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- Unreported Judgment
Swalling v Councillor Conduct Tribunal QCAT 204
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Swalling v Councillor Conduct Tribunal & Anor  QCAT 204
John dane swalling
the independent assessor, office of the independent assessor
COUNCILLOR CONDUCT TRIBUNAL
General administrative review matters
8 June 2022
5 May 2022
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision of Councillor Conduct Tribunal – whether party should be joined
Local Government Act 2009 (Qld), s 150O, s 150P, s 150R, s 150T, s 150W, s 150AI, s 150AJ, s 150AA, s 150AK, s 150AL, s 150AM, s 150AN, s 150AP, s 150AQ, s 150AR, s 150AT, s 150CU, s 150CT
Queensland Civil and Administrative Tribunal Act 2009 (Qld), Division 3, s 3, s 19, s 20, s 21, s 24
Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority  QCATA 241
Crime and Misconduct Commission v Assistant Commissioner Ross Barnett  QCAT 690
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
- On 7 December 2020, the Councillor Conduct Tribunal (CCT) found that an allegation that Mr Swalling had engaged in misconduct was sustained, and ordered that he make a public admission to that effect.
- In January 2021, Mr Swalling filed an application seeking a review of the decision of the CCT in this Tribunal. In his application, he named the CCT as the respondent to the Tribunal proceedings.
- On 19 January 2021, the Tribunal directed that the correct name of the respondent was The Independent Assessor, Office of the Independent Assessor (IA). The CCT was not named as a respondent.
- On 11 March 2021, the Tribunal directed that the correct name for the respondent was the CCT. Those directions were subsequently amended on 18 March 2021 so that the CCT was joined as a respondent to the proceedings.
- A compulsory conference was conducted on 13 August 2021, and directions were made by the Tribunal essentially seeking submissions as to the appropriate respondent(s) in these proceedings.
- Submissions have now been received and I am, in these reasons, determining whether either or both the IA and/or the CCT should be a respondent in these proceedings.
THE LEGISLATION AND THE ROLE OF THE IA AND THE CCT
- The provisions of the Local Government Act 2009 (Qld) provide the mechanism for dealing with complaints and allegations about inappropriate conduct and misconduct by councillors.
- In short, complaints may be made or referred to the IA. The IA must investigate the conduct of the councillor and if reasonably satisfied that the councillor’s conduct is misconduct, they may make an application to the CCT, and the CCT decides whether the councillor has engaged in misconduct.
- Prior to applying to the CCT, the IA must provide notice to the councillor and an opportunity to respond, as prescribed in the legislation. The CCT must conduct a hearing in compliance with the legislation. The standard of proof is the balance of probabilities. The IA is a party to the CCT proceedings and bears the onus of proving the councillor engaged in misconduct or inappropriate conduct;
- After conducting the hearing, the CCT decides whether the councillor has engaged in misconduct, and, if so, what action should be taken to discipline the councillor.
- Following the decision of the CCT, an application for review of the decision may be lodged in the Queensland Civil and Administrative Tribunal.
REVIEW AT THE QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
- The purpose of the review is to produce the correct and preferable decision, and the hearing is by way of a fresh hearing on the merits. This tribunal may confirm or amend the decision, set aside the decision and substitute its own, or set aside the decision and return the matter for reconsideration with directions if appropriate.
- This is not an appeal from the CCT decision. It is a review. The parties to the review proceeding in this Tribunal are set out in s 40 of QCAT Act.
s 40 Parties to review jurisdiction
- (1)A person is a party to a proceeding in the tribunal’s review jurisdiction if the person is—
- (a)the applicant; or
- (b)the decision-maker for the reviewable decision the subject matter of the proceeding; or
- (c)intervening in the proceeding under section 41; or
- (d)joined as a party to the proceeding under section 42; or
- (e)someone else an enabling Act states is a party to the proceeding.
- (2)In a proceeding in the tribunal’s review jurisdiction, so far as is practicable, the official description of the decision-maker must be used as the party’s name instead of the decision-maker’s name.
- Clearly, the parties to this application include Mr Swalling (s 40(1)(a)), and the CCT (s 40(1)(b)). The IA is neither the applicant nor the decision maker.
- The issue for determination is whether the IA is a party to the proceeding under s 40(1)(c), (d), or (e).
