards of evidence during the investigation and misapplied evidence principles? (iv) not give the female councillor complainant the opportunity to respond to his finding before making the finding? (v) not take into account the history of misconduct of the female councillor offender, particularly that the Warringah Council Commission of Enquiry wrote extensively about the offender's 'abusive', 'belligerent attitude at Council meetings', 'vile language', 'swearing' and 'intimidatory conduct' which led to the dismissal of Warringah Council in 2003? (2)As indicated in the Manly Daily article of 20 May 2010: (a)Were there other complaints against the same female councillor? (b)Did Sole Conduct Reviewer, Mr Adam Halstead: (i) refuse to interview witnesses to the female councillor offender's repeated verbal abuse, harassment and swearing at three female councillors and one male councillor? (ii)read the complaints improperly and falsely concluded that the complaint involved exchanges between the offender and one male councillor, when it related to the repeated verbal abuse, harassment and swearing at three female Councillors also? (iii)rule that the offender calling female councillors various obscenities was part of 'robust debate and trivial'? (iv)incorrectly claim that the complainant failed to respond to requests for information? (v)not show appropriate diligence to the investigation? (vi)not give the complainant the opportunity to respond to his finding before making the finding? (vii)not take into account the history of misconduct of the female councillor offender, particularly that the Warringah Council Commission of Enquiry wrote extensively about the offender's 'abusive', 'belligerent attitude at Council meetings', 'vile language', 'swearing' and 'intimidatory conduct' which led to the dismissal of Warringah Council in 2003? (viii)write a report which was reckless, made unfounded statements and findings, was perverse in its reasoning and could constitute defamation of the complainant and others? (3) (a)As indicated in the Manly Daily article of 20 May 2010, have Warringah Council staff lodged a complaint against a female councillor for stating at a public meeting that 'there is a perception in the community that council is open to talking to developers but not the community'? (b)If so: (i) Did a significant period elapse between the time in which the alleged statement was made and a complaint to the General Manager submitted? (ii) Once the matter was referred to Sole Conduct Reviewer, David Clark, was it subsequently further delayed due to Mr Clark advising he was renovating his house? (iii) Were complaints made by councillors that council staff leaked the complaint to an opposing councillor who in turn told others and the media of the complaint? (iv) Did the sole conduct reviewer rule that the councillor who leaked the complaint had no obligation to maintain confidentiality? (v) Is the matter proceeding, ongoing and unresolved despite other Warringah Council Conduct Reviewers dismissing complaints about a separate female councillor's abusive behaviour and obscene language as 'robust debate' and 'trivial'? (4)As indicated in the article in the Manly Daily on 1 June 2010, entitled 'Cr Laugesen upsets council staff' are Warringah Council staff again committing misconduct by making derogatory, denigrating and unprofessional remarks in a memorandum over a confidential email sent by a female councillor complaining of the conduct of a staff member? (5)Have the General Manager of Warringah Council and Internal Ombudsman of Warringah Council refused to investigate and act on complaints about the unprofessional behaviour and inconsistency of Warringah Council's Sole Conduct Reviewers and advised that the only redress is to complain to the Department of Local Government? (6)In view of the conduct of the Sole Reviewers and certain council staff outlined in the above mentioned cases, and the refusal of General Manager of Warringah Council and Internal Ombudsman of Warringah Council to have the matters properly addressed will the Minister ensure that all matters are properly reviewed by the Department and that it will take a greater oversight role regarding Warringah Council?" 36The questions placed on notice by Ms Ficarra on 2 June 2010 came to be answered on 31 August 2010 (Exhibit 1, Tab 6). However, it is unnecessary for the purpose of this judgment to provide the Minister's answers, for it was the asking of the questions which gave rise to relevant events at the Council the following week. 37The minutes of an Extraordinary Council Meeting of the Council conducted on 8 June 2010 contain the following record of events arising from Ms Ficarra's questions asked in the Legislative Council (Exhibit 1, Tab 7): "MOTION OF URGENCY - CODE OF CONDUCT INVESTIGATIONS 179/10 RESOLVED Clr Regan/Clr Giltinan That as a matter of urgency, Council considers a Motion in relation to the Code of Conduct Investigations. VOTING For the resolution:Clr Falinski, Giltinan, Harris, Regan, Sutton and Wilkins Against the resolution: Clr De Luca, Kirsch, Laugesen and Ray THE MAYOR SUBSEQUENTLY RULED THE MATTER TO BE ONE OF URGENCY. Clr Regan/Clr Giltinan That Council: 1Note that on 2 June 2010, The Honourable Marie Ficarra, MLC, asked several questions ('Questions') in the New South Wales' Legislative Council regarding Council Code of Conduct investigations (which were printed in the Legislative Council's Questions & Answers Paper No. 153 at 4402 - Local Government -Warringah Councillor Breach of Code of Conduct Investigations); 2Council note that in her Questions, Ms Ficarra, among other things: a.referred to a female Councillor as an 'offender' in circumstances in which no offence has been proven (Questions 1 and 2); b.imputed that Council staff have previously engaged in misconduct by asking whether Council staff are 'again committing misconduct by making derogatory, denigrating and unprofessional remarks' in circumstances in which the imputation is unsubstantiated (Question 4); c.stated 'in view of... the refusal of General Manager of Warringah Council and Internal Ombudsman of Warringah Council to have the matters properly addressed' in circumstances in which the alleged refusal is unsubstantiated (Question 6); and d.referred to investigations in relation to complaints under Council's Code of Conduct which have not yet been completed; and 3.The General Manager write to Ms Ficarra and request that she issue a public apology for the Questions and that she retract the Questions. 4.Invite Ms Ficarra to visit Mayor and General Manager to discuss her concerns. AMENDMENT Clr De Luca/Clr Laugesen That this Council: 1.Condemns the Mayor of Warringah and General Manager for their political attacks on a Member of Parliament's efforts in trying to ensure transparency and accountability at Warringah Council. Notes: That there is concern and continued alarm in the community, particularly with regard to the lack of transparency at Warringah Council and conduct of certain Councillors at Council meetings: 2.That Warringah Council has been dismissed on three previous occasions for its failure to respond to resident concerns and behaviour of Councillors at Council meetings. 3.That the Department of Local Government is reviewing all matters pertaining to the Sole Reviewers Decision on complaints about the alleged conduct of Cr Julie Sutton. CLR LAUGESEN LEFT THE CHAMBER AT 8.01 PM VOTING For the amendment:Clr De Luca Against the amendment: Clr Falinski, Giltinan, Harris, Kirsch, Regan, Ray, Sutton and Wilkins CLR LAUGESEN WAS ABSENT DURING VOTING ON THIS ITEM. THE AMENDMENT, ON BEING PUT, WAS DECLARED LOST. 180/10 RESOLVED Clr Regan/Clr Giltinan That Council: 1. Note that on 2 June 2010, The Honourable Marie Ficarra, MLC, asked several questions ('Questions') in the New South Wales' Legislative Council regarding Council Code of Conduct investigations (which were printed in the Legislative Council's Questions & Answers Paper No. 153 at 4402 - Local Government - Warringah Councillor Breach of Code of Conduct Investigations); 2.Council note that in her Questions, Ms Ficarra, among other things: a.referred to a female Councillor as an 'offender' in circumstances in which no offence has been proven (Questions 1 and 2); b.imputed that Council staff have previously engaged in misconduct by asking whether Council staff are 'again committing misconduct by making derogatory, denigrating and unprofessional remarks' in circumstances in which the imputation is unsubstantiated (Question 4); c.stated 'in view of... the refusal of General Manager of Warringah Council and Internal Ombudsman of Warringah Council to have the matters properly addressed' in circumstances in which the alleged refusal is unsubstantiated (Question 6); and d.referred to investigations in relation to complaints under Council's Code of Conduct which have not yet been completed; and 3.The General Manager write to Ms Ficarra and request that she issue a public apology for the Questions and that she retract the Questions. 4.Invite Ms Ficarra to visit Mayor and General Manager to discuss her concerns. VOTING For the resolution:Clr, Giltinan, Harris, Regan, Sutton and Wilkins Against the resolution: Clr De Luca, Falinski, Kirsch and Ray, CLR LAUGESEN WAS ABSENT DURING VOTING ON THIS ITEM." 38A transcript was prepared of the Extraordinary General Meeting of the Council on 8 June 2010. As this was the occasion on which it is said that the Plaintiff ought to have declared a non-pecuniary conflict of interest, it is appropriate to set out the debate which occurred in the context of the motion. 39Mr Jackson, in submissions, described the tenor of this meeting as "an acrimonious straightforward political conflict" which was "not particularly pretty on any side" (T11). A little later, Mr Jackson submitted that it was apparent from the exchanges at the meeting that "these people do not like each other" (T12). He advanced other submissions concerning this meeting to which I will return later in the judgment. 40The transcript of the meeting reveals the following (I note that Councillor Regan is the Mayor) (Exhibit A, pages 3-10) (emphasis added): "CIr Regan: 'Councillors, I would like to raise as a matter of urgency something that has come to our attention in relation to some comments made by a member of the Upper House, Ms Marie Ficarra, the Honourable indeed, it is unfortunate I guess that Ms Ficarra appears to be misinformed in this matter and I am going to move that, a [sic] matter of urgency because I want to make sure that the record is put straight and that all the accurate facts are indeed on the table. I think Ms Ficarra would benefit from visiting Warringah and getting the facts first hand. I, as many of you around this table, would defend Warringah Council and the Community of Warringah against any inaccurate statements made by anyone including those in Parliament, I think it is important that Ms Ficarra be invited here to discuss her concerns, and perhaps even withdraw her questions until any investigations are completed. Can I ask that this matter be considered as urgent so that I may put a motion forward? Counsellors [sic]?' Clr De Luca: 'I would like to move amendments. CIr Regan: 'There is not a motion yet. I will now ask that this matter be considered as urgent. Councillor's [sic]? Those in favour: myself, Counsellor [sic] Falinski, Counsellor [sic] Giltinan, Counsellor [sic] Harris, Counsellor [sic] Sutton and Counsellor [sic] Wilkins. Those against: Thank you Counsellor's [sic] Kirsch, De Luca, Ray and Laugesen against. I declare that the motion of urgency, this matter be declared urgent and I will now put the motion forward and note Counsellor [sic] De Luca, I think it is self-explanatory, but I will read it before I ask for the amendment from Counsellor [sic] De Luca.' CIr De Luca: 'Thank you, my amendment is that this Council resolves to: 1.Condemn the Mayor of Warringah and General Manager for their political attacks on a member of Parliament's efforts in trying to ensure transparency and accountability at Warringah Council; 2.Note, with concern, continued alarm in the community, particularly with regard to the lack of transparency of Warringah Council and conduct of certain Councillors at Council meetings. [sic - no paragraph a.] b. that Warringah Council has been dismissed on three previous occasions for its failure to respond to resident concerns and behaviours of Councillors at Council's meetings c. That the department of Local Government is reviewing all matters pertaining to the Sole Reviewer's decision on complaints about the conduct of Counsellor [sic] Julie Sutton.' Clr Regan: '[unclear] is being conciliatory. Do you have a seconder for that Counsellor [sic] De Luca? Thank you, Counsellor [sic] Laugeson. Counsellor [sic] De Luca, do you have a conflict of interest in this matter?' CIr De Luca: 'No, I do not.' CIr Regan: 'You confirm you don't know of a conflict in this matter?' CIr De Luca: 'No. If that were the case, you would have to be declaring conflicts of interest with regard to your employment at Manly Council and allegations relating to two officers in Manly Council using fictitious names in public resources to defame other elected public officials. Cir Regan: 'Classy. That's interesting. That's fine that you have noted that there is no conflict of interest. Now we have Counsellor [sic] Laugeson seconding the amendment. It is not on screen yet. We're just getting this typed up... for the benefit of the public gallery. [Takes some minutes - It appears CIr Regan laughs at something on screen] Mr De Luca would you like to speak to them?' CIr De Luca: 'Thank you, Mr Mayor. I support my amendments because I believe that the 'Mayoral minute', as put, is quite inaccurate and indeed seeks to intimidate and harass a Member of Parliament from doing their job; which is to ensure accountability, transparency and efficiency in Local Government. Fortunately, before I came to Council this evening, I noted the online website of the Manly Daily, and that a media release had already been issued by Council, I take it authorised by the General Manager and the Mayor and that, that is on the Manly Daily website, which notes that this Motion of Urgency was actually coming before council tonight. As I said, and I wish to emphasise, I consider this nothing more than an act to deliberately intimidate elected officials and others from raising concerns about this Council. And its sort of like history repeating itself. The Commission of Inquiry Report into Warringah Council, tabled in the Parliament in 2003, was quite damning of the conduct of certain persons who sort [sic] to intimidate others from speaking up and coming forward. In section 3.4.2.8, it was commented upon by the Commissioner that [derisory?] attitudes and the abuse and dismissal of public concern, and others, is really a form of intimidation and that's what this is. Members of the Upper House serve the whole of NSW. They are not allocated an electorate. And anyone who has lived in Warringah for a long time would know that the Honourable Marie Ficarra, as former Shadow