Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Office of Local Government v Dwyer [2019] NSWCATOD 12 Hearing dates: On the papers Date of orders: 10 January 2019 Decision date: 10 January 2019 Jurisdiction: Occupational Division Before: R C Titterton, Principal Member Decision: (1) A hearing be dispensed with pursuant to s 470 of the Local Government Act 1993 (NSW). (2) Grounds One of the application is established. (3) The respondent is reprimanded. Catchwords: TRADES AND OCCUPATIONS – failure to declare pecuniary interest PRACTICE AND PROCEDURE – dispensing with a hearing pursuant to s 470 of the Local Government Act 1993 (NSW) Legislation Cited: Local Government Act 1993 (NSW) Cases Cited: Health Care Complaints Commission v Do [2014] NSWCA 307 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 NSW Bar Association v Meakes [2006] NSWCA 340) Texts Cited: Nil Category: Principal judgment Parties: Chief Executive, Office of Local Government (Applicant) Peter Dwyer (Respondent) Representation: Counsel: B Tronson (Applicant) Solicitors: Office of Local Government (Applicant) P Dwyer (Self Represented)(Respondent) File Number(s): 2018/00297033 Publication restriction: Nil REASONS FOR DECISION Summary 1. These proceedings relate to allegations made against Councillor Peter Dwyer of the Hay Shire Council (the Council). The allegations are particularised in an application filed 9 August 2018. The applicant, the Chief Executive of the Office of Local Government, seeks an order pursuant to s 468(1) of the Local Government Act 1993 (NSW) (LGA) that Clr Dwyer be reprimanded. 2. The applicant's case is that Clr Dwyer failed to comply with his obligations pursuant to ss 451(1) and (2) of the LGA at an ordinary meeting of the Council on 20 December 2016. The applicant alleges that Clr Dwyer breached s 451(1) by failing to disclose to the meeting a pecuniary interest, namely his employment with Purtill's Bros Nominee Pty Ltd t/as K L Purtill Family Trust (Purtills). Clr Dwyer, a long serving councillor, was employed by Purtills as a casual school bus driver. 3. I am satisfied that the allegation is established. The applicant seeks that Clr Dwyer be reprimanded. This is not opposed by Clr Dwyer. 4. For the following reasons, I agree that this is the appropriate disciplinary outcome. Preliminary – hearing dispensed with 1. The underlying matters the subject of these reasons are common ground and were not disputed by Clr Dwyer. I note that both parties agreed that this matter be determined on the papers. In this respect, I accept the applicant's submissions that: * in light of the material lodged with the Tribunal by CIr Dwyer; * given he admitted his breaches of s 451(1) and (2) of the LGA at the directions hearing in this matter, 1. it does not appear that there are any material facts in dispute. 2. Accordingly, it is open to the Tribunal to form an opinion that there are no public interest considerations requiring a hearing in circumstances where there does not appear to be any particular need for oral evidence in this matter. 3. Given that: * the applicant accepts that the conduct the subject of these proceedings is not of the most serious kind; * the parties have agreed that the proceedings may be determined without a hearing, and * there are no material facts in dispute between the person who made the complaint and the person against whom the complaint is made, and * (c) in the opinion of the Tribunal, public interest considerations do not require a hearing, pursuant to s 470 of the LGA, I have decided that the Tribunal should determine the proceedings without a hearing. Findings 1. The applicant commenced these proceedings by lodging with the Tribunal a report (dated 26 July 2018) pursuant to s 468 of the LGA (the Report). Based principally on the Report, I make the following findings. 2. Councillor Dwyer was first elected to Council in 1995. He held the office of Mayor from September 2010 to September 2011. He held the office of Deputy Mayor from 2002 to 2004 and again from 2008 to 2009. 3. At all relevant times he was an employee of Purtills as a casual bus driver. Therefore the applicant submits, and I accept, that any pecuniary interest of Purtills was a pecuniary interest of CIr Dwyer: LGA, s 443(1)(b). 4. During November and December 2016, the Council was giving consideration to replacing its community bus by making a new arrangement, and to involving Purtills in some fashion. The value of the contract was estimated by Council's then General Manager to be approximately $8,000 to $10,000 per year. 5. At an ordinary meeting of Council on 22 November 2016, Council's General Manager cautioned CIr Dwyer as to a possible conflict of interest as a consequence of his employment with Purtills. 6. At a Council workshop on 13 December 2016, Clr Dwyer disclosed an interest in the "Community Bus" matter. 7. At a Council meeting held on 20 December 2016, Council resolved: Purtills be trialled for a period of twelve months to supply the bus for the tours and if after twelve months the arrangement is unsatisfactory to Purtills or Council then a new Community Bus be purchased and Council purchase the old Community Bus. 1. Clr Dwyer did not make any disclosure of his pecuniary interest at this meeting, and was present during discussion and subsequent voting in respect of the resolution. Relevant legislation 1. Chapter 14, Part 2 of the LGA provides for certain disclosures of interests. Division 3 provides for the requirements to make disclosures of pecuniary interests at meetings. Specifically, ss 451(1) and (2) provide: 1. a councillor or a member of a council committee who has a pecuniary interest in any matter with which the council is concerned and who is present at a meeting of the council or committee at which the matter is being considered must disclose the nature of the interest to the meeting as soon as practicable, 2. the councillor or member must not be present at, or in sight of, the meeting of the council or committee: 1. at any time during which the matter is being considered or discussed by the council or committee, or 2. at any time during which the council or committee is voting on any question in relation to the matter. 1. Sections 453,454 and 457 (also in Div 3) provide: 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. . . . 457 Circumstances in which secs 451 and 456 are not breached A person does not breach section 451 or 456 if the person did not know and could not reasonably be expected to have known that the matter under consideration at the meeting was a matter in which he or she had a pecuniary interest. 