Berridge v The Independent Assessor & Anor [2023] QSC 228 [2023] 42 QLR

SUPREME COURT OF QUEENSLAND CITATION: Berridge v The Independent Assessor & Anor [2023] QSC 228 PARTIES: ADELIA BERRIDGE (applicant) v THE INDEPENDENT ASSESSOR (first respondent) AND THE COUNCILLOR CONDUCT TRIBUNAL (second respondent) FILE NO/S: 7243 of 2023 DIVISION: Trial Division PROCEEDING: Trial ORIGINATING COURT: Supreme Court DELIVERED ON: 13 October 2023 DELIVERED AT: Brisbane HEARING DATE: 4 October 2023 JUDGE: Muir J ORDER: 1. The application is dismissed 2. I will hear the parties about costs CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – REVIEWABLE DECISIONS AND CONDUCT – GENERALLY – where the first respondent received a notification about the misconduct of the applicant arising from statements on the applicant’s Facebook page – where the applicant applies for a review of a decision by the first respondent that she was reasonably satisfied that the applicant had engaged in misconduct and she would make an application referring the notification to the second respondent – where the sole ground of review relied upon by the applicant is that the first respondent erred by failing to take a relevant consideration into account – where the applicant claims the first respondent failed to consider the applicant’s submissions in response to the allegations of misconduct – whether any failure to consider the submissions in response was material to the decision -- 1 of 15 -- 2 Judicial Review Act 1991 (Qld), ss 20(2)(e), 23(b) Local Government Act 2009 (Qld), ss 150AA, 150AJ, 150AK, 150AL 150B, 150K, 150L, 150O, 150R, 150T, 150W, 150Y, 150X Buck v Bavone (1976) 135 CLR 110 Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 325; [2017] FCAFC 107 Cuvegen v Secretary to Department of Education and Training [2021] VSC 524 DV016 v Minister for Immigration and Border Protection & Anor (2021) 273 CLR 177; (2021) HCA 12 East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605 Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 98 McGee v Independent Assessor & Anor [2022] QSC 257 Minister for Home Affairs v Ogawa (2019) 269 FCR 536; (2019) FCAFC 98 [101] Minister for Immigration & Border Protection v Maioha (2018) 267 FCR 643; [2018] FCAFC 216 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421 Minister for Immigration and Ethnic Affairs v Lu Shan Liang (1996) 185 CLR259; [1996] HCA 6 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 327 ALR 8 R v Westminster City Council ex-parte Ermakov (1996) 2 All ER 302 Scott v Commissioner for State Revenue (Qld) [2016] QSC 132 Singh v Minister for Home Affairs [2019] 267 FCR 200; [2019] FCAFC 3 Topouzakis v Greater Geelong City Council (2014) 202 LGERA 123; (2014) VSC 87 COUNSEL: H Clift for the applicant S J Keim SC with O Cook for the first respondent No appearance for the second respondent SOLICITORS: Hall Payne Lawyers for the applicant The Office of the Independent Assessor for the first respondent Crown Law for the second respondent (no appearance at the hearing) -- 2 of 15 -- Introduction [1] The applicant is a former bookkeeper who was elected as a councillor for the Redland City Council in April 2020. On 13 September 2020, she published a post on Facebook explaining her reasons for voting against a decision of the Council to enter into a commercial lease with Eureka Productions to film a television show called ‘Holey Moley’ at a bushland site in Redlands. [2] About 19 months later, on 16 June 2022, the first respondent, the Independent Assessor appointed under s 150CV of the Local Government Act 2009 (Qld) (“LGA”), received a notification that the applicant may have engaged in misconduct as a result of statements made in the post. The applicant was given notice of and took up the opportunity to respond to the notification. She made detailed submissions in response as to why the complaint should not go any further. On or about 31 March 2020, the first respondent made a decision under s 150W(1)(c) of the LGA that she was reasonably satisfied that the applicant had engaged in misconduct and that she would make an application referring the notification to the second respondent, the Council Conduct Tribunal.1 [3] The applicant applies under ss 20(2)(e) and 23(b) of the Judicial Review Act 1991 (Qld) (“JRA”), to review the decision to make an application to the second respondent on the basis it was an improper exercise of the power conferred by the LGA in that the first respondent failed to take a relevant consideration into account in the exercise of the power conferred on her by s 150W. It was not in issue that a decision made under s 150W is a decision to which the JRA applies. [4] The constraints on a court’s function in judicial review of administrative actions are well known to be confined to the legality of the decision as opposed to a general review of the decision or a substitution of the decision which the court thinks should have been made.2 [5] The sole ground of review relied upon by the applicant is that the first respondent erred as she failed to take a relevant consideration into account, namely the submissions in response. [6] It is not in dispute that the first respondent was required to consider the submissions in response [s 150AA (3)]. It follows that the following two issues emerged for my determination: (a) First: did the first respondent fail to consider the submissions in response? (b) Secondly: was any failure to consider the submissions in response material to the decision? [7] Before considering these issues, it is helpful to understand the statutory framework within which the decision was made as well as the factual context. 