Minister for the Environment, as Member of the Legislative Assembly and the Minister for, and as a subsequently Member of the Legislative Council, has had dealings over the many years with Warringah, in particular in her capacity as a resident. I had to laugh with the comments to invite her to Warringah Council because in this term she has actually been here, as many Councillors would be aware in regard to our Inaugural Speech Night which the General Manager was not in attendance, so perhaps that is why he missed that one. Looking at the Honourable Member's website, it's clear that she's asked questions regarding Local Governments from all over NSW and that is the role of a Member of Parliament. On her website today there is a letter responding to the Manly Daily's article today, and I'd just like to quote one thing which I think is very relevant and I quote: 'I can sympathise with the many residents' [sic] who contact me, contact me about Warringah Council's staff and certain Councillors' [sic], having seen how they treat any questions or efforts for transparency. The Council has been sacked on fact on three previous occasions and unless it starts to respond to the Community's opposition to unsustainable development in Dee Why and now proposed for Fresh Water, there will continue to be wide spread unrest amongst the community.' In the Article also published on the Manly Daily's website, I note that it is noted that it is courageous staff whistle blowers in this Council who have called upon Ms Ficarra and submitted information to her about their concerns on the administration of this Council. It is courageous residents who have also submitted concerns and that is very, very important and we as Councillors should never seek to denigrate or stop people raising issues of concern because that's what has happened previously and that's what resulted in this Council being dismissed. There are various clauses within the Commission of Inquiry Report, which are quite relevant to this motion. I have mentioned already section 3.4.2.8, section 3.4.1.6 is also relevant, as is the subsequent section 7, and I think that unless those acts of the past are taken into consideration, this Council will be sacked again and it is highly likely if the behaviour that has been conducted by some continues. The General Manager in his comments yesterday about this person not only were disrespectful and showed an ignorance to the person's history on the Northern Beaches, both living here and her activities, I should also point out that she has been a speaker at the Friends of Warringah Community Group meetings, she has been a speaker at the Dee Why Resident Action Group meetings, she is regularly called upon by community organisations to raise concerns in Parliament by the residents of Duffy's Forest, she has raised concerns by the residents concerned about the Moran Reserve and that this has been over a long and sustained period. This member is doing her job and I find it is quite contemptuous of the Parliament and contempt of privilege for this to be occurring and for a General Manager to be entering the political debate and arena and attacking members of Parliament, not just Ms Ficarra but he has also attacked the Member for Davidson and for Councillor Regan to be performing his usual political and personal attacks, which is really why the Parliament has had to raise these issues, I think it very sad, and I commend my amendments to the Council and I thank and congratulate the Department of Local Government for announcing that they will be undertaking a full review into the matters raised.' CIr Regan: 'Thank you Counsellor [sic] De Luca. A very good defence of your boss. Ms Ficarra. I note your work for ...' CIr De Luca: 'On a point of order.' CIr Regan: '... Yes, a point of order, yes.' CIr De Luca: '... Yes, there is a point of order. Could you please disclose that despite your election promise prior to the election that you would resign from your position at Manly Council, whether you have or have not resigned from your position, and whether you or your campaign manager for 'Wake Up Warringah' had ever used Council resources to participate in the political process.' CIr Regan: 'Thank you Counsellor [sic] De Luca. This, I will not be answering such irrelevant questions. I know you have already asked those in Parliament so I am sure they will be answered relevant for you.' CIr De Luca: 'I have not asked them...' CIr Regan: 'Oh, that's right. Ms Ficarra has.' CIr De Luca: '... but they have been raised, but they have been raised in other places by Members of the Wake Up Warringah party.' CIr Regan: 'Thank you, Counsellor [sic] De Luca. So basically you're putting forward this. I just want to clarify one more point for you. Was there any media release authorised by yourself or even myself or from, that you are aware of today, Mr, Mr General Manager?' Rik Hart: 'I have to note that Counsellor [sic] De Luca is wrong. I or [sic] any of my staff have issued any form of press release to the Manly Daily.' CIr Regan: 'Thank you'. CIr De Luca: 'Can you please confirm whether you actually spoke to the Manly Daily today or previously, and that your comments in today's Manly Daily, and tomorrow's online addition [sic], are correct and that you did speak to any representative or journalist of the Manly Daily?' Rik Hart: 'I can certainly advise as is obvious from the articles in the Manly Daily. Manly Daily correct, contacted the Council with questions and we responded as we normally do to questions.' CIr Regan: 'So there was no media release. It was just responding to questions.' Rik Hart: 'There was no media release.' CIr De Luca: 'And can you please confirm that you understand the role of a Member of the Upper House, and that it is their role to serve the whole state, and that they are not limited to any electorate, and that your comments as to the Member's associations with the Northern Beaches are incorrect.' CIr Regan: [Regan Laughs] 'Thank you, Counsellor [sic] De Luca.' Clr De Luca: 'He needs to acknowledge that and apologise for the ignorance of her actual association with the Northern Beaches.' CIr Regan: 'Thank you, Mr General Manager. You do not need to acknowledge that. Right then. I don't need to speak anything further, I think you have said enough and made some interesting observations about harassing and bullying - the pot calling the kettle black - type thing. No media release authorised. I'm sure the Manly Daily will correct that for you as well. I am happy to put, if there are no further speakers. [Unclear] Yes, Counsellor [sic] Falinski.' CIr Falinski: 'Thank you Your Worship. I regret actually voting in favour of urgency to either this motion or the other motion. I shall not be voting for Counsellor [sic] De Luca's motion. I shall not be voting for the original motion either. The reason for that is, the reason for that is reasonably simple, I hope, which is I know Marie Ficarra. I consider her a friend. I don't know if she considers me a friend. She has a certain communication style which is, well, shall we call it 'direct'. If a fellow's beseachment to forgive him his unvarnished tale applies to anyone at, in Parliament, I'm sure Marie would agree that sometimes it applies to her. However, she is someone who passionately believes in the things that she believes, and I'm sure meant no offence in either the comments or questions that she asked the Upper House. It appears to me that there is a dispute here between two groups that are each claiming the other is political. And I am, I am reminded of an incident after Nelson Mandela was released from Northern Ireland [sic], where there was a Sporting Commission Meeting of ASC that wanted to strip the Springbox [sic] of their name and colours as a symbol of repression, and Nelson Mandela said that every time he hears about an eye for an eye and a tooth for a tooth, he can see nothing and he sees a world without chewable food. We are often in a position where, that we must, our greatest weapon is often forgiveness. Now, it is easy for me to say that obviously, because I have not been subject to some of the claims and counter claims that have been made. However, anyone who wants to Google my name, can see that from time to time over the last decade or so, certain people have misunderstood me and made nasty remarks. I could have gone into print and I could have replied but in truth I probably didn't have the time. The fact of the matter remains that, that forgiveness is our greatest weapon. If we want to have a constructive Council, if we want to work in the community's best interests, I urge all of us to move past this. I know that if invited, Marie would be more than happy to come here, as she has come here on other occasions and expressed her concerns, and expressed her concerns directly, and get, and get feedback. I urge us, if we are to pass any motion it would be to invite any Member of Parliament from Macquarie Street who has concerns about the way that this Council has been run, to come directly to the Council and to speak to us. One of the good things about this Council is that there is a diversity of issues. We rarely know which way any particular motion is going to go or which, where a proposal might end up. There are people around this table who, prior to my election, I could never have imagined I would have voted on the same side as. This is what we call a democracy. It is a healthy thing. Where it is unhealthy is when it descends into name-calling and personalities. It happens. I'm guilty of it as much as the next person and I hope when I am guilty of it, that there will be someone around this table to remind me that I too need to lift my head above the battle at hand.' CIr Regan: 'Thank you Counsellor [sic] Falinski. We will now put the amendment to the vote. Those in favour: Counsellor [sic] De Luca. Those against: Counsellor [sic] Giltinan, Falinski, Kirsch, myself, Ray, Harris, and Sutton and Wilkins. I will now put the motion up on the screen...' Rik Hart: 'I ask that the motion be put up on the screen.' CIr Regan: '... the original motion. And Counsellor [sic] Falinski, I will ask that you reconsider your, what you just said about not voting for my motion either, in that so much that this is not a political attack on anybody. Someone is trying to make it a political attack on them. I can see that clearly, but that's not my intention. I am simply defending the Council's reputation, which is what you've just said you'd like to do, particularly that of our Community who we seek to represent. It is those, this sort, these sort of questions in Parliament bringing into disrepute our Council and our Community. It is a direct attack on staff and I'll draw you to the attention, to these points in a minute. But I think that it is important that we show some sort of leadership on this and that we do not allow this sort of thing to occur. And I have actually offered an olive branch in points three and four in some, in some regards in that, it would be very easy for me to go on the attack. I am furious with the comments and the allegations and things, and I will read that basically the Council is noting that the Honourable Marie Ficarra asked several questions in the New South Wales Legislative Council regarding Council Code of Conduct investigations which were printed in the Legislative Council's 'Question and Answers Paper' that the Local Government of Warringah Council have breached a Code of Conduct investigations; 2.Council is note [sic] that in her Questions, Ms Ficarra, among other things referred to a female Councillor as an 'offender' in circumstances in which no offence has been proven; [sic - no paragraph a.] b.imputed that Council staff have previously engaged in misconduct by asking whether Council staff are again committing misconduct by making derogatory, denigrating and unprofessional remarks in circumstances in which the imputation is unsubstantiated - Question 4; c.in view of the refusal of the General Manager of Warringah Council and the Internal Ombudsman of Warringah council, to have the matters properly addressed in circumstances in which the alleged refusal is unsubstantiated and referred to, sorry, d.referred to investigations in relation to complaints under the Council's Code of Conduct which have not yet been completed. 3.That the General Manager write to Ms Ficarra and request that the issue, that she issue a public apology for the questions and that she retract the questions, and invite, 4.Invite Ms Ficarra to visit the Mayor to discuss her concerns. This is in no way a political attack. None, whatsoever. This is merely defending our community, our reputation within Local Government, and in particular the attacks, the, and the allegations which have been made here on staff and some of the words and the choice of language used, is [Regan sniggers] and has been proven, that no offence to have been taken. And I think that is pointed out quite clearly it would be very easy for me... CIr De Luca: 'Point of Order...' CIr Regan: '...[unclear].' . CIr De Luca: '... Mr Mayor, you have already spoken and now you are speaking for the third occasion on this motion...' CIr Regan: 'Thank you Counsellor [sic] De Luca...' CIr De Luca: '... and in fact, when you're bring a motion, you should actually...' [beeps] CIr Regan: "Thank you Counsellor [sic] De Luca. So therefore, I am putting this motion forward, but I am saying to you that this is not a political attack and this is rather defending our Community's reputation and again, that of staff and the processes that have been involved. Are there any speakers against?" CIr Ray: 'Just briefly, I would like to speak against the motion for much the same reasons as Counsellor [sic] Falinski pointed out for the previous motion which was also, are my reasons for voting against that motion. I don't believe this is appropriate to be dealt with in this manner. I think there is much more professional and adult ways and that this could be dealt with more professionally off line and I would ask Councillors also not support this motion again, just highlighting Counsellor [sic] Falinskis comments that, perhaps forgiveness is more the key to this debate than inflaming the situation further, or potentially inflaming the situation further. [Beep] CIr Regan: "Ok. Any further speakers? One right of reply right, and that is for myself and that is simply, that I agree with you Counsellor [sic] Ray and Counsellor [sic] Falinski. It would be nice that this could be dealt with. However, I just think that it has been made public. It has been made public in various forms, and I think we need to deal with it and show a bit of leadership in our community. We won't tolerate this. That if there is any, and that we basically show some leadership to our staff and that we show some support to them. And again, I just put it back to you that this is not a political attack. This is merely us demonstrating consistent fine [sic] and we are asking her to visit us and discuss her concerns with us, if she has any, and that she withdraw those questions, and retract those and sorry I withdraw that, apologies. A second apology, a public apology that it has been made public, not by us, and that she retract the questions. So I guess that I am just trying to make the point that we are not making this public, and I agree with you we should be [unclear] getting on with it and deal with it offline, but unfortunately it has been made public. That's enough on the subject. Councillors, I now put the motion. Those in favour: Counsellor [sic] Giltinan, myself, Counsellor [sic] Sutton, Counsellor [sic] Wilkins and Counsellor [sic] Harris. Those against: Counsellor [sic] Kirsch, Counsellor [sic] De Luca, Counsellor [sic] Falinski, Counsellor [sic] Ray. I declare that motion carried. Thank you Councillor's. I will now, at that point, it's 8:19, close the meeting." 