Councillor Conduct Tribunal v Swalling & Anor [2022] QCATA 153

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Councillor Conduct Tribunal v Swalling & Anor [2022] QCATA 153 PARTIES: COUNCILLOR CONDUCT TRIBUNAL (appellant) v JOHN DANE SWALLING (first respondent) INDEPENDENT ASSESSOR (second respondent) APPLICATION NO/S: APL206-22 ORIGINATING APPLICATION NO/S: GAR024-21 MATTER TYPE: Appeals DELIVERED ON: 1 November 2022 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judicial Member Reid ORDERS: I order subject to (4) below: The appellant be granted leave to appeal against the decision of QCAT dated 8 June 2022. The appeal be allowed and the Independent Assessor be joined as a party to the review pursuant to section 42 of the Queensland Civil and Administrative Tribunal Act. The Councillor Conduct Tribunal be excused from further appearance, save as to questions of costs or issues arising which require the Councillor Conduct Tribunal engagement on the matter to assist QCAT to make a decision on the review. In the event of any of the parties wishing to make further submissions about the form of the orders I should make, the party do so by providing short written submissions to each of the other parties and filing them in QCAT by 4:00pm on 8 November 2022. If no such submissions are filed by that time and date orders are made as per paragraphs 1, 2 and 3 above. -- 1 of 10 -- 2 CATCHWORDS: ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the applicant seeks leave to appeal an interlocutory decision of the Tribunal to dismiss an application to join the Independent Assessor as a party to the proceeding – where no formal application was made but the application was inferred from the parties submissions – where the party seeking to be joined is akin to a prosecuting agency – whether the appeal should be allowed Local Government Act 2009 (Qld) s 150AT Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 19, 20, 40, 42 Cairns Port Authority v Albietz (1995) 2 Qd R 470 Commissioner of Police, New South Wales v Fine (2014) NSWCA 327 R v Australian Broadcasting Tribunal and Ors; ex parte Hardiman (1980) 144 CLR 13 APPEARANCES & REPRESENTATION: 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 [1] The Counsellor Conduct Tribunal (CCT) seeks leave to appeal against the decision of the Queensland Civil and Administrative Tribunal (QCAT) declining the joinder of the Independent Assessor (IA) in proceedings for a review of a decision by the CCT involving John Swalling, a member of the Cloncurry Shire Council. [2] The CCT on 7 December 2020 had found an allegation bought by the IA, against Mr Swalling was sustained and directed that he make a public admission that he engaged in misconduct. He has sought to review that decision in QCAT. [3] Since the filing on 12 January 2021 of that application to review the CCT decision, the matter has been procedurally untidy. [4] In his application, Mr Swalling named the CCT as the respondent. The IA was not named as a party. [5] Mr Swalling did so because of the provisions of s 40 of the QCAT Act which are in these terms: 40 Parties to review jurisdiction (1) A person is a party to a proceeding in the tribunal’s review jurisdiction if the person is— (a) the applicant; or (b) the decision-maker for the reviewable decision the subject matter of the proceeding; or (c) intervening in the proceeding under section 41; or -- 2 of 10 -- 3 (d) joined as a party to the proceeding under section 42; or (e) someone else an enabling Act states is a party to the proceeding. (2) In a proceeding in the tribunal’s review jurisdiction, so far as is practicable, the official description of the decision-maker must be used as the party’s name instead of the decision-maker’s name. [6] It can immediately be seen that Mr Swalling was correct in naming himself pursuant to s 40(1)(a) and the CCT, pursuant to s 40(1)(b) as the parties. [7] It can also be seen as correct that he did not make the IA a party. There is no suggestion the IA was a party by reason of its intervening under s 41 of the QCAT Act or because it was a party by reason of the provisions of an enabling act. [8] The enabling act is the Local Government Act 2009 (Qld) (LGA). Under s 150AT of the LGA, jurisdiction is conferred on QCAT in matters such as this but the LGA does not identify persons who are parties to a review proceeding in QCAT. [9] It seems therefore that if the IA was to be a party to the proceedings it had to be joined under s 42 of the QCAT Act. There can therefore be no criticism of Mr Swalling or his lawyers for not making the IA a party despite the fact that it was the IA which, pursuant to the provisions of the LGA, effectively bought and prosecuted the matter in the CCT. [10] Its role in this regard is accurately set out in paragraphs 7 to 11 of the reasons of the Member, which is the subject of the application for review filed by Mr Swalling. [11] Other consequential orders were also made. [12] Despite no application having been made to join the IA as a party an order was however made by QCAT on “on papers hearing” on 19 January 2021, direction inter alia that the correct name of the respondent was “the Independent Assessor, Office of the Independent Assessor.” It is unclear to me why that order was made. [13] On 9 March 2021, Mr