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  4. Golder v Councillor Conduct Tribunal No. 2 - [2023] QCAT 323

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Golder v Councillor Conduct Tribunal No. 2[2023] QCAT 323

Golder v Councillor Conduct Tribunal No. 2[2023] QCAT 323

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Golder v Councillor Conduct Tribunal & Anor No. 2 [2023] QCAT 323

PARTIES:

TYSON GOLDER

(applicant)

v

councillor conduct tribunal

(first respondent)

AND

THE INDEPENDENT ASSESSOR, OFFICE OF THE INDEPENDENT ASSESSOR

(second respondent)

APPLICATION NO/S:

GAR046-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

22 August 2023

HEARD ON:

23 May 2023 & 26 June 2023

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

  1. The decision of the Councillor Conduct Tribunal made 22 December 2020 that on 9 November 2017 Councillor Golder engaged in misconduct is set aside and replaced with a decision that Cr Golder did not engage in misconduct.
  2. Any application for costs is to be made by filing in the Tribunal two (2) copies and giving one (1) copy of any submissions and evidence to be relied upon to each other party by 4:00pm on 15 September 2023.
  3. If an application for costs is made in accordance with order number 2:
    1. a.
      the responding parties are to file in the Tribunal two (2) copies and give one (1) copy to the party making the application any submissions and evidence in response by 4:00pm on 29 September 2023; and
    1. b.
      the application will be determined on the papers and without an oral hearing unless a party requests an oral hearing not before 4:00pm on 29 September 2023
  4. If no application for costs is made in accordance with order number 2, there shall be no order as to costs in this proceeding.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision of Councillor Conduct Tribunal – decision of tribunal that mayor engaged in misconduct in respect of statements made in a without prejudice meeting – where breach of trust alleged – whether councillor engaged in misconduct

Acquisition of Land Act 1967 (Qld) s 6, s 7, s 9, s 15, s 15D, s 19, s 20

Local Government Act 2009 (Qld) s 4, s 12, s 150AG, s 150AL, s 150AJ, s 150AQ, s 150AS, s 150AT

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 19, s 20, s 21, s 28, s 100, s 102

Allison v General Council of Medical Education and Registration [1884] 1 QB 750

Briginshaw v Briginshaw (1938) 60 CLR 336

Camp Seabee Properties Pty Ltd v Commissioner of State Revenue [2014] QCAT 258 

Independent Assessor v Councillor Paul Gleeson, CCT reference F19/6508, 15 December 2019

Kennedy v The Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJ 563

Laidlaw v QBSA [2010] QCAT 70

Nouvelle Homes t/as Wilson & Hart v Hatch [2009] WASC 63

Psychologists Board of Queensland v Robinson [2004] QCA 405

Qantas Airways v Gama (2008) FCAFC 69

QBCC v Whalley [2018] QCATA 38

Re Dillon; Exparte Attorney-General (Qld) [2015] QSC 155

Queensland Building and Construction Commission v Richardson [2015] QCATA 85

Schwede v QBSA [2009] QCCTB 157

Thompson v Austen (1823) LJKB 99

Troy Richardson’s Building Approvals & Inspections v QBSA [2013] QCAT 113

Troy Richardson’s Building Approvals and Inspections v Queensland Building and Construction Commission [2014] QCAT 138

APPEARANCES & REPRESENTATION:

Applicant:

B McMillan of Counsel, instructed by Gilshenan & Luton Legal Practice

First Respondent:

Excused from appearing

Second Respondent:

S Singh, Solicitor

REASONS FOR DECISION

What is this application about?

  1. [1]
    The Tribunal is reviewing a decision of the Councillor Conduct Tribunal (CCT)[1] that Cr Golder, Mayor of the Maranoa Regional Council (the Council) engaged in misconduct during a meeting with two constituents on 9 November 2017 (the decision).
  2. [2]
    The parties submitted as their evidence in this proceeding, among other things, video of the four-hour hearing conducted before the CCT in October 2020, including the evidence in chief and cross examination of witnesses.  I watched the recording in full during a period of adjournment in these proceedings.
  3. [3]
    The hearing brief also comprises material filed pursuant to section 21(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), including:
    1. Application to the CCT by the IA dated 4 October 2019;
    2. Affidavit of Cr Jan Chambers (Deputy Mayor) dated 8 October 2019;
    3. Affidavit of Eleanor Scott (Solicitor for Council) dated 9 October 2019;
    4. Affidavit of Julie Reitano (Council CEO) dated 17 October 2019;
    5. Affidavit of Storm Sandilands (IA Investigator) dated 30 October 2019;
    6. Statutory Declaration of Jody Dare declared 31 August 2020;
    7. Statutory Declaration of Trevor Dare declared 31 August 2020;
    8. Affidavit of Cr Tyson Golder affirmed 31 August 2020;
    9. Transcript of CCT hearing conducted on 7 October 2020;
    10. Submissions to the CCT by the IA and Cr Golder; and
    11. Decision and reasons of the CCT dated 22 December 2020.
  4. [4]
    Mr McMillan (for Cr Golder) and Ms Singh (for the IA) made oral submissions at the hearing on 26 June 2023 to supplement their written submissions made 15 March 2023 and 4 May 2023 (for Cr Golder) and 17 April 2023 (for the IA). 

Factual background to the decision under review

Roma Flood Mitigation Project

  1. [5]
    Following major flood events of 2010, 2011 and 2012, the Council pursued the Roma Flood Mitigation Project, which involved constructing a levee in stage 1 and then extending the levee and constructing a diversion drain in stage 2A. Whilst the project aimed to future proof hundreds of properties from inundation, the project required some properties to be acquired for works to be carried out.[2]
  2. [6]
    In Queensland the process for taking land is set out in the Acquisition of Land Act 1967 (Qld) (ALA).  It commences with a requirement for the relevant authority (the Council in this case) to serve a ‘notice of intention to resume’ upon impacted landowner/s.[3] Among other things, the notice must inform the landowner that it may serve a notice of objection to the taking of the land,[4] and that the authority is willing to negotiate to acquire the land by agreement or, failing agreement, to negotiate compensation and consequential matters.[5]
  3. [7]
    If no objection is made or if, after considering objections, Council remains of the opinion that the land is required, it can apply to the Minster for the land to be taken, in which case a process of compulsory acquisition by survey and gazetting (known as a ‘gazette resumption notice’) follows. [6]
  4. [8]
    Where Council and the landowner have reached a negotiated agreement for the land to be taken (known as a ‘resumption agreement’) Council can itself gazette to take the land.[7] 
  5. [9]
    Easements are used where sufficient for Council’s purpose.[8]
  6. [10]
    Where land is taken, including by easement or by agreement, compensation is payable to the affected landowner, whether negotiated by agreement[9] or whether claimed and assessed in the Land Court.[10]
  7. [11]
    Cr Golder’s mother owned a property that was taken for stage 1 works, by way of an easement by agreement with Council in respect of which compensation was paid.