41Events during the meeting of the Council on 8 June 2010 were referred to the Independent Commission Against Corruption. On 8 July 2010, Paul Grech, the Acting Manager Assessments of that Commission wrote to Rik Hart, the General Manager of the Council, stating (Exhibit A, page 11): "The Commission considered that the Council is entitled to comment on matters raised by members of Parliament concerning Council. The Commission does not consider that the comments in your letter to Ms Ficarra are corrupt. Council is entitled to have a differing position concerning issues relating to Council and is entitled to argue that position through such correspondence. Such argument and debate do not involve an attempt to adversely affect the exercise of public official functions. Given these considerations, the Commission has determined not to take any action." 42Some time before 16 August 2010, a two-page letter described as a "confidential complaint" was addressed to the General Manager of the Council, asserting that the Plaintiff had breached the Code of Conduct at the meeting on 8 June 2010 (Exhibit A, pages 1-2). It was alleged that the Plaintiff had "failed in his duty to declare a conflict of interest" and that, "despite being asked several times ... by the Chairperson, and being given ample opportunity to correct the record [the Plaintiff] continued to deny that he had any potential or real conflict of interest or relationship with the MLC Marie Ficarra". Whilst acknowledging that it may be "technically correct" that the Plaintiff did not work for or was employed by Ms Ficarra, the complainant asserted that the Plaintiff "acts as her staff member to the extent of his having his name and email address as the contact person on Marie Ficarra's press releases". 43On 16 August 2010, Andrew Patterson, the Council's Internal Ombudsman, wrote to Ms Simpson concerning the complaint, indicating that Mr Hart had asked him to deal with the matter on his behalf. Mr Patterson stated that the matter was being treated as an "anonymous complaint" and continued (Exhibit A, page 13): "The complaint alleges that Councillor Vincent De Luca has breached the Code of Conduct by failing to declare a conflict of interest. The alleged conflict arises from Councillor De Luca's relationship with Marie Ficarra MLC. The General Manager has determined, pursuant to his authority under the Code of Conduct, that this matter should be referred to a sole Reviewer for assessment and determination. Accordingly, I am referring the complaint to you for your review, any enquiries you deem necessary, and report back to Council." 44The evidence indicates that Ms Simpson has legal qualifications and has practised, at relevant times, as a consultant mediator and arbitrator (Exhibit A, page 22). 45The role and functions of a Sole Conduct Reviewer under the Code of Conduct will be considered later in this judgment. 46On 24 September 2010, Ms Simpson furnished to Mr Patterson a draft report concerning the complaint made against the Plaintiff (Exhibit A, pages 14-21). I will refer to parts of this document (and its status) in the context of the Plaintiff's second ground, which alleges apprehended bias in the form of prejudgment on the part of Ms Simpson. 47On 29 September 2010, Mr Patterson prepared a file note arising from a telephone conversation with Ms Simpson in which he noted, amongst other things, "We discussed the draft report she had sent me and discussed the need to put the allegations to Councillor De Luca now that a prima facie breach has been established" (Exhibit A, page 204). As will be seen, Mr Jackson sought to challenge the veracity of this document, but I do not accept that submission (see [185]-[186] below). 48On 1 October 2010, Ms Simpson wrote to the Plaintiff, giving formal notification of the allegation against him which was subject to investigation by the Council, and of her appointment as Conduct Reviewer for that purpose (Exhibit A, pages 22-25). 49The Plaintiff was invited to participate in a formal interview, details of which were set out in the letter. 50On 3 October 2010, the Plaintiff wrote to Ms Simpson saying, amongst other things, that "the allegations are vexatious, trivial, politically motivated and not made in good faith", with an indication that more information was needed to accord him procedural fairness (Exhibit A, pages 26-27). 51On 5 October 2010, Ms Simpson communicated with Mr Patterson by email concerning the Plaintiff's request to be provided with documents. In particular, Ms Simpson enquired of Mr Patterson (Exhibit A, page 29): "Could you please advise the following: 1. what is the Council's usual practice with respect to providing a copy of a complaint and any documentary evidence I have collected to the person against whom the complaint is made? le do you provide a copy now, or at an interview if there is one. 2. What is the Council's usual practice with respect to providing my original factual report to the person against whom etc. In my view the report is not for circulation to him at this stage. It will form part of the overall report on completion. Is this how the Council proceeds?" 52Later that day, Mr Patterson responded by email to Ms Simpson (Exhibit A, page 28): "1.He is not entitled to a copy of any evidence you have collected, especially not the complaint or the identity of the complainant (although this one is anonymous anyway). The only exception would be where it was necessary to show him something in order that he could properly respond, and this would be done in an interview setting anyway. In this case, as long as he has been provided sufficient particulars in the allegation to enable him to respond to the allegation against him, then that is all procedural fairness requires. Providing copies of witness statements and identities of complainants/witnesses is, in fact, contrary to the principle of confidentiality within the investigation process, it can also jeopardise the investigation and the integrity of evidence, as well as putting other parties at potential risk. Naturally if the matter ever ended up in litigation or other legal proceedings, then, as you know, there may well be requirements to serve copies of evidence etc, but that is well past the investigation stage. 2.The draft report you sent me is, as far as the process is concerned, simply an interim working document from you to me. It does not form part of the evidence and he has no entitlement to it whatsoever. When the final report is drafted, given it will become a public document, if there is going to be any adverse comment/finding against him, then he is entitled to see the adverse section and reply to it before the report is finalised and published. In essence then, all he is entitled to under procedural fairness is: (1)an allegation, with sufficient particulars, to respond to; and (2)a copy of the draft adverse comment/finding (if applicable]. 3.In relation to the interview, it is an invitation to him if he wants to take it. There is no compulsion, but if he chooses to attend, then the method of recording etc is entirely at your discretion. I concur that best practice is to electronically record in some format." 53Further correspondence passed from Ms Simpson to the Plaintiff dated 5 October 2010, and from the Plaintiff to Ms Simpson dated 6 October 2010 (Exhibit A, pages 31-35). It is not necessary to recount in detail this correspondence, given the issues falling for determination on the Plaintiff's Summons. 54On 14 October 2010, Ms Simpson wrote to the Plaintiff in response to his email of 6 October 2010, commencing her letter in the following way (Exhibit A, page 37): "I think it is important to remind you that I have been engaged to undertake an independent investigation of an allegation, independent of you and the Council. The tenor of your emails conveys an impression that you are labouring under a misapprehension that I act as a quasi prosecutor of the allegations." 55Ms Simpson's letter of 14 October 2010 to the Plaintiff also informed him of the point which had been reached in the investigation, this being significant given submissions made concerning the second ground of review which asserts prejudgment on Ms Simpson's part. With reference to an issue raised by the Plaintiff in his letter of 6 October 2010, Ms Simpson said (Exhibit A, page 37): "In relation to Clause 13 the applicable matters referred to in that clause are considered by me both on receipt of the reference and remain relevant during the enquiry. At a prima facie level and at this time, the subject matter of the obligations of which you have been given notice is on their its [sic] sufficient to satisfy me it warrants further investigation. That determination, as you will appreciate, involves no ultimate finding regarding the allegations." 56Ms Simpson was informing the Plaintiff that the complaint had been considered at "a prima facie level" and that it warranted further investigation, but that such a determination involved no ultimate finding regarding the allegations. This reflects the interactive approach which was followed by Ms Simpson as the investigation progressed. More will be said about this when the second ground of review is addressed. 57On 26 October 2010, the Plaintiff's solicitors, Schreuder Partners, wrote to Ms Simpson raising concerns about the process and issues with respect to procedural fairness and apprehension of bias (Exhibit A, pages 39-41). 58A further letter dated 29 October 2010 was directed to Ms Simpson from Schreuder Partners on behalf of the Plaintiff (Exhibit A, pages 42-56). The letter of 29 October 2010 contained arguments concerning the characterisation of the association between the Plaintiff and Ms Ficarra, and submissions that he was not an employee of Ms Ficarra and that no conflict of interest existed. It was submitted that the Plaintiff was "working for the parliament as an adviser/officer" and that since February 2009, "he has been assigned to the office of the Hon Marie Ficarra". The letter stated that it was "not correct to say that he is an employee of Hon Marie Ficarra", but that he was "an employee of the parliament". The letter stated that the Plaintiff had made "no secret of his work in the office" of Ms Ficarra and that he "did not, contrary to the allegation, deny it". 59Further correspondence passed between different persons between 1 November 2010 and 21 November 2010 (Exhibit A, pages 57-75), which it is not necessary to recount for the purpose of disposing of the issues in this case. 60On 21 November 2010, Ms Simpson wrote to the Plaintiff regarding issues raised by his solicitors in correspondence, and seeking to arrange an interview time (Exhibit A, pages 76-77). 61On 25 November 2010, Schreuder Partners wrote to Ms Simpson enclosing a statement of the Plaintiff (Exhibit A, pages 79-82). 62Included in the evidence before this Court is a letter dated 20 December 2010 to the Plaintiff from Lynn Lovelock, Clerk of the Parliaments, concerning the Plaintiff's employment (Exhibit A, pages 84-88), and a letter from Ms Lovelock addressed to Ms Ficarra dated 22 December 2010 concerning the same topic (Exhibit A, pages 113-114). These letters confirmed that the Plaintiff was not employed or paid by Ms Ficarra, with the President of the Legislative Council being the employer by delegation from the Governor under s.47 Constitution Act 1902. Ms Lovelock stated that should the working relationship between Ms Ficarra and the Plaintiff break down "either of you could make representation to the President through the Clerk to have" the Plaintiff transferred to another position (Exhibit A, page 114). In a letter dated 31 May 2011, David Blunt, Deputy Clerk, stated that the Plaintiff was employed by the President and that Ms Ficarra was the Plaintiff's supervisor and was responsible for managing his performance (Exhibit A, pages 154-155). 63In the course of Ms Simpson's investigation, she sought by email in September and October 2010, information concerning the nature of the Plaintiff's employment from Craig Wheeler, Manager Human Resources, Department of Parliamentary Services (Exhibit A, pages 138-142). As part of his response to these requests, Mr Wheeler provided Ms Simpson with a link to the Legislative Council Members' Guide and, in particular, Chapter 9 concerning Members' Staff (Exhibit A, page 138). 64It is appropriate to mention certain clauses in the Members' Guide to which reference was made in submissions. Clause 9.24 of the Members' Guide (Exhibit 1, Tab 8) required Members' staff "to ensure their activities are not ... against the interest of their member ...". Clause 9.28 of the Members' Guide stated that "Members and their staff work closely together in what can be a high pressure and stressful environment" and that "it is therefore critically important that Members recruit the right person for the job". 65Clause 9.60 of the Members' Guide stated that "Members are responsible for supervision of staff" and "Members are responsible for ensuring staff attend work and managing the performance of their staff". Clause 9.67 stated that "where the conduct or performance of Members' staff is unsatisfactory, a Member may need to take disciplinary action ...". 66Between 22 December 2010 and 30 May 2011, further correspondence passed between Ms Simpson and the Plaintiff and Schreuder Partners on a range of issues which do not require elaboration in this judgment (Exhibit A, page 115ff). 67It is sufficient to observe that a variety of points were raised by or on behalf of the Plaintiff. Amongst these was an argument that the motions of 8 June 2010 could have no practical consequences for Ms Ficarra, and could not result in benefit or loss to her, and that this was pertinent to the question whether Ms Ficarra's "interest" could be affected. This was raised at different points, including in a letter from Schreuder Partners dated 28 February 2011 (Exhibit A, page 123). 68Ms Simpson responded expressly on this issue in a letter to the Plaintiff dated 3 March 2011, in which Ms Simpson stated that she had regard to that contention (Exhibit A, page 125). These matters bear upon the first ground of review to be addressed later in this judgment. 