Swalling’s solicitors, no doubt following discussions between all of the parties, filed an application to which the IA consented, seeking an order that the CCT “be joined as a respondent to the proceeding”. The application also sought an order by consent of Mr Swalling and the IA that the CCT be excused from further appearance save as to any questions as to costs or issues arising which required the CCT’s re-engagement in the matter to assist QCAT to make a decision on the review. It is not clear, from the application which is pps 20 and 21 of the bundle of documents supplied to me, but it appears that the proposed consent order was also signed by a representative of the CCT. [14] I interpose at this stage that it is my view that such an order ought to have been made. Not only was it what the parties understandably wanted, but it accords with legal principle and was an order best designed to achieve a proper resolution of the review before QCAT. [15] What should have been simple has become complicated and protracted. [16] On 11 March 2021, rather than making orders as per the application for consent orders, it was instead ordered on another “On the papers hearing” that the correct name of the respondent was the CCT. It is unclear why that order was made. Further directions were also made. -- 3 of 10 -- 4 [17] Shortly after, on 29 March 2021, at another directions hearing it was ordered, inter alia, that “any application to be joined as a party to a proceeding must be filed in the Tribunal and given to all other parties by 4:00pm on 28 April 2021”. [18] Other directions were made concerning each of the CCT, Mr Swalling and the IA and “any joined party”. [19] Subsequently orders were made directing the IA, the CCT and Mr Swalling to file and serve material concerning the basis for the IA and/or the CCT being entitled to be parties in the proceedings. Directions were also made for a compulsory conference and for the issue concerning the appropriate parties to be determined by QCAT on the papers. [20] The matter in that way come before the Member who considered the matter and delivered a written judgement on 8 June 2022. Decision [21] In the written reasons the member sets out some of the history I have recounted. She referred to an order of 11 March 2021 in which QCAT directed the correct name of the respondent was the CCT. She then says, “Those directions were subsequently amended on 18 March 2021 so that the CCT was joined as a respondent to the proceedings”. [22] I do not have a copy of that order. Accepting it to be so, it appears to me thereafter the parties to the proceedings were Mr Swalling, the CCT and the IA, though of course no order of the kind sought in the application for consent orders absolving the CCT from further appearances has ever been made. [23] The member in her reasons sets out the role of the IA in prosecuting Mr Swalling and the CCT. She referred to the provisions of s 40 of the QCAT Act which identifies the necessary parties to the review jurisdiction of QCAT and identified the IA was not a party unless joined pursuant to s 40(1)(d). [24] She said that in circumstances where no application for joinder has been made, but the IA had indicated it wished to be joined and had in fact been named as a party in directions made by QCAT, she was satisfied it was appropriate to treat the submissions of the IA as an application to be joined. [25] She also noted the provisions of s 42 of the QCAT Act as follows: 42 Joining and removing parties (1) The tribunal may make an order joining a person as a party to a proceeding if the tribunal considers that— (a) the person should be bound by or have the benefit of a decision of the tribunal in the proceeding; or (b) the person’s interests may be affected by the proceeding; or (c) for another reason, it is desirable that the person be joined as a party to the proceeding. (2) The tribunal may order that a party be removed from a proceeding if the tribunal considers that— -- 4 of 10 -- 5 (a) the party’s interests are not, or are no longer, affected by the proceeding; or (b) the party is not a proper or necessary party to the proceeding, whether or not the party was one originally. (3) The tribunal may make an order under subsection (1) or (2) on the application of a person or on its own initiative. [26] Whilst it does not seem to be of importance, I would observe that it appears to me that the orders of QCAT of 19 January 2021 and 18 March 2021 would suggest the IA had in fact already been joined at the time of the Member’s judgement. [27] The member then set out submissions of the IA, CCT and Mr Swalling before determining the IA should not be joined as a party to the proceedings. In doing so the member: (a) considered the submissions of the CCT and the IA that the IA should be joined because of the role and function of the IA in prosecuting the matter in CCT and because the CCT was the decision-making Tribunal would, if acceded to, result in the IA being a party in all such applications before QCAT. This, the member said, was contrary to the provisions of s 40(1)(e) of the QCAT Act and the provisions of the LGA which did not make the IA a necessary party; and (b) accepted that if there was a discretion to join the IA but was not satisfied that it should take the role of an