IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Common Law Division
Judicial Review and Appeals List
S ECI 2022 02773 

COUNCILLOR ALEXANDER LEW	Plaintiff	
		
v  		
		
NOEL HARVEY OAM (in his capacity as an arbiter appointed pursuant to s 142 of the Local Government Act 2020)	First Defendant	

COUNCILLOR MICHAEL SCOTT	Second Defendant	

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JUDGE:	Tsalamandris J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	14 March 2023	
DATE OF JUDGMENT:	14 August 2023	
CASE MAY BE CITED AS:	Lew v Harvey & Anor	
MEDIUM NEUTRAL CITATION:	[2023] VSC 477	

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ADMINISTRATIVE LAW – Judicial review – Review of decision of arbiter – Complaint of misconduct – Arbiter appointed to decide complaint – Internal arbitration process – Finding of misconduct – Plaintiff directed to make formal apology – Reasons inadequate – No power to stay proceeding – Local Government Act 2020 (Vic) – Local Government (Governance and Integrity) Regulations 2020 (Vic) – Wingfoot Australia Partners v Kocak (2013) 252 CLR 480.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff 	Ms R Walsh	Kingston Reid	
			
For the First Defendant 	Mr A Solomon-Bridge	Victorian Government Solicitor	
			
For the Second Defendant	Mr A McBeth	Russell Kennedy	

HER HONOUR:
Introduction and the Act
1	The plaintiff, Cr Alexander Lew, seeks judicial review of a decision of the first defendant, Mr Noel Harvey, as an arbiter under the Local Government Act 2020 (Vic) (the Act), regarding a complaint of misconduct made against Lew by the second defendant, Cr Michael Scott.  
2	In short, Lew complains that Harvey directed him to make an apology for misconduct which was not the subject of Scott’s complaint, and that it is not clear what he is required to apologise for as Harvey failed to provide adequate reasons for his decision.
3	At the time of the alleged misconduct, both Lew and Scott were councillors of the City of Stonnington (the council).  The complaint relates to written and oral statements made by Lew about Scott at an audit and risk committee meeting on the 26 August 2021.  Following the meeting, Scott made an application for an internal arbitration process seeking a finding of misconduct against Lew, on the basis that Lew had breached the prescribed standards of conduct required of councillors under the Local Government (Governance and Integrity) Regulations 2020 (Vic).  This arbitration was referred to Harvey who, after hearing the application, concluded that the specific breaches claimed by Scott were unsupported.  Notwithstanding this finding, Harvey was satisfied that Lew had breached a generally prescribed standard, as he had failed to show ‘respect and fairness’ to Scott at the meeting.  Harvey made a finding of misconduct against Lew and directed him to provide a written, meaningful apology to Scott, to be read at the next council meeting. 
4	Separate to Scott’s complaint, another councillor, Kate Hely, complained about Lew’s conduct to a councillor conduct panel under s 154 of the Act (the Hely complaint).  Lew sought a temporary stay of Scott’s complaint until after the Hely complaint was determined, on the basis that there was evidence and matters common to both complaints.  This application was refused by Harvey (the refusal to stay).
5	The grounds of review relied upon by Lew include the following:  Harvey provided inadequate reasons;  the decision was ultra vires as it was made in respect of conduct Scott did not complain about;  Harvey denied Lew natural justice when he concluded that Lew had breached the ‘generally prescribed standard’ (a point which was not advanced by Scott);  and that Harvey failed to have regard to Standard 5, being an overarching and mandatory standard prescribed by the Regulations, which operates as a protection for robust political debate.  
6	Harvey did not seek to actively defend the proceedings.  However, as this was the first decision in respect of the arbitration process established under the amended version of the Act, to assist the Court he made submissions in respect of the statutory powers and procedures of an arbiter.   
7	Scott defended the application for review on the basis that:  the decision was in respect of conduct which he had complained of and thus was not ultra vires;  Harvey’s reasons were adequate;  there was no denial of natural justice;  and Harvey was not required to specifically refer to all of the matters which he had regard to in making the decision. 
8	For the reasons that follow, I am satisfied that the reasons of Harvey were inadequate.  
9	The inadequacy of the reasons hinders my ability to sensibly consider Lew’s other grounds of review relating to the decision. 