1 The second respondent filed a submission stating it will abide the order of the court, and was otherwise excused from attending the hearing. 2 Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 327 ALR 8 at [23]. -- 3 of 15 -- 4 Relevant statutory framework [8] The LGA creates a scheme for setting standards for councillor conduct and enforcement of such standards. The purpose of the LGA includes, by s 3(b), the provision of “a system of local government in Queensland that is accountable, effective, efficient and sustainable.” [9] Chapter 5A of the LGA is about councillor conduct. Section 150B gives an overview of the chapter and sets out what the chapter is about. [10] Sections 150K and 150L define “inappropriate conduct” and “misconduct”. Relevantly, s 150L(1)(b)(i) defines misconduct as conduct which is or involves “a breach of the trust placed in the councillor, either knowingly or recklessly.” Section 150O permits a person to complain to the assessor about a councillor’s conduct. Section 150R (which is the section the first respondent was notified under in this case) requires that a local government official notify the assessor if they become aware of information indicating a councillor may have engaged in conduct that would be inappropriate conduct or misconduct, but the official must not give the notice vexatiously or other than in good faith. [11] Section 150T requires the assessor to investigate a complaint. [12] Section 150W provides that after investigating the conduct of a councillor, the assessor may decide to, among other things, make an application to the Tribunal about the conduct if she is reasonably satisfied that the conduct is misconduct [s 150W(c)], or take no further action under s 150Y [s 150W(e)]. Under s 150Y(b), the assessor may decide to take no further action if she is satisfied that “the conduct does not constitute inappropriate conduct or misconduct…or taking further action would be an unjustifiable use of resources.” [13] Section 150X(b) provides for a complaint to be dismissed if the assessor is satisfied it is frivolous or vexatious or was made other than in good faith or lacks substance or credibility. It was conceded by the applicant (and I accept) that this section is not applicable to the present case because the relevant notification was under Division 3 and not Division 2.3 [14] Section 150AA provides that, if the assessor (that is, the first respondent) is considering making a decision under s 150W, then before making the decision, the assessor must give the councillor a notice [s 150AA(2)] that relevantly: describes the nature of conduct, and states that the councillor may give a statement or information to the assessor about the conduct and why the assessor should not make the application. There is no complaint about the substance or form of the notice in this case. [15] Section 150AA(3) requires that the assessor “must consider any statement or information given to the assessor by the councillor under the notice before making a decision under s 150W.” [16] Section 150AJ(2) sets out the requirements for any application made by the assessor to the Tribunal as follows: 3 See s 150W(1)(a). -- 4 of 15 -- 5 “150AJ Application to conduct tribunal about alleged misconduct (1) The assessor may apply to the conduct tribunal to decide whether the councillor has engaged in— (a) misconduct; or (b) inappropriate conduct that is connected to conduct of the councillor that is alleged misconduct. (2) The application must— (a) be in writing; and (b) include details of the alleged misconduct or inappropriate conduct and any complaint received about the misconduct or inappropriate conduct; and (c) state why the assessor is reasonably satisfied the councillor has engaged in— (i) misconduct; or (ii) misconduct and inappropriate conduct that is connected to the alleged misconduct; and (d) include information about the facts and circumstances forming the basis for the assessor’s reasonable satisfaction. (3) The assessor may make an application under subsection (1) about the alleged inappropriate conduct only if the application is also made about the connected alleged misconduct.” [Emphasis added] [17] Section 150AK provides that the assessor must give a copy of the application to the councillor. In this case, the notice appears to have come from the second respondent on 3 April 2023.4 [18] Section 150AL requires that the Tribunal must conduct a hearing about the application, and the subsequent provision deals with the process of such a hearing. [19] As set out in the introduction above, the crux of this case turns on whether the mandatory requirement under s 150AA(3) for the first respondent to “consider” the submissions in response “before making the decision” has been complied with. This begs the obvious question – what does such a consideration entail? Before answering this question, it is necessary to set out the relevant factual background to the decision, the decision itself and the request for a statement of reasons. Relevant facts [20] About 18 months after the applicant published her post, filming ceased at the site. In early June 2022, the Redland City Bulletin published an article about a proposal by the applicant for a wildlife hospital to be established at the site. On 15 June 2022, the applicant moved a motion at a general meeting that Council find a suitable site for a wildlife hospital. [21] On 16 June 2022, the first respondent received the notification. 