active contradictor in the QCAT proceedings. [28] The member took that view because she said the QCAT proceedings were not adversarial proceedings but the administrative review of a decision of the CCT. She said the CCT would furnish QCAT with all evidence available to the CCT hearing and QCAT would have the benefit of the CCT decision. She also said that, inter alia, the CCT “will probably test the evidence relied upon” by Mr Swalling. The member also considered that joining the IA would probably add to the costs of the proceedings. [29] In those circumstances she concluded that the IA should not, in the circumstances of this matter, be joined as a party. She concluded the IA would benefit from the decision, even if not made a party. Furthermore she determined that the CCT need not take an adversarial role but can “use its best endeavours to help” QCAT. Submissions [30] Both the IA and the CCT have filed submissions supporting the IA being made a party to the QCAT proceedings. Both emphasised the role of the IA as a party in proceedings before CCT. The CCT submitted the decision made by the member was inconsistent with the decision of the New South Wales Court of Appeal in Commissioner of Police, New South Wales v Fine (2014) NSWCA 327, which involved the Liquor and Gaming Authority in New South Wales issuing an order precluding Mr Fine attending licensed premises on the application of the Commissioner of Police. [31] On Mr fine applying for a review to the New South Wales Tribunal, the Liquor and Gaming Authority failed to submit an appearance. The Tribunal, as here, dismissed the application to be joined, in that case by the Commissioner of Police. An appeal by the Commissioner to the appeal panel of the New South Wales Tribunal was dismissed. -- 5 of 10 -- 6 [32] The Commissioner then appealed to the New South Wales Court of Appeal which identified error in the decision of the appeal panel below. The CCT submits before me that two errors were identified by the Court of Appeal in that case. First it is said the appeal panel failed to have regard to the interests of the Commissioner in the outcome of the matter, the Commissioner being the applicant in the process before the decision- maker. [33] Secondly, it is said the Court of Appeal held the appeal panel erred in failing to have regard to the legislative function of the New South Wales Tribunal when determining whether it had erred in the exercise of its discretion on the joinder application. [34] The IA supported those submissions by the CCT, emphasising the statutory provisions of the QCAT Act, that provides a QCAT review is a fresh hearing on the merits (s 20(2)) of the QCAT Act) so that QCAT stands in the shoes of CCT, deciding the question for itself. It referred to s 19 of the Act which sets out the functions of QCAT on review, including that it would decide the review in accordance with both the QCAT Act and the LGA. The LGA provisions include that the IA is a party to the hearing before the CCT and had the onus of proving Mr Swalling engaged in misconduct. [35] It submits that in such circumstances the IA should of course be treated as a proper party to the review. [36] Mr Swalling’s position is I feel somewhat equivocal. I have said already that on 19 March 2021 an application for an order by consent was filed in QCAT. It was signed by Mr Swalling’s solicitor on 4 March 2021. The application was that the CCT be joined as a respondent to the proceedings, in which Mr Swalling and the IA were then parties, but that the CCT be excused from further appearances as I earlier set out. [37] Despite that, Mr Swalling before the member and again before me, submitted: (a) that Mr Swalling had originally named himself and CCT as the only parties, consistent with s 40 of the QCAT Act; (b) despite the subsequent tribunal orders, there was a real question whether the IA was “ever truly a party”; and (c) the IA was not a necessary party: (i) the IA need not be bound by or have the direct benefit of the decision of QCAT; (ii) the IA’s interests were not affected by the proceeding, but only those of Mr Swalling; (iii) there was no reason why it was desirable that the IA be joined as a party since QCAT would have access to all of the evidence and submissions from the decision under review; (iv) it was not clear how the IA could provide assistance to QCAT. Cases [38] There are in my view a number of cases of assistance. [39] In R v Australian Broadcasting Tribunal and Ors; ex parte Hardiman (1980) 144 CLR 13, the High Court was concerned with an application for writs for mandamus -- 6 of 10 -- 7 and prohibition directed to the Tribunal concerning orders to be made which were said to have unlawfully inhibited the rights of a party which had intervened before the Tribunal. [40] Before the High Court, counsel for the Tribunal advocated strongly against the prosecutor’s case for relief as of course did counsel for the respondent which was the applicant in the Tribunal. [41] At page 35, the High Court in the joint judgement said: There is one final matter. Mr Hughes was instructed by the Tribunal to take the unusual course of contesting the prosecutors' case for relief and this he did by presenting a substantive argument. In cases of this kind the usual course is for a tribunal to submit to