- In relation to s 40(1)(e), the enabling Act is the Local Government Act 2009 (Qld). While s150AT confers jurisdiction on this Tribunal, the LGA does not identify the persons who are parties to a review proceeding in the Tribunal. I am not satisfied that the IA is a party to the review application under s 40(1)(e).
- There are no submissions to support the IA being a party pursuant to s 40(1)(c), and I accept that provision does not apply in these circumstances.
- The remaining legislative provision under which the IA could be a party to this review proceeding is s 40(1)(d) – the IA could be joined as a party. I note that the IA has not lodged an application seeking to be joined as a party. The IA has, in its submissions, indicated that it wishes to be a party in these proceedings and has been named as a respondent in directions previously issued by the Tribunal. In the interests of having this issue determined, I am satisfied that it is appropriate to treat the submissions as an application to be joined as a party. I do note that, under s 42, the Tribunal may make an order joining or removing a party of its own initiative.
SHOULD THE IA BE JOINED AS A PARTY TO THE PROCEEDINGS?
- Section 42 states that:
42 Joining and removing parties
- (1)The tribunal may make an order joining a person as a party to a proceeding if the tribunal considers that—
- (a)the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; or
- (b)the person’s interests may be affected by the proceeding; or
- (c)for another reason, it is desirable that the person be joined as a party to the proceeding.
- (2)The tribunal may order that a party be removed from a proceeding if the tribunal considers that—
- (a)the party’s interests are not, or are no longer, affected by the proceeding; or
- (b)the party is not a proper or necessary party to the proceeding, whether or not the party was one originally.
- (3)The tribunal may make an order under subsection (1) or (2) on the application of a person or on its own initiative.
SUBMISSIONS OF THE IA
- The IA submits that:
- (a)pursuant to s 42(1)(a), it should be bound by or have the benefit of the Tribunal’s decision, having regard to its role in the process and statutory functions, including investigating and dealing with the conduct of councillors and providing advice, training and information to councillors, local government employees and others. It submits that it should be a party as the outcome may have implications for other councillor conduct matters which it is charged with assessing, investigating and prosecuting;
- (b)the IA has a role in the CCT proceedings, and bears the onus of proving the councillor engaged in misconduct. It may take a similar role in the review proceedings in this Tribunal. The IA is “the party prosecuting the councillor in the original CCT proceedings”, and so is “best placed to undertake the role of active contradictor in the review proceeding.”, and so it is desirable, pursuant to s 42(1)(c) that the IA is a party so that the CCT is not in a position of defending its decision;
- (c)Regard must be had to “unique features” of the decision-maker and the nature of proceedings before the CCT. The CCT is a specialist Tribunal whose status as a decision-maker subject to QCAT’s review jurisdiction is unique; and
- (d)It should be joined as a party as it may wish to reserve its right to appeal the Tribunal’s decision.
- The IA refers the Tribunal to Crime and Misconduct Commission v Assistant Commissioner Ross Barnett where the enabling Act provided for two respondents in the proceedings. Judicial Member Thomas stated:
The CMC brought the application against two respondents, and to date both have responded in adversarial fashion leading to some duplication of effort. It seems odd that there should be two active respondents in proceedings such as these… It is undesirable that an adjudicating officer be put in the position of having to defend his or her decision in adversarial mode when the reasons for the decision have already been given. It is preferable that the decision be defended by the party who wants to uphold it. It should be noted that the position of the decision maker on a review differs from that of a fully adversarial party, and is expressed in section 21 of the Queensland Civil and Administrative Tribunal Act 2009 as a requirement to “use his or her best endeavours to help the tribunal so that it can make its decision on review…”
POSITION AND SUBMISSIONS OF THE CCT
- The CCT:
- (a)Provided submission generally supporting the submissions of the IA; and
- (b)Acknowledged that it must use its best endeavours to help the Tribunal so that it can make its decision on the review.
- (c)Points the Tribunal to the explanatory notes of the Queensland Civil and Administrative Tribunal Bill 2009:
Clause 21 sets out the duties of a decision maker in relation to a review of a decision made by the decision maker. Subsection (1) requires the decision maker to use his or her best endeavours to assist the tribunal in performing its review function. It is not the role of the decision-maker to act like a party in an adversarial system. This provision reflects the purpose of the review which is to ensure the correct and preferable decision is made and reinforces the non-adversarial nature of review proceedings.