Mr and Mrs Dare

  1. [12]
    On 30 January 2017 Council issued a notice of intention to resume 5,314m2 from the corner section of a parcel of land owned by Mr and Mrs Dare, required for stage 2A works. Negotiations ensued but had stalled by late October 2017 when construction works for the project were becoming time-critical.
  2. [13]
    The Dares’ land was discussed in a Council meeting that took place on 31 October 2017 at which time the Council voted to make a final offer to the Dares to acquire their entire parcel of land for $150,000. Cr Golder was the lone vote against that motion.
  3. [14]
    During a closed Council meeting on 8 November 2017, Council was informed that their offer had been rejected by Mr and Mrs Dare. Because of the Council’s practice to conduct certain discussions in closed meetings, which are not minuted, the only evidence of the discussions that took place in that meeting came from witnesses.
  4. [15]
    Cr Chambers’ statement evidence of the closed meeting discussion was as follows:[11]
    1. “The Mayor suggested to Council that he be authorised to talk with the landowners as a final attempt. He kept saying they will accept $150,000; he mentioned this many times.”
    2. Her understanding of the parameters of the discussion to be hand with the Dares were that the Council had authorised the Mayor to speak on behalf of Council to make a “without prejudice officer” for Council to purchase the land for $150,000.
    3. Councillors suggested that Cr Chambers accompany Cr Golder to the meeting, but the Mayor wanted to do it himself.
  5. [16]
    Cr Chambers did not participate in the CCT hearing, so her evidence has not been tested.
  6. [17]
    Cr Golder said that:[12]
    1. He suggested he meet privately with the Dares to “confirm with them that it was a good deal”;
    2. He believed that if it was the Mayor speaking with them it would carry more weight and that a “personal approach” might achieve a different outcome”.
    3. He was not in favour of the Deputy Mayor sitting in the meeting because he thought “we won’t get the deal done”.
  7. [18]
    When giving her evidence to the CCT on 7 October 2020 Ms Reitano said that her recollection of the meeting was of “a couple of key points that were memorable to me”.[13] The discussion she recalled was that “the sole purpose of the meeting was for the Mayor to have the opportunity to speak about the $150,000 being a good deal.  That was ultimately when Council agreed to allow the meeting to occur”.[14]
  8. [19]
    Ms Reitano, when asked what she understood a “without prejudice” meeting to mean, said (emphasis added):

This was an opportunity for the Mayor to speak in person because…we are part of a small community. So everyone knows everyone and I can understand the Mayor and he has expressed this view in other circumstances, that sometimes a face to face meeting will produce a different outcome than letters between lawyers.

So in this particular case, and its not the only time that the Mayor has adopted his approach, that he wants the opportunity to meet with the people in person with the hope that a different outcome will result. [15]

  1. [20]
    Although not present at the closed meeting of Council, Ms Scott, Council’s solicitor was instructed by Ms Reitano on behalf of Council. She gave evidence that her understanding from Ms Scott of the purpose of the meeting with the Dares was (emphasis added):[16]

Mayor Golder really wanted to speak with Mr and Mrs Dare to find out what it is that they actually wanted as far as the land acquisition went, and if it was possible to reach some sort of agreement that he could then take back to the Council for approval.

  1. [21]
    Ms Scott further said that she understood from Ms Reitano that Cr Golder had been given an opportunity to see if he could “broker a deal” and that Cr Golder had been authorised by Council to meet with the Dares and to discuss options to be taken back to Council. She said, “he wasn’t authorised to make a decision, but he was authorised to have the discussion”.[17] 
  2. [22]
    Following the closed meeting, Council made the following resolutions:

Resolution No. GM/11.2017/52

That Council offer the landholder a ‘Without Prejudice’ meeting with the Mayor accompanied by both parties’ legal representation, with an outcome of that meeting to be finalised by 12pm noon on Friday 10 November 2017.

Resolution No. GM/11.2017/53

That subject to the outcome of the ‘Without Prejudice’ meeting, if required authorise the Chief Executive Office to escalate the matter, given the impacts to the project, through the appropriate state government department and in line with current ‘Caretaker’ arrangements leading up to the state election.

  1. [23]
    Cr Golder was the lone vote against the escalation to compulsory acquisition.
  2. [24]
    Ms Scott arranged the meeting in an email she sent to Mr Marland, the solicitor representing Mr and Mrs Dare on 8 November 2017. Her email sent at 6.17pm relevantly read as follows (emphasis added):[18]

We have called and left a message on your mobile with respect to a proposed without prejudice meeting between your clients Mr and Mrs Dare and Mayor Golder in an effort to come to an agreement with respect to the acquisition of part of your clients’ property for the flood mitigation project…

We understand that Mayor Golder will contact Mr and Mrs Dare directly to request the meeting…

We will attend the without prejudice meeting by telephone and it may also be your clients’ preference that you also attend the without prejudice meeting as well.

As you are aware, there is an urgency to finalise this matter so that Council is able to commence construction of the floor mitigation works prior to the imminent wet season to avoid possible flooding and resultant loss to the Roma community should it occur.

Councils’ preference is to resolve this by agreement with your clients and is hopeful of reaching a resolution with your clients through these without prejudice discussions.

  1. [25]
    Mr Marland in reply confirmed his clients’ willingness to meet and asked would Ms Scott “please confirm Councils availability and attendees in due course”.[19]
  2. [26]
    Ms Reitano was copied on both emails, and several that followed to arrange the meeting. 

The 9 November 2017 meeting

  1. [27]
    On 9 November 2017, Cr Golder met in person with Mr and Mrs Dare at Council chambers, with Ms Scott and Mr Marland attending by telephone as observers.
  2. [28]
    The duration of the meeting was approximately 45 minutes[20] during which discussions were had regarding Council’s $150,000 offer (which was not accepted by the Dares) and other options for resolving the matter explored.
  3. [29]
    Cr Golder did not take notes during the meeting but penned a letter to Council summarising it that evening.
  4. [30]
    Ms Scott took handwritten notes during the meeting, which she dictated into a more detailed file note immediately after the meeting, that was later typed. Both her handwritten and her typewritten file notes were in evidence in the proceeding.[21] 
  5. [31]
    Mr Marland did not take notes during the meeting and did not give any evidence in the proceeding.[22]
  6. [32]
    Mr and Mrs Dare did not take any notes during the 9 November 2017 meeting and their statements declared 31 August 2020[23] (which were essentially identical) are their first written account of what transpired during the meeting. According to those statements:
    1. They did not believe Cr Golder attended the 9 November 2017 meeting in his personal capacity and there was nothing in his conduct during the meeting that indicated to them that he was attending in his personal capacity rather than as Mayor.
    2. They recalled Cr Golder expressing personal opinions during the meeting however that he made it clear which views were his and which views were those of Council.
    3. Cr Golder was trying to see whether there was any scope for an agreed resolution surrounding the acquisition of the Dares’ property and they understood that any resolution other than accepting Council’s $150,000 offer would need to be taken back to the Council to consider. 
    4. Cr Golder did not make any offers in the meeting other than the $150,000 offer, but he did try to explore other options that may have been acceptable to the Dares, that could be taken back to Council for consideration.
  7. [33]
    Before the CCT, Mrs Dare said her statement represented her recollection of the meeting and “our outtake from what the meeting was”. She said the meeting was easy to remember because they only had three meetings with Council regarding their land so “these meeting do sort of stick out to us”.  On the issue of the police paddock, Ms Dare said they were offered to review the land, to see whether they would like to do a land swap.[24]
  8. [34]
    Similarly, Mr Dare confirmed that Cr Golder “did offer a swap of paddocks” but clarified that he had also said he could not make that decision himself and that it would have to go back to Council to make that decision if Mr and Mrs Dare were willing to consider it.[25]

Next steps

  1. [35]
    Following the meeting Cr Golder briefed Ms Reitano on its outcome, including that the idea of a land swap was raised. Ms Scott also called Ms Reitano later the same evening with her report on the meeting and subsequently provided Ms Reitano with her file notes.
  2. [36]
    Cr Golder’s letter to Council of 10 November 2017 explained that the Dares were “definitely emotional about the compulsory acquisition of their land”, that they had evidence of the price paid by Council for the “Roses” land which they said was comparable, that he hypothetically suggested, what about a land swap with the police paddock and the Dares agreed to have a look (but had since said it wasn’t suitable). Cr Golder also said that in his view there was a deal to be done and suggested inviting the Dares to a Council workshop with a site visit to “thrash out a deal” and offering some blocks off the police paddock in a land swap. This was described as a “brief overview for [Council’s] consideration”.[26]
  3. [37]
    In any event, as agreement was not reached with the Dares, their land was taken by way of a gazetted resumption notice published on 8 December 2017. The Tribunal understands the issue of compensation is, yet, unresolved.

