Flaherty v Office of Local Government [2024] NSWCATOD 68

Flaherty v Office of Local Government [2024] NSWCATOD 68

The Tribunal does not have jurisdiction to review the applicant's vacancy under s 234(1)(d) because it is a consequence of fact, not 'misconduct'; no disciplinary action by the Departmental Chief Executive occurred; and no enabling legislation supports administrative review by the Tribunal in these circumstances.

Jurisdiction
Australia
Judgment Date
29 May 2024
Procedural Posture
Application for Review/appeal / Final Determination
Outcome
Application dismissed for lack of jurisdiction
Legal Topics
['councillor Misconduct' 'vacancy of Civic Office' 'tribunal Jurisdiction' 'administrative Review']
['local Government Law' 'administrative Law'] ['councillor Misconduct' 'vacancy of Civic Office' 'tribunal Jurisdiction' 'administrative Review']

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Procedural Posture

Application for Review/appeal / Final Determination

Legal Issues

  1. 1 ["Does the Tribunal have jurisdiction over a councillor's vacancy triggered by absence from meetings under s 234(1)(d) of the Local Government Act 1993 (NSW)?" "Does such vacancy constitute 'misconduct' for the purposes of s 440F and does s 440L confer jurisdiction for appeal?" 'Was disciplinary action taken by the Departmental Chief Executive so as to engage Tribunal jurisdiction under s 440L?']

Ratio Decidendi

The Tribunal does not have jurisdiction to review the applicant's vacancy under s 234(1)(d) because it is a consequence of fact, not 'misconduct'; no disciplinary action by the Departmental Chief Executive occurred; and no enabling legislation supports administrative review by the Tribunal in these circumstances.

Court Disposition

Application dismissed for lack of jurisdiction

Orders

  • ['The application is dismissed because the Tribunal has no jurisdiction.' 'Any application for costs must be made on or before 11 June 2024 and will be dealt with in due course.']