10	In respect of the refusal to stay, I am satisfied that under the Act an arbiter has no such power, either express or implied, to stay a complaint and therefore there was no error by Harvey in refusing the stay application. 
Relevant sections of the Local Government Act and Regulations
11	Provisions of the Act came into effect on various dates between 6 April 2020 and 1 July 2021.  The Regulations came into effect on 24 October 2020.  The Act repealed and re-enacted parts of the Local Government Act 1989 so as to provide a ‘contemporary legislative framework for local government in Victoria’.   The purpose of the Act is to give functions and powers to councils to ensure peace, order and good government in each municipal district. 
12	Section 28(1) of the Act states that the role of every councillor is to participate in the decision making of the Council, represent the interests of the municipal community in that decision making, and contribute to the strategic direction of the Council.
13	Relevant to this application is Part 6 of the Act, ‘Council integrity’.  This Part identifies three avenues by which to deal with complaints alleging misconduct by councillors.  The significance of the alleged misconduct determines who deals with the complaint, and the possible types of disciplinary action open to the decision maker.  Under Division 5, a complaint of misconduct can be referred for internal arbitration.  Under Division 7, a complaint of serious misconduct can be referred to a Councillor Conduct Panel; and a complaint of gross misconduct is investigated by the Chief Municipal Inspector and heard and determined by the Victorian Civil and Administrative Tribunal (VCAT).
14	The impugned conduct the subject of this application is a complaint by Scott of misconduct by Lew. Under the Act, misconduct is defined as any breach by a councillor of the standards.  
15	The standards are established by a councillor Code of Conduct which must be developed by each Council.  The purpose of a Code of Conduct is to set out the standards expected of councillors in the course of performing their duties and functions, for example, prohibiting discrimination, harassment, and vilification.  The code of conduct must include the standards.  The standards relevant to this application are as follows:
1 	Treatment of others 
A Councillor must, in performing the role of a Councillor, treat other Councillors, members of Council staff, the municipal community and members of the public with dignity, fairness, objectivity, courtesy and respect, including by ensuring that the Councillor-
(a) 	takes positive action to eliminate discrimination, sexual harassment and victimisation in accordance with the Equal Opportunity Act 2010; and
	…
(c) 	does not engage in abusive, obscene or threatening behaviour in their dealings with members of the public, Council staff and Councillors; and
(d) 	in considering the diversity of interests and needs of the municipal community, treats all persons with respect and has due regard for their opinions, beliefs, rights and responsibilities.
2 	Performing the role of Councillor 
A Councillor must, in performing the role of a Councillor, do everything reasonably necessary to ensure that the Councillor performs the role of a Councillor effectively and responsibly, including by ensuring that the Councillor—
…
(b) 	diligently uses Council processes to become informed about matters which are subject to Council decisions; and
…
(d)	represents the interests of the municipal community in performing the role of a Councillor by considering and being responsive to the diversity of interests and needs of the municipal community.
…
4 	Councillor must not discredit or mislead Council or public 
(1) 	In performing the role of a Councillor, a Councillor must ensure that their behaviour does not bring discredit upon the Council. 
(2) 	In performing the role of a Councillor, a Councillor must not deliberately mislead the Council or the public about any matter related to the performance of their public duties.
5 	Standards do not limit robust political debate 
Nothing in these standards is intended to limit, restrict or detract from robust public debate in a democracy.
16	Where misconduct by a councillor is alleged, an application for an internal arbitration may be made to the Principal Councillor Conduct Registrar by the Council (following a resolution of the Council), a councillor, or a group of councillors.  Such an application must be made within three months of the alleged misconduct occurring. 
17	If the Registrar is satisfied that the application is not frivolous, vexatious, misconceived, or lacking in substance, and there is sufficient evidence to support an allegation of a breach of the relevant code of conduct, the Registrar must appoint an arbiter to the council to hear the matter, otherwise the Registrar must reject the application.  
18	The Registrar must select an arbiter from the panel list to conduct an internal arbitration process.  The panel list is established by the Secretary, who may appoint as many eligible people as they consider appropriate.
19	Once the Registrar appoints an arbiter to hear an application,  the arbiter may hear the application, and must ensure that parties involved in the internal arbitration process are given an opportunity to be heard by it.  
20	Additionally, an arbiter must abide by any processes or requirements prescribed by the Regulations.  The Regulations require that an application for an internal arbitration process specify the name of the councillor alleged to have breached the standards; the clause of the standards alleged to have been breached; and the misconduct alleged to have resulted in the breach. 
