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Golder v Councillor Conduct Tribunal[2023] QCAT 371

Golder v Councillor Conduct Tribunal[2023] QCAT 371

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Golder v Councillor Conduct Tribunal & Anor [2023] QCAT 371

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:

19 June 2023

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

  1. The application for miscellaneous matters (to amend grounds of application for review) filed 16 May 2023 is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision of Councillor Conduct Tribunal – application to amend grounds of review – where Independent Assessor opposes the application to amend – where application to amend refused – scope of review

Local Government Act 2009 (Qld) s 150AJ, s 150AS, s 150AT

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 17, s, 18, s 19, s 20, s 21, s 28, s 32, s 64

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

QBCC v Whalley [2018] QCATA 38

Wilkie v Councillor Conduct Tribunal [2022] QCAT 79

APPEARANCES &

REPRESENTATION:

This matter was determined on the papers, based on the written submissions of the parties’ representatives, pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

Applicant:

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

First Respondent:

Excused from appearing

Second Respondent:

S Singh, Solicitor, Crown Law

REASONS FOR DECISION

What is this application about?

  1. [1]
    A decision of the Councillor Conduct Tribunal (CCT) published 22 December 2020 is under review.
  2. [2]
    Before the matter is finally heard, Cr Golder seeks to amend his application for review[1] to narrow its scope to only the adverse findings of the CCT. The Independent Assessor (IA) opposes the amendment.
  3. [3]
    The issue arose just prior to the hearing listed for 23 May 2023, necessitating an adjournment and an intervening period for response and reply to submissions before the issue of whether to permit the amendment could be determined.
  4. [4]
    The Tribunal’s decision on the application to amend and the reasons for it follow.

The decision under review

  1. [5]
    On 23 November 2018 the conduct of its Mayor, Cr Golder, was referred to the IA for investigation. The conduct was described by the IA as “one allegation” of misconduct arising from statements made by Cr Golder in a meeting with two constituents, Mr and Mrs Dare that took place on 7 November 2017 (the meeting).
  2. [6]
    Following an investigation, on 4 October 2019 the IA referred to the matter to the CCT[2] because it was reasonably satisfied that Cr Golder engaged in misconduct by making statements in the meeting that were, variously, dishonest, unauthorised or misleading as follows:

Reference

Alleged statement

IA concern regarding the statement

(e)(i)

Cr Golder stated he was there in his personal capacity, not there as a council 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 has the ability to 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.

  1. [7]
    After conducting a hearing[3] the CCT made the decision referenced as “F19/8258” dated 22 December 2020.  In doing so 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 unuathorised, misleading or dishonest;
    2. The statement in (e)(ii) was unuathorised; and 
    3. The statement in (e)(vii) was unuathorised.
  2. [8]
    The decision of the CCT was that:[4]

79. The Tribunal has determined that on the balance of probabilities, the allegation, that on 9 November 2017 Councillor Golder, the Mayor and Councillor of the Council, engaged in misconduct as defined in section 176(3)(b)(ii) of the Act, as his conduct involved a breach of trust placed in him as a Councillor and this conduct constitutes misconduct.

80. The allegation of misconduct is sustained.

  1. [9]
    As is his right, on 18 January 2023 Cr Golder applied to the tribunal for a review of the CCT decision.  His application relevantly stated:

Golder v Councillor Conduct Tribunal [2023] QCAT 371

Golder v Councillor Conduct Tribunal [2023] QCAT 371

  1. [10]
    The application for miscellaneous matters filed 16 May 2023 seeks “to amend the application for review” as follows:

…to amend the grounds of review…such that the applicant seeks review only in respect of the adverse findings regarding the allegations at particulars (e)(i), (e)(ii) and (e)(vii).

Jurisdiction

  1. [11]
    The QCAT Act provides:

17 Generally

(1) The tribunal’s review jurisdiction is the jurisdiction conferred on the tribunal by an enabling Act to review a decision made or taken to have been made by another entity under that Act.

(2) For this Act, a decision mentioned in subsection (1) is a reviewable decision and the entity that made or is taken to have made the decision is the decisionmaker for the reviewable decision.

18 When review jurisdiction exercised

(1) The tribunal may exercise its review jurisdiction if a person has, under this Act, applied to the tribunal to exercise its review jurisdiction for a reviewable decision.