4 Applicant’s affidavit at para 13; AB-10. -- 5 of 15 -- 6 [22] About a month later, on 14 July 2022, the first respondent first wrote to the applicant to tell her that she had received the notification and that she had formed the view that the complaint involved suspected misconduct and that she had decided to undertake an investigation into the matter. This letter identified that the allegation included that the applicant had made the following three categories of statements about the lease at the site that were false and misleading: (a) First: three posts on her Councillor Facebook page as follows: (i) “It was rushed through and I was told no time to look at other locations”; (ii) “No information was available as to how the land will be restored back”; (iii) “I saw no accounting information of what the 8 week production per year will bring to our economy, only the lease income” and “no details of an economic benefit beyond the lease of the land was detailed or presented or supplied to Councillors even though it was questioned”5. (b) Secondly: the media article quoted the applicant as nominating the Holey Moley site as a suitable location for a wildlife hospital stating “[t]hat area is now sitting vacant and this is just one area we could look at.” (c) Thirdly: The media article was shared via the Facebook page of a local lobby group with the applicant commenting on this thread that, “[w]e cleared a number of trees for Holy Moly [sic] and what did it return? It was a quick decision, no one saw coming”. [23] In that letter, the first respondent provided the applicant with the information she had about the complaint and the reasons why the matters, the subject of the complaint, may be misconduct.6 The letter also gave the applicant the choice of requesting the matter be referred to the second respondent without further investigation, or to provide information relevant to a further investigation. [24] That same day, the applicant sent an email back to the first respondent advising that she would be going with “Option 2 as this is a poor excuse of a complaint and is what I believe to be another retaliation from [another councillor]…” 7 [25] A few days later on 18 July 2022, the applicant provided a detailed response to all three categories of allegations, explaining why, in her view, none of the statements were misleading.8 She again raised her concern about the motivation for the complaint. [26] On 21 December 2022, the first respondent wrote to the applicant advising that the matter had been referred to the natural justice team of the office of the first respondent for consideration of whether a referral should be made to the second respondent. 5 Applicant’s affidavit, Exhibit AB-1. 6 Applicant’s affidavit, Exhibit AB-1, Annexure A. 7 Florien affidavit page 98. The applicant did not object to this part of the affidavit. 8 Applicant’s affidavit, Exhibit AB-2. -- 6 of 15 -- 7 Section 150AA Notice [27] After further correspondence between the applicant and the first respondent, on 2 February 2023, the first respondent sent the applicant a letter attaching a s 150AA Notice and a draft Statement of Facts.9 In doing so, under the heading “Notice and Opportunity for you to respond” this letter relevantly stated as follows:10 “Having considered all the information available, I am considering making an application to the Tribunal to deal with this matter, under Chapter 5A, Division 6 of the Local Government Act 2009 (the Act). Before making a decision to deal with a complaint in this manner, and pursuant to section 150AA of the Act, I am providing you with than opportunity to have your say about the alleged conduct and to say why I should not refer the complaint to the Tribunal to be dealt with. I also acknowledge that you have previously forwarded submissions in relation to this matter.” [28] The s 150AA Notice did not contain the comment arising from the media article and set out three parts of the post which were alleged by the first respondent to be misleading as follows: (a) First: “no information was available as to how the land will be restored back…” (b) Secondly: “I saw No accounting information of what the 8 week production per year will bring to our economy, only the lease income…”; and (c) Thirdly: “I could not find the economic stimulus benefit beyond the lease agreement…” Applicant’s responses to the Notice [s 150AA(3)] [29] On 7 February 2023, the applicant provided an initial response to the s 150AA Notice, which focussed primarily on why, in her personal view, the statements in the post were not misleading. Two weeks later, she appointed solicitors to act on her behalf, and on 1 March 2023 her solicitors responded further to the s 150AA Notice submitting that that there was no reasonable basis for the conduct to be referred to the second respondent for the following four reasons: (a) First: that there is “no evidence” given the applicant’s responses that the statements made in the post, when considered in their proper context, were false or misleading because they were an expression of an opinion made in good faith. That proper context included: (i) The applicant’s professional background was the provision of bookkeeping and accounting services; (ii) The post was an explanation of her reasons for voting on the proposal, based on the information available at the time of voting on 29 July 2020; (iii) The post was made at a time when the applicant had only been a Councillor for some six months and was made from the perspective of someone with her background; (iv) The comments were one of five reasons for voting against the proposal; and 9 Applicant’s affidavit, Exhibit AB-6. 