1. The applicant submits, and I accept, that ss 442 to 444 inclusive, contained in Div 1 of Pt 2 of the LGA, are also relevant to understanding these obligations. Those sections provide; 442 What is a "pecuniary interest"? (1) For the purposes of this Chapter, a pecuniary interest is an interest that a person has in a matter because of a reasonable likelihood or expectation of appreciable financial gain or loss to the person. (2) A person does not have a pecuniary interest in a matter if the interest is so remote or insignificant that it could not reasonably be regarded as likely to influence any decision the person might make in relation to the matter or if the interest is of a kind specified in section 448. 443 Who has a pecuniary interest? (1) For the purposes of this Chapter, a person has a pecuniary interest in a matter if the pecuniary interest is the interest of: (a) the person, or (b) the person's spouse or de facto partner or a relative of the person, or a partner or employer of the person, or (c) a company or other body of which the person, or a nominee, partner or employer of the person, is a member. . . . (3) However, a person is not taken to have a pecuniary interest in a matter as referred to in subsection (1){b) or (c): (a) if the person is unaware of the relevant pecuniary interest of the spouse, de facto partner, relative, partner, employer or company or other body, or (b) just because the person is a member of, or is employed by, a council or a statutory body or is employed by the Crown, or (c) just because the person is a member of, or a delegate of a council to, a company or other body that has a pecuniary interest in the matter, so long as the person has no beneficial interest in any shares of the company or body. 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. Consideration 1. The applicant submits, and I accept, that: * any involvement of Purtills in Council's plans would include payment to Purtills; * there was a reasonable likelihood or expectation of appreciable financial gain to Purtills, and so Purtills had a pecuniary interest in the matter of whether Council would enter into the contract with it pursuant to s 442(1) of the LGA. * and that in those circumstances: * as an employee of Purtills, Glr Dwyer had a pecuniary interest: LGA, s 443(1)(b); and * because Clr Dwyer was an employee of Purtill's, CIr Dwyer also had a pecuniary interest in a matter before Council at the December Meeting. 1. As a consequence, it is submitted, and I accept, that Clr Dwyer was obliged to: * disclose his pecuniary interest at the 20 December Meeting: LGA, s 451(1); and * leave the December Meeting during discussion, consideration and/or voting on that matter: LGA, s 451(2). 1. As I have found, Clr Dwyer did not do so. As a consequence, I am satisfied that Clr Dwyer breached ss 451(1) and (2) of the LGA. 2. The applicant accepts that the other councilors present (including Clrs Howard and Walter) knew of these matters. However, as submitted by the applicant, the knowledge of councillors does not serve the complete legislative purpose of s 451(1) and (2) of the LGA as: * even if the knowledge of other councillors were sufficient compliance with any disclosure obligation, it does not comprise compliance with the obligation to leave the meeting during discussion, consideration and voting on the item in question; * the provisions in question are plainly aimed at avoiding actual and perceived conflicts of interest and ensuring transparency and accountability, not only to other councillors but to the community generally. The requirement to leave the meeting assists in avoiding actual and perceived conflicts of interest, and serves a transparency and accountability purpose. 1. In the circumstances, I find the complaint proved. Disciplinary orders 1. The applicant seeks an order that Clr Dwyer be reprimanded. Clr Dwyer does not oppose that outcome (assuming that I find, as I have, the breach of the LGA to be proved). 2. Proceedings under Pt 3 (Complaints concerning non-disclosure and proceedings before NCAT) of Ch 14 (Honesty and Disclosure of Interests) of the LGA are disciplinary in nature. The principles relevant to professional disciplinary matters are relevant to such proceedings, although there may be some variation due to the differences between misconduct in elected office and professional misconduct. 3. As with professional disciplinary matters, the Tribunal's jurisdiction is at least in part protective, both of the public and of the maintenance of high standards in the ranks of local councillors: Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630 at 637 - 638. The important but indirect effects of a disciplinary order (recognised in NSW Bar Association v Meakes [2006] NSWCA 340) are relevant to orders made in respect of a local councillor, namely: * the order reminds other councillors of the public interest in the maintenance of high standards; * the order may give emphasis to the unacceptability of the conduct involved; and * by speaking to the public at large, the order seeks to maintain confidence in the standard of conduct of local councillors. 1. See too Health Care Complaints Commission v Do [2014] NSWCA 307 at [34] - [39], where Meagher JA engaged in a general discussion about the public interest. His Honour concluded that there is a "public interest in having the respondent's conduct denounced as unacceptable", and that orders made by the Tribunal would "make plain that conduct of the kind engaged in is unacceptable". 2. The applicant submits that given Clr Dwyer, is a very experienced councillor: * his failure to comply with his obligations is deserving of a greater degree of censure than similar conduct by a less experienced councillor; and * he can be taken to understand both his statutory obligations and the nature of the interest in question, particularly in circumstances where he had attended training on 15 November 2016, had been cautioned by the general manager on 22 November 2016 and had made a relevant disclosure on 13 December 2016. 1. I accept that submission. I also accept that it is desirable that the Tribunal makes decisions which are broadly consistent and provide appropriate specific and general deterrence reflective of the seriousness of the applicant's conduct. 2. In all the circumstances, the applicant seeks a reprimand. In my view, that is an appropriate disciplinary outcome. I accept the applicant's submission that statutory breaches cannot be disregarded and that a deterrent message needs to be sent to other councillors and the public reassurance about the Tribunal's exceptions with the obligations of a councillor under the LGA. Orders 1. A hearing be dispensed with pursuant to s 470 of the Local Government Act 1993 (NSW). 2. Grounds One of the application is established. 3. The respondent is reprimanded. ********** 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: 10 January 2019