Complaint and investigation

  1. [38]
    On 23 November 2018 Cr Golder’s conduct in the 9 November 2017 meeting was referred to the Office of the Independent Assessor (IA) for investigation. The reasons for the delay in referring were not explained in the evidence before the Tribunal, and by section 150AS(5) of the Local Government Act 2009 (Qld) (LGA) the name and identifying details of the person/s who made the complaint must not be published.
  2. [39]
    On 4 October 2019, the IA referred to the matter to the CCT[27] on the basis that it was reasonably satisfied after investigating the complaint that Cr Golder engaged in misconduct by making statements in the meeting that were, variously, dishonest, unauthorised, or misleading as follows:

Ref.

Alleged statement

IA concern regarding the statement

(e)(i)

Cr Golder stated he was there in his personal capacity, not there as a councillor and that the meeting was at his personal request and not on behalf of Council.

The statement was misleading.

(e)(ii)

Cr Golder said he wanted to reach a deal with Mr and Mrs Dare and in his personal opinion it was not reasonable to take people’s land by compulsory acquisition.

The statement could cause damage to Council’s reputation and interests.

(e)(iii)

Cr Golder indicated Council could subdivide the police paddock and land swap it for the Dares’ land.

The statement was unauthorised and misleading.

(e)(iv)

Cr Golder said he was on a deadline to respond about any room to move on Council’s offer or the land swap option.

The statement was unauthorised.

(e)(v)

Cr Golder offered to write a letter to the Council setting out the Dares’ position to try and do a deal for them.

The statement could be perceived as Cr Golder presenting himself as separate to the Council.

(e)(vi)

Cr Golder said he understood the emotional toll these things took as his mother’s land was also resumed in stage 1.

The statement was not impartial or honest.

(e)(vii)

Cr Golder reminded the Dares about the valuation of their land, then agreed it was strange and thought it should have been at the rate Council paid for the neighbouring property.

The personal views expressed were contrary to Council’s position and had potential to damage its interests.

The decision under review

  1. [40]
    After conducting a hearing[28] the CCT considered whether Cr Golder had made the statements in (e)(i) to (vii), found that he had, and went on to find that:
    1. The statement in (e)(i) was unauthorised, misleading or dishonest;
    2. The statement in (e)(ii) was unauthorised; and 
    3. The statement in (e)(vii) was unauthorised.
  2. [41]
    On balance, the CCT decided that on 9 November 2017 Cr Golder engaged in misconduct under the LGA, as his conduct involved a breach of the trust placed in him as a Councillor.[29]
  3. [42]
    On 18 January 2023 Cr Golder applied to the tribunal for a review of the CCT’s decision.[30]

The Tribunal’s role on review

  1. [43]
    The role of the Tribunal in review applications is consider the circumstances afresh and to produce the correct and preferable decision.[31] It stands in the shoes of the decision maker (the CCT in this case) to make its own decision,[32] doing “over again” what the original decision maker did.[33] 
  2. [44]
    The role of the original decision maker is usually to assist the tribunal in making its decision,[34] rather than to take an adversarial role or to defend the decision under review.  In these proceedings, the CCT have been excused from performing that role,[35] on the basis that the IA is participating as an active contradictor. 
  3. [45]
    In Laidlaw v QBSA [2010] QCAT 70 at [23] Member Howard (as she then was) explained the onus of proof in Tribunal proceedings, including review proceedings as “an evidentiary burden, but there is no formal onus of proof. The question is whether the Tribunal is satisfied that the provision under consideration can be invoked on the information or material before it”. In practical terms, the IA bears the burden of establishing that Cr Golder engaged in misconduct or inappropriate conduct, or both, as the party alleging it.
  4. [46]
    The requisite standard of proof is the balance of probabilities, as espoused by Justice Dixon in Briginshaw v Briginshaw:[36]

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.  In such matters “reasonable satisfaction” should not be provided by inexact proofs, indefinite testimony, or indirect references.

  1. [47]
    A finding of misconduct leads to serious consequences.[37] The Tribunal therefore must be satisfied to a reasonably high degree that a finding of misconduct is grounded. In Qantas Airways v Gama (2008) FCAFC at 69, Branson J said:

…before accepting the truth of evidence of a particular allegation, the tribunal should give consideration to the nature of the allegation and the likely consequences which will follow should it be accepted.

The obligations of councillors in local government

  1. [48]
    As at 9 November 2017, the relevant reprint of the LGA was that current from 3 July 2017 to 28 March 2018.  At the time the complaint was made, the relevant reprint was that current from 29 March 2018 to 20 May 2018.  Whilst some section numbers have changed, the provisions relevant to this proceeding are substantially the same as the current reprint.
  2. [49]
    Section 4(1) of the LGA provides that, to ensure the system of local government is accountable, effective, efficient, and sustainable, anyone who is performing a responsibility or taking action under the LGA must do so in accordance with the local government principles. Those principles as set out in section 4(2) are:
    1. transparent and effective processes, and decision-making in the public interest; and
    2. sustainable development and management of assets and infrastructure, and delivery of effective services; and
    3. democratic representation, social inclusion and meaningful community engagement; and
    4. good governance of, and by, local government; and
    5. ethical and legal behaviour of councillors and local government employees.
  3. [50]
    Sections 12(1) and (3) of the LGA outlines the responsibilities of Councillors to include relevantly:
    1. representing the current and future interests of the residents of the local government area;
    2. ensuring the local government:
      1. (i)
        discharges its responsibilities under this Act; and
      2. (ii)
        achieves its corporate plan; and
      3. (iii)
        complies with all laws that apply to local governments;
    3. provides high quality leadership to the local government and the community;
    4. participating in council meetings, policy development, and decision-making, for the benefit of the local government area; and
    5. being accountable to the community for the local government’s performance.

Misconduct

  1. [51]
    At common law, the test of misconduct tends to require the most serious and deliberate departure from accepted industry practice:
    1. In Schwede v QBSA[38] it was observed that:

…professional misconduct is a very serious matter: it is conduct that shows serious incompetence, lack of knowledge, judgement, integrity, diligence or care;…it is corruption in the sense of seeking or taking benefits in return for breaching the regulating act…; it is defiance of the orders of the tribunal or the BSA; it is fraud, dishonesty, unethical and improper conduct.

…professional misconduct is misconduct of a nature and seriousness that a private certifier in good standing would regard as disgraceful or dishonourable and which warrants severe disciplinary action.

  1. In Allison v General Council of Medical Education and Registration[39] Lopes LJ expressed the test as:

…if it is shown that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency, then it is open to the General Medical Council to say that he has been guilty of infamous conduct in a professional respect.

  1. In Kennedy v The Council of the Incorporated Law Institute of New South Wales[40] Rich J said that professional misconduct by a solicitor:

…amounted to grave impropriety affecting his professional character and was indicative of a failure either to understand or to practice the precepts of honesty or fair dealing in relation to the courts, his clients or public.