10 Applicant’s affidavit, Exhibit AB-6, pg. 1. -- 7 of 15 -- 8 (v) The economic stimulus statement was made in response to a comment from a Facebook user and in this context should be seen as a statement that she was unable to verify the economic stimulus. (b) Secondly: that there were factual matters which meant that the comments were not false or misleading. That included, apropos, the land restoration statement, that the applicant did not have information as to how the land would be restored and, in fact, had been told by a council employee at a site inspection that trees would be removed and were probably not going to be restored. Apropos, the accounting information statement, that the applicant used the term “accounting information” to describe the accounting standard set by the Australian Accounting Standards Board. (c) Thirdly: that the post did not involve a knowing or reckless breach of trust and was not inconsistent with the local government principle of “ethical and legal behaviour”. (d) Fourthly: that the assessor should determine to dismiss the complaint pursuant to ss 150X(b) or 150X(c) on the grounds that the complaint was either vexatious, made other than in good faith, lacked credibility and dealing with the complaint would not be in the public interest or a justifiable use of resources.11 [30] This letter acknowledged the fact that the s 150AA Notice did not include two previous allegations that had been contained in the letters of 14 July and 21 December. The Decision and subsequent application to the second respondent [31] Just prior to 31 March 2023, the first respondent made a decision under s 150W(1)(c) to make an application to the second respondent about the applicant’s conduct. There is no requirement under the LGA to give the applicant notice of that decision. [32] On 31 March 2023, the first respondent then made an application to the Tribunal under s 150AJ(2) of the LGA. The application referred one allegation of conduct as follows: “Conduct the subject of this Application It is alleged that on or about 13 September 2020, Councillor Adelia Berridge, of Redland City Council, engaged in misconduct as defined in section 150L(1)(b)(i) of the Local Government Act 2009 (Qld) (the Act), in that her conduct involved a breach of the trust placed in her as a councillor, either knowingly or recklessly, in that is was inconsistent with the local government principle in section 4(2)(e) ‘ethical and legal behaviour of councillors and local government employees’ on 11 To support that submission, the response referred to the fact that the complaint was immediately after the applicant’s motion of 15 June 2020, some two years after alleged misconduct, and that no complaint was raised at the time of posting. It was submitted that this suggested that the notification was motivated by a desire to derail the motion, or act in retribution of the motion. -- 8 of 15 -- 9 the basis that she made false and/or misleading statements on social media”. [33] The facts underpinning the alleged misconduct in support of the allegation are set out in considerable detail as particulars in the application, the final one being as follows:12 “The statement posted on Councillor Berridge’s Facebook page were false and/or misleading, as Councillor Berridge had been provided with relevant information on the Lease, in relation to the economic benefit to Council and restoration of the Land, as outlined in paragraphs “b” to “m” above.” [34] The application is signed by the first respondent and on the last page states as follows:13 “Information forming part of this Application Annexure A to this Application is a Statement of Facts that sets out: • Details of a complaint received and investigated by the Office of the Independent Assessor (OIA) in relation to the above matter. • The allegation of misconduct and associated particulars the subject of this Application. • The facts and circumstances of this matter relied on in proof of the allegation of misconduct being the facts and circumstances that form the basis for my reasonable satisfaction. Annexure B to this application is a Notice and Opportunity to Respond provided to the subject councillor on 2 February 2023, pursuant to s 150AA of the Act which included a draft statement of facts and required the subject councillor’s response by 16 February 2023. Annexure C to this application is the responses to ‘Annexure B’ and requests for extension of time submitted by and on behalf of the subject Councillor received by the OIA via email up until 1 March 2023.14 Annexure D to this application is a brief of evidence prepared by the OIA in relation to this matter. Statement of Independent Assessor pursuant to s 150AJ Based on the material contained in Annexures A – D of this Application, I am reasonably satisfied that the subject councillor has engaged in misconduct and hereby refer this matter to the 12 Page 6 item “q” of the application (page 33 of Exhibit AB-6). 