69On 27 May 2011, a Draft Final Report of Ms Simpson (38 pages in length) was prepared, bearing the following note above the title (Exhibit A, page 211): "This is a draft report with draft findings only. The report has been compiled from the evidence available to me at the time of its preparation. It is in draft form to provide an opportunity for the person against whom the allegations have been made, Councillor Vincent De Luca, to make any comments and/or provide any further evidence for consideration before this report is provided formally to Warringah Council." 70The Draft Final Report of 27 May 2011, referred to the draft report of 24 September 2010 (eight pages in length) (Exhibit A, page 211). The Draft Final Report outlined the course of the investigation and referred to Ms Simpson's report to Mr Patterson dated 24 September 2010 as containing findings "which were a preliminary assessment and findings as to whether on the basis of the available evidence, further investigation was warranted" (Exhibit A, page 211). 71In due course, the Plaintiff provided comments to Ms Simpson on her draft report. 72In June 2011, Ms Simpson's Final Report (42 pages in length) was settled (Exhibit A, pages 249-287). 73The Final Report repeated the description of the preliminary assessment and findings in the 24 September 2010 document in terms contained in the Draft Final Report (see [70] above). The document outlined communications between Ms Simpson and the Plaintiff, and incorporated the Plaintiff's response to the Draft Final Report (Exhibit A, pages 280-281). 74Ms Simpson made detailed factual findings in the Final Report, culminating in several conclusions expressed at relevant points in the factual narrative. Ms Simpson made express findings "on the balance of probabilities and bearing in the principles in Briginshaw [Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336]" to the following effect (Exhibit A, pages 282, 283, 284): (a)"I find that Mr De Luca had and still has both a professional and personal or private association with Ms Ficarra MLC sufficient to meet the definition in 7.14 of the Warringah Council Code of Conduct". (b)"I find therefore that Mr De Luca did have a non-pecuniary conflict of interest, whether real or perceived, at the time the Urgency Motion came before Council and when Mr De Luca moved an Amendment". (c)"I find that Councillor De Luca had a conflict of interest with respect to the Urgency Motion and subsequent amendment debate, and voting at the Extraordinary General Council Meeting on 8th June 2010, and did not declare that interest or refrain from voting on the Motion". 75The Final Report then addressed what flowed from these findings by reference to breaches of the Code of Conduct. Specific consideration was given to clauses 6.2(c), 7.1, 7.2, 7.3, 7.5, 7.6, 7.7, 7.8, 7.17, 7.18, 7.19, 7.20, 7.21 and 7.22 of the Code of Conduct (Exhibit A, pages 284-287). 76The Final Report concluded with the following recommendation (Exhibit A, page 287): "If the above findings are accepted, that disciplinary action be taken at the discretion of the Council for Mr De Luca's breach of the above sections of the Warringah Council Code of Conduct." 77As mentioned earlier, the Plaintiff commenced the present proceedings by Summons filed on 29 June 2011, and the Final Report of Ms Simpson has not been considered further by Council. Relevant Provisions in the LG Act, the Code of Conduct and the Code of Meeting Practice 78A number of provisions in the LG Act and the Council's Code of Conduct and Code of Meeting Practice are relevant to these proceedings. 79Some issues of construction arise for consideration. 80In approaching issues of construction of clauses in the Codes, the Codes should be regarded as delegated legislation, which cannot affect the proper construction of the LG Act or limit rights conferred by that Act. The Codes should be approached upon the basis that they are designed to carry into effect the express intention of the legislature in a way incidental to the execution of the LG Act itself: Allianz Australia Insurance Limited v Crazzi [2006] NSWSC 1090; 68 NSWLR 266 at 274 [17]. 81The Codes are subservient to the LG Act and must be implemented consistently with a council's proper exercise of its statutory powers: Nichols v Singleton Council [2011] NSWSC 1517 at [79]. Provisions in the LG Act 82The legal status of a council is provided for in s.220 LG Act: "220 Legal status of a council (1) A council is a body politic of the State with perpetual succession and the legal capacity and powers of an individual, both in and outside the State. (2) A council is not a body corporate (including a corporation). (3) A council does not have the status, privileges and immunities of the Crown (including the State and the Government of the State). (4) A law of the State applies to and in respect of a council in the same way as it applies to and in respect of a body corporate (including a corporation)." 83Councillors comprise the "governing body" of a council, and the "role of the governing body is to direct and control the affairs of the council in accordance with" the LG Act: ss.222-223 LG Act. 84Section 232 LG Act makes further provision concerning the role of a councillor: "232 What is the role of a councillor? (1) The role of a councillor is, as a member of the governing body of the council: · to provide a civic leadership role in guiding the development of the community strategic plan for the area and to be responsible for monitoring the implementation of the council's delivery program · to direct and control the affairs of the council in accordance with this Act · to participate in the optimum allocation of the council's resources for the benefit of the area · to play a key role in the creation and review of the council's policies and objectives and criteria relating to the exercise of the council's regulatory functions · to review the performance of the council and its delivery of services, and the delivery program and revenue policies of the council. (2) The role of a councillor is, as an elected person: · to represent the interests of the residents and ratepayers · to provide leadership and guidance to the community · to facilitate communication between the community and the council." 85Chapter 14 (ss.439-490B) LG Act is entitled "Honesty and disclosure of interests". 86Section 439 LG Act provides: "439 Conduct of councillors, staff and delegates (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. (2) Although this section places certain duties on councillors, members of staff of a council and delegates of a council, nothing in this section gives rise to, or can be taken into account in, any civil cause of action." 87Section 440 LG Act requires councils in New South Wales to adopt a Code of Conduct with respect to meeting practices. Section 440 provides as follows: "(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." 88A breach of a Code of Conduct can give rise to action by way of formal censure under s.440G LG Act which provides: "(1) A council may by resolution at a meeting formally censure a councillor for misbehaviour. (2)A formal censure resolution may not be passed except by a motion to that effect of which notice has been duly given in accordance with regulations made under section 360 and, if applicable, the council's code of meeting practice. (3)A council may pass a formal censure resolution only if it is satisfied that the councillor has misbehaved on one or more occasions. (4)The council must specify in the formal censure resolution the grounds on which it is satisfied that the councillor should be censured. (5)A motion for a formal censure resolution may, without limitation, be moved on the report of a committee of the council and any such report must be recorded in the minutes of the meeting of the council." 89The LG Act provides for duties of disclosure. Section 444 provides: "444 What disclosures must be made by a councillor? A councillor: (a) must prepare and submit written returns of interests in accordance with section 449, and (b) must disclose pecuniary interests in accordance with section 451." 90Section 448 specifies interests which do not have to be disclosed for the purposes of Part 2 of Chapter 14 LG Act (ss.441-459): "448 What interests do not have to be disclosed? The following interests do not have to be disclosed for the purposes of this Part: (a) an interest as an elector, (b) an interest as a ratepayer or person liable to pay a charge, (c) an interest in any matter relating to the terms on which the provision of a service or the supply of goods or commodities is offered to the public generally, or to a section of the public that includes persons who are not subject to this Part, (d) an interest in any matter relating to the terms on which the provision of a service or the supply of goods or commodities is offered to a relative of the person by the council in the same manner and subject to the same conditions as apply to persons who are not subject to this Part, (e) an interest as a member of a club or other organisation or association, unless the interest is as the holder of an office in the club or organisation (whether remunerated or not), (f) an interest of a member of a council committee as a person chosen to represent the community or as a member of a non-profit organisation or other community or special interest group if the committee member has been appointed to represent the organisation or group on the committee, (g) an interest in a proposal relating to the making, amending, altering or repeal of an environmental planning instrument other than an instrument that effects a change of the permissible uses of: (i) land in which the person or a person, company or body referred to in section 443 (1) (b) or (c) has a proprietary interest (which, for the purposes of this paragraph, includes any entitlement to the land at law or in equity and any other interest or potential interest in the land arising out of any mortgage, lease, trust, option or contract, or otherwise), or (ii) land adjoining, adjacent to or in proximity to land referred to in subparagraph (i), if the person or the person, company or body referred to in section 443 (1) (b) or (c) would by reason of the proprietary interest have a pecuniary interest in the proposal, (h) an interest relating to a contract, proposed contract or other matter if the interest arises only because of a beneficial interest in shares in a company that does not exceed 10 per cent of the voting rights in the company, (i) an interest of a person arising from the proposed making by the council of an agreement between the council and a corporation, association or partnership, being a corporation, association or partnership that has more than 25 members, if the interest arises because a relative of the person is a shareholder (but not a director) of the corporation or is a member (but not a member of the committee) of the association or is a partner of the partnership, (j) an interest of a person arising from the making by the council of a contract or agreement with a relative of the person for or in relation to any of the following, but only if the proposed contract or agreement is similar in terms and conditions to such contracts and agreements as have been made, or as are proposed to be made, by the council in respect of similar matters with other residents of the area: (i) the performance by the council at the expense of the relative of any work or service in connection with roads or sanitation, (ii) security for damage to footpaths or roads, (iii) any other service to be rendered, or act to be done, by the council by or under any Act conferring functions on the council or by or under any contract, (k) an interest relating to the payment of fees to councillors (including the mayor and deputy mayor), (l) an interest relating to the payment of expenses and the provision of facilities to councillors (including the mayor and deputy mayor) in accordance with a policy under section 252, (m) an interest relating to an election to the office of mayor arising from the fact that a fee for the following 12 months has been determined for the office of mayor, (n) an interest of a person arising from the passing for payment of a regular account for wages or salary of an employee who is a relative of the person, (o) an interest arising from being covered by, or a proposal to be covered by, indemnity insurance as a councillor or member of a council committee, (p) an interest arising from appointment of a councillor to a body as representative or delegate of the council, whether or not a fee or other recompense is payable to the representative or delegate." 91Section 449 LG Act provides as follows: "449 Returns disclosing interests of councillors and designated persons (1) A councillor or designated person must complete and lodge with the general manager, within 3 months after becoming a councillor or designated person, a return in the form prescribed by the regulations. (1A) A person must not lodge a return that the person knows or ought reasonably to know is false or misleading in a material particular. (2) A person need not lodge a return within the 3-month period after becoming a councillor or designated person if the person lodged a return in that year or the previous year or if the person ceases to be a councillor or designated person within the 3-month period. (3) A councillor or designated person holding that position at 30 June in any year must complete and lodge with the general manager within 3 months after that date a return in the form prescribed by the regulations. (4) A person need not lodge a return within the 3-month period after 30 June in a year if the person lodged a return under subsection (1) within 3 months of 30 June in that year. (5) Nothing in this section prevents a councillor or designated person from lodging more than one return in any year. (6) Nothing in this section or the regulations requires a person to disclose in a return lodged under this section an interest of the person's spouse or de facto partner or a relative of the person." 92The Plaintiff's return of interests under s.449 LG Act, completed on 22 September 2009, disclosed his occupation relevantly as "advisor/research officer" and the name and address of his employer as "NSW Parliament, Macquarie St, Sydney" (Exhibit A, page 48). 93Section 451 LG Act provides for disclosure of pecuniary interests by councillors, and attendance at council meetings in circumstances of a pecuniary interest. 94Sections 453 and 454 make further provision for disclosure: "453 Disclosures to be recorded A disclosure made at a meeting of a council or council committee must be recorded in the minutes of the meeting. 