  1. In Psychologists Board of Queensland v Robinson[41] the Queensland Court of Appeal said the test to be applied is whether the conduct violated “to a substantial degree” the standards observed by members of the profession of good repute and competency.[42]
  1. [52]
    However, the LGA defines misconduct in section 176 (as it was, section 150AL now) rather than relying upon the common law definition.  
  2. [53]
    Relevantly, “misconduct” is conduct, or a conspiracy or attempt to engage in conduct, of or by a councillor that is or involves:
    1. the performance of the councillor’s responsibilities, or the exercise of the councillor’s powers, in a way that is not honest or is not impartial; or
    2. a breach of the trust placed in the councillor.
  3. [54]
    In the absence of defined terms within the LGA:
    1. The ordinary meaning of the word “honest” is “free of deceit; truthful and sincere”[43] or “(of a person) truthful or able to be trusted”.[44]  To act dishonestly is to be dishonest “by the standards of ordinary honest people”.[45]
    2. “Impartial” means “treating all rivals or disputants equally”[46] or “not supporting any of the sides in an argument”.[47]
  4. [55]
    With respect to “breach of trust” the IA suggests the Tribunal be guided by earlier decisions of the CCT on point:
    1. The IA notes that that the CCT has sustained twenty allegations of misconduct based on conduct that involves breach of trust, however, almost all of those were based on non-compliance with a legal obligation (for example, non-compliance with statutory obligations relating to conflicts of interest or registers of interest).
    2. In Independent Assessor v Councillor Paul Gleeson, CCT reference F19/6508, 15 December 2019, the conduct pertained to the sending of text messages to a complainant and their husband at a time when their complaint was before the CCT.  It was considered that the conduct could be perceived as an attempt to interfere with the witnesses and was consistent with the section 4(2) obligation to act ethically.
    3. The IA submits that this decision provides an example where the councillors behaviour was objectively assessed in the circumstances in which it occurred and was found to have breached the trust placed in him by the community.   The CCT observed that “the key appears to be the potential for undermining of public confidence in the integrity of the person, in the role they are occupying”[48] and said that:

As elected representatives in responsible positions with significant powers, councillors have great discretion and are entrusted to use their powers appropriate in the public interest.  Any breach of trust can have a corrosive effect on the community and its confidence in local government. 

  1. [56]
    In Troy Richardson’s Building Approvals and Inspections v the Queensland Building and Construction Commission[49] where a statutory definition of professional misconduct was being considered, the Tribunal said that it was not necessary for conduct to fall within the common law definition where it had been defined in the enabling Act and this was upheld on appeal.[50]  However, the Appeal Tribunal observed that, even when applying a statutory definition, the learned Member was not in error in finding that he must look at the conduct of Mr Richardson in its context as part of a “matrix of facts”, including where relevant considering how the conduct of others played a role in what transpired.[51]
  2. [57]
    Section 176(4) defined “inappropriate conduct” as conduct that is not appropriate conduct for a representative of a local government, but is not misconduct, including for example, a councillor failing to comply with the local government’s procedures.  Such conduct does not fall within the Tribunal’s review jurisdiction.
  3. [58]
    Therefore, the questions for this Tribunal are:
    1. whether Cr Golder performed his responsibilities in the 9 November 2017 meeting in a way that was not honest or impartial, or
    2. whether, in all the circumstances, he engaged in conduct that amounted to breach of the trust placed in him, including whether such conduct breached his responsibilities under section 12 of the LGA.

What was Cr Golder’s authority in the 9 November 2017 meeting?

  1. [59]
    The submissions on this point are diametrically opposed:
    1. The IA says Cr Golder’s authority in the meeting was narrowly confined to doing no more than offering the Dares $150,000 for their land. 
    2. Cr Golder’s representatives say that, provided that Cr Golder presented the $150,000 offer, there were no limits to what he could and could not say or discuss in the meeting.
  2. [60]
    The resolutions authorising the meeting were as set out at paragraph [22], summarised below:
    1. Resolution 52 that Council offers the Dares a ‘without prejudice’ meeting with Cr Golder and legal representatives, with an outcome of that meeting to be finalised by 12pm noon on Friday 10 November 2017.
    2. Resolution 53 that, subject to the outcome of the meeting, escalate the resumption if required. 
  3. [61]
    Cr Chambers said the parameters for the discussion were for Cr Golder to speak on behalf of Council to present a without prejudice offer of $150,000.[52]  Cr Chamber was not made available for cross-examination and her written statement did not give context to this evidence.  I give her evidence very little weight for those reasons.
  4. [62]
    With respect, and in context, it seems a nonsense to suggest that Cr Golder’s authority in the 9 November 2017 was limited to making the $150,000 offer and to doing and saying nothing else if that offer was not accepted.
  5. [63]
    Firstly, the offer had already been made and refused by an exchange of letters, which would render meeting as entirely lacking in utility if the only purpose was to repeat the refused offer.
  6. [64]
    Secondly, and importantly, Resolution 52 was not worded in that limited manner and the accompanying Resolution 53 was not “if the offer is not accepted, proceed with compulsory acquisition”.  The resolutions contemplated a discussion with an outcome then to be reported back to Council.  If the authority was intended to be narrow, the resolutions could and should have been worded that way, but they were not.
  7. [65]
    Thirdly, the meeting was expressed to be ‘without prejudice’. The purpose of without prejudice privilege is to allow parties to explore the possibility of settlement in an environment where they can deal with the other party to the extent of making admissions without prejudice to their rights should the negotiations fail.[53] The protected communications must indicate an intention to comprise, offer cession or sacrifice to resolve the dispute.[54]  A finding that Cr Golder was only to repeat an offer already made and refused would be contrary to what is intended by ‘without prejudice’ communications, which is to compromise and offer to resolve.
  8. [66]
    Fourthly, the balance of witness evidence given in the CCT hearing does not support a conclusion that Cr Golder’s authority was limited in the manner submitted by the IA:
    1. Ms Reitano, when asked what she understood a “without prejudice” meeting to mean, said it was an opportunity for the Mayor to speak in person because sometimes a face-to-face meeting will produce a different outcome than letters between lawyers. She said it was a final opportunity for Cr Golder as mayor to make a “very personal approach” to the Dares and agreed on cross-examination that there was no discussion about the scope of the discussions to be had, and that it would be reasonable to expect the Dares in the meeting to refuse the $150,000 offer that they had already refused previously. 
    2. Ms Scott, instructed by Ms Reitano said her understanding was that the purpose of the meeting was:
      1. (i)
        to find out what it is that the Dares “actually wanted”, and whether it was possible to reach “some sort of agreement” that he could then take back to the Council for approval; and
      2. (ii)
        an opportunity to see if Cr Golder could “broker a deal”; and
      3. (iii)
        to “discuss options” to be taken back to Council.
  9. [67]
    Fifthly, the meeting invitation extended by Ms Scott on instruction from Ms Reitano expressly stated to the Dares via their solicitor that the purpose of the meeting was to make “an effort to come to an agreement with respect to the acquisition of part of your clients’ property for the flood mitigation project…” based upon Councils’ preference being to “resolve this by agreement with your clients and is hopeful of reaching a resolution with your clients through these without prejudice discussions”. If the purpose of the meeting was narrowly restricted to repeating the $150,000 offer already refused then, in my view, the invitation to meet was worded in a way that was misleading or made in bad faith, or both. Nothing in the evidence supports such a conclusion.  It is far more likely, in my view, that the purpose of the meeting was not so narrow and that the invitation to meet was made in good faith for the purpose of, as Ms Scott understood her instructions from Council in extending the invitation, finding out what the Dares wanted, discussing options and, if possible, brokering a deal.
  10. [68]
    On balance I find that Cr Golder was authorised to offer $150,000 for the Dares’ land but that otherwise, no limits were set on what he could or could not explore if that offer was rejected. He was to explore and discuss what the Dares wanted and to report back to Council. Otherwise, his limitations and responsibilities were those imposed on him under the LGA.

Were the (e)(i)-(vii) statements made by Cr Golder?