  1. [12]
    Under section 150AT of the Local Government Act 2009 (Qld) (LGA), a person who is entitled under section 150AS(3) to be given a QCAT information notice for a decision of the CCT may apply to the tribunal for a review of the decision.
  2. [13]
    Both the IA and Cr Golder were persons entitled to be given a QCAT information notice under section 150AS(3). Therefore, each could apply to review the decision.
  3. [14]
    The role of the tribunal in review applications is consider the circumstances afresh and to produce the correct and preferable decision.[5] It stands in the shoes of the decision maker (the CCT in this case) to make its own decision,[6] doing “over again” what the original decision maker did.[7] 
  4. [15]
    In this case, this is quite literal: the parties have submitted as their evidence in this proceeding, among other things, video of the four-hour hearing they conducted before the CCT, including the evidence in chief and cross examination of witnesses. 
  5. [16]
    The role of the original decision maker is usually to assist the tribunal in making its decision,[8] 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, presumably on the basis that the IA is participating as a contradictor. 
  6. [17]
    Section 64 of the QCAT Act permits the tribunal as constituted for a proceeding to, at any time in a proceeding, make an order amending an application or referral or a response to such a document.  The power is exercisable on the application of the party who filed the document or by the tribunal on its own initiative.
  7. [18]
    The amendment power is a broad one and should be exercised in accordance with the objects of the QCAT Act which require the Tribunal to ensure that proceedings are conducted in an informal way that minimises costs to the parties and is as quick as is consistent with achieving justice.
  8. [19]
    Because an outcome that causes detriment or prejudice to a party would not be in the interest of achieving justice and would be inconsistent with the Tribunal’s objectives, it is necessary to consider those issues when considering the exercise of the discretionary power to amend.

Submissions on amendment

Cr Golder’s submissions

  1. [20]
    Counsel for Cr Golder argue that the amendment application seeks to amend the ‘grounds of review’ in a manner broadly consistent with the decision in Wilkie v Councillor Conduct Tribunal [2022] QCAT 29. 
  2. [21]
    In Wilkie, the IA applied to the CCT about fourteen allegations of misconduct, eight of which were sustained by the CCT who made an order disciplining Wilkie. On review, an amendment application was made such that review was only sought in relation to seven allegations of misconduct and the sanction imposed.  Each allegation was an allegation of misconduct itself, rather than a case where it was alleged that there was a course of conduct of which fourteen particulars were given.
  3. [22]
    Cr Golder – as the only party who did apply for review – seeks to limit his challenge to those matters that were decided adversely against him, consistent with the Tribunal’s objects to deal with matters in a way that is accessible, fair, just, economical informal and quick.
  4. [23]
    Where the IA did not seek review, Cr Golder says they cannot now challenge the findings that were favourable to Cr Golder.
  5. [24]
    As Cr Golder seeks review of the CCT’s decision that he engaged in misconduct, his amendment seeks only to ensure the way the Tribunal exercises its jurisdiction is the most fair, economical and quickest manner possible, by reviewing only those adverse allegations.  He asks the Tribunal to accept as correct the findings of the CCT in relation to those that were not adverse to Cr Golder because the IA did not challenge them by bringing its own review application. 
  6. [25]
    In Wilkie the Tribunal observed that there was no reason why an applicant on review would want to review a decision that was favourable to them and expressed that it would not be satisfactory if a person with a right to apply for review were to be exposed to having findings on allegations which were favourable to them also reviewed, in affect as the price for a review.[9]

The IA’s submissions

  1. [26]
    The IA argue that permitting the amendment application would:
    1. be inconsistent with the Tribunal’s review powers which require a fresh rehearing; and
    2. impermissibly fragment the decision under review.
  2. [27]
    Further, as the IA was entitled to be given a QCAT information notice under section 150AS(3) and could apply to review the decision, it said that if the application to amend is granted by narrowing the scope of the review, they would be out of time to review those aspects of the CCT’s decision that they did not agree with unless an extension of time, if one can be granted, was granted.  Put simply, “but for” the broad ambit of Cr Golder’s application for review, the IA says it would have reviewed the CCT decision itself.
  3. [28]
    The IA rely on the Tribunal’s decision in QBCC v Whalley [2018] QCATA 38 in which the Appeal Tribunal found that the Tribunal erred at first instance by confining itself on review to a list of issues previously defined by the parties in a compulsory conference.
  4. [29]
    Cr Golder distinguishes Whalley on the basis that the list of issues did not include whether the reviewable decision was the correct and preferable decision.  In Wilkie Judicial Member McGill respectfully disagreed with the Appeal Tribunal in Whalley on the question of whether the parties could confine the issues in a review.[10] 