13 Applicant’s affidavit, Exhibit AB-10. 14 The material at annexures A–D included the applicant’s submissions of 7 February 2023 and 1 March 2023 response. -- 9 of 15 -- 10 tribunal to decide whether the councillor has engaged in misconduct.” Request for a statement of reasons under the JRA [35] A few weeks later, on 28 April 2023, the solicitors for the applicant wrote to the first respondent and requested a statement of reasons for the decision under s 20 of the JRA.15 The primary focus of this letter was stated to be the applicant’s concern about a denial of natural justice, improper exercise of power under the LGA based upon a failure to investigate and consider the applicant’s submission as to the motive for the complaint being made by another councillor in the first place. On this basis the applicant invited the first respondent to apply to the Tribunal to withdraw her application. [36] The letter also identified the applicant’s concern about not being able to establish whether the first respondent had given proper consideration to any of the matters the applicant had raised in her submission and to that end advised that the applicant expected the statement of reasons to demonstrate the following two things: (a) First: how the first respondent dealt with and disposed of the submissions made by the applicant; and (b) Secondly: how, despite those submissions the first respondent remained reasonably satisfied that the applicant had engaged in misconduct. [37] On 24 April 2023, the solicitors for the Office of the Independent Assessor (the first respondent) responded to the 28 April letter making the following four points:16 (a) First: the decision under ss 150W(1) (c) and 150AJ was one that “includes, or is accompanied by a statement, giving the reasons for the decision (within s 31(a) of the JRA), so it was unnecessary for the applicant to provide the requested statement of reasons. The correctness or otherwise of the interpretation was not argued before me. But it cannot be overlooked that the decision and the application are two distinct steps under the LGA. It is however unnecessary for me to resolve this issue as the applicant’s review grounds do not include that inadequate reasons or no statement of reasons were given; (b) Secondly: that the application, together with annexures A–D “clearly and thoroughly” set out the basis for the applicant’s view that there was an arguable case for misconduct against the applicant; and that as outlined in the application made to the Tribunal, all of the submissions made by or on behalf of the applicant were considered, together with all of the other material particularised in the application; (c) Thirdly: that there was no statutory basis for the applicant to have proceeded to have dismissed the complaint under s 150X on the basis that it is frivolous or vexatious or lacked substance or credibility. As stated at paragraph 13 above, the applicant conceded that her contention about this avenue being available to the first respondent was misconceived. 15 Applicant’s affidavit at AB-12. 16 Applicant’s affidavit at AB-13. -- 10 of 15 -- 11 Relevant legal principles [38] The starting point is that when a statute requires a decision-maker to consider a matter, the decision-maker must engage in an “active intellectual process directed at the matter.”17 The applicant bears the onus of establishing that the first respondent has not engaged in such a process.35 [39] A finding that a decision-maker has not engaged in an active intellectual process will not be lightly made.18 But what does an active intellectual process really involve? [40] Recently, in Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417, the High Court offered the following observations about what is required to be done by a decision-maker in meeting such a requirement: “Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations. Adopting and adapting what Kiefel J (as her Honour then was) said in Tickner v Chapman, the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision- maker. And the decision-maker is not obliged "to make actual findings of fact as an adjudication of all material claims" made by a [representation]. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision- maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.”19 [underlining added, footnotes omitted]. 17 DV016 v Minister for Immigration and Border Protection & Anor (2021) 273 CLR 177; (2021) HCA 12 at [12] per Kiefel CJ, Gageler, Gordon and Steward JJ, citing Minister for Home Affairs v Ogawa (2019) 269 FCR 536; (2019) FCAFC 98 [101] per Davies, Rangier and Steward JJ. 18 Minister for Immigration and Ethnic Affairs v Lu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [30] per Brennan CJ, Toohey, McHugh and Gummow JJ. 19 Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417 at [24] – [25] per Kiefel CJ, Keane, Gordon and Steward JJ. -- 11 of 15 -- 12 [41] In determining whether meaningful consideration to a clearly articulated and substantial or significant representation has been undertaken, regard must be had to the particular consideration required and the nature of the decision being made. Although such a consideration usually requires more than the decision-maker simply acknowledging or noting that the representations have been made.20 A court must make its own qualitative