  1. [69]
    The witnesses to the 9 November 2017 meeting who gave evidence in the proceedings were Mr and Mrs Dare, Cr Golder, and Ms Scott. I watched the giving of their evidence in 2020 by way of video and reviewed the typed transcripts of the same, together with their written statements.
  2. [70]
    Of the five attendees to the meeting, only Ms Scott made contemporaneous notes, although Cr Golder did write a summary letter of the discussions shortly afterwards. 
  3. [71]
    Written statements by the Dares were signed two years and nine months after the meeting occurred.
  4. [72]
    Each witness gave their oral evidence in the CCT hearing two years and ten months after the meeting occurred. 
  5. [73]
    The IA submit that little weight should attach to the evidence of Mr and Mrs Dare due to the substantial amount of time that elapsed between the meeting occurring and them providing their recollection of the event.
  6. [74]
    Counsel for Cr Golder say that the Dares’ evidence was unchallenged and that they should be accepted as truthful and reliable, with no reason to favour Cr Golder in their accounts.
  7. [75]
    The IA submit that Ms Scott’s evidence should be preferred where it differs from Cr Golder’s because she is an independent and impartial witness who took contemporaneous notes during the meeting.
  8. [76]
    Counsel for Cr Golder submit that Ms Scott’s evidence is not truly impartial because she was instructed by Ms Reitano as CEO, that her file notes are not reliable as they are not a verbatim record of what was said and that her oral evidence was “vague and confused”.[55]
  9. [77]
    Ms Scott gave evidence that her handwritten notes recorded essential aspects of the conversation between the Mayor and Mr and Mrs Dare because “there were three people talking fairly quickly”, and that she dictated her handwritten notes “straight after the meeting” to fill in the gaps.[56]
  10. [78]
    I accept the contemporaneous handwritten file notes of Ms Scott as reliable and as near to an accurate record of statements made in the 9 November 2017 as can be achieved without an audio recording.  They were made point in time, and as Ms Scott was acting as an observer and scribe, she was not distracted by any advocacy role in the meeting.  To the extent there are inconsistencies between her handwritten and typewritten file notes as to particular words used, or the order in which they were used, the handwritten notes should, in my view, prevail as they were made point in time, as words were said.
  11. [79]
    I accept Ms Scott as impartial, in the sense that she was an external lawyer then acting for Council with no reason – and little opportunity - to make inaccurate or embellished file notes. Her oral evidence was given three years after the meeting took place and when she no longer acted for Council.  She accepted in giving that evidence that her notes were not verbatim. At the time her oral evidence was given in the CCT hearing, she was no longer employed by a firm that acted for the Council. She struck me as an honest witness with no motivation to give other than full and frank evidence.
  12. [80]
    Similarly, the Dares struck me as truthful and impartial.  The only flaw in the giving of their evidence is the passage of time between the meeting and when their evidence was given. 
  13. [81]
    Cr Golder is clearly not an impartial witness although he, too struck me as honest. His evidence was also given a considerable time after the meeting occurred.
  14. [82]
    To the extent of inconsistencies, therefore, I prefer Ms Scott’s evidence of the meeting to the evidence of others.
  15. [83]
    In that context, I find that Cr Golder did make the statements set out in (e)(i)-(e)(vii), if not verbatim, then at least using words to very similar effect, as they reflect what is recorded in Ms Scott’s file notes.

Were the statements made dishonestly, not impartially or in breach of trust?

(e)(i) Cr Golder stated he was there in his personal capacity, not there as a councillor and that the meeting was at his personal request and not on behalf of Council.

  1. [84]
    The evidence before the Tribunal is that:
    1. Cr Golder suggested the meeting – it was his idea and he requested Council’s permission to conduct it.  He was given that permission by a Council resolution.
    2. Cr Golder insisted that he be the one to attend from Council and again requested Council’s permission by resolution that this be the case.  He was given that permission.
    3. Cr Golder did not object to the meeting taking place at Council, nor did he object to the parties’ solicitors being present.
    4. Cr Golder agreed to report back to Council with an outcome of the meeting.
    5. Cr Golder understood he was attending as a councillor, representing Council and trying to do a deal with the Dares on behalf of Council in the meeting.
    6. The Dares did not believe Cr Golder attended the 9 November 2017 meeting in his personal capacity and said that nothing in his conduct during the meeting indicated to them that he was attending in his personal capacity rather than as Mayor.
    7. The Dares recalled Cr Golder making it clear during the meeting which views were his personally and which views were those of Council.
    8. Ms Scott recalled Ms Reitano instructing her that Cr Golder was attending the meeting personally, rather than as a representative of Council.[57]
  2. [85]
    In the context of:
    1. a prolonged negotiation over a disputed land acquisition,
    2. between parties who were legally represented,
    3. a ‘without prejudice’ meeting between the Mayor and the affected landowners, arranged by the authority of a Council resolution in correspondence between legal representatives, and
    4. with such meeting taking place in Council chambers attended by legal representatives,

I find that this statement was not made dishonestly or deceitfully, but rather, at worst, the language used by Cr Golder in making this statement was a clumsy attempt to convey that the meeting was his idea, at his request and that he insisted that he personally attend.  Whilst the statement was also potentially confusing, the Dares – to whom the statement was made - were not in the least confused by it.

  1. [86]
    As a matter of fact, Cr Golder did request, and was given, the permission of his councillors to conduct the meeting. He insisted that he personally attend as Mayor, rather than any other councillor, and that the meeting be face-to-face.  He emphasised those points at the outset of the meeting to build rapport. Although there seems to have been some confusion between Ms Scott and Ms Reitano about Cr Golder’s capacity in attending the meeting, Cr Golder was not responsible for that confusion, and I accept the Dares’ evidence that they were not confused or misled into thinking that Cr Golder attended the meeting in any capacity other than his capacity as Mayor.
  2. [87]
    A finding of dishonesty is a serious thing, and I am not reasonably satisfied to the requisite standard that this statement was made deceitfully, untruthfully, not impartially, or in any way that public confidence in the integrity of Cr Golder or the Council might be undermined.
  3. [88]
    Nor do I find that the statement made was unauthorised.  It appears that the purpose of the Mayor conducting the meeting personally was to impress or positively influence, perhaps flatter, the Dares. Emphasising that the Mayor had personally requested the meeting was therefore important. Again, whilst the language was clumsy, to make a finding that the statement was unauthorised would be inconsistent with my finding that the Council did not put any parameters on the scope of the discussions to be had with the Dares.

(e)(ii) Cr Golder said he wanted to reach a deal with Mr and Mrs Dare and in his personal opinion it was not reasonable to take people’s land by compulsory acquisition.

  1. [89]
    It was truthful for Cr Golder to say to Mr and Mrs Dare:
    1. that he wanted to reach a deal with them – those were his specific instructions from Council by Resolution 52 and consistent with the invitation to meet sent by Ms Scott to the Dares via their solicitor: and
    2. that he did not believe that it was reasonable to take people’s land by compulsory resumption – that was his opinion on the matter and was a matter of public record via minutes recording his voting record on point.
  2. [90]
    An undated Councillor Code of Conduct – Maranoa Regional Council was submitted in evidence, which the parties’ representatives suggest is the same or substantially similar to the Code that applied during the time the conduct is alleged to have occurred.
  3. [91]
    Relevantly, the Code provides:
    1. That it sets the standards of behaviour expected of councillors of the Council.
    2. That the Code is a “procedure” for the purpose of section 176(4) of the LGA.
    3. That councillors must:
      1. (i)
        not communicate with the public or media on behalf of the council, unless expressly authorised by the council to make about communication;
      2. (iii)
        when communicating with the public or media, make it clear when they are expressing a personal opinion, and when they are speaking on behalf of Council; and
      3. (iii)
        when communicating with the public or the media to express a personal opinion disagreeing with a Council resolution, respect the democratic process by first acknowledging that Council represent the majority view of Council.
    4. That failing to comply with the Code is not misconduct.
  4. [92]
    Importantly, the Code of Conduct did not prevent Cr Golder from expressing personal opinions.
  5. [93]
    Further:
    1. According to Ms Scott’s file notes, this statement was made immediately following the discussion about the police paddock, and immediately before Cr Golder “again raised the offer of $150,000 as he thought it might be a reasonable price and that the Dares may accept it”.  This is consistent with Ms Scott’s oral evidence given to the CCT that Cr Golder “kept coming back to the latest offer that the Council had made which the Council had approved” and that he “kept trying to direct the Dares’ attention back to the fact that the Council had made the $150,000 offer..”.[58]  In context, the statement appears to have been made as a segway to redirect the Dares from the idea of a land swap back to the $150,000 offer.  Shortly afterwards, Cr Golder said that “unless an agreement can be reached the compulsory acquisition process will continue to roll on” which is “not a win for anyone”.  I find that in context the statement was not made to undermine or contradict Council’s position, but rather to highlight the consequence to the Dares of not reaching agreement (being compulsory acquisition) and to emphasise that this outcome was something to be avoided by considering the $150,000 offer.
    2. Cr Golder’s opinion of compulsory acquisition was publicly available via Council voting records, and it was known to Council and to Ms Reitano (according to her CCT evidence) – his opposition to the compulsory acquisition process appears to have been believed by him as going some way to building rapport with them in the meeting. There was no foreseeable harm to Council that might arise from Cr Golder making the statement and to the extent the CCT found that making this statement in the circumstances did not demonstrate high quality leadership and good governance, I disagree.
    3. The Dares gave evidence that they were clear throughout the meeting which views were expressed by Cr Golder personally and which were those of Council.
  6. [94]
    I am not reasonably satisfied to the requisite standard that this statement was unauthorised, made deceitfully, untruthfully, not impartially, or in any way that public confidence in the integrity of Cr Golder or the Council might be undermined. 

