Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Acting Chief Executive, Office of Local Government v Passas (No 2) [2017] NSWCATOD 12 Hearing dates: On the papers (last submissions 22 November 2016) Date of orders: 20 January 2017 Decision date: 20 January 2017 Jurisdiction: Occupational Division Before: Dr J Renwick SC, Senior Member Decision: The respondent, Julie Passas, is disqualified from holding civic office until 20 April 2017. Catchwords: CIVIL AND ADMINISTRATIVE TRIBUNAL – Local Government Act –misconduct of Local Government Councillor – Disruption to Council meetings – Unauthorised interaction with Council staff – disqualification ordered Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Local Government Act 1993 (NSW) Category: Principal judgment Parties: Chief Executive, Office of Local Government (Applicant) Julie Passas (Respondent) Representation: Counsel: B Tronson (Applicant) Solicitors: Otto Stichter & Associates (Respondent) File Number(s): 1520195 Reasons for decision Introduction 1. On 18 October 2016, in a decision reported at [2016] NSWCATOD 132, I found a number, but not all, of the allegations made by the applicant against the respondent to be established, and set a timetable for the receipt of submissions. These reasons should be read with that decision so that I do not here repeat all of the reasons and grounds in the earlier decision. 2. In summary, the findings established that the respondent: 1. Was disruptive or refused to abide by the Mayor's procedural rulings, or refused to accept she needed to leave the Council chamber when lawfully directed after the requisite three warnings on a number of occasions (Grounds 1-4); 2. Had an inappropriate and direct interaction with a Council employee / staff member, Mr Albaba (Ground 5); 3. Refused to give an apology as formally resolved by the Council (Ground 7); and 4. Refused to undertake training on the Code in accordance with the Council resolution (Ground 8). 1. The respondent's response to the findings made by the Tribunal is accurately summarised in the submissions filed on behalf of the applicant, namely: 1. She accepts the findings in relation to her behaviour at council meetings, although she submits that she was frequently "baited" and had been "unfairly victimised by the media"; 2. She accepts that she was "sometimes disruptive" and at times refused to accept the need to leave the Council chamber when so directed, or to follow the Mayor's directions; 3. She accepts that she refused to apologise or undertake training, but now says she has sufficient knowledge of the Code to make further training unnecessary; 4. She is now willing to undertake a course of training; 5. She believed an apology (as required by resolution) would serve little purpose given the Council had been abolished and she had commenced and attended the Toast Masters' course conducted at Ashfield "in order to moderate [her] delivery" 6. She continues to deny that there was misconduct in relation to Mr Albaba; and she says "she will not admit the allegation as a means of improving her situation when she knows that did not happen". 1. The applicant submits, in summary, that although originally it sought an order for suspension, the amended application filed at the hearing by leave, sought a disqualification order because, by reason of the abolition of the Council of which the respondent was a councillor, suspension would have no effect, but rather, disqualification pursuant to s 482A(2)(c1) was appropriate. The relevant punishment 1. Given suspension is irrelevant, the remaining punishments are a reprimand, a censure or disqualification for up to 5 years from all civic office. The applicant contends that counselling or a reprimand would not sufficiently denounce the misconduct, rather, disqualification is "the only appropriate order" because: 1. The misconduct went to the heart of the Council's activities and was serious; 2. It took place over a lengthy period of time and was wilful; 3. In relation to Ground 5, there is a refusal to apologise or undertake training; and 4. There is still very little insight into the misconduct. Consideration 1. The applicant correctly acknowledges that the acceptance of the findings in relation to conduct at council meetings shows some insight, as does the decision to engage with Toast Masters and to be prepared to undertake a course of training on the Code of Conduct. The applicant, nevertheless, says that it cannot be said that the Councillor has expressed contrition and a desire to address all matters adverse to her (other than Ground 5) in the Tribunal's finding, nor that she is willing and has commenced steps to appropriately address the other matters found against her. 2. Indeed, the applicant goes so far to say that the respondent does not yet appreciate, or is not willing to abide by, provisions of the Code where she does not consider they should apply to her. I am not prepared to accept this. I do accept her statement and submissions, leaving aside Ground 5, that she substantially accepts the findings in relation to her behaviour at council meetings, and the other matters set out above. It may be that she does not have a perfect insight into what she did but certainly her submissions and statement indicate a substantial insight, some contrition, and a desire to improve her behaviour. 3. The respondent does rely on what she calls "baiting". Certainly, she found herself in a political minority on the Council and also found herself ruled against, but I am not prepared to find that there had been any "baiting" or "victimisation" which would justify or excuse the misconduct as found. 4. I otherwise accept the submissions of the applicant that except insofar as the respondent's evidence is accepted by the applicant at its highest, her evidence ought not be relied upon unless corroborated, and that broad assertions made without particularisation, ought not be accepted, or ought be given little weight. I proceed on that basis, and therefore do not need to accede to the applicant's request that the respondent be required for further cross-examination. 5. The respondent filed a number of testimonials which showed that at least some of the respondent's former constituents consider she had served well as a councillor. But all were provided prior to my determination that she had engaged in misconduct and there is a clear limit to how much can be made of general testimonials which do not consider my misconduct findings. I therefore give them little if any weight. 6. Finally, reference is made to the effect of disqualification, namely that elections are not to be held until the new Inner West Council is established, with elections to be held on 9 September 2017. The effect of s 276(2)(b) of the Local Government Act is that, if disqualified, the Councillor would be permitted to stand at "the first ordinary election after the person ceases to be disqualified". It was therefore submitted by the applicant, it seems to me correctly, that only an order for disqualification continuing after 9 September 2017 would likely to preclude her from standing for election until September 2020. 7. In conclusion: 1. while there is substantial insight and some imperfect contrition (albeit, none in relation to Ground 5) the found misconduct, and the very limited mitigation, as noted above, is sufficiently serious to require a period of disqualification:- the misconduct went to the heart of the Council's activities, it took place over a long period of time, it was intentional rather than accidental, it is compounded by the refusal to apologise; 2. any order for disqualification has a normative effect in denouncing the conduct (it may be referred to in the election campaign by the respondent's opponents, for example) and effecting both specific and general deterrence from future conduct along the same lines; 3. I do not consider a period of disqualification extending to September this year is appropriate or necessary. In the circumstances, I disqualify the respondent, Julie Passas, from holding civic office for a period of 3 months. 4. The respondent will thus, if otherwise eligible, be permitted to stand for office at the September elections, should she choose to do so. 1. I therefore order that the respondent, Julie Passas, be disqualified from holding civic office until 20 April 2017 . 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 Amendments 25 January 2017 - Corrected typographical error in [12] (1) 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: 25 January 2017