assessment of the process undertaken by the decision-maker. And the fact that a decision-maker says they have had regard to or considered a representation does not by itself establish that they have, as a matter of substance, done that. But a court will not ignore such a statement.21 [42] The requisite degree of consideration by the decision-maker is affected by the centrality to the issues of the matter with which it is said that the decision-maker did not engage and the prominence of that matter in the submissions in response.22 [43] The particular consideration in this case is the applicant’s response to the s 150AA notice and draft statement of facts [s 150AA(3)]. The nature of the decision being made is whether the first respondent is reasonably satisfied that the applicant’s conduct warrants an application being made to the second respondent for hearing. With these matters in mind, the following observations of Gibbs J in Buck v Bavone (1976) 135 CLR 110 are apposite to the function of the court on a judicial review where the decision is based on the opinion or belief held by the decision maker about a particular matter as opposed to the existence of the particular matter itself:23 “In all such cases the authority must act in good faith; it cannot act merely arbitrarily or capriciously. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached.” [Emphasis added] [44] Before undertaking an analysis of the facts in this case in light of the relevant legal principles, it is necessary to deal first with the admissibility of further evidence from the first respondent about her consideration of the applicant’s submissions. 20 Minister for Immigration & Border Protection v Maioha (2018) 267 FCR 643; [2018] FCAFC 216 at [45] per Rares and Robertson JJ. 21 Carrascalao v Minister for Immigration and Border Protection (2017) 252 FCR 325; [2017] FCAFC 107 at [48] per Griffiths, White and Bromwich JJ. 22 Singh v Minister for Home Affairs [2019] 267 FCR 200; [2019] FCAFC 3 at [37]. 23 Buck v Bavone (1976) 135 CLR 110 at 118 – 119; See also Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [130] – [137] per Gummow J. -- 12 of 15 -- 13 Objections to paragraphs of Ms Florian’s affidavit [45] The general principle is that when considering the lawfulness of the decision a court may admit evidence in quite limited circumstances so as to elucidate but not fundamentally collide with the reasons stated by the decision-maker.24 [46] Examples of elucidation have been found to include errors in transcription or expression, or words inadvertently admitted, or when language used lacks clarity.25 [47] In an affidavit sworn on 25 August 2023, Ms Florian purports to explain “the way in which she considered submissions made by and on behalf of the Applicant in relation to the notification in making my decision pursuant s 150W of the LGA to refer the conduct the subject of the notification to the CCT.”26 This further affidavit must be viewed in the context set out under the previous heading that when the applicant requested a statement of reasons – she was told in no uncertain terms that the reasons were contained in the application. [48] The applicant objects to paragraphs 22, 23, 24, 26, 32, 37-39 , 41 - 44, of this affidavit on the basis that it is inadmissible because the authorities establish that a decision maker should ordinarily be treated as bound by and confined to the reasons given for the decision in question. On the other hand, the first respondent submitted that the impugned paragraphs of her affidavit represented a permissible elaboration or elucidation of the reasons. I uphold the applicant’s objections to these paragraphs for two reasons: (a) First, I am not satisfied that the impugned paragraphs are sufficiently relevant or probative of anything. They mainly refer to statements and extract parts of documents which already form part of the application; and (b) Secondly, to the extent Ms Florian attempts to expand on the process of the consideration she undertook I am not satisfied that this evidence can be fairly said to elucidate the reasons already given by her.27 Rather, it is an attempt to go beyond that – as the first respondent’s submissions identified – it purports to establish “the active intellectual process she engaged in.” Analysis [49] Distinct from the cases dealing with issues arising in a migration context,28 the present case involves a statutory process which: (a) provides an opportunity for the applicant to make submissions; 24 East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605; [2008] VSCA 217 at 308. 25 R v Westminster City Council ex-parte Ermakov (1996) 2 All ER 302 at 315 per Hutchinson LJ. Each case turns on its facts, but I accept there are occasions where courts in Australia have received evidence addressing the reasons for a decision the subject of challenge. For example: Topouzakis v Greater Geelong City Council (2014) 202 LGERA 123; [2014] VSC 87; Scott v Commissioner for State Revenue (Qld) [2016] QSC 132 at [30] cited in Cuvegen v Secretary to Department of Education and Training [2021] VSC 524 at [51]. But none of these cases are factually similar to the present. 