(e)(iii) Cr Golder indicated Council could subdivide the police paddock and land swap it for the Dares’ land.

  1. [95]
    According to Ms Scott’s file notes, in expressing why they did not consider Council’s offer of $150,000 for their land fair, the Dares’ asked Cr Golder “if he knew of any good blocks in Roma to replace what they have and for the money offered by Council” and that was suitable for their requirements (to use as a residence and for keeping horses). 
  2. [96]
    In reply to their question, Cr Golder mentioned the police paddock as comparable land. It was owned by Council, had sustained horses in the past and was intended for residential subdivision sometime in the future.  Cr Golder then said that if the Dares wished to propose a land swap for the police paddock it would have to be taken to Council.   However, he also said that the land had a lot of rock, and may not be suitable, before redirecting the Dares back to the $150,000 offer.[59]
  3. [97]
    I consider it important that mention of the police paddock was in direct response to a question put to Cr Golder by the Dares when discussing and considering whether, in the Dares’ mind, Council’s offer of $150,000 was “fair”.
  4. [98]
    Cr Golder was asked what comparable land they could buy for the price being offered and he came up with something. He did not offer it; he made it clear the idea would have to be put to Council and simply indicated his willingness to take the proposal to Council if it was something the Dares wanted Council to consider. At the same time, he continued to redirect the Dares back to the $150,000 offer.
  5. [99]
    It is not clear what harm was caused or could have been caused by Cr Golder to Council’s interests in doing so. He was tasked with bringing to Council options that might do a deal and, during the meeting at least, a land swap of the police paddock was brainstormed as one such option.  It matters little that the Dares later dismissed the idea, nor that Council may not have voted in favour of it given, if nothing else, their time constraints to continue flood mitigation works. When the idea arose, Cr Golder did not know whether in fact Council would reject the idea, and it would have been beyond his authority to speak for Council on the issue. The idea having arisen, it properly should have gone to Council to be considered, if the Dares wished to pursue it.  
  6. [100]
    In context, the idea of the land swap for the police paddock arose organically, during a without prejudice discussion of whether the $150,000 offer represented fair value to the Dares, and once it arose, it had to be reported to Council as an option. Nothing in this statement was misleading, not impartial, unauthorised or amounts to a breach of trust.

(e)(iv) Cr Golder said he was on a deadline to respond about any room to move on Council’s offer or the land swap option.

  1. [101]
    It was true that Cr Golder was on a deadline:
    1. By Resolution 53 Council had effectively voted to proceed with the gazetted resumption on 11 November 2017 if a deal was not struck with the Dares as an outcome of the 9 November 2017 meeting.
    2. According to Resolution 52, the outcome of that meeting had to be finalised by midday 10 November 2017.
  2. [102]
    Although by Resolution 53 Council had effectively resolved to move forward with compulsory acquisition, that resolution was “subject to the outcome of the without prejudice meeting”. According to Ms Scott, the purpose of the meeting was to “find out what the Dares actually wanted”, to broker a deal, and to report back to Council with options. Cr Golder therefore did not definitely know, until he reported back to Council with the Dares’ feedback from the meeting and Council considered it, whether there was in fact “room to move”.  Nonetheless he continued to redirect the Dares to the $150,000 offer and to state that compulsory acquisition was the next step in the process if agreement could not be reached.
  3. [103]
    In context, nothing in this statement was misleading, unauthorised, not impartial or in breach of trust.

(e)(v) Cr Golder offered to write a letter to the Council setting out the Dares’ position to try and do a deal for them.

  1. [104]
    Cr Golder was instructed to broker a deal and was required to report back to Council regarding the outcome of the meeting.  This necessarily needed to be a document that set out the Dares’ position. 
  2. [105]
    It is important to note that the Dares were legally represented in the acquisition process, the meeting was arranged through their lawyer and both parties’ lawyers were present at the 9 November 2017 meeting. The Dares gave evidence that they well understood that Cr Golder was not representing them, and in my view, if they had given evidence that they believed otherwise, such a belief would not have been reasonably held. 
  3. [106]
    Again, Resolution 53 was “subject to the outcome of the without prejudice meeting”, which was “find out what the Dares actually wanted”, to discuss options and to do a deal.
  4. [107]
    In context, nothing in this statement was misleading, unauthorised, not impartial or in breach of trust.

(e)(vi) Cr Golder said he understood the emotional toll these things took as his mother’s land was also resumed in stage 1.

  1. [108]
    As discussed at paragraphs [6] to [10] the word “resumption” is used in the legal sense to describe the compulsory acquisition of land by a “gazetted resumption notice” and when the taking is negotiated by a “resumption agreement”. Land can be taken by way of transfer or easement.
  2. [109]
    Ms Reitano’s evidence before the CCT was that Cr Golder’s mother’s land was “acquired” pursuant to ALA processes for the stage 1 works by way of easement pursuant to a “resumption agreement”. 
  3. [110]
    Therefore, Cr Golder’s description of his mother’s land being “resumed in stage 1” was the truth.
  4. [111]
    Further, sharing this information did not amount to a breach of any obligation to be impartial or a breach of trust – Cr Golder’s shared experience was one of the reasons he was voted on to attend the meeting – sharing this information amounted to his attempt to connect with the Dares, to explain that he understood and had a personal connection with the process.
  5. [112]
    In context, nothing in this statement was misleading, unauthorised, not impartial or in breach of trust.

(e)(vii) Cr Golder reminded the Dares about the valuation of their land, then agreed it was strange and thought it should have been at the rate Council paid for the neighbouring property.

  1. [113]
    According to the file notes, the context in which this statement was made is as follows:

Mrs Dare said it was good to meet the Mayor and they appreciated him taking the time to listen to them so they could explain the issues as she doesn't think their issues are being passed on to the council. They are not money grabbing as the Councillors seem to think.

Mayor Golder reminded them that the sliver of land that is all that is required by Council is valued at $10,000 although he agreed that the valuation was strange. He thought it should have been the same rate paid for the Rose property next door as that valuation was not far off what was paid for the lot. However, the valuation reports are what the council has to move on to make its decisions.