such order as the court may make. The course which was adopted by the Tribunal in this Court is not one which we would wish to encourage. If a tribunal becomes a protagonist in this Court there is the risk that by so doing it endangers the impartiality which it is expected to maintain in subsequent proceedings which take place if and when relief is granted. The presentation of a case in this Court by a tribunal should be regarded as exceptional and, where it occurs should, in general, be limited to submissions going to the powers and procedures of the Tribunal. [42] In that case of course the matter would inevitably have been returned for hearing in the Tribunal. Those comments must be seen in that light. But here it is always possible that an order could be made remitting the proceedings to the CCT and if the Tribunal had been an active participant before QCAT that might be undesirable. There are other reasons to which I should later refer which make it undesirable. It may generally be thought undesirable for the CCT, a quasi-judicial Tribunal, to be advocating for a particular viewpoint in QCAT. [43] This approach was in my view recognised by Thomas J in Cairns Port Authority v Albietz (1995) 2 Qd R 470. His Honour was there concerned with the issue of costs but the application involved a party seeking judicial review of the decision of the Information Commissioner concerning release of documents which the Cairns Port Authority claimed were exempt from release. [44] The Information Commissioner took an active role in proceedings with a view to defeating the applicant’s claim for relief. The Port Authority submitted this was inappropriate, the Information Commissioner being a decision-maker with a quasi- judicial role. [45] In that case His Honour at page 473 said: The position however becomes more complex when the decision-maker acts in a quasi-judicial capacity, that is to say where he or she makes a decision where two or more parties are in contest. Once again, there is a familiar stream of practice in which the applicant makes the decision-maker and the adversary (or if necessary, adversaries) parties to the review. The usual pattern in such litigation is for the decision-maker to appear and indicate a willingness to take a passive role unless some need is demonstrated for an active one. The natural respondent in such situations is the adverse party. [46] His Honour recognised the practice is not of universal application. His honour said at page 476: There are of course exceptional cases where it is appropriate for a decision- making tribunal to act as the effective adversarial party. This was recognised by -- 7 of 10 -- 8 Brennan J in Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666, 681. His Honour, whilst recognising that it was “not ordinarily appropriate for the tribunal to appear to contest the curial proceedings brought by one of the parties before it” acknowledged that “where the proceedings before the tribunal are not inter partes, and where the Attorney-General cannot or does not intervene to represent the public interest, and neither a law officer nor a public official is heard by the Court, it may be desirable that the tribunal should appear by counsel to make such submissions as it thinks calculated to assist the court, and in an appropriate case, to argue against the applicant's case”. [47] His Honour continued at page 477: It should also be observed that the prospective role of a decision-maker who is brought before the AAT for review on the merits is distinguishable from that of a decision-maker upon judicial review. Responses by decisionmakers have tended to be more robust in merit review proceedings…. A particularly relevant factor is that the AAT proceeds by way of a rehearing at which the parties attend, the tribunal considers for itself the facts and the law, and makes the actual decision. Seldom is a matter referred back to the decision-maker for reconsideration. [48] I referred earlier to Commissioner of Police (New South Wales) v Fine (supra). As I have said, the Court of Appeal in that case disagreed with the decision of the appeal panel of the Civil and Administrative Tribunal that the Commissioner not be a party to Mr Fine’s appeal. [49] Because there was an appeal, it was necessary that the Commissioner establish error of law in order to succeed. The Commissioner submitted that the appeal panel failed to recognise that upon a merits review, as that case was, the Tribunal stood in the shoes of the decision-maker. [50] That, of course, is the position here having regard to s 19 of the QCAT Act which provides: 19 Exercising review jurisdiction generally In exercising its review jurisdiction, the tribunal— (a) must decide the review in accordance with this Act and the enabling Act under which the reviewable decision being reviewed was made; and (b) may perform the functions conferred on the tribunal by this Act or the enabling Act under which the reviewable decision being reviewed was made; and (c) has all the functions of the decision-maker for the reviewable decision being reviewed. [51] The Court of Appeal was satisfied of such error and also that the appeal panel erred in failing to have regard to the interest of the police in the outcome of a determination relating to the application for a