21	The arbitration hearing must be conducted with as little formality and technicality as the proper consideration of the matter permits and must not be open to the public.  Additionally, the hearings may be conducted in person, in writing or online, and are not bound by the rules of evidence. 
22	Councillors who are party to an internal arbitration process do not have a right to representation unless the arbiter considers that representation is necessary to ensure that the process is conducted fairly. 
23	If after completing the internal arbitration process, the arbiter determines that a councillor has failed to comply with the prescribed standards, it may make a finding of misconduct against the councillor.  The sanctions which may be imposed by an arbiter include directing a councillor to make an apology, suspending a councillor from office for up to one month, or directing a councillor to attend or undergo training or counselling.  A failure to comply with such a direction constitutes serious misconduct.
24	The arbiter must provide a copy of its decision and statement of reasons to the Council, the applicant(s), the respondent, and the Registrar.  In addition, the arbiter’s decision and reasons must be tabled at the next Council meeting (in a redacted format if confidential information is contained therein). 
Background to the application
25	To understand this application and my reasons for judgment, I will briefly summarise the relevant background facts. 
26	In October 2020, Lew was elected to the council for a four year term to represent the residents of East Ward in the City of Stonnington. 
27	On 15 March 2021, consistent with the requirements of the Act, the council adopted its own code of conduct. 
28	On 31 July 2021, Scott made an application for internal arbitration, alleging misconduct by Lew.  This application was referred to an arbiter but was discontinued as it related to conduct which had occurred more than three months before the application was lodged.
29	In response to COVID-19, the council established a Community Recovery Committee (the CRC) which was formed to seek input from affected community members into the process of recovery, inform the community about recovery processes and activities, confirm the council’s community recovery plan, and monitor the progress of the recovery effort.  Scott was the chair of the CRC.  
30	In addition, the council established a COVID-19 community recovery grants program (the COVID-19 grants program).  Assessment panels met virtually to evaluate applications for the grants and these were subsequently approved by the council’s chief executive officer.  
31	As it was obliged to under the Act, the council had an audit and risk committee (ARC). Cr Marcia Griffin was a member of this committee when the alleged misconduct occurred at the meeting the subject of this complaint.
32	At the meeting, the ARC sought feedback from councillors as to the terms of reference for an internal audit in respect of  the  COVID-19 grants program.  Lew and Scott attended this meeting as observers.  Lew provided a written statement and spoke to his statement at the meeting. 
33	Lew’s written statement expressed concern as to how monies under the COVID-19 grants program had been spent, including comments that a high proportion of those monies had been allocated to organisations which councillors on the CRC had personal connections to.  Scott was one of those councillors about whom Lew made these comments. 
34	On 14 September 2021, the Hely complaint was lodged.  It alleged serious misconduct against Lew, including an attempt by Lew to remove Hely from her position as mayor.  Part of the Hely complaint included a reference by Hely as to Lew’s presence at the meeting the subject of this application.  At the meeting, in addition to discussion regarding the COVID-19 grants program, Hely’s training budget was an agenda item. In her complaint, Hely stated that she considered Lew was not behaving as was expected of a silent observer at the meeting, and she felt ‘vulnerable by his presence and his inappropriate involvement’ in discussions at the meeting. 
35	The panel subsequently heard the Hely complaint on 9 and 10 May 2022.  Relevant to this application, the panel heard evidence from Hely and Griffin which included, in part, evidence of Lew’s conduct at the meeting.
36	On 31 October 2021, Scott lodged the complaint.  In Scott’s written application, Scott alleged misconduct against Lew in respect of the oral and written statements he made to the CRC at the meeting.
37	In the written application, Scott identified the following clauses of the standards alleged to have been breached by Lew as follows:
1 	Treatment of others: 
A Councillor must, in performing the role of a Councillor, treat other Councillors, members of Council staff, the municipal community and members of the public with dignity, fairness, objectivity, courtesy and respect, including by ensuring that the Councillor-
(a) 	takes positive action to eliminate discrimination, sexual harassment and victimisation in accordance with the Equal Opportunity Act 2010; and
(c) 	does not engage in abusive, obscene or threatening behaviour in their dealings with members of the public, Council staff and Councillors; and
(d) 	in considering the diversity of interests and needs of the municipal community, treats all persons with respect and has due regard for their opinions, beliefs, rights and responsibilities.
