Cornish v The Chief Executive of the Office of Local Government [2016] NSWCATOD 14

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Cornish v The Chief Executive of the Office of Local Government [2016] NSWCATOD 14 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: 1.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) Office of Local Government (Respondent) File Number(s): 1520163

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 25 August 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 28 July 2015. The Application stated that a copy of the decision involved was attached to the Application and was a letter dated 28 July 2015. The Application stated that the applicant was notified of the decision by the letter dated 28 July 2015. 5. There are 3 letters attached to the Application. One is a letter dated 28 July 2015 from Penrith City Council to the Applicant. Another is a letter dated 19 August 2015 to the solicitor for the Applicant from the same Council. The other letter is a letter dated 5 June 2015 from the Manager, Council Governance of the Office of Local Government to the solicitors for the Applicant. 6. The letter referred to by the Applicant in the application as notifying of the decision for which a review is sought is the letter dated 28 July 2015 from the Council to the applicant notifying him of a disciplinary decision made by the Council. 7. 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". 8. 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 by10 November 2015 and for service of submissions on Penrith City Council. 9. 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.