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The NSW Civil and Administrative Tribunal has recently heard a matter in which the Office of Local Government was seeking a determination as to whether the mayor of Inner West Council, Mr Darcy Byrne, had engaged in misconduct as defined in s 440F(1) of the Local Government Act 1993, for failing to comply with an applicable requirement of the Inner West Model Code of Conduct.

By way of background, following approval by Inner West Council to amendments being made a development control plan, a councillor at Inner West Council posted on her Facebook page which referred to her unhappiness in the amendments being approved and commenting that the mayor had been the one pushing for the amendments. In response, another councillor commented on the Facebook post, as well as other individuals.

Mr Byrne subsequently sent letters (described as concerns notices pursuant to the Defamation Act 2005 (NSW)  to both councillors, alleging that he had been defamed by the Facebook post and requesting that the comments be deleted and a public apology be issued via Facebook.

In several Council meetings thereafter, Mr Byrne moved a motion for approval by Council, requesting that the councillors who had commented the alleged defamatory statements on Facebook withdraw the comments and apologise. In response to this motion, the subject councillors excused themselves from the meetings, siting a significant pecuniary interest as the matter was subject to an unresolved legal matter.  Mr Byrne, however, did not excuse himself from voting, and unsurprisingly, voted in favour of the motion, which was carried.

The councillor who wrote the Facebook post, following negotiations between the parties’ legal representatives, delivered a public apology in which she accepted the allegations on the post were false and defamatory and apologised to Mr Byrne.

One of the issues for determination by the NSW Civil and Administrative Tribunal was whether Mr Byrne had a non-pecuniary interest for the purposes of the Code of Conduct. The Tribunal found that the references to what might be “private or personal interests” in clause 5.1 of the Code of Conduct are not exhaustive and are merely examples of what may be considered a personal or private interest. Taking into consideration that the letters sent to the councillors were framed to reference the Defamation Act, the Tribunal was satisfied that, although defamation proceedings had not yet been commenced, Mr Bryne had a private interest in the motion passing and the councillors apologising for the post and comments.

The Tribunal then had to determine whether that private interest would give rise to a significant, non-pecuniary conflict of interest. The Tribunal found that, by raising the motion, Mr Byrne was exercising a function subject to the requirements of the Code of Conduct, and that by proposing and voting on the motion, Mr Byrne could be influenced by his private interest. In determining that the conflict of interest was significant, the Tribunal again referred to the legal correspondence between the parties, noting that, whilst an apology is not relevant to a determination of liability in a defamation case, an apology (or lack thereof) can go towards mitigation (or a failure to mitigate). As such, a motion requiring an apology by the councillors could have conferred a benefit to My Byrne if he proceeded with defamation action against the Councillors. Accordingly, the Tribunal held that Mr Byrne had a significant non-pecuniary conflict of interest in moving the subject motion.

Following that determination, the Tribunal found that Mr Byrne had failed to comply with the Code of Conduct, as follows:

  1. Mr Byrne had not identified and disclosed the non-pecuniary conflict of interest pursuant to cl 5.4 and 5.6;
  2. Mr Byrne had not managed the conflict of interest pursuant to cl 5.10 or cl 5.11; and
  3. Mr Byrne had engaged in conduct that was improper and unethical pursuant to cl 3.1(c).

Ultimately, the Tribunal determined that the failure by Mr Byrne to comply with the provisions of the Code of Conduct was misconduct pursuant to s 440F(1)(b) of the Local Government Act 1993.

The Tribunal is still to determine whether Mr Byrne will face penalties for the misconduct.

The decision can be read in full here: Deputy Secretary, Local Government, Planning and Policy v Byrne [2021] NSWCATOD 53.