2 	Performing the role of Councillor 
A Councillor must, in performing the role of a Councillor, do everything reasonably necessary to ensure that the Councillor performs the role of a Councillor effectively and responsibly, including by ensuring that the Councillor—
(b) 	diligently uses Council processes to become informed about matters which are subject to Council decisions; and
(d)	represents the interests of the municipal community in performing the role of a Councillor by considering and being responsive to the diversity of interests and needs of the municipal community.
4 	Councillor must not discredit or mislead Council or public 
(1) 	In performing the role of a Councillor, a Councillor must ensure that their behaviour does not bring discredit upon the Council. 
(2) 	In performing the role of a Councillor, a Councillor must not deliberately mislead the Council or the public about any matter related to the performance of their public duties. 
38	Scott’s written application alleged that Lew had breached standard 1(a) on two occasions, standard 1(c) on four occasions, standard 1(d) on two occasions, standard 2(b) on three occasions, standard 4(1) on eight occasions and standard 4(2) on 14 occasions.  
39	Scott’s written application then outlined a considerable amount of background information which included past communications from Lew about Scott (such as emails, media clippings and statements).  Thereafter, Scott detailed his recollection of the oral statement made by Lew at the meeting, and which aspects of it he relied upon as breaching standards 4(1) and 4(2).  
40	Next, Scott referred to the written statement Lew provided to the CRC.  Scott stated that ‘[w]hile Lew is entitled to his opinion, he was not treating other members of Council and Council officers with respect…’.  Scott identified the aspects of Lew’s written statement which he relied upon for the remaining balance of the claimed breaches.  In a similar fashion to that of the oral statement, Scott identified specific clauses of each standard he alleged Lew had breached relevant to the written statement.  This included claims that Lew had engaged in victimisation and threatening behaviour in breach of standards 1(a) and 1(c).   Further, Scott referred to allegations by Lew that a high proportion of monies allocated under the COVID-19 grants program went to organisations that were connected to members of the CRC, and specifically mentioned a connection between Scott and Launch Housing, and the Prahran Mechanics Institute.
41	Next, Scott’s written application referred to a table set out in Lew’s written statement entitled ’Total COVID Recovery Grant amount’.  Scott again emphasised the words ‘fairness and objectivity’ as set out in the introductory words of standard 1, and thereafter alleged breaches of standards 1(c), for threatening behaviour;  1(d), for disregarding opinions, rights and responsibilities;  and 2(b), for not diligently using council processes.
42	Further, Scott referred to parts of Lew’s written statement in which Lew claimed that: ‘councillors horse trade on votes’;  ‘grudges caused from one decision influence a councillor’s vote on another’;  and that ‘[d]eals are done and votes are traded.’  Scott alleged such matters breached clauses (1) and (2) of standard 4. 
43	Finally, Scott claimed that Lew’s false comments and misrepresentations had caused him professional damage and personal harm.
44	The Registrar appointed Harvey as the arbiter of the complaint.
45	Thereafter, Lew sought and was granted leave to be represented by solicitor, Mr Steven Amendola, in the complaint.
46	In February 2022, an internal audit report was prepared for the council by advisory and accounting firm HLB Mann Judd.  In respect of the council’s COVID-19 grants program, the audit report concluded:
[G]iven the short timeframe to establish key protocols, there were several shortcomings identified in the administration of these grants, and as a result we have made a number of recommendations to enhance the grants management practices of the council, particularly in relation to the management of conflict of interest.
47	The audit report made recommendations for future implementation which included: 
The council should have formal processes in place to ensure that: the community recovery committee members are required to formally declare any potential, perceived and actual conflicts of interest that they are aware of before providing comments/advice to a community grant program.
48	On 24 March 2022, Harvey conducted a directions hearing in respect of the complaint.  At the hearing, Lew applied to have the complaint discontinued pursuant to reg 11(3)(c) on the basis that it was frivolous, vexatious, misconceived, and lacking in substance.  
49	On 18 April 2022, Harvey refused Lew’s application to dismiss the complaint as he considered that it should proceed to a formal consideration.  Further, Harvey invited the parties to make submissions (or otherwise advise) as to whether the parties were content for him to determine the matter on the papers or at formal hearing.
