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. Decision(s) in the letter dated 28 July 2015 1. The letter dated 28 July 2015 notified the Applicant of a disciplinary decision by the Penrith City Council against him made by the Council at its meeting on 27 July 2015. The letter did not notify of any other decision. S 7 of the Administrative Decisions Review Act 1997 1. This section provides: Meaning of "administratively reviewable decision" 1. An "administratively reviewable decision" is a decision of an administrator over which the Tribunal has administrative review jurisdiction. 1. For the avoidance of doubt (and without limiting subsection (1) or section 6): the conduct of an administrator (or a refusal by an administrator to engage in conduct) is an administratively reviewable decision if enabling legislation identifies that conduct or refusal as conduct or refusal over which the Tribunal has administrative review jurisdiction, and in its application to any such conduct or refusal by an administrator, any reference in this Act (however expressed) to an administrator making an administratively reviewable decision includes a reference to an administrator engaging or refusing to engage in the conduct. Note : The jurisdiction conferred on the Tribunal by section 55 of the Privacy and Personal Information Protection Act 1998 is an example of administrative review jurisdiction of the Tribunal over conduct. S 30 of the Civil and Administrative Tribunal Act 2013 1. This section provides: Administrative review jurisdiction (1) The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has "administrative review jurisdiction" over a decision of an administrator. Note : See section 9 of the Administrative Decisions Review Act 1997 . (2) The Tribunal also has the following jurisdiction in proceedings for the exercise of its administrative review jurisdiction: the jurisdiction to make ancillary and interlocutory decisions of the Tribunal in the proceedings, the jurisdiction to exercise such other functions as are conferred or imposed on the Tribunal by or under this Act, the Administrative Decisions Review Act 1997 or enabling legislation in connection with the conduct or resolution of such proceedings. (3) An "administratively reviewable decision" is a decision of an administrator over which the Tribunal has administrative review jurisdiction. Note : See section 7 of the Administrative Decisions Review Act 1997 . (4) An "administrator" , in relation to an administratively reviewable decision, is the person or body that makes (or is taken to have made) the decision under enabling legislation. Note : See section 8 of the Administrative Decisions Review Act 1997 (5) An "administrative review decision" of the Tribunal is a decision of the Tribunal determining a matter over which it has administrative review jurisdiction. (6) An "administrative review application" is an application made to the Tribunal for an administrative review decision. Note : Chapter 3 (Process for administrative reviews under this Act) of the Administrative Decisions Review Act 1997 also makes provision for the role of administrators when making administratively S 440L of the Local Government act 1993 1. This is an enabling provision in respect of reviews by the Tribunal of disciplinary decisions. It provides: Appeals against disciplinary action (1) A councillor against whom disciplinary action (other than disciplinary action comprised only of counselling or reprimanding) is taken by the Departmental Chief Executive may appeal to the Civil and Administrative Tribunal against the decision of the Departmental Chief Executive to take disciplinary action. Note : An appeal under this section is an external appeal to the Tribunal for the purposes of the Civil and Administrative Tribunal Act 2013 . (2) An appeal must be made within 28 days after the day on which the councillor is notified of the Departmental Chief Executive's decision to take disciplinary action against the councillor. (3) The Tribunal may stay any decision made by the Departmental Chief Executive until such time as the Tribunal determines the appeal. (3A) If the Tribunal stays a decision for suspension of a councillor for misconduct that has resulted or will result in disqualification from civic office under section 275 (1A), the disqualification ceases to have effect or does not take effect (as the case requires) until such time as the appeal is finally determined or withdrawn. (4) On hearing the appeal, the Tribunal may: 1. confirm the decision, or 2. amend the decision, or 3. set aside the decision and substitute a new decision. (5) If a decision is amended or substituted, the decision as amended or substituted has effect as if it had been made in that form by the Departmental Chief Executive. (6) If the Tribunal sets aside a decision to suspend a councillor, any fee or other remuneration, or expenses, withheld under the suspension is payable to the councilor and any disqualification that resulted from the suspension ceases to have effect. 1. This section relates to disciplinary decisions by the Office of Local Government. The decision notified in the letter dated 28 July 2015, being the decision the applicant seeks to review, is not a decision by the Office of Local Government. It informed the applicant's solicitors of a decision by the Council. Other Legislation enabling review by the Tribunal of the relevant decision 1. The submissions for the Council and the Office of Local Government assert that there is no enabling legislation that confers jurisdiction on the Tribunal to review a disciplinary decision by a Council against one of its councillors. 2. But the applicant, in 12 pages of submissions in reply, does not address that issue. The letter dated 28 July 2015 did not advise the applicant of a decision of the Office of Local Government and the applicant does not nominate any other source of jurisdiction enabling the Tribunal to review a disciplinary decision of a Council against one of its councillors. 3. The Tribunal is not aware from its own research of any such provision. Conclusion 1. The Tribunal concludes that it has no jurisdiction to review the decision of the Council sought to be reviewed. The application should therefore be dismissed. Order 1. The order of the Tribunal is: 1. The application (of Marcus Cornish) is dismissed for want of jurisdiction. NOTE: 1. The Tribunal notes that the application is misconceived as to the nature of the review application under the Administrative Decisions Review Act 1997. The applicant in the Application implies that the review would involve the Tribunal making findings as to errors by the decision maker, rather than a re-hearing as required by S 63 of that Act. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 February 2016