Cornish v Secretary, Department of Planning, Industry and Environment [2019] NSWSC 1134

Supreme Court New South Wales

Medium Neutral Citation: Cornish v Secretary, Department of Planning, Industry and Environment [2019] NSWSC 1134 Hearing dates: 22 August 2019 Decision date: 03 September 2019 Jurisdiction: Common Law Before: Basten J Decision: (1) Set aside the order of the Civil and Administrative Tribunal made on 12 July 2018. (2) In lieu thereof, order that the proceedings commenced in the Tribunal by the predecessor to the Secretary be dismissed. (3) Order that the Secretary pay Mr Cornish's costs in this Court. Catchwords: ADMINISTRATIVE LAW – review of decision of Civil and Administrative Tribunal (NCAT) – disciplinary action against local councillor for breaches of Code of Conduct – validity of statutory powers of Council – validity of referral to NCAT – jurisdictional error in disciplining for breach of invalid provision of Code – jurisdiction to inquire into underlying conduct

LOCAL GOVERNMENT – powers of local council to discipline councillor – power to censure conferred by statute – validity of further powers contained in Code made under Regulation – whether additional powers consistent with scheme of legislation – Council required councillor to acknowledge breach, apologise, undertake not to repeat conduct and undertake training – councillor referred to Chief Executive for failing to comply – matter referred to NCAT for consideration – powers of NCAT

STATUTORY INTERPRETATION – conferral of limited power to take disciplinary action – further powers conferred by code made under regulation – whether code consistent with scheme of legislation Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), Sch 5, cl 29 Independent Commission Against Corruption Act 1988 (NSW) Local Government Act 1993 (NSW), ss 360, 440, 440AA, 440F, 440G, 440H, 440I, 440J, 440L, 440N, 482A, 490B; Ch 14, Pt 1, Divs 1, 2, 3; Pts 3, 4, 5 Supreme Court Act 1970 (NSW), s 69