50	On 13 May 2022, Lew sought a stay of the complaint pending the determination of the Hely complaint (the stay application).  Lew noted that the Hely complaint concerned (in part) his conduct at the same meeting, and that witnesses had given evidence of his conduct to the conduct panel.  Lew submitted that there were problems inherent in permitting a multiplicity of proceedings with similar issues, and that the balance of convenience justified a stay.
51	On 18 May 2022, in order to better understand the basis for the stay application, Harvey sought further details as to the Hely complaint. 
52	On 19 May 2022, Lew provided additional material in support of his stay application, including extracts of evidence given by Hely and Griffin to the conduct panel. 
53	On 20 May 2022, Harvey refused the stay application on the basis that, having considered the additional material provided by Lew, there was ‘nothing of any relevance’ to the complaint before him and therefore no reason to delay the matter any further.  
54	On 24 May 2022, the arbitration proceeded to a hearing before Harvey. Lew was represented by Amendola, and Scott appeared on his own.   
55	At the commencement of the hearing, Scott sought to rely upon additional material. In response to this, Harvey stated:
I assure you there will be no expansion of the complaint. The complaint is what we have got. I’m not going to be expanding it. I am simply containing it to the document that has been provided.
56	Scott, Lew and Griffin were asked questions at the hearing regarding the complaint. First, Amendola questioned Scott as to Scott’s conflict of interest in respect of some of the COVID-19 grants.  This included organisations Scott was said to have connections to, either through his employment or in a voluntary capacity.  
57	I note Harvey made the following comments during Amendola’s questioning of Scott in relation to the importance of transparency, accountability and declaring conflicts of interest: 
Councillor Scott has challenged this issue around the right of Councillor Lew to raise the matter. On my reading of the document that has been presented to me, it’s not the fact that Councillor Lew raised the matter; it’s the manner in which it was done. And I think that that’s my understanding of the documents that have been provided to me. So, I don’t think there’s any argument about the right of Councillor Lew to raise them in my reading of the documents that have been prepared.
58	At the conclusion of Scott’s evidence, Amendola made specific submissions in respect of each of the complaints made against Lew.  Amendola made submissions as to the meaning of the words discrimination, sexual harassment and victimisation contained in standard 1(a), and why there was no allegation that this standard was breached.  He then made submissions in respect of the meaning of standard 4(2), and why it could not apply to Lew’s statements at the meeting. 
59	Next, Griffin was called and questioned in respect of a statement she had provided for the purpose of the arbitration.  In her statement, Griffin noted that prior to the meeting she had received Lew’s written statement and considered that it clearly described the issues he had raised in relation to the COVID-19 grants program.  Griffin considered the language of the statement was respectful.
60	Griffin then made the following comment in respect of the meeting:  
[T]here was a discussion concerning the [council’s] proposed audit of the [COVID grants program] and sometime during this discussion, Cr Lew spoke to his written submission. I recall Cr Lew addressing his submission in a neutral and respectful manner and that his submission was received very well by the ARC. I also recall that there was a brief, useful discussion about the scope of the audit after Cr Lew had finished speaking. Crs Batagol and Scott attended the … [m]eeting but I do not recall them saying anything or asking any questions.
61	Griffin concluded by stating that she was glad that Lew had brought these matters to the attention of the ARC, as it had enabled the council to learn valuable lessons, such that there was now little chance such failures would occur again.  
62	During an exchange between Scott, Griffin and Harvey, a comment was made by Harvey that ‘horse trading on votes’, and simple ‘argy-bargy’ was in the nature of politics at local, state, and federal levels of government.  Harvey went on to comment that this could be done, ‘without getting into the personality side of it and … doing it in a respectful way.’  Immediately following that comment, Scott interjected and stated:  ‘[t]hat’s my point’. 
63	Harvey went on to state that when reading the material before him, he was concerned that the ‘respect element’ was missing. 
64	Before excusing Griffin at the conclusion of her evidence, Harvey stated:
I absolutely agree with you. It is really important and I – as I say, for me it’s not the – the issue is not about whether or not Lew wanted to raise it with the [ARC]. I think – I would hope that most councils will go back and have a look at these COVID grants programs because most councils had them, but I think – and most councils haven’t done it particularly well and I think that’s a really good lesson – a good learning.
