Devlin v Councillor Conduct Tribunal and Anor [2023] QCAT 194

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Devlin v Councillor Conduct Tribunal and Anor [2023] QCAT 194 PARTIES: WARREN DEVLIN (applicant) v COUNCILLOR CONDUCT TRIBUNAL (first respondent) and INDEPENDENT ASSESSOR (second respondent) APPLICATION NO/S: GAR558-22 MATTER TYPE: General Administrative Review DELIVERED ON: 24 May 2023 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Lumb ORDERS: The part of the First Respondent’s decision made on 16 November 2022 which concerns ‘Allegation One’ and ‘Allegation Two’, including Order number 1 and Order number 2 (but excluding Order number 3), is stayed until the determination of the Application to review a decision filed on 12 December 2022 or further order of the Tribunal. The costs of the Application to stay a decision filed on 12 December 2022 are reserved. CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – General administrative review – decision that the Applicant engaged in misconduct under the Local Government Act 2009 (Qld) – where applicant applies to review decision – where applicant applies to stay decision under s 22 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – whether stay of part of decision should be ordered -- 1 of 5 -- 2 Local Government Act 2009 (Qld), s 176 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 22 King v Queensland Law Society Incorporated [2012] QCAT 489 McCormick v Queensland Law Society Incorporated [2019] QCAT 380 REPRESENTATION: Applicant: King & Company Second Respondent: Steve Thompson, In-house Solicitor, Office of the Independent Assessor APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION Introduction [1] By a decision made on 16 November 2022 (the Decision),1 the First Respondent determined, on an application of the Second Respondent, that three allegations made against the Applicant alleging that he had engaged in misconduct as defined in s 176(3)(b)(ii) of the Local Government Act 2009 (Qld) (the LGA) had been sustained. The three allegations were described as ‘Allegation One’, ‘Allegation Two’ and ‘Allegation Three’ respectively. Each of the Allegations concerned conduct found to involve a breach of the trust placed in the Applicant as a Councillor. The respective dates of the conduct as found by the First Respondent were 2 November 2016, 21 June 2017, and the period between 1 July 2017 and 5 November 2019 respectively. [2] On 12 December 2022, the Applicant filed an Application to review the decision (the Review Application). [3] On that date, the Applicant also filed an Application to stay a decision (the Stay Application). This decision concerns the Stay Application. [4] On 15 December 2022, this Tribunal stayed the Decision pending determination of the Stay Application or until further order of the Tribunal. [5] On that date, the Tribunal also made a direction that the First Respondent was excused from any further appearance, save as to any questions as to costs or issues arising which require the First Respondent’s re-engagement in the matter to assist the Tribunal to make a decision on the review. The First Respondent makes no submissions in relation to the Stay Application 1 The Applicant states that he received that decision on 23 November 2022. -- 2 of 5 -- 3 The merits of the Stay Application [6] Section 22 of Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) deals with the effect of an application to review a reviewable decision. Section 22 provides, relevantly in so far as the Stay Application is concerned: … (3) The tribunal may, on application of a party or on its own initiative, make an order staying the operation of all or part of a reviewable decision if a proceeding for the review of the decision has started under this Act. (4) The tribunal may make an order under subsection (3) only if it considers the order is desirable after having regard to the following— (a) the interests of any person whose interests may be affected by the making of the order or the order not being made; (b) any submission made to the tribunal by the decision-maker for the reviewable decision; (c) the public interest. (5) Subsection (4)(a) does not require the tribunal to give a person whose interests may be affected by the making of the order, or the order not being made, an opportunity to make submissions for the tribunal’s consideration if it is satisfied it is not practicable because of the urgency of the case or for another reason. (6) In making an order under subsection (3), the tribunal— (a) may require an undertaking, including an undertaking as to costs or damages, it considers appropriate; or (b) may impose conditions on the order it considers appropriate; or (c) may provide for the lifting of the order if stated circumstances occur. … [7] By submissions filed by the Second Respondent on 20 January 2023, the Second Respondent does not oppose the Stay Application but submits that only the Decision and Orders concerning Allegation One and Allegation Two should be subject to a stay. I consider it convenient to first consider this issue. The extent of the stay [8] By Annexure A to the Review Application, the Applicant submitted that the Decision ‘in respect of Allegations One and Two’ and the orders made in relation to ‘those allegations’ were wrong. Paragraph 2 of Annexure