26 Ms Florian’s affidavit at paragraph 6b. 27 East Melbourne Group Inc v Minister for Planning (2008) 23 VR 605 at 309–312 per Ashley and Redlich JJA. 28 For example, Jabari v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCAFC 98. -- 13 of 15 -- 14 (b) requires that the first respondent reaches the necessary condition of reasonable satisfaction that the applicant’s conduct is misconduct before making a referral to the second respondent; and (c) provides for the second respondent and not the first respondent to make a decision, on the balance of probabilities, about the applicant’s conduct. [50] In other words, the decision made by the first respondent is not determinative of the allegations made about the applicant’s conduct. [51] Recently, in McGee v Independent Assessor & Anor [2022] QSC 257 North J considered the expression “reasonably satisfied” under s 150W(1)(c), observing as follows that a decision-maker could not be reasonably satisfied if:29 “[31] …a state of satisfaction was irrational, illogical and not based on findings or inferences of fact supported by logical grounds where the state of satisfaction was a condition precedent to the exercise of a power or doing an act.” [52] I am not satisfied that the applicant failed to adequately consider the applicant’s submissions in response, prior to making her decision under s 150W, for the following reasons: (a) First: as a matter of implication, it is reasonable to infer (as I do) that the first respondent adequately engaged with these submissions given that: (i) her letter of 2 February as set out in paragraph 27 above clearly sets out the process and includes that such responses will be considered; (ii) the submissions in response are expressly referred to and attached to the application; (iii) the submissions in response are expressly referenced as being part of the material upon which the first respondent formed her opinion that she was reasonably satisfied that the applicant had engaged in misconduct justifying referral to the second respondent to decide this issue; (b) Secondly: the consideration required to be undertaken by the first respondent must be understood in the context of the statutory framework and bearing in mind the relatively low threshold requirement to refer the matter to the second respondent being to the “reasonable satisfaction” of the first respondent; (c) Thirdly: the referral to the second respondent as set out in the application is underpinned by an allegation which is detailed and carefully particularised. There is nothing irrational, unreasonable or illogical about this reasoning. It clearly establishes an arguable case and supports the first respondent’s opinion of being reasonably satisfied of a case of misconduct having been made out; (d) Fourthly: the mandatory requirement of the first respondent was to consider the submissions in response to the s 150AA Notice before making her decision under s 150W. It was not, as the applicant contended, to demonstrate how and why she dealt with and disposed of those submissions. This submission, in my 29 McGee v Independent Assessor & Anor [2022] QSC 257 at [31]. -- 14 of 15 -- 15 view, conflates the obligation on the first respondent under s 150AJ(2)(c) with the decision under s 150W. [53] Regardless of this finding, and for the reasons set out under the heading below, I am otherwise not satisfied that the applicant has established the necessary materiality requirement in this case. Were the submissions in response material? [54] It is well established that the materiality threshold in an application for judicial review is met where there is a realistic possibility that the decision in fact could have been different.30 This is a question of fact in which the applicant bears the onus.31 [55] The applicant’s written submission (at this hearing) focussed solely on materiality being the s 150X issue. However, the dismissal of the notification under this section is not available to the applicant. And it is implicit by the subsequent making of the application by the first respondent, that the option of taking no further action under s 150Y was not considered an appropriate course by her. [56] The applicant’s counsel developed the submission about materiality in oral submissions as follows: “…the factual substances of the responses, if properly considered by the Assessor, means that there is a realistic possibility that one or - one or more, including all of them, would not end up being the subject of an application to the councillor conduct tribunal.” 32 [57] These broad submissions do not address or identify any matters in the submissions in response that would have led to the decision to refer not being made. I cannot see any. There is no reasonable basis upon which this court can infer that on the regular administration of the LGA there would be any realistic possibility that the first respondent’s decision could have been different taking into account the submissions in response. [58] The applicant’s argument is really one about the merits; that her submissions should be accepted and a different opinion formed by the first respondent. But that is not a matter for judicial review. [59] I am therefore not satisfied that any error of the kind contended for by the applicant has been made in the process of the first respondent making her decision under s 150W. Orders [60] The application is dismissed. I will hear the parties about costs. 30 MZAPC v Minister for Immigration and Border Protection (2021) 273 CLR 506; [2021] HCA 17 at [2] per Kiefel CJ, Gageler, Keane and Gleeson JJ. 31 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421. 32 T1-29. -- 15 of 15 --