65	In closing submissions, Amendola submitted that there was nothing in the complaint to support a breach of standard 1(a) or standard 4(2).  He submitted that Lew’s submissions were put in respectful terms.  He noted that standard 1(d) requires a councillor to act with dignity, fairness, objectivity, courtesy and respect in considering the diversity of interests, and to have due regard to opinions, beliefs, rights and responsibilities.  It was put that Lew had merely expressed an opinion as to how the grants should be dispersed and that if there was a connection between a councillor and an organisation, a grant should not be awarded.  Further, it was emphasised that Griffin considered Lew's submission was put in ‘neutral tones’.  Amendola also contended that Lew’s submissions were not threatening, and instead described them as being put ‘passionately, forcefully … but respectfully’. 
66	In closing submissions, the following exchange occurred between Harvey and Scott:
Harvey: … [T]o me the issue is around the respectability, the… way in which it was raised… To me that’s the issue – that’s the nub of what I’m trying to get my head around.
….
Scott: I’m looking at my application and forgive me if I get this wrong, but I can’t actually see anywhere I’ve claimed that Councillor Lew was disrespectful.
Harvey: Okay. And I – that may be just my words. I’m not saying that. I’m just sort of, pointing that out. Yes.
Scott: What I’m – what I’m making note of in my application is that his comments were misleading.
Harvey: Okay.
Scott: After I provided him with information he chose not to take a diversity of interests in understanding my perspective and continued down a path that was misleading.
Harvey: Okay. And that’s well – you – you’ve made your point quite clearly there, and I accept that too.
67	On 15 July 2022, the conduct panel published its decision in respect of the Hely complaint.  It dismissed every allegation of serious misconduct against Lew.  It made findings of fact relevant to the meeting which included a finding that Lew’s behaviour was assessed as being nothing ‘which goes beyond legitimate political discourse.’ 
The decision the subject of the application
68	On 13 July 2022, Harvey provided his decision, which was as follows:
1. 	I, Noel Harvey OAM find there has been a breach of the prescribed standards of conduct contained in Regulation 11(1) by [Lew] in that he failed to show respect, and fairness to [Scott] in his submission and presentation to the [ARC] 26th August 2021.
2. 	Pursuant to section 147(1) of the [Act] I therefore make a finding of misconduct against [Lew]. 
69	The statement of reasons noted the relevant standards Scott alleged had been breached by Lew and provided a chronology of the complaint, including documents and written submissions he had received from the parties.  Harvey provided a summary of the oral evidence given at hearing by Lew, Scott and Griffin. 
70	The reasons noted the parties had agreed that the audit report obtained by the council was a ‘valuable document’, which the Council had subsequently adopted. 
71	In addition, the reasons noted that Lew had tabled a recent report from the Victorian Auditor-General’s Office which underlined the importance of the issues raised by Lew with the council’s ARC.
72	The reasons then stated as follows:
Findings of the Arbiter
38. 	The Arbiter is satisfied that [Lew] has breached the generally prescribed standard in that he failed to treat [Scott] with “……… dignity, fairness, objectivity, courtesy, and respect……” in his presentation to the [ARC] (the misconduct finding).
39. 	The Arbiter does not find the specific breaches claimed by [Scott] of 1(a) on 2 occasions, 1(c) on 4 occasions, 1(d) on 2 occasions, 2(b) on 3 occasions, 4(1) on 8 occasions, and 4(2) on 14 occasions can be supported.
40. 	There is clearly a long-standing tension between [Scott and Lew]. Whilst both parties participated in an earlier mediation process that resulted in an apology and joint agreement, the agreement was not complied with by either party in this case.
41. 	The Arbiter acknowledges the actions of [Lew] has resulted in important changes to council processes, however no finding of any improper action by [Scott] was identified.
42. 	It appears to the Arbiter that the desire on the part of [Lew] to ensure transparency, was clouded by the personal tensions that clearly exists between the two parties.
Sanction
43. 	In considering an appropriate penalty I have taken into account the following factors:
44. 	The actions of [Lew] in raising the matter of concern with the [ARC] was appropriate.
45. 	The subsequent investigation by Mann Judd has resulted in important changes within the City of Stonnington.
46. 	There was no justification for [Lew] to make the matters of concern personal.
47. 	I note that [Lew] has been required to undertake further induction training.
48. 	I believe the misconduct to be at the lower end of offence.
49.	However, given the finding of misconduct the sanction imposed is that [Lew].
Be required to provide a written, meaningful apology to … Scott, acknowledging that the personal nature of his submission to the ARC on 26th August 2021 has caused offence and potentially damaged the reputation of … Scott.