454 General disclosure A general notice given to the general manager in writing by a councillor or a member of a council committee to the effect that the councillor or member, or the councillor's or member's spouse, de facto partner or relative, is: (a) a member, or in the employment, of a specified company or other body, or (b) a partner, or in the employment, of a specified person, is, unless and until the notice is withdrawn, sufficient disclosure of the councillor's or member's interest in a matter relating to the specified company, body or person that may be the subject of consideration by the council or council committee after the date of the notice." Provisions in the Code of Conduct and the Code of Meeting Practice 95Provision for non-pecuniary conflicts of interest may be found in the Code of Conduct. Clause 193 Local Government (General) Regulation 2005 makes provision for a Model Code of Conduct: "For the purposes of section 440 (Codes of Conduct) of the Act, the Code called The Model Code of Conduct for Local Councils in NSW, as published in the Gazette on 27 June 2008, is prescribed as the model conduct of conduct." 96Clause 7 of the prescribed Model Code provides (emphasis added): "7. Conflict of Interests 7.1 A 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 public duty. 7.2 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." 97Clause 5.2 of the Model Code of Conduct provides a mechanism for a councillor to identify a conflict of interest: "5.2 If you are unsure as to whether or not you have a conflict of interest in relation to a matter, you should consider these six points: ·Do you have a personal interest in a matter you are officially involved with? ·Is it likely you could be influenced by a personal interest in carrying out your public duty? ·Would a reasonable person believe you could be so influenced? ·What would be the public perception of whether or not you have a conflict of interest? ·Do your personal interests conflict with your official role? ·What steps do you need to take and that a reasonable person would expect you to take to appropriately manage any conflict of interests?" 98Clauses 7.5 to 7.9 relate to pecuniary conflicts of interest, and Clauses 7.10 to 7.20 concern non-pecuniary conflicts of interest. Clauses 7.16 to 7.18 (reflected in Clauses 7.20 to 7.22 of the Council's Code of Conduct in this case) are presently relevant and provide (emphasis added): "7.16 As a general rule a non-pecuniary conflict of interest will be significant where a matter does not raise a pecuniary interest but it involves: (a)... (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)... 7.17If you are a council official, other than a member of staff of council, and you have disclosed that a significant non-pecuniary conflict of interest 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. 7.18If you determine that a non-pecuniary conflict of interest 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." 99Clause 11.1 of the Model Code of Conduct provides that any person, whether or not a council official, may make a complaint alleging a breach of the Code of Conduct. Clause 11.2 of the Model Code of Conduct provides that a failure by a Councillor to comply with the Code of Conduct constitutes misbehaviour for the purpose of s.440F LG Act. 100Clause 12 of the Model Code of Conduct addresses complaint handling procedures. Clauses 12.8 and 12.9 explain the role of the General Manager in initially reviewing any complaint, and determining whether or not to refer the complaint to a Conduct Review Committee or a Sole Conduct Reviewer. 101Clauses 12.12 to 12.23 and Clause 14 govern the conduct of the Conduct Review Committee or Sole Conduct Reviewer (such as Ms Simpson). Further reference will be made to these provisions in the context of the second ground of review. 102Clause 13.1 of the Model Code of Conduct lists matters to which the General Manager should have regard in determining whether to refer the complaint to a Conduct Review Committee or a Sole Conduct Reviewer. 103The adopted Code of Conduct in this case (Exhibit 1, Tab 5) incorporates these elements, but also adds requirements which are not inconsistent with the Model Code of Conduct, including the following (emphasis added): "7.5 It is essential that you properly address conflict of interest issues that may arise. You must: ·Try to understand the concept and practical implications of conflict of interest issues ·Accept that a failure to resolve an actual or reasonably perceived conflict of interest is unacceptable in local government ·Take timely and appropriate action to avoid, or if not, to disclose any actual, potential or reasonably perceived conflict of interests 7.6Perceptions of a conflict of interests are as important as actual conflicts of interests. The onus is on you to identify a conflict of interest, whether perceived or real, and take the appropriate action to resolve the conflict in favour of your public duty. 7.7Where necessary, you must disclose an interest promptly, fully and in writing. If a disclosure is made at a council or committee meeting, both the disclosure and nature of an interest must be recorded in the minutes. ... 7.33 You should consider the depth of a personal relationship in deciding whether or not it gives rise to a conflict of interests." 104Clause 9.5 of the Code of Conduct also requires Councillors to act in accordance with the Council's Code of Meeting Practice during council and committee meetings. 105Clause 14.5 of the Council's Code of Meeting Practice (Exhibit 1, Tab 4) relevantly provides (emphasis added): "i) The first item on the agenda of all council or Committee meeting ... shall be the declaring of pecuniary interests/conflicts of interest ii) A Councillor who has a pecuniary interest or conflict of interest in any matter with which Council is concerned and who is present at a meeting of Council or a Committee at which the matter is being considered must disclose the interest and the nature of the interest to the meeting as soon as practicable iii) (a)... (b)Where a non-pecuniary interest has been declared by a Councillor in a matter at a Council or Committee Meeting and that non-pecuniary conflict of interest is considered by the Councillor to be significant, the Councillor must leave the meeting, be out of sight of the meeting and not participate in discussions or voting on the matter. (c)Where a non-pecuniary conflict of interest has been declared by a Councillor in a matter at a Council or Committee meeting and that non-pecuniary conflict of interest is considered by the Councillor to be less than significant and not requiring further action, the Councillor should provide an explanation of why he/she believes the conflict requires no further action in the circumstances." 106Clause 5.1 of the Council's Code of Meeting Practice (Exhibit 1, Tab 4) relevantly provides: "5.1Declaration of 'Nature' of Pecuniary Interest or Conflict of Interest In declaring the nature of a Pecuniary or Conflict of Interest as a meeting, the Councillor ... must ensure that: · The details are sufficient to enable other Councillors/Committee members and the public to appreciate in general terms the connection of the person with this matter under consideration. · ..." Nature and Limits of Proceedings Before This Court 107Before turning to determine the grounds relied upon by the Plaintiff, it is appropriate to refer to general principles applicable to a claim for relief of this type. I mentioned at the commencement of the judgment the narrow function being undertaken by this Court. This part of the judgment serves to explain that limited task. 108The present proceedings invoke the supervisory jurisdiction of this Court. 109The Plaintiff claims relief in the nature of certiorari or prohibition under s.69 Supreme Court Act 1970. It is claimed, in substance, that there was error of law on the face of the record and/or jurisdictional error on the part of Ms Simpson, and a denial of procedural fairness to the Plaintiff. 110The Plaintiff bears the onus of proving, on the balance of probabilities, the facts grounding an entitlement to such relief: Roos v Director of Public Prosecutions (1994) 34 NSWLR 254 at 259. Relief in the Nature of Certiorari or Prohibition 111Relief in the nature of certiorari or prohibition is not an appellate procedure enabling either a general review of the decision, or substitution of a decision which the Supreme Court thinks should have been made. Relief enables the quashing of the impugned decision upon one or more of a number of distinct established grounds - jurisdictional error, denial of procedural fairness, fraud and error of law on the face of the record: Craig v South Australia [1995] HCA 58; 184 CLR 163 at 175-176. 112Relief under s.69 may be granted in the case of error of law on the face of the record: Hanna v Department of Immigration Multicultural and Indigenous Affairs [2004] NSWCA 275 at [28]. The face of the record includes the reasons expressed by Ms Simpson for her ultimate determination: s.69(4) Supreme Court Act 1970. 113In Craig v South Australia, Brennan, Deane, Toohey, Gaudron and McHugh JJ at 179 identified the scope for intervention by way of relief in the nature of certiorari with regard to administrative tribunals: "If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." 114In Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323, McHugh, Gummow and Hayne JJ referred to the non-exhaustive list of kinds of error in Craig v South Australia, and continued at 351 [82]: "Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it." The Confines of Judicial Review 115The present hearing involves judicial review of administrative action by way of a claim for prerogative relief. In Attorney-General for New South Wales v Quin [1990] HCA 21; 170 CLR 1 at 35-36, Brennan J described the duty and jurisdiction of the Court on such an application in the following way: "The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone." 116This statement has been applied in subsequent decisions of the High Court of Australia where the confines of judicial review have been emphasised: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259 at 272; Abebe v Commonwealth of Australia [1999] HCA 14; 197 CLR 510 at 579-580 [195]; Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135 at 152-154 [43]-[44]. 117The limited role of a court reviewing the exercise of an administrative decision must constantly be borne in mind. It is not the function of the Court to substitute its own decision for that of the administrative tribunal exercising power which the legislature has vested in that body: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40; 162 CLR 24 at 40-41. 118The reasons for an administrative decision are not to be minutely and finely construed with an eye keenly attuned to the perception of error. The reasons of an administrative decision maker are meant to inform, and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 271-2. The reasons under challenge must be read as a whole and must be fairly read: Cross v McHugh [1974] 1 NSWLR 500 at 503; Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 291. 119To invoke error of law based upon a failure to take account of relevant considerations, it is necessary to identify matters that consideration of which is mandated by law: Saville v Health Care Complaints Commission [2006] NSWCA 298 at [55]. Where error is alleged by way of taking into account irrelevant considerations, legal error is demonstrated only where a matter is taken into account which the law prohibits: Saville v Health Care Complaints Commission at [55]. 120A finding of fact may reveal error of law where it appears that the decision maker has misdirected himself or herself or where there is no evidence to support a finding: Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 at 155-6; Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 at 355-357. 121Reference will be made to further authorities concerning apprehended bias by way of prejudgment in the context of the second ground of review. Ground 1 - Claim of Error of Law Concerning Conflict of Interest Submissions of the Plaintiff 122The focus of this ground was Mr Jackson's contention that Ms Simpson had not addressed the issue of what the alleged conflict was from Ms Ficarra's point of view, and that nowhere in her findings and reasons was there any discussion of what Ms Ficarra stood to gain or lose from this motion or "how it could be said that she had an interest beyond a prurient interest or political interest in the outcome of the council meeting" (T28, 31). 123Mr Jackson submitted that all that was happening at the meeting on 8 June 2010 was that "the plaintiff is effectively defending Ms Ficarra's right to raise issues in parliament and make allegations in parliament and reinforcing them with his own motion" and that, if there is no significant interest in the matter for Ms Ficarra, there can be no significant interest in the matter for Councillor De Luca. He submitted that this was "why his response is in the council meeting not to deny any association with Ms Ficarra, but rather to say that he doesn't have to declare it and raise issues of propriety in relation to the mayor" (T31). 124Mr Jackson submitted that the reasons of Ms Simpson indicate that the question she addressed was the nature and strength of the relationship between the Plaintiff and Ms Ficarra in purported reliance on clauses in the Code of Conduct. He submitted that Ms Simpson had erred in law, or failed to have regard to a relevant consideration, because she had left out what he contended was an essential first step, which was to consider whether the person with whom a relationship is alleged (Ms Ficarra) has an "interest" of a kind envisaged in the first place. Mr Jackson submitted that it was necessary that the person with whom the relationship is alleged must stand to benefit or lose in some significant way before an "interest" of any kind can arise. 125Mr Jackson submitted that the Plaintiff had raised this issue in his submissions to Ms Simpson and had reiterated them in response to the draft report. 126Counsel for the Plaintiff submitted that if the person with whom the relationship is alleged has no "interest", then a relationship between that person and the councillor cannot give rise to a conflict of interest. He submitted that this follows as a matter of common sense. 127Mr Jackson submitted that the transcript of the Council meeting on 8 June 2010 immediately raises a question as to whether there could possibly be an "interest" of the kind envisaged under the Code of Conduct at stake. He pointed to the fact that the Council was proposing to write a letter to Ms Ficarra asking her to apologise and inviting her to attend the Council. 128Mr Jackson submitted that, as Councillor Falinski appears to have recognised, this was essentially a political exercise in relation to which nothing was truly at stake for Ms Ficarra. At the most, Mr Jackson submitted that it could be suggested that Ms Ficarra's reputation could be affected by the passing of the motion, although he submitted that it would be more accurate to say that she was not affected in any way, but rather that what was being discussed involved defence of the Council's reputation. 