De Luca v Simpson and Anor [2012] NSWSC 960

De Luca v Simpson and Anor [2012] NSWSC 960

The Plaintiff failed to establish reviewable error. The proper focus under the Code of Conduct was whether the Plaintiff's close working relationship with Ms Ficarra, in the context of a Council debate directly criticising her parliamentary questions, was capable of giving rise to a perceived non-pecuniary conflict of interest; it was not necessary first to find that Ms Ficarra stood to gain or lose in a tangible way. It was open to the Conduct Reviewer to find that the Plaintiff was required to declare and manage that conflict. The draft report did not establish apprehended bias because, read in context with the Code procedure and later reports, it was a preliminary assessment leading to...

Jurisdiction
Australia
Judgment Date
22 August 2012
Procedural Posture
Administrative Law Judicial Review; Prerogative Relief Under S.69 Supreme Court Act 1970 / Hearing of Plaintiff's Summons Challenging a Sole Conduct Reviewer's Report
Outcome
The Plaintiff's Summons was dismissed, with the parties to be heard on costs.
Legal Topics
['error of Law on the Face of the Record' 'jurisdictional Error' 'non Pecuniary Conflict of Interest' 'code of Conduct for Councillors' 'apprehended Bias by Prejudgment' 'mandatory Considerations' 'certiorari and Prohibition' 'open Justice and Non Publication']
['administrative Law' 'local Government' 'judicial Review' 'procedural Fairness'] ['error of Law on the Face of the Record' 'jurisdictional Error' 'non Pecuniary Conflict of Interest' 'code of Conduct for Councillors' 'apprehended Bias by Prejudgment' 'mandatory Considerations' 'certiorari and Prohibition' 'open Justice and Non Publication']

Case Brief

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Procedural Posture

Administrative Law Judicial Review; Prerogative Relief Under S.69 Supreme Court Act 1970 / Hearing of Plaintiff's Summons Challenging a Sole Conduct Reviewer's Report

Legal Issues

  1. 1 ["Whether the Conduct Reviewer erred in law, on the face of the record, by treating the Plaintiff's relationship with the Member of the Legislative Council as capable of giving rise to a non-pecuniary conflict of interest under the Code of Conduct." 'Whether the Conduct Reviewer failed to take into account a mandatory consideration concerning whether the Member of the Legislative Council had an interest that could be affected by the Council motion.' "Whether the Conduct Reviewer's draft report and subsequent conduct gave rise to apprehended bias by prejudgment." 'Whether the Plaintiff had implicitly declared his association with the Member of the Legislative Council at the Council meeting so as to satisfy the Code of Conduct.']

Ratio Decidendi

The Plaintiff failed to establish reviewable error. The proper focus under the Code of Conduct was whether the Plaintiff's close working relationship with Ms Ficarra, in the context of a Council debate directly criticising her parliamentary questions, was capable of giving rise to a perceived non-pecuniary conflict of interest; it was not necessary first to find that Ms Ficarra stood to gain or lose in a tangible way. It was open to the Conduct Reviewer to find that the Plaintiff was required to declare and manage that conflict. The draft report did not establish apprehended bias because, read in context with the Code procedure and later reports, it was a preliminary assessment leading to...

Court Disposition

The Plaintiff's Summons was dismissed, with the parties to be heard on costs.

Orders

  • ["The Plaintiff's Summons is dismissed." 'The parties will be heard on the question of costs.']