VALANTINE v MUSWELLBROOK SHIRE COUNCIL & ORS [2008] NSWSC 1300

VALANTINE v MUSWELLBROOK SHIRE COUNCIL & ORS [2008] NSWSC 1300

The investigator was engaged as an independent person under cl 11.11 of the Code and was required to follow procedural fairness when determining factual matters. The plaintiff was denied a reasonable opportunity to put his case because he was not informed of Ms Lecky's response attacking the credibility and reliability of Mr Rush's contradictory statement, and the investigator also failed to make reasonable enquiries by not raising that response with Mr Rush directly or through the plaintiff's solicitor. The investigator's silence in response to the solicitor's inquiry about the material to be relied on effectively misled the plaintiff about the course of the enquiry. Because the Conduct...

Jurisdiction
Australia
Judgment Date
08 December 2008
Procedural Posture
Administrative Law Proceedings by Summons Challenging Findings of a Council Conduct Committee for Procedural Unfairness / Principal Judgment Determining Substantive Relief After Interim Orders Were Made by Consent
Outcome
Decision of the Conduct Committee set aside; defendants ordered to pay the plaintiff's costs; further orders to be brought in as agreed.
Legal Topics
['procedural Fairness' 'natural Justice' 'council Code of Conduct' 'misconduct Allegations' 'independent Investigation']
['administrative Law' 'local Government Law'] ['procedural Fairness' 'natural Justice' 'council Code of Conduct' 'misconduct Allegations' 'independent Investigation']

Case Brief

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Procedural Posture

Administrative Law Proceedings by Summons Challenging Findings of a Council Conduct Committee for Procedural Unfairness / Principal Judgment Determining Substantive Relief After Interim Orders Were Made by Consent

Legal Issues

  1. 1 ["Whether the independent investigator engaged under the Council's Code of Conduct was obliged to follow the rules of procedural fairness when determining factual matters." 'Whether the plaintiff was denied a reasonable opportunity to put his case because contradictory material and responses were not provided to him or his solicitor.' 'Whether the investigator failed to make reasonable enquiries before making factual determinations.' "Whether the Conduct Committee's determination could stand when it depended on the investigator's report."]

Ratio Decidendi

The investigator was engaged as an independent person under cl 11.11 of the Code and was required to follow procedural fairness when determining factual matters. The plaintiff was denied a reasonable opportunity to put his case because he was not informed of Ms Lecky's response attacking the credibility and reliability of Mr Rush's contradictory statement, and the investigator also failed to make reasonable enquiries by not raising that response with Mr Rush directly or through the plaintiff's solicitor. The investigator's silence in response to the solicitor's inquiry about the material to be relied on effectively misled the plaintiff about the course of the enquiry. Because the Conduct...

Court Disposition

Decision of the Conduct Committee set aside; defendants ordered to pay the plaintiff's costs; further orders to be brought in as agreed.

Orders

  • ['Decision of Conduct Committee set aside.' "The defendants to pay the plaintiff's costs." 'Further orders as agreed.' "If no agreement can be reached on the form of orders, leave to apply on three days' notice is given to both parties for the Court to determine the form of the orders."]