- (d)Refers also to QCAT Practice Direction No 3 of 2013, paragraph 3, which states:
The government or agency official (the decision maker) which made the decision is required to use their best endeavours to assist the Tribunal so that it can make its decision on the review: that is, the decision-maker must assist the Tribunal to make the correct and preferable decision. Therefore, the decision-maker’s role is not adversarial. However, in discharging its obligations the decision-maker must properly test the evidence relied upon by the applicant (and the evidence of any other party intervening in or joined as a party to the proceeding), to perform its function of assisting the Tribunal.
- (e)Refers the Tribunal to Crime and Misconduct Commission v Assistant Commissioner Ross Barnett (discussed above), and submits:
- The IA is a party to the hearing in the CCT and bears the onus of proof to prove the alleged misconduct;
- Having regard to:
- the IA’s functions,
- this Tribunal standing in the shoes of the CCT to arrive at the correct and preferable decision, and
- the requirement that this Tribunal decide the review in accordance with the QCAT Act and the LG Act,
it is appropriate that the IA assume the role of active contradictor and bear the onus of proof to prove Mr Swalling engaged in misconduct.
- (f)In a situation where the IA applied to this Tribunal for review of the decision of the CCT, it would be expected that the relevant councillor would be joined as a party as the decision would be bound to affect his or her rights and interests. Thus, there is no jurisdictional hurdle to the IA being joined as a party.
- (g)In the event that this Tribunal were to refer the matter back to the CCT for reconsideration, with directions the Tribunal considers appropriate, the IA “would effectively be bound without having had natural justice afforded to it were it not a party to the proceedings before the Tribunal”.
SUBMISSIONS OF THE APPLICANT
- Mr Swalling submits that:
- (a)There has never been an application lodged for the IA to be joined as a party;
- (b)In relation to s 42(1) of the QCAT Act:
- The IA need not be bound by or have the benefit of the decision of the Tribunal. The decision will have precedent value which the IA will “benefit” from (in terms of guiding it in the future) without needing to be a party to the proceedings;
- the IA’s interests are not affected by the proceedings;
- there is no reason why it is so desirable that the IA be joined as a party that an order should be made joining the IA. The Tribunal will have the benefit of the decision under review and all of the papers that were before the CCT when it made the decision under review including all of the evidence and submissions of the IA before the CCT. The issues in the review hearing are narrow and the evidence is documentary. It is unclear, and it is not explained by the IA, what assistance the IA could provide to the Tribunal in this review hearing.
FINDINGS OF THE TRIBUNAL
- In making this decision, I have had regard to the submissions of the parties, the relevant legislative provisions, and the explanatory notes. I have also had regard to some previous decisions of the Tribunal which, although determined under different enabling legislation, provide some assistance.
- The submissions of the CCT and the IA are general in nature. They suggest that the IA should be joined as a party because of its roles and functions and because of what is said to be the unusual position of the CCT, the decision maker, being a Tribunal. If I accept those submissions, the IA would be joined as a party in all applications before this Tribunal where a councillor has sought review of the decision of the CCT. Had parliament intended that outcome, it would, as provided for in s 40(1)(e) of the QCAT Act, made provision in the Local Government Act. No such provision was made. Accordingly, I do not accept that it was intended that the IA be joined as a party as a matter of course.
- The Tribunal may, in its discretion, join the IA as a party to these proceedings. In relation to the Tribunal exercising this discretion, I have had regard to Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority, where the Tribunal, sitting in the building jurisdiction, considered joining a party pursuant to s 42(1)(b) of the QCAT Act. Senior Member Oliver states:
“The first thing to note about s 42 is that the tribunal may make an order about joining a party and therefore the decision to join is discretionary. The exercise of discretion is not enlivened unless the Tribunal is satisfied that one or more of the criteria set out in s 42(1) is satisfied…
There must be some utility or purpose to the joinder… each case would depend on its own particular circumstances.”
- Member Oliver agrees with the previously expressed view of the Tribunal that the application of s 42 should be linked to achieving the objects of the QCAT Act, and notes “this is a review of an administrative decision, it is not civil litigation”.