129Mr Jackson pointed to a letter dated 18 November 2010 from Ross Woodward, Chief Executive, Department of Local Government, where it was said that the "Division [of the Department] has long held the view that concepts such as 'reputation' or 'standing' are insufficiently tangible to constitute a 'private interest' for the purpose of clause 7.1" (Exhibit A, page 75). Whilst acknowledging that this statement of opinion was not binding upon a court, Mr Jackson submitted that it constituted a strong indication that the question of whether or not Ms Ficarra had a tangible and substantial interest in the motion before Council on 8 June 2010 was a question which had to be addressed by the Conduct Reviewer. 130Mr Jackson submitted that the failure to address this question revealed a constructive failure to exercise jurisdiction (in the sense of a misapprehension of the task that Ms Simpson was required to undertake), asking the wrong question, or error of law on the face of the record: Craig v South Australia at [14]; s.69(1), (3) Supreme Court Act 1970. 131Mr Jackson submitted that Ms Simpson had asked the wrong question and had erred in law in a manner going to jurisdiction. Counsel was asked by me to pose, in positive terms, what he said was the right question (T32): "HIS HONOUR: Could you pose to me in positive terms what the right question was, what should have been posed. JACKSON: Yes, I can. What should have been asked is, first of all, the question that she did ask: what is the nature of the relationship between Ms Ficarra and the plaintiff? And secondly: was there any interest of a kind envisaged other than a trivial or insignificant interest? HIS HONOUR: Interest on whose behalf? JACKSON: Was there any interest held by Ms Ficarra assuming a relationship of some significance between Ms Ficarra and the plaintiff other than a trivial or insignificant one, which could give rise to a conflict of interests within the meaning of part 7 of the Code of Conduct? HIS HONOUR: Yes. JACKSON: Now, one has to constantly bear in mind in this case the profoundly political nature of the debate and the fundamental insignificance, with all due respect, of the motions that were being debated. It was really no more than a local council indignantly protesting at questions that had been raised about the propriety of its decision making in the State Parliament. And if it could be that a conflict of interest so serious as to give rise to a finding of a breach of the Code, which is misbehaviour to the point of the Local Government Act, could occur over a letter of protest and an invitation to tea and biccies with the mayor because of something that happened in the State Parliament, critical of the local government of Warringah, then that's fundamentally absurd." Submissions of the Defendants 132Ms Francois submitted that this ground of review is factually and conceptually misconceived by the Plaintiff. 133She submitted that it was factually misconceived because it is clear that Ms Simpson did take into account Mr De Luca's submissions on this issue, and did not accept them. Further, Ms Francois submitted that such a conclusion was undoubtedly correct. Reference was made to Clause 7.1 of the Code of Conduct which provides that a "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 public duty". 134Ms Francois submitted that there was no doubt that the motion in this case was of a kind which could properly be brought as business before the Council, and that it was therefore part of the Plaintiff's public duty to deliberate upon the motion in a manner unaffected by his private interests. 135Ms Francois submitted that the evidence makes clear that, at the time the motion came before Council on 8 June 2010, the Plaintiff saw the motion as making "false allegations" against Ms Ficarra and, in his amending motion, he sought to "condemn" the "political attacks" on Ms Ficarra. Counsel submitted that the transcript of the meeting made clear that the Plaintiff saw the motion as a serious attack on Ms Ficarra and passionately described it as being designed to "intimidate and harass" her. 136In these circumstances, Ms Francois submitted that it was entirely open and inevitable that a "reasonable and informed" person would form the view that the Plaintiff's private loyalties to his employer could influence his response, and thus the performance of his public duty as a councillor in dealing with this motion. It was submitted that it was contrary to common sense and everyday experience to suggest that Ms Ficarra would be indifferent as to whether one of her closest aides would join in such an "attack" on her in a public forum. If the Plaintiff had voted and spoken in favour of the motion, Ms Francois submitted that it is difficult to conceive that he could continue to enjoy Ms Ficarra's trust and confidence as her Secretary/Research Assistant. 137Ms Francois noted that the Plaintiff's submission on this ground focused upon the question whether Ms Ficarra stood to benefit or lose from the motion. She submitted, however, that this is not the test under the Code of Conduct. However, even if it was the relevant test, Ms Francois submitted that the Plaintiff accepted in his statement of 22 December 2010 that Ms Ficarra's reputation could be perceived as affected by the motion. Counsel submitted that it is indeed a serious matter for a Member of the Legislative Council to be said to have used parliamentary privilege to make unfounded and serious allegations against other members of the community. 138With respect to the Plaintiff's submission that reputation is not a relevant "interest" under the Code of Conduct, Ms Francois noted that the Plaintiff provided no authority for that proposition. Counsel submitted that it is only by reason of the fact that Ms Simpson's report potentially affects the Plaintiff's reputation, being an interest that the law recognises and protects, that he has standing to make this application: Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564. Accordingly, Ms Francois submitted that, if this is the relevant test, it does not assist the Plaintiff. 139Ms Francois submitted that the question to be considered by Ms Simpson was not whether Ms Ficarra would benefit or lose. That was not a mandatory consideration made relevant by the terms of the Code of Conduct or the LG Act. Rather, counsel submitted that the question is that posed by Clause 7.1 of the Code of Conduct, namely could a reasonable and informed person perceive that the Plaintiff could be influenced by his private interest when considering something that deals with Ms Ficarra, because he was employed by Ms Ficarra. Decision Concerning First Ground of Review 140It is necessary for the Court to keep in mind the confines of the relief being sought by reference to this ground. It is necessary for the Plaintiff to establish, on the balance of probabilities, error of law on the face of the record or that Ms Simpson, as the administrative decision maker, failed to have regard to a factor which she was mandated by law to have considered. 141I accept the submission of Ms Francois that Ms Simpson did, in fact, consider the Plaintiff's submission on this issue. Having done so, Ms Simpson rejected the argument. So much is made clear in the Final Report (Exhibit A, pages 253, 255-255A, 278, 279 and 281-287). 142Accordingly, the Plaintiff's submission under the first ground must concentrate effectively upon the contention that Ms Simpson has erred in law in her approach to this issue. 143The concept of non-pecuniary conflict of interest does not lend itself to closed categories. There may be a variety of circumstances in which a non-pecuniary conflict of interest may arise, including associations with family, friends and working associations. Clause 7.16(b) of the Code of Conduct makes this clear (see [98] above). 144The scheme of the Code of Conduct involves the primary obligation being placed upon the councillor to consider the particular association by reference to specified factors (see [96]-[98], [103]-[105] above). This obligation appears to extend to a councillor, even if other members of Council may already be aware of some association between the councillor and another person. 145The obligation lies upon the councillor to declare a conflict of interest, and to either leave the room or explain that the interest is considered to be an insignificant interest for reasons then given to the Council. It may be taken that the purpose of these provisions is to provide a measure of accountability whereby a person with a non-pecuniary conflict of interest either abstains from participation and departs or explains, on the public record, why it is considered not necessary to leave the room in the particular circumstances. 146These obligations ought be regarded as being of some importance to the accountability of councillors in the exercise of their duties under the LG Act. 147In this case: (a)the legal and factual circumstances surrounding the Plaintiff's work for and with Ms Ficarra was not in doubt; (b)the test of non-pecuniary conflict of interest was not in doubt; (c)what was said and done at the Extraordinary General Meeting of the Council on 8 June 2010 was not in doubt. 148I accept the submission of Ms Francois that the question to be asked in determining whether the Plaintiff had a relevant conflict of interest focuses upon his relationship or association with Ms Ficarra, in the context of the subject matter of the motion before the Council on 8 June 2010. The question is not whether Ms Ficarra had something to gain or lose in the context of that motion. There is no part of the LG Act or the Code of Conduct and Code of Meeting Practice which would lead to this aspect being the focus of enquiry. 149Rather, the question is whether the relevant test of non-pecuniary conflict of interest was capable of being satisfied in circumstances where the Plaintiff worked in Ms Ficarra's Parliamentary office, and had a close association with her in that capacity and, at the same time, was a councillor on the Council. These dual activities did not, of themselves, give rise to a conflict of interest. 150However, the events of 2 June 2010 saw a strong Parliamentary attack being made by Ms Ficarra on the Council. On 8 June 2010, councillors met to debate the nature of the Council's response to this strong attack. The Mayor (and others) proposed a strong counter-attack directed to Ms Ficarra. The Plaintiff participated fully in the debate to strongly defend Ms Ficarra's criticism of the Council. 151In a sense, the Plaintiff had a foot in each level of Government, State and Local, in a manner that was capable of giving rise to a non-pecuniary conflict of interest. This was not an arid discussion of a policy issue which was of interest to both levels of government. Rather, a heated debate took place in Council where the Plaintiff felt the need to strongly defend Ms Ficarra with respect to her questions in the Legislative Council, where the Plaintiff himself worked closely with Ms Ficarra. If that conclusion was open to Ms Simpson, then the Plaintiff was bound to declare the conflict and otherwise comply with the Code of Conduct. 152To the extent that debate before Ms Simpson, and before this Court, has touched upon the question of whether Ms Ficarra employed the Plaintiff, I do not detect any error in the approach taken by Ms Simpson. Although it is undoubtedly the case that the President of the Legislative Council is the formal employer of the Plaintiff and other persons occupying similar positions with other Members of the Legislative Council, it was the practical day-to-day working relationship between Ms Ficarra and the Plaintiff which fell to be considered. The relevant focus was upon the substance of the Plaintiff's working association with Ms Ficarra, and not the formal employment structure which placed him in that position. 153As a matter of practical reality, the close working relationship between the Plaintiff and Ms Ficarra placed him in a difficult position when the motion came before Council on 8 June 2010. The question which arose was whether there ought be strong criticism by Council of Ms Ficarra, in circumstances where the Plaintiff's own day-to-day working relationship was with Ms Ficarra by way of his position on her staff in the Legislative Council. It was open to Ms Simpson to conclude that, before the Plaintiff participated as a councillor in the debate, he was required to comply with the requirements of the Code of Conduct and Code of Meeting Practice with respect to non-pecuniary conflicts of interest. 154To the extent that it may be considered relevant, I am satisfied that Ms Ficarra did have an interest in the outcome of the Council meeting on 8 June 2010. It was being said at the Council meeting that Ms Ficarra had made unsubstantiated strong criticisms in the Legislative Council of persons associated with the Council, and the Plaintiff found it necessary to defend Ms Ficarra. That meeting involved a public attack upon Ms Ficarra, and a public defence of her by the Plaintiff, in circumstances where Ms Ficarra's reputation was capable of being adversely affected. 155If the Plaintiff's submission under the first ground is capable of constituting an argument that Ms Simpson was, as a matter of law, bound to find in favour of the Plaintiff, I do not accept the submission. It was open to Ms Simpson, as a matter of law, to make a finding that the Plaintiff was required to, and had failed to, declare a non-pecuniary conflict of interest. 156I am not persuaded that any error has been demonstrated on the part of Ms Simpson in the manner asserted in the first ground of review. Ground 2 - The Claim of Apprehended Bias on the Part of Ms Simpson by Way of Prejudgment Submissions of the Plaintiff 157Mr Jackson submitted that the draft document dated 24 September 2010 demonstrated apprehended bias in the form of prejudgment on the part of Ms Simpson. He submitted that the document in reality involved critical factual findings adverse to the Plaintiff, which had been reached without any approach being made to the Plaintiff for interview. 158Mr Jackson submitted that the draft document concluded not with findings expressed in a tentative manner, but in a manner which he submitted admitted of no doubt. He submitted that, before even notifying the Plaintiff of a complaint, Ms Simpson had sent to the General Manager of the Council a draft report which concluded with a firm finding that the Code of Conduct had been breached. 159Counsel for the Plaintiff submitted that this position was compounded by Ms Simpson's email of 5 October 2010 (see [51] above) in which she stated that what she described as the "original factual report ... will form part of the overall report on completion". It was noted that the email included a statement that "In my view the report is not for circulation to him at this stage", and that Ms Simpson sought confirmation that the document did not need to be provided, with such confirmation being given. 160Mr Jackson relied upon the statement of Mason J in Re JRL; Ex parte CJL [1986] HCA 39; 161 CLR 342 at 352 that bias was a disposition to "approach the issues in [the] case otherwise than with an impartial and unprejudiced mind". He relied, as well, on the objective test of possibility, as distinct from probability, of apprehended bias by reference to a hypothetical fair-minded person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias: Re Refuge Review Tribunal; Ex parte H [2001] HCA 28; 179 ALR 425 at 434-435 [28]. 