  1. [114]
    In my view, it was neither helpful nor necessary for Cr Golder to disagree with the Council valuation, and he was not qualified to express any views on valuation, even if it was made clear that he was expressing a personal opinion. I agree with the CCT that in questioning the Council valuation during critical negotiations and by supporting a valuation higher than the one obtained by Council, Cr Golder undermined the Council’s valuation process and did not advance Council’s interests or objectives of resolving the compensation claim in the meeting.
  2. [115]
    Whilst the statement was qualified by the reference to valuation reports being what decisions are made upon, and by following observations made by Cr Golder that indicated the impact on the Rose land of the flood diversion channel which might have influenced the difference in value, I find that it nonetheless was contrary to the scope of Cr Golder’s authority in the meeting and did not represent high quality leadership or good governance. 
  3. [116]
    I find however, that although the statement had potential to harm Council’s interests, it did not cause actual harm. The file notes clearly state that Mr and Mrs Dare had made their own inquiries (of the Department of Natural Resources and Mines), and had formed their own opinion as to what a “fair” value of their property was.  Cr Golder’s statement did not influence that and having regard to the content and tone of the Dares’ position expressed throughout the meeting, nothing he said was, with the benefit of hindsight, likely to influence them either way.

Did Cr Golder engage in misconduct?

  1. [117]
    Section 176 (as it was, section 150AL now) of the LGA requires the Tribunal to be satisfied that Cr Golder engaged in conduct during the 9 November 2017 meeting that is or involves:
    1. the performance of his responsibilities in a way that was not honest or is not impartial; or
    2. a breach of the trust placed in him as a councillor.
  2. [118]
    A breach of trust might involve a failure to be transparent, to decision-make in the public interest, to pursue good governance, to engage in ethical and legal behaviour or to provide high quality leadership to the local government and the community, bearing in mind that:[60]

Any breach of trust can have a corrosive effect on the community and its confidence in local government. 

  1. [119]
    As mentioned, conduct under review must be assessed in the circumstances in which it occurred - the entire ‘matrix of facts’ surrounding it rather than in a narrow or forensic examination of, in this case, individual statements made in isolation.
  2. [120]
    According to an annotated version of Ms Scott’s file note[61] the seven statements complained of – only one of which I have found to have been made in breach of trust - amount to some fifteen lines across five-and-a-half pages of typewritten notes and were made during a forty-five-minute meeting.
  3. [121]
    The finding that Cr Golder made the statements, accompanied by a finding that one statement was made in breach of trust does not, of itself, require the Tribunal to then conclude that Cr Golder engaged in misconduct within the meaning of section 150AL, unless the entire circumstances in which that statement was made justify the finding, bearing in mind:
    1. the Briginshaw standard in proceedings in which there are serious consequences to Cr Golder of an adverse finding against him; and
    2. the Tribunal’s obligation to deal with matters in a way that is fair[62] and to act fairly, according to the substantial merits of each case.[63]
  4. [122]
    To do otherwise would, as observed by the Appeal Tribunal in Richardson require findings of misconduct for a broad array of low-level misbehaviour, inconsistent with the serious consequences of a finding of misconduct.
  5. [123]
    In context then:
    1. Mr and Mrs Dare were land-owners facing compulsory acquisition of their land by Council.  They were angry and upset with Council over their experience of the process.
    2. After long negotiations they had rejected an offer of $150,000 from Council to purchase their land at a time when Council’s need to take the land had become urgent and when Council were not inclined to increase the offer.
    3. As his request, Council nominated its Mayor, Cr Golder to attend a meeting with Mr and Mrs Dare and the parties’ legal representatives as a final attempt to reach a resolution before the land was taken by compulsory acquisition. His authority in the meeting was to reoffer the $150,000, and otherwise to find out what the Dares wanted and to discuss options to resolve the dispute.
    4. Cr Golder was to report back to Council after the meeting about its outcome.
    5. The meeting was arranged between legal representatives and took place in Council chambers with legal representatives present.
    6. The meeting was conducted on a “without prejudice” basis and expressed to be for the purpose of reaching an agreement or resolution of the dispute.
    7. In summary, during the meeting:
      1. (i)
        Cr Golder informed the Dares that the meeting was at his personal request and somewhat clumsily said he was there in his personal capacity, although no one, including Cr Golder, took that to mean that he was acting in any capacity other than as a councillor in the meeting.
      2. (iii)
        Cr Golder attempted to connect with the Dares by sharing his family’s personal experience with, and his personal objection to compulsory acquisition. In doing so he emphasised that compulsory acquisition was the next step if agreement was not reached and expressed that this was a “no win” situation for all.
      3. (iii)
        Cr Golder made the $150,000 offer at the outset of the meeting and advocated for its acceptance.
      4. (iv)
        The Dares rejected the $150,000 offer explaining why they believed their land was worth more, saying they did not think they could purchase replacement comparable land for the value being offered.  They asked Cr Golder to give them an example of comparable land.
      5. (v)
        In reply, Cr Golder identified the Council-owned police paddock as comparable. This was a direct answer to the Dares’ question to him on point, in an attempt to be responsive.
      6. (vi)
        Cr Golder hypothesised that perhaps it could be subdivided and land-swapped, but that would need to be taken to Council and voted upon, if it was something the Dares were amenable to. Nothing in the discussion about the police paddock put it in the form of an offer, or expressly or impliedly represented that Council would be amenable to the idea. In any event, the Dares wanted time to think. Once they thought on it, it would go to Council who could also think on it. There was no foreseeable harm in this: Council had already resolved to proceed with compulsory acquisition unless an alternate resolution was achieved as an outcome of the meeting. The power to advance any alternate resolution that arose from the meeting was squarely in the hands of Council.
      7. (vii)
        No other resolutions were proposed or discussed.
      8. (viii)
        Cr Golder continued to redirect the discussions back to the $150,000 offer throughout the meeting, emphasising the consequence of compulsory acquisition if agreement was not reached.
      9. (ix)
        Cr Golder expressed a view that Council’s valuation of the land was “strange” and ought to have mirrored the sum paid for a neighbouring lot. This went beyond the scope of his authority and was a breach of trust. However, the statement was made:
        1. in the context of Cr Golder’s ongoing attempts during the meeting to convince the Dares to consider the $150,000 offer and to understand their objection to it; and
        2. in circumstances where it had no actual influence on the Dares’ view of Council’s offer or what their land was worth; and
        3. when Council had resolved to proceed with compulsory acquisition if agreement was not reached, such that the statement could not delay or risk next steps if they needed to be taken.
      10. (x)
        Following the meeting Cr Golder wrote a letter to Council setting out the discussions had and the Dares’ position, as he was required to do.
      11. (xi)
        The Dares subsequently rejected the idea of a land-swap involving the police paddock.
      12. (xii)
        The Dares’ land was taken by compulsory acquisition shortly thereafter.
  6. [124]
    As mentioned, at common law, the test of misconduct tends to require the most serious and deliberate departure from accepted industry practice, involves serious incompetence, lack of knowledge, judgement, integrity, diligence or care, corruption, dishonesty, unethical, improper, disgraceful and dishonourable conduct. Even when applying a statutory definition in lieu of the common law definition, regard must be had to the seriousness of the finding and the conduct that amounts to it.
  7. [125]
    Bearing that seriousness in mind, I am not satisfied to the requisite standard that Cr Golder’s conduct on 9 November 2017 amounted to misconduct, objectively assessed in the circumstances in which it occurred. He made one statement in a without prejudice meeting that was objectionable because it went beyond his authority and did not advance Council’s interests, but it did not actually harm those interests, nor did it influence the persons to whom it was said. He made another that was clumsily worded. In the context of Cr Golder’s conduct throughout the entire meeting, including surrounding statements and exhaustive attempts at resolution made, there is, in my view, no question that public confidence in his integrity, his role as Mayor or Council’s interests could possibly have been eroded by anything that he said in the meeting.  Mr and Mrs Dare who had been angry and upset, appreciated that Cr Golder took the time to meet with them and to listen. If anything, Cr Golder’s conduct went some way to improving their experience as constituents.

