Cornish v The Chief Executive of the Office of Local Government [2016] NSWCATOD 13

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Cornish v The Chief Executive of the Office of Local Government [2016] NSWCATOD 13 Hearing dates: 4 January 2016 Date of orders: 04 January 2016 Decision date: 04 January 2016 Jurisdiction: Occupational Division Before: Hon G Mullane ADCJ Decision: The application is dismissed for want of jurisdiction. Catchwords: Administrative Decision–Local Government- disciplinary decision re councillor- Jurisdiction to Review Legislation Cited: Local Government Act 1993 Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Category: Principal judgment Parties: Marcus Cornish (Applicant) Office of Local Government (Respondent) Representation: Counsel: B Tronson (Respondent)

Solicitors: Robert Balzoa & Associates (Applicant) File Number(s): 1520171

REASONS FOR DECISION

Introduction 1. At all material times the Applicant was a councillor of the Penrith City Council. 2. The Respondent is described in the Application as "the Director-General of the Department of Local Government (NSW)" but in accordance with the relevant legislation, is more correctly described as "The Chief Executive of the Office of Local Government". 3. On 2 September 2015, the Applicant made the application to the Tribunal expressed to be under S 440 L of the Local Government Act (1993) and S 7 of the Administrative Decisions Review Act (1997) and S 30 of the Civil and Administrative Tribunal Act (2013). 4. The Applicant sought review of a decision of the Respondent contained in a letter dated 5 August 2015 from Penrith City Council to the solicitors for the Applicant. The Application stated that a copy of the decision involved was attached to the Application and was a letter dated 5 August 2015. The Application stated that the applicant was notified of the decision by the letter dated 5 August 2015. 5. The letter is from the Senior Governance Officer of the Council and refers to several decisions. One is a decision of a reviewer/investigator who investigated a code of conduct complaint in relation to the conduct of the Applicant. A preliminary decision was made by the reviewer/investigator that the matter should be formally investigated. That decision was notified to the Applicant by Notice of Investigation of 29 December 2014 and is not the decision the subject of the Application for review. 6. The draft Final Investigation Report was issued on 22 March 2015, including to the Applicant. The Final Investigation Report was issued on 21 April 2015 (including to the Applicant). The Application does not seek in the Application to review any decision of the reviewer/investigator contained in the Final Investigation Report or in the previous draft. 7. By letter of 6 May 2015 the Applicant's solicitors wrote to the Office of Local Government complaining of numerous alleged defects in that report. By letter of 5 June 2015 the Office of Local Government replied to those allegations by a 4 page letter to the Applicant's solicitors setting out the findings of an internal review of the Investigator's report and reasons the allegations made were found to be unsubstantiated. That review decision rejecting the allegations was 3 months before the filing of the Application by Mr Cornish of 2 September 2015 and was not the decision identified by the Application as the decision the Applicant sought to have reviewed. 8. On 9 July 2015 the solicitors for the Applicant wrote to the Council making allegations of defects in the Final Investigation Report. The Council conveyed these matters to the Office of Local Government by its letter of 10 July 2015. 9. On 4 August 2015 the Council received from the Office of Local a letter advising that the allegations raised in the letter of 9 July 2015 from the solicitors for the Applicant to the Council, were matters previously raised and dealt with by the earlier review and responded to by its letter of 5 June 2015 to the solicitors. The reason given for refusal to reconsider the allegations of 9 July 2015 was there were no "new issues or information that would warrant it to revisit its previously expressed position in relation to this matter". 10. The Council, by its letter of 5 August 2015 to the Applicant's solicitors, notified the Applicant of the decision of the Office of Local Government refusing a further review of the decisions of the investigator in the Final Investigation Report. It is that refusal of the Office of Local Government in respect of which the Applicant sought a review by the Tribunal. 11. Directions were made 0n 29 September 2015 by the Deputy President for the respondent to file and serve by 13 October 2015 "application for summary dismissal and if the Tribunal is not …….. minded to dismiss the application, an application to join Penrith City Council and any incidental application as to the proper parties". 12. There were also directions made by consent that the matter then be dealt with on the papers without appearances, for the Applicant to file and serve submissions in reply by 10 November 2015 and for service of submissions on Penrith City Council. 13. The respondent filed and served an application for summary dismissal of the proceedings on the following grounds on 13 October 2015 (with submissions attached): 1. The Tribunal has no jurisdiction in respect of the application; 2. The Office of Local Government is not the proper respondent or a necessary party as the decision to which the application relates is not a decision of the Office of Local Government; 3. Penrith City Council is the necessary party as the decision to which the application relates is a decision of Penrith City Council. 1. On 10 November 2015 the Applicant Mr Cornish filed and served submissions opposing summary dismissal and the Penrith City Council filed its submissions supporting summary dismissal.