banning order. [52] The court said in respect to the role of the Commissioner: A party who is an applicant in the process before a decision-maker would also be a proper party. In the ordinary course, a successful applicant would have a relevant interest in the review proceedings and would, therefore, be a proper party to an appeal. In the case of the Commissioner, his role in bringing an -- 8 of 10 -- 9 application under s 116AE is not merely administrative. Nor is it a perfunctory or a convenient device to facilitate the making of a banning order. The statutory “mission” of the New South Wales Police Force is “to work with the community to reduce violence, crime and fear": the Police Act 1990, s 6(1). The functions of the Police Force include "the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way”: s 6(3)(b). The Commissioner of Police, in turn, is responsible for the effective and efficient management and control of the functions of the Police Force: s 8(2)(b). The Liquor Act, s 3(2) provides that in order to secure the objects of the Act, each person who exercises functions under the Act is required to have due regard to the need to minimise harm associated with misuse and abuse of liquor (including harm arising from violence and other anti-social behaviour). The functions of the Police Force specified in the Police Act, s 6(3)(b) and the provisions of the Liquor Act, in particular, s 3(2), are, properly viewed, complementary. This is reinforced by the requirement in the Liquor Act, s 116AE, that the Commissioner of Police is the only party who may bring an application for a long-term banning order. It follows that the Commissioner is a proper party to be joined in the Tribunal proceedings… [53] So too in this case the IA is empowered to both investigate the conduct of a Councillor and, if reasonably satisfied of the Councillor’s misconduct, to make an application to the CCT. The IA must first advise the Councillor and give him or her an opportunity to respond. The IA is then a party to the CCT proceedings and bears the onus of proof. [54] QCAT, on review, may confirm amend or set aside the decision of CCT, substitute its own decision or return the matter for reconsideration with directions if appropriate (see s 24 of QCAT Act). [55] In my view the observations I have referred to by the High Court, Thomas J in the New South Wales Court of Appeal, all very strongly support the view that in this case it was appropriate for the IA to be a party to the review. That this was appropriate was also recognised by the parties in making the application for an order by consent on 9 March 2021, with the CCT to then be generally excused. [56] There are very good reasons why it is desirable that the CCT not take an active role in the QCAT proceedings. At the least, there is a possibility the matter could be referred back to the CCT for determination with directions. It is also undesirable in my view that a party charged with determining matters involving allegations of misconduct by Councillors in a quasi-judicial function should be seen to be actively prosecuting a case which for example could be replicated or very closely resemble a case involving another Councillor to be bought before the CCT by the IA. Arguments that costs would be replicated by having the IA as a party in addition to the CCT which is required by the Act to be a party, are very largely overcome by parties adopting the sensible and practical approach reflected in the proposed draft consent orders the parties sought as long ago as 9 March 2021. [57] It is unfortunate such an order was not then made. [58] Leave to appeal in this matter is necessary by reason of s 142(3) of the QCAT Act, since this involves a decision other than the final decision. There are however good reasons which I believe are apparent from these reasons why leave ought to be -- 9 of 10 -- 10 granted. Not the least is that the parties themselves sought a consent order to similar effect many months ago and were denied that by reason of decisions made by a variety of QCAT members. [59] The case involves an important principle of more general application, that s 40 of the QCAT Act does not mandate parties such as the IA, effectively the prosecutor in a quasi-judicial Tribunal, should be a party to any review proceedings. [60] In the circumstances I would grant leave to appeal and allow the appeal. Orders [61] I order subject to (4) below: 1. The appellant be granted leave to appeal against the decision of QCAT dated 8 June 2022. 2. The appeal be allowed and the Independent Assessor be joined as a party to the review pursuant to section 42 of the Queensland Civil and Administrative Tribunal Act. 3. The Councillor Conduct Tribunal be excused from further appearance, save as to questions of costs or issues arising which require the Councillor Conduct Tribunal engagement on the matter to assist QCAT to make a decision on the review. 4. In the event of any of the parties wishing to make further submissions about the form of the orders I should make, the party do so by providing short written submissions to each of the other parties and filing them in QCAT by 4:00pm on 8 November 2022. If no such submissions are filed by that time and date orders are made as per paragraphs 1, 2 and 3 above. -- 10 of 10 --