A also refers to the conduct ‘the subject of Allegations One and Two’. [9] In Annexure A to the Stay Application, the Applicant states that it seeks a stay of the Decision ‘in respect of Allegations One and Two’ which it then defines as ‘(the “Decision”)’. [10] Paragraphs 2, 3 and 12 of the Applicant’s submissions filed on 6 January 2023 in support of the Stay Application are consistent with the matters addressed in paragraphs 8 and 9 above. -- 3 of 5 -- 4 [11] In my view, the Applicant (who is legally represented) has expressly confined its challenge to the Decision to that part of the Decision which concerns Allegations One and Two. I consider that any stay of the Decision should be confined in the manner submitted by the Second Respondent. Is an order for a stay desirable? [12] The Tribunal may make an order for a stay if it considers that the order is desirable having regard to the matters set out in subsections 22(4)(a), (b) and (c). Other matters to be considered may include the Applicant’s prospects of success in the review proceeding, the effect of any stay on the proceeding, and whether irremediable harm might be suffered by the Applicant if a stay is not granted.2 Subsection 22(4)(a) [13] The Applicant points to the fact that the orders made by the First Respondent compel the Applicant to make admissions of misconduct and to make monetary payments in the amount of $500.00 to the local Council. With respect to the monetary amount, given the quantum of that amount and the absence of any suggestion that the money would not be refunded, I do not consider that, of itself, the requirement to pay would be a particularly persuasive basis for ordering a stay. However, in my view, a compulsion to make an admission of misconduct in circumstances where the Applicant challenges the foundation upon which such an order has been made is a material matter, particularly given that it is at least strongly arguable that the making of an admission would not be remediable in the event that the review was ultimately successful. Subsection 22(4)(b) [14] As submitted by the Applicant, the role of the First Respondent is not to take an active role in the proceeding and this particular consideration does not arise. However, I consider it relevant that the Second Respondent does not oppose the making of an order for a stay (insofar as Allegations One and Two are concerned). Subsection 22(4)(c) [15] The Applicant submits that it is in the public interest ‘to be confident that conduct of a [sic] prospective, current and/or former Councillors are accurately overseen by the body responsible for such conduct in a manner that is accurate and fair’ and to ensure that the Respondents ‘have achieved the correct and proper outcome in dealing with a councillor conduct matter and achieve their respective functions’ as set out in the relevant provisions of the LGA. The Applicant also contends that the position adopted by the First Respondent was to apply the relevant transitional provisions with retrospective application when this was not clearly enunciated by the Queensland Parliament. Further, the Applicant submits that this issue is also the subject of a dispute in a matter already before the Tribunal (GAR377-21) where the parties to the matter seek to have it heard by a Judicial Member of the Tribunal. Given the above matters, I am satisfied, on balance, that it is in the public interest to make a stay order. 2 King v Queensland Law Society Incorporated [2012] QCAT 489, [12] (Justice Alan Wilson, President); McCormick v Queensland Law Society Incorporated [2019] QCAT 380, [5] (Justice Daubney, President). -- 4 of 5 -- 5 Other matters [16] In circumstances where the current proceeding involves the review of a reviewable decision which is to be heard and decided by way of a fresh hearing on the merits (QCAT Act, s 20) and there does not appear to be, at present, any decision dealing with the question in issue, I consider it unnecessary to form any view about the prospects of success, save to note that there is no suggestion that the Applicant’s contention is not reasonably arguable. [17] I also do not consider that the grant of a stay will adversely affect the proceeding, particularly in circumstances where the decision in GAR377-21 will likely have a bearing on the outcome of the Review Application. [18] Having regard to all the circumstances addressed above, I consider that it is desirable to order that there be a stay of the Decision insofar as Allegations One and Two are concerned. In the absence of any submission by the Second Respondent that the Applicant ought provide an undertaking, or that particular conditions ought be imposed, I do not propose to make the stay order conditional upon any of the matters set out in s 22(6) of the QCAT Act. Orders [19] For the reasons set out above, I order that, pursuant to s 22(3) of the QCAT Act, the part of the First Respondent’s decision made on 16 November 2022 which concerns ‘Allegation One’ and ‘Allegation Two’, including Order number 1 and Order number 2 (but excluding Order number 3), is stayed until the determination of the Application to review a decision filed on 12 December 2022 or further order of the Tribunal. [20] I also order that the costs of the Application to stay a decision filed on 12 December 2022 are reserved. -- 5 of 5 --