161Counsel for the Plaintiff submitted that the Code of Conduct recognised the importance of the outcome of disciplinary action so as to require procedural fairness to be afforded to a person under investigation. Mr Jackson submitted that in this case, before the Plaintiff had even been made aware of the complaint and before he had been given an opportunity to present evidence and make submissions, Ms Simpson had drawn factual conclusions and determined the ultimate issue for her to determine and had provided it to the General Manager of the Council, the person who had commissioned the report. He submitted that the Final Report, greatly expanded and embellished, was "built on the same DNA as the preliminary report". 162Mr Jackson submitted that Ms Simpson had not disclosed the existence of the draft report to the Plaintiff, and had concealed the fact of her prejudgment from the Plaintiff. 163Mr Jackson submitted that to present such findings to the person who commissioned the report, at such an early stage of the investigation, necessarily engendered in the fair-minded lay person a reasonable apprehension that the Conduct Reviewer may not be able to approach the matter with an open mind but rather, had prejudged the complaint adversely to the Plaintiff and was not impartial. 164To the extent that Ms Francois sought to describe parts of the draft report as containing "infelicity of expression", Mr Jackson submitted that this was not an apt characterisation of the relevant parts of the document. He submitted that the reference to a "prima facie breach" in Mr Patterson's file note of 29 September 2010 (see [47] above), did not assist the Defendants for a number of reasons, including the fact that such a characterisation was not supported by the form of the report itself. 165Mr Jackson responded to Ms Francois' submission that, even if there was a basis for finding apprehended bias, relief should be refused to the Plaintiff because he could argue his case before the Council. Mr Jackson submitted that the Plaintiff was entitled to have the findings quashed if they had not been reached according to law, and that the suggestion that the Plaintiff could argue his case before the Council was "clearly impractical given the toxic environment in which the report would be considered". Submissions of the Defendants 166Ms Francois reminded the Court of the need to read an administrative decision under challenge fairly, and not to subject it to over-zealous scrutiny. She submitted that the Court should bear in mind, as well, that a decision maker is required to have an open, but not an empty mind, and that apprehended bias is only established if the Court finds the decision maker had a mind incapable of alteration or that which would cause a fair-minded lay person, properly informed, to form the view that the decision maker might not bring an impartial mind to the resolution of the question to be decided. 167Whilst there may be some infelicity of expression in the 24 September 2010 draft, when it is read fairly and in the context of Ms Simpson's letter to the Plaintiff of 1 October 2010 and her Final Report dated June 2011, Ms Francois submitted that it was clear that Ms Simpson was acting pursuant to Clause 12.19(c) of the Code of Conduct, and was forming a preliminary view, on the basis of the evidence then available, for the purpose of making a determination about whether to conduct further enquiries into the complaint. 168Counsel referred to a number of parts of the preliminary report in support of this construction. 169Ms Francois submitted that a fair reading of the documents demonstrated that Ms Simpson did not consider her findings in the preliminary report to be final, and that they were based solely on the material then before her. A fair-minded lay person, who properly understood Ms Simpson's task, would understand that Ms Simpson was expressing preliminary views based on the information then available to her, solely for the purpose of determining that there was sufficient evidence to proceed with the investigation. 170Accordingly, Ms Francois submitted that the Court should not be satisfied that the mode of expression in the preliminary report of 24 September 2010 gives rise to an apprehension of bias. 171In any event, Ms Francois submitted that having regard to the information Ms Simpson obtained during her investigation, her concluded findings about the true nature of the employment relationship between the Plaintiff and Ms Ficarra were inevitable. Reference was made to Chapter 9 of the Legislative Council Members' Guide (Exhibit 1, Tab 8), which had been provided to Ms Simpson by Mr Wheeler during her investigation. These clauses were referred to at [63]-[65] above. 172In these circumstances, Ms Francois submitted that any person charged with the conduct of the investigation would have found that the Plaintiff had a significant personal relationship with Ms Ficarra which he had failed to disclose. Accordingly, she submitted that, even if Ms Simpson's preliminary report was considered to give rise to an apprehension of bias, there is no utility in granting relief as no different outcome would have ensued: Re Refugee Tribunal; Ex part Aala [2000] HCA 57; 204 CLR 82 at 109 [58], 122 [104]. 173Further, Ms Francois submitted that the Council process is not yet concluded, and the Plaintiff is entitled to be heard by Council when it considers the report and determines whether to take any action against him. In other words, it was submitted that the report was not published in a manner which deprived the Plaintiff of the chance to make public submissions on the record as to why the report was erroneous and should not be accepted. It was submitted that this afforded the Plaintiff an adequate remedy in relation to the report and constituted another reason why relief should be refused. Decision Concerning Second Ground of Review 174In support of this ground, the Plaintiff has focused particular attention upon Ms Simpson's draft report dated 24 September 2010. 175This approach reflects the reality that ordinarily a party needs to show some conduct on the part of the decision maker, apart from the decision-maker's expression of reasons, which would indicate that the decision maker has been guilty of prejudgment: Minister of Immigration and Citizenship v SZNPG [2010] FCAFC 51; 115 ALD 303 at 307 [18]. 176In considering whether the Plaintiff has established a reasonable apprehension of bias on the part of Ms Simpson, it is necessary to keep in mind that the hypothetical fair-minded lay person will be properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias: Re Refuge Review Tribunal; Ex parte H at 434-435 [27]-[28]. In the present context, the fair-minded lay person will be aware of the steps involved under the complaint-handling procedures contained in Clauses 12, 13 and 14 of the Code of Conduct (Exhibit 1, Tab 5). 177Further, the fair-minded lay person would be aware that it is necessary to read as a whole, and read fairly, the contents of the document said to give rise to an apprehension of bias, with the documents not to be subjected to over-zealous scrutiny in this regard. 178In addition, the fair-minded lay person would approach the issue upon the basis that the expectation is that the decision maker is free of prejudgment, but this does not mean that there is an entitlement to a decision maker that is "predisposed to accept or reject any particular proposition", it being observed that "an open mind is not an empty one": Barbosa v Di Meglio [1999] NSWCA 307 at [9]-[10]. 179The state of mind, described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 ("Jia Legeng") at 531-532 [72]. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion: Jia Legeng at 531 [71]. 180Robust questioning of, or even hostility towards a particular argument, or scepticism about an argument does not mean that the decision maker has a closed mind: Nufarm Australia Limited v Dow AgroSciences Australia Limited and Anor (No. 2) [2011] FCA 757; 282 ALR 24 at 36 [89]-[90]. 181The law permits a person in the position of Ms Simpson, exercising the functions under the Code of Conduct, to form provisional views along the way, and even robust provisional views, without that state of affairs constituting prejudgment in the administrative law sense. A fair and unprejudiced mind is not necessarily a mind which has not given thought to the subject matter or one which, having thought about it, has not formed any views or inclination of mind upon or with respect to it: R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group [1969] HCA 10; 122 CLR 546 at 552; McGovern v Ku-ring-gai Council [2008] NSWCA 209; 72 NSWLR 504 at 509 [22]. 182Ms Simpson was appointed as the Sole Conduct Reviewer in this case for the purposes of Clause 12.12 of the Code of Conduct. Having been so appointed, Ms Simpson was to operate in accordance with the operating guidelines at Clause 14 of the Code of Conduct: Clause 12.17 of the Code of Conduct. 183Clauses 12.19-12.23 of the Code of Conduct are pertinent (Exhibit 1, Tab 5): "12.19The Conduct Review Committee/reviewer is responsible for making enquiries into complaints made under clause 11.1 alleging breaches of the code of conduct by councillors and/or the General Manager and must determine either to: a)not make enquiries into the complaint and give the complainant the reason/s in writing as provided in clause 13.1 of this Code, and those reasons may include, but are not limited to, the fact that the complaint is trivial, frivolous, vexatious or not made in good faith, or b)resolve the complaint by use of alternative and appropriate strategies such as, but not limited to, mediation, making recommendations to the General Manager, informal discussion or negotiation and give the complainant advice on the resolution of the matter in writing, or c)make enquiries into the complaint, or d)engage another appropriately qualified person to make enquiries into the complaint, or e)not make enquiries or discontinue making enquiries where it becomes evident that the matter should be referred to another body or person, and refer the matter to that body or person as well as advising the complainant in writing. Despite any other provision of this code, this will constitute finalisation of such matters and no further action is required. 12.20Where the Conduct Review Committee/reviewer conducts enquiries or causes enquiries to be conducted, the Conduct Review Committee/reviewer must make findings on whether, in its view, the conduct referred to it comprises a breach of the code of conduct. 12.21Where the Conduct Review Committee/reviewer makes findings, the Conduct Review Committee/reviewer may recommend that council take any actions provided for in this code of conduct that it considers reasonable in the circumstances. 12.22Where the Conduct Review Committee/reviewer makes findings, the Conduct Review Committee/reviewer will report its findings, and the reasons for those findings, in writing to the council, the complainant and the person subject of the complaint. 12.23The Conduct Review Committee/reviewer will report its findings and any recommendations to council only when it has completed its deliberations." 184Ms Simpson was required to provide procedural fairness to the Plaintiff in accordance with Clause 14.17 of the Code of Conduct: "14.7 Procedural fairness In conducting enquiries, the Conduct Review Committee/reviewer or the person engaged to do so should follow the rules of procedural fairness and must - a)provide the person the subject of the complaint with a reasonable opportunity to respond to the substance of the allegation b)provide the person the subject of the complaint with an opportunity to place before the Conduct Review Committee/reviewer or person undertaking the enquiry any information the person considers relevant to the enquiry c)provide the person the subject of the complaint with an opportunity to address the Conduct Review Committee/reviewer in person d)hear all parties to a matter and consider submissions before deciding the substance of any complaint e)make reasonable enquiries before making any recommendations f)act fairly and without prejudice or bias g)ensure that no person decides a case in which they have a conflict of interests h) conduct the enquiries without undue delay. Where the person the subject of the complaint declines or fails to take the opportunity provided to respond to the substance of the allegation against them, the Conduct Review Committee/reviewer should proceed to finalise the matter." 185In a file note dated 29 September 2010, Mr Patterson referred to a discussion he had had by telephone with Ms Simpson concerning "the draft report she had sent me" and that they had "discussed the need to put the allegation to Councillor De Luca, now that a prima facie breach has been established". As mentioned earlier (at [47]), Mr Jackson sought to challenge in submissions the veracity of this document. However, the document was tendered by the Plaintiff (Exhibit A, page 204) and forms part of the records of the Council which are in evidence in these proceedings. 186In my view, the document ought be treated on its face as a contemporaneous record created on the specified date, which records a conversation between Ms Simpson and Mr Patterson concerning the draft report of 24 September 2010. The note sheds light upon the way in which Ms Simpson and Mr Patterson were approaching that document at that time. This view is fortified by Ms Simpson's letter to the Plaintiff dated 14 October 2010 which explained the process she was undertaking, and the view "at a prima facie level" that the matter warranted further investigation (see [55] above). 187It is the fact that the draft report was prepared prior to an approach being made by Ms Simpson to the Plaintiff for an interview. This step occurred on 5 October 2010. 188In my view, the draft report may be appropriately characterised (and would be so understood by a fair-minded lay person), as being a draft document prepared by Ms Simpson which reflected the need, in her mind, to move to the next stage of the review under Clause 12.19 of the Code of Conduct, namely to approach the Plaintiff for an interview. 189In his email of 5 October 2010 to Ms Simpson, Mr Patterson referred to the draft report as "an interim working document from you to me" (see [52] above). Subject to submissions made concerning particular parts of the draft report itself, to which I will shortly turn, I will approach the present ground upon the basis that the fair-minded lay person would consider this draft report, given its temporal context and its place in the history of the review, as being an indication of where enquiries had led up to that point. Viewed in this way, I do not consider that there was any obligation to provide the draft report to the Plaintiff: cf Nichols v Singleton Council at [122]-[127]. 190I turn now to parts of the draft report which have been addressed by counsel, for the purpose of assessing the impact of this document upon the mind of a fair-minded lay person. 