- The IA has submitted that it should take the role of active contradictor in these proceedings. I am not satisfied that is necessary. These are not adversarial proceedings, but the administrative review of a decision of the CCT. The CCT will furnish this Tribunal with all of the evidence upon which it made its decision, and the Tribunal has the benefit of the decision of the CCT which sets out the basis upon which the decision is made. Pursuant to the Practice Direction, the decision maker will properly test the evidence relied upon by the applicant, outline the issues to be decided, the statutory framework, and any relevant policy considerations, and will make relevant submissions to perform its function of assisting the Tribunal.
- The CCT has actively participated in these proceedings by complying with directions and providing submissions. The joinder of the IA would result in the duplication of effort referred to in Crime and Misconduct Commission v Assistant Commissioner Ross Barnett, which is contrary to the stated Objects of the QCAT Act, to deal with matters in a way that is accessible, fair, just, economical, informal and quick.
- I note that a further Object of the Act is to enhance the quality and consistency of decisions made by decision-makers. A decision-maker, for a reviewable decision, is defined in Schedule 3 with reference to s17(2) of the QCAT Act as the entity that made or is taken to have made the decision.
- Thus, in considering whether the IA should be joined as a party, I have had regard to Objects of the Act to deal with this application in a way that is accessible, fair, just, economical, informal and quick, and to enhance the quality and consistency of decisions made by the CCT.
- I note that the joinder of the IA will likely add to the expense of these proceedings to the public purse, and a doubling up of the use of government resources.
- I do not accept that the IA should be joined as a party so as to benefit from the Tribunal’s decision. I note that decisions of the QCAT are published on the Supreme Court website and are publicly available. It is true that the decision may inform the IA’s practice, but it is not necessary to be a party to the proceedings to obtain the reasons for the decision, and for the QCAT decision to inform the practice of the IA.
- I do not accept that the IA should be joined as a party in case it wishes to appeal.
- I note that the decision of Crime and Misconduct Commission v Assistant Commissioner Ross Barnett has been referred to by both the CCT and the IA. In that case, the CMC sought review of a disciplinary decision against a policeman who was found guilty of misconduct. The respondents, pursuant to the provisions of the enabling Act, were the policeman (whose interests were clearly affected) and the decision maker. That is quite a different situation to the matter currently before this Tribunal. Observations made in the decision regarding the desirability of avoiding the duplication of effort and expense are, in my view, of assistance but the case is not authority for the proposition that it is desirable to have two respondents, one taking an active role and the other (the decision maker) taking a more passive role.
- The decision maker need not, in these proceedings, take an adversarial role. The CCT holds the information upon which it made its decision, and is able to make that information available to the Tribunal. It is not a question of “defending” its decision, but rather a requirement to use its best endeavours to help the Tribunal reach the correct and preferable decision on review. It is able to do so by providing the Tribunal with all of the relevant information and evidence to assist the Tribunal to make the correct and preferable decision.
- I do not accept that the IA will be “bound” by any directions issued by this Tribunal should the matter be referred back for reconsideration. Only parties will be bound by directions of this Tribunal. If the IA is not a party to the proceedings, the only parties who would be bound by the directions of the Tribunal would be Mr Swalling and the CCT.
- There is no express parliamentary intention that the IA be a party to review proceedings in the Tribunal in every case. Joinder of the IA as a party is a matter of discretion. Mr Swalling opposes the joinder of the IA as a party. Neither the IA nor the CCT have provided specific submissions as to why, in this particular case, the IA should be joined. I am not satisfied that the Objects of the Act are furthered by joining the IA.
- The application to be joined is refused. In the alternative, if the IA is already a party to these proceedings, I remove them pursuant to s 42(2) of the QCAT Act as the IA is not a proper or necessary party to the proceeding.
s150O, S150P, S150R.
s150AL, S150AM, S150AN, S150AO, S150AP.
s150AN Local Government Act 2009.
Division 3 QCAT Act.
s19 QCAT Act.
s20 QCAT Act.
s24 QCAT Act.
s150CT Local Government Act 2009.
Crime and Misconduct Commission v Assistant Commissioner Ross Barnett  QCAT 690.
s21(1) QCAT Act.
Coral Homes (Qld) Pty Ltd v Queensland Building Services Authority  QCATA 241.
s21 QCAT Act.
s3(b) QCAT Act.
s3(d) QCAT Act.
- Published Case Name:
Swalling v Councillor Conduct Tribunal & Anor
- Shortened Case Name:
Swalling v Councillor Conduct Tribunal
 QCAT 204
08 Jun 2022