Decision

  1. [126]
    For those reasons, the correct and preferable decision is that Cr Golder did not engage in misconduct.  The CCT decision made 22 December 2020 is set aside and substituted with a decision that Cr Golder did not engage in misconduct.

Costs

  1. [127]
    Costs are not awarded as a matter of course. Each party must pay their own legal costs,[64] unless the ‘interests of justice’ require the Tribunal to order a party to pay the costs of another party.[65]
  2. [128]
    Unless a party files submissions seeking costs (to which the other parties may then respond), each party must pay their own costs.

Footnotes

[1] Decided under section 150AG of the Local Government Act 2009 (Qld) (LGA).

[2] Statement of Julie Reitano, pages 1-2 of 6, within Section 21(2) Bundle, pages 49-50.

[3] ALA, s 7.

[4] ALA, s 7(3)(d).

[5] ALA, s 7(3)f).

[6] ALA, s 9.

[7] ALA, ss 15 and 15D.

[8] ALA, s 6.

[9] ALA, s 15(4).

[10] ALA ss 19 and 20.

[11] Affidavit of Cr Jan Chambers affirmed 8 October 2019, Section 21(2) Bundle, page 101.

[12] CCT Hearing Transcript, pages 98-100 of 126.

[13] CCT Hearing Transcript, page 22 of 126.

[14] CCT Hearing Transcript, page 25 of 126.

[15] CCT Hearing Transcript, page 46 of 126.

[16] CCT Hearing Transcript, page 54 of 126.

[17] Ibid.

[18] Section 21(2) Bundle, page 145.

[19] Section 21(2) Bundle, page 150.

[20] Annexure A to Statement of Eleanor Scott dated 21 January 2019, Section 21(2) Bundle pages 58-75. and evidence of Ms Scott at pages 51 and 55 of the CCT Hearing Transcript.

[21] Section 21(2) Bundle, pages 222-231 and 184-189, respectively.

[22] Affidavit of Storm Sandilands affirmed 30 October 2019, attaching her file notes of a conversation with Mr Marland at exhibit SS-02 (handwritten) and SS03 (typed).

[23] Section 21(2) Bundle, pages 273 and 274.

[24] CCT Hearing Transcript, page 117 of 126.

[25] CCT Hearing Transcript, page 122 of 126.

[26] Section 21(2) Bundle, Annexure B, pages 170-171.

[27] Pursuant to section 150AJ of the LGA.

[28] LGA, section 150AL.

[29] Decision and Reasons of the CCT dated 22 December 2020, para [79]-[80].

[30] LGA, section 150AT.

[31] QCAT Act, section 20.

[32] Camp Seabee Properties Pty Ltd v Commissioner of State Revenue [2014] QCAT 258 at [8]-[9].

[33] QBCC v Whalley [2018] QCATA 38 at [10].

[34] QCAT Act, section 21.

[35] Directions made 18 March 2021.

[36] (1938) 60 CLR 336 at 362.

[37] For example, see Queensland Building and Construction Commission v Richardson [2015] QCATA 85 at [25].

[38] [2009] QCCTB 157 at [65] and [69].

[39] [1884] 1 QB 750.

[40] (1939) 13 ALJ 563.

[41] [2004] QCA 405.

[42] Ibid at [23].

[43] Oxford Dictionary.

[44] Cambridge Dictionary.

[45] Re Dillon; Exparte Attorney-General (Qld) [2015] QCQ 155.

[46] Oxford Dictionary.

[47] Cambridge Dictionary.

[48] Independent Assessor v Councillor Paul Gleeson, CCT reference F19/6508, 15 December 2019, at [38].

[49] [2014] QCAT 138 at [35].

[50] Queensland Building and Construction Commission v Richardson [2015] QCATA 85.

[51] Ibid, at [28].

[52] Affidavit of Cr Chambers affirmed 8 October 2019, Section 21(2) Bundle at page 101, [10].

[53] Nouvelle Homes t/as Wilson & Hart v Hatch [2009] WASC 63.

[54] Thompson v Austen (1823) LJKB 99 at 99.

[55] Cr Golder’s Final Submissions to the CCT, Section 21(2) Bundle at page 417, [18].

[56] CCT Hearing Transcript, page 56 of 126.

[57] CCT Hearing Transcript, page 60 of 126.

[58] CCT Hearing Transcript, page 64 of 126.

[59] File notes, Section 21(2) Bundle, page 185.

[60] Independent Assessor v Councillor Paul Gleeson, CCT reference F19/6508, 15 December 2019, at [38].

[61] Section 21(2) Bundle, pages 203-208

[62] Section 3(b) of the QCAT Act.

[63] Section 28(2), ibid.

[64] Section 100, QCAT Act.

[65] Section 102, ibid.

Close

Editorial Notes

  • Published Case Name:

    Golder v Councillor Conduct Tribunal & Anor No. 2

  • Shortened Case Name:

    Golder v Councillor Conduct Tribunal No. 2

  • MNC:

    [2023] QCAT 323

  • Court:

    QCAT

  • Judge(s):

    Lember

  • Date:

    22 Aug 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Allison v General Council of Medical Education and Registration [1884] 1 QB 750
2 citations
Jump To
Cite 1 - [1884] 1 QB 750
Cite 2 - [1884] 1 QB 750
Auto Parts Group Pty Ltd v Cooper [2015] QSC 155
1 citation
Jump To
Cite 1 - [2015] QSC 155
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Camp Seabee Properties Pty Ltd v Commissioner of State Revenue [2014] QCAT 258
2 citations
Jump To
Cite 1 - [2014] QCAT 258
Cite 2 - [2014] QCAT 258
Kennedy v Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJ 563
2 citations
Jump To
Cite 1 - (1939) 13 ALJ 563
Cite 2 - (1939) 13 ALJ 563
Laidlaw v Queensland Building Services Authority [2010] QCAT 70
2 citations
Jump To
Cite 1 - [2010] QCAT 70
Cite 2 - [2010] QCAT 70
Nouvelle Homes t/as Wilson & Hart v Hatch [2009] WASC 63
2 citations
Jump To
Cite 1 - [2009] WASC 63
Cite 2 - [2009] WASC 63
Psychologists Board of Queensland v Robinson [2004] QCA 405
2 citations
Jump To
Cite 1 - [2004] QCA 405
Cite 2 - [2004] QCA 405
Qantas Airways v Gama [2008] FCAFC 69
1 citation
Jump To
Cite 1 - [2008] FCAFC 69
Queensland Building & Construction Commission v Whalley [2018] QCATA 38
2 citations
Jump To
Cite 1 - [2018] QCATA 38
Cite 2 - [2018] QCATA 38
Queensland Building and Construction Commission v Richardson [2015] QCATA 85
3 citations
Jump To
Cite 1 - [2015] QCATA 85
Cite 2 - [2015] QCATA 85
Cite 3 - [2015] QCATA 85
Re Dillon; Exparte Attorney-General (Qld) [2015] QCQ 155
1 citation
Jump To
Cite 1 - [2015] QCQ 155
Schwede v Queensland Building Services Authority [2009] QCCTB 157
2 citations
Jump To
Cite 1 - [2009] QCCTB 157
Cite 2 - [2009] QCCTB 157
Thompson v Austen (1823) LJKB 99
2 citations
Jump To
Cite 1 - (1823) LJKB 99
Cite 2 - (1823) LJKB 99
Troy Richardson's Building Approvals & Inspections v Queensland Building and Construction Commission [2014] QCAT 138
2 citations
Jump To
Cite 1 - [2014] QCAT 138
Cite 2 - [2014] QCAT 138
Troy Richardson's Building Approvals & Inspections v Queensland Building Services Authority [2013] QCAT 113
1 citation
Jump To
Cite 1 - [2013] QCAT 113

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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