191The draft report makes plain that the review of the complaint to that time had not involved an approach to the Plaintiff for an interview (Exhibit A, page 14.5). This would indicate to the fair-minded lay person that it is an interim document prepared during the course of the review process, but with further steps to be taken in that process and with the document to be considered in that light. 192The Plaintiff points to the heading, expressed in conclusive terms as "Findings", as a matter that sheds light upon what follows in the document (Exhibit A, page 17.9). 193The draft report then continues (Exhibit A, page 18): "The allegation is that Councillor De Luca has a relationship with Marie Ficarra MLC which constitutes a conflict of interest under the Code, and he has breached the Code of Conduct because he has failed to declare the relationship and the possible conflict of interest. Councillor De Luca is employed by Marie Ficarra Liberal MLC as Secretary/Research Assistant. He was initially employed on a temporary basis from 9 February 09 for a period of 12 months under a secondment arrangement, and then subsequently permanently appointed to the same position effective 26 June 09. Councillor De Luca is therefore a public employee paid through the Parliament from NSW Consolidated Revenue. Attached is an email from Mr Craig Wheeler, Manager Human Resources, Parliamentary Services confirming Councillor De Luca's employment status. Additionally, in the latest e-newsletter on Ms Ficarra's website, Councillor De Luca features prominently in at least two of the photographs of various functions, none of which specifically appear to relate to Warringah Council or Warringah Shire issues. Therefore at all relevant times in respect of the allegations Councillor De Luca was employed by Marie Ficarra. The nature of Parliamentary employment to specific Upper House Members, and also to Members of the NSW Lower House, including Ministerial staff; is that the Member and/or Minister is generally responsible for the recruitment of his or her personal staff, and the continued employment of said staff is directly tied to the tenure of the Member. Simply being employed by the Parliament as secretary/researcher to Ms Ficarra does not constitute a conflict of interest. The Code operates to draw the attention of those people affected by it's [sic] principles to the ethical values espoused by the Council, the practicalities of the standards of conduct, and the complaint handling process." 194The draft report then turned to the circumstances of the Council meeting on 8 June 2010. 195At different points, the draft report used qualifying words which Ms Francois submitted reflected its hypothetical status. In particular, reference was made to the following passage (Exhibit A, page 19) (emphasis added): "If indeed Councillor de Luca has, in Council session and upon direct questions, denied that he has or had any relationship with Marie Ficarra and if he has been quoted correctly in the Manly Daily as denying that he 'neither works or is employed' by her, then it could be argued that he is in breach of the general conduct obligations and specifically s6.2(c)." 196Both Mr Jackson and Ms Francois referred expressly to the following passage (Exhibit A, page 19): "However, in my view the fact that the Councillor has had a business relationship of employer and employee for over 18 months and has failed to declare that relationship could be seen as a breach of the Code of Conduct in circumstances where he has voted on Motions which involve Ms Ficarra." 197Mr Jackson submitted that this paragraph is expressed in firm terms, indicating a concluded position. On the other hand, Ms Francois pointed to the fact that there were qualifiers used by Ms Simpson such as "could be seen as a breach of the Code of Conduct". 198The draft report included the following (Exhibit A, pages 20-21): "Page 5 of the Code of Conduct sets out the questions a person should ask him or herself if he or she suspects a real or perceived conflict of interest; viz Do you have a personal interest in a matter you are officially involved with? Is it likely you could be influenced by a personal interest in carrying out your public duty? Would a reasonable person believe you could be so influenced? What "would be the public perception of whether or not you have a conflict of interest? Do your personal interests conflict with your official role? What steps do you need to take and that a reasonable person would expect you to take to appropriately manage any conflict of interests? It would appear from the evidence that if the above questions were posed by Councillor De Luca the responses of a reasonable person might be yes by virtue of employment with the person directly involved in the official matter, more likely than not, whether real or perceived influence, more likely than not the perception or a real or possible conflict, more likely than not the perception of a possible or real conflict more likely than not there is a conflict or perceived conflict, declare the conflict and refrain from any formal Council discussion or vote on that issue. The Councillor took none of the steps outlined above and ultimately did not declare his interest. In my view in not declaring his employment with the Hon Marie Ficarra MLC he has failed to declare his interest and a potential conflict and in doing so he has breached the Warringah Council Code of Conduct for Councillors, Members of Staff and Delegates of Council. He has breached the Code under the General Conduct and Conflict of Interest sections, as well as the key principles of 'Openness and Honesty'." 199Mr Jackson submitted that these statements were expressed in conclusive terms and constituted a finding on the ultimate issue. 200However, the fair-minded lay person would not view the draft report of 24 September 2010 in isolation. The draft report of 24 September 2010 (eight pages) was followed, after extensive investigation, by the Draft Final Report of 27 May 2011 (38 pages) and the Final Report of June 2011 (42 pages). The fair-minded lay person would observe the process of assessment and reassessment of facts, in the light of submissions made and information gathered, culminating in the extensive settled Final Report. 201An examination of Ms Simpson's Draft Final Report of 27 May 2011 (Exhibit A, page 211) and the Final Report of June 2011 (Exhibit A, page 249) reveals the following description of the process undertaken by her at the commencement of each report (emphasis added): "This investigation follows a review of the complaint undertaken by me which was the subject of a report to Mr Patterson dated 24 September 10. The findings in that report, which were a preliminary assessment and findings as to whether on the basis of the available evidence further investigation was warranted, were summarised as follows: ·'Councillor De Luca discussed in Council, and ultimately voted on, a Motion and an Amendment which involved issues relating to the Hon Marie Ficarra MLC ·Councillor De Luca failed to declare he was employed by Ms Ficarra at that time, and had been employed by her since February 2009. ·Because of this relationship there is a real or perceived conflict of interest in Councillor De Luca's involvement in this issue. ·In failing to declare his interest he has breached the Council's Code of Conduct.' Based on the above preliminary assessment and findings and in accordance with Clause 12.19 of the Council Code of Conduct, I determined to make further enquiries into the matter." 202Thus, Ms Simpson explained directly the process undertaken by her in a way that placed in context the draft report of 24 September 2010. 203I approach this ground upon the basis that the fair-minded lay person would: (a)have knowledge of the statutory scheme in the Code of Conduct under which Ms Simpson was operating, and the various steps to be taken by her along the way; (b)be aware of all the documents prepared by Ms Simpson, and available to her, including the draft report of 24 September 2010, the Draft Final Report of 27 May 2011 and the Final Report of June 2011; (c)read these reports together, and that this would indicate that statements made in the draft report of 24 September 2010 were preliminary and provisional, and subject to steps then to be undertaken as part of the review, including an interview with the Plaintiff. 204The evidence does not indicate that Ms Simpson closed her mind on the matters under review in and after 24 September 2010. To the contrary, Ms Simpson maintained efforts to obtain the Plaintiff's account with respect to the matters under review, so that it could be assessed and taken into account for the purpose of the review itself. 205It may be correct, as Ms Francois submitted, that there was some infelicity of expression in the draft report of 24 September 2010 by use of language which, at times, did not expressly state that what was being said was provisional. However, the fair-minded lay person would consider the process as a whole and read that document in context. In my view, the features emphasised by Mr Jackson do not demonstrate prejudgment on the part of Ms Simpson in the manner required for this ground to be made good. 206The Plaintiff has not demonstrated that a fair-minded lay person might reasonably apprehend that Ms Simpson might not be open to persuasion on and after 24 September 2010. 207The Plaintiff has not established, on the balance of probabilities, the claim of apprehended bias asserted in the second ground of review. 208Given this conclusion, it is not strictly necessary to consider Ms Francois' subsidiary submission under this ground to the effect that the conclusions reached by Ms Simpson were inevitable in any event. It must be said that, if this position had been reached, a conclusion adverse to the Plaintiff does seem inevitable. It is difficult to see how a conclusion favourable to the Plaintiff could have been reached. However, it is not necessary to consider this question further. 209Nor is it necessary to consider the further submission that, if the ground had otherwise been made out, the Court should approach the matter upon the basis that the Plaintiff would have an opportunity to defend himself before the Council itself. 210I have determined this ground, and rejected it, on the primary basis that no apprehension of bias has been demonstrated. Ground 3 - Claim that the Plaintiff's Association with Ms Ficarra was Declared Implicitly at the Council Meeting on 8 June 2010 Submissions of the Plaintiff 211Mr Jackson addressed this ground shortly. 212In writing, Mr Jackson submitted that a serious issue was raised as to whether, given the highly politically charged climate of the meeting of 8 June 2010, and given the clear belief of the Mayor, the Plaintiff had (however inelegantly expressed) disclosed a working relationship with Ms Ficarra, so that there was an implicit declaration of the conflict. 213In oral submissions, Mr Jackson conceded that Ground 3 was "a difficult one", although it was maintained (T32). Submissions of the Defendants 214Ms Francois submitted that Ground 3 is framed as a failure by Ms Simpson to consider the "implicit" declaration by the Plaintiff of his relationship with Ms Ficarra. Counsel submitted that it was necessary for the Plaintiff to establish that this was a mandatory consideration before it could give rise to a foundation for relief in proceedings of this type. 215Ms Francois submitted that the Code of Conduct made clear that there was no such thing as an "implicit" disclosure, with reference being made to Clauses 7.6, 7.7, 7.17, 7.21, 7.22 and 14.5. Accordingly, it was submitted, there was no basis upon which it could be contended for the Plaintiff that it was mandatory for Ms Simpson to take such a matter into consideration. 216Ms Francois submitted that what the Code of Conduct requires, and what the Code of Meeting Practice requires, is that there be an express disclosure of conflict of interest, whether it is said to be a significant interest or a non-significant interest. If it was a significant interest, counsel submitted that it was necessary for the Plaintiff to leave the room whilst the matter was discussed in Council. If it was a non-significant interest, it was necessary for the Plaintiff to explain why that was so. 217In these circumstances (where neither of these things occurred), it was submitted that this ground is misconceived. Decision Concerning Third Ground of Review 218I accept the submissions of Ms Francois that the Code of Conduct does not accommodate an "implicit" disclosure of a conflict of interest. If the relevant relationship is capable of constituting a non-pecuniary conflict of interest, then the obligation placed upon a councillor is to: (a)declare that the conflict exists; (b)leave the room and not participate in the Council discussion on the issue; (c)unless the councillor characterises it as a non-significant interest, in which case it is necessary for the councillor to place on the public record the reasons for that conclusion. 219A fair reading of the relevant provisions of the Code of Conduct does not accommodate or allow an implicit disclosure as contended for in the third ground of review. 220In these circumstances, the Plaintiff has not demonstrated that Ms Simpson has failed to have regard to a mandatory consideration, so as to give rise to relevant error in proceedings for judicial review. 221I reject the third ground of review. Conclusion 222I have concluded that the Plaintiff has failed to establish any of the grounds upon which he relies in these proceedings for judicial review. 223I should stress a number of additional matters. 224Firstly, Ms Ficarra is not a party to these proceedings and no aspect of her conduct is under investigation or falls for judgment by this Court. The proceedings raise issues concerning the investigation of the conduct of the Plaintiff in the context of the meeting of Council on 8 June 2010. 225Secondly, the Court is not trying any allegation of misconduct against the Plaintiff. The function of the Court is to consider the legality of the process undertaken and that is what this judgment has addressed. 226Thirdly, as mentioned at the commencement of this judgment, the dynamic nature of local government politics and the sometimes hothouse environment in which debate occurs, serves to provide a context for the events which have been considered in this judgment. The role of the Court is to undertake a dispassionate analysis, and to reach conclusions, with respect to the legal questions raised in these proceedings for judicial review. 227At the conclusion of the hearing, I indicated that I would give the parties an opportunity to address on the question of costs after judgment was handed down. I will hear the parties on the question of costs. 228I make the following orders: (a)the Plaintiff's Summons is dismissed; (b)I will hear the parties on the question of costs. ********** 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: 22 August 2012