Discussion

  1. [30]
    The tribunal’s review jurisdiction permits it to review the decision made by the CCT, upon application by a party entitled to apply.
  2. [31]
    The reviewable decision the subject of the review is the decision of the CCT made on 22 December 2020 in F19/8258 that on 9 November 2017 Cr Golder “engaged in misconduct as defined in section 176(3)(b)(ii) of the Act, as his conduct involved a breach of trust placed in him as a Councillor and this conduct constitutes misconduct”.
  3. [32]
    While making that decision, the CCT examined evidence, reached conclusions and made findings, certain of which were adverse to Cr Golder and contributed to the ultimate decision made. 
  4. [33]
    On review the Tribunal, standing in the shoes of the CCT is examine afresh the circumstances of the 9 November 2017 meeting and the statements alleged to have been made during it to determine whether the alleged conduct amounts to misconduct.
  5. [34]
    The application to amend seeks to exclude from the scope of the Tribunal’s review the findings made by the CCT about what occurred in that meeting that were not adverse to Cr Golder.  Namely, it asks the Tribunal to make the decision afresh, albeit accepting some findings of the CCT based upon the IA’s failure to review them.
  6. [35]
    Although in general narrowing the issues for or evidence to be presented in a hearing no doubt achieves the objects of conducting matters quickly and cost effectively, the important limiter is that this can only be to the extent consistent with achieving justice.
  7. [36]
    As is the case in many QBCC matters, an applicant on review might limit the review only to certain aspects of a “decision”, for example, a direction to rectify might be address several items of complaint. A builder may only wish to review the direction about certain items only. In such a case, similar to Wilkie the direction to rectify each complaint item is separate decision, albeit contained within one letter or notice to the parties.  Usually an application for review would seek to limit the decision under review by identifying the specific complaint or item-number the review pertains to. 
  8. [37]
    On an application to amend, where the decision maker (acting as model litigant) assists the Tribunal, and where the parties together submit that certain evidence, conclusions or findings are not contested, it might be appropriate confine the review hearing to allow for hearing efficiencies consistent with the Tribunal’s objects.  In this regard I agree with the proposition in Wilkie that the parties can, where appropriate, seek to confine the issues before the Tribunal on review.
  9. [38]
    In this case however, I find that granting the application to amend:
    1. without the consent of the responding party, risks disadvantaging the responding party to the application, as it removes from the scope of the review, at a very late stage, aspects of the decision that they say they would have reviewed, but for the fact that they were already the subject of review;
    2. risks delaying the proceedings, which in turn puts the parties and the tribunal to additional time and expense, should the IA pursue their own application for review and an application to extend time to file such an application; and
    3. is unlikely to meaningfully save costs to the parties or the commitment of the Tribunal’s time to hear the matter given that:
      1. (i)
        the application to amend was made at a very late stage in the proceeding;
      1. (ii)
        the parties addressed all issues of the broader review in the CCT hearing; and
      1. (iii)
        the parties have submitted their evidence in chief and cross-examination of the witnesses in the CCT hearing – including four hours of video that the Tribunal has watched ahead of final submissions at the request of the parties – as their evidence in these proceedings, such that narrowing the scope of the review only impacts the making of final submissions - a step that took place once already in the CCT proceeding.
  10. [39]
    On balance, I am not convinced to exercise my discretionary power to amend in those circumstances.
  11. [40]
    I do not purport to set a ‘hard and fast’ rule in declining to exercise my discretion to amend. Had the amendment request been made earlier in proceedings, had the respondents consented, had the format of evidence before the Tribunal been different, my decision may well have been different. 

Decision

  1. [41]
    For those reasons, the application to amend is dismissed.

Footnotes

[1]  Filed pursuant to section 150AT of the Local Government Act 2009 (Qld) (LGA).

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

[3]  LGA, section 150AL.

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

[5]  Section 20 of the QCAT Act.

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

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

[8]  QCAT Act, section 21.

[9] Wilkie v Councillor Conduct Tribunal [2022] QCAT 79 at [14].

[10] Wilkie v Councillor Conduct Tribunal [2022] QCAT 79 at [15] and at footnote 15.

Close

Editorial Notes

  • Published Case Name:

    Golder v Councillor Conduct Tribunal & Anor

  • Shortened Case Name:

    Golder v Councillor Conduct Tribunal

  • MNC:

    [2023] QCAT 371

  • Court:

    QCAT

  • Judge(s):

    Member Lember

  • Date:

    19 Jun 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
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
Health Ombudsman v JKR [2022] QCAT 29
1 citation
Jump To
Cite 1 - [2022] QCAT 29
Queensland Building & Construction Commission v Whalley [2018] QCATA 38
3 citations
Jump To
Cite 1 - [2018] QCATA 38
Cite 2 - [2018] QCATA 38
Cite 3 - [2018] QCATA 38
Wilkie v Councillor Conduct Tribunal [2022] QCAT 79
3 citations
Jump To
Cite 1 - [2022] QCAT 79
Cite 2 - [2022] QCAT 79
Cite 3 - [2022] QCAT 79

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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