The apology must be read to the council meeting immediately following receipt of this report and recorded in the minutes of the meeting.
The apology should also advise council that [Lew] will seek to be more considered in his actions in the future.
Reasons
Lew’s grounds of review
73	Lew’s amended originating motion included the following grounds: 
(a)	Harvey failed to provide any, or any adequate, reasons;
(b)	Harvey denied Lew natural justice;
(c)	Harvey’s decision was ultra vires as he acted beyond his power, in finding a breach of a standard not alleged in the complaint;
(d)	Harvey failed to take into account or give adequate weight to Standard 5;
(e)	Harvey acted beyond his power in directing Lew to make undertakings as to his future conduct; and 
(f)	Harvey erred in refusing to stay the arbitration. 
Inadequate reasons
74	Lew contended that Harvey failed to provide any, or any adequate, reasons for his decision.  This ground was put both specifically in respect of the misconduct finding, and more generally in respect of Harvey’s failure to:
(i)	set out the findings on material questions of fact; 
(ii)	refer to the evidence or other material on which those findings were based; 
(iii)	give reasons for the decision; and
(iv)	give adequate reasons for the ‘sanction’, including what findings of misconduct had been made, and which matters of concern Lew had made personal.
75	Lew submitted that as a consequence of those failings, he did not know what he was required to apologise for, which in itself prevented him from providing a meaningful apology.   
76	In support of this ground that the reasons were inadequate, Lew referred me to a decision of Beach J (as his Honour then was) in Dimatos v Coombe, in which a decision-maker’s obligation to give reasons was described in the following way: 
Whilst the extent of the reasons in any case will depend upon the circumstances of the case, the reasons should identify the issues in dispute; deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those findings are based; and provide an intelligible explanation of the process of reasoning that has led the tribunal from the evidence to the findings and from the findings to the ultimate conclusion. Failure to expose this path of reasoning is an error of law. Further, as has been said on a number of occasions, in general, the mere recitation of evidence followed by a statement of findings, without commentary as to why the evidence is said to lead to the findings, is ‘about as good as useless’.
77	Lew submitted that, in giving his reasons, Harvey had done none of the things expected of a decision maker, as contemplated by the Court in Dimatos.  He submitted that, as a consequence, Harvey had failed to provide any intelligible explanation of the process of reasoning which he adopted in reaching his misconduct finding.
78	Lew submitted that the nature of the sanction proposed required him to  acknowledge the ‘personal nature’ of his submission to the ARC had caused offence, and potentially damaged the reputation of Scott.  It was submitted that Harvey had not stated how the submission was personal in nature nor what part of it was personal, or how such conduct amounted to a breach of the standards.  Without such identification, Lew stated that it was entirely unclear what conduct he was to apologise for.  Lew submitted that Harvey had merely provided an ‘opaque’ statement of conclusions, and this failure to provide or illuminate the reasoning pathway constituted an error of law. 
79	Lew sought an order for certiorari by way of relief in respect of this ground, quashing paragraphs 39 and 48 of the reasons.
80	In reply, Scott submitted that the ‘degree of precision’ required of the reasons of an administrative decision-maker, including an arbiter under the Act, is substantially different to that required of a court or tribunal.  Scott submitted that Lew’s reliance on Dimatos was not relevant as it related to the reasons for a decision of a tribunal.  He contended that the scope of an arbiter’s duty to give reasons under the Act involved consideration of the nature of the function performed by the arbiter and the objective, within the scheme of the Act, of requiring the arbiter to give a written statement of reasons.  
81	Scott submitted that the role of the arbiter was to determine, ‘no more and no less’, whether the conduct complained of constituted a breach of the standards as set out in the Regulations.  He submitted that, in the context of the arbitration being conducted with as little formality as proper consideration of the matter permitted, the reasons were ‘tolerably clear’.  In respect of Harvey’s finding that there was ‘no justification’ for Lew to make the matters of concern personal, Scott submitted this was a clear statement having regard to the standard expected of a decision maker of this kind.  Further, Harvey’s finding that the misconduct was ‘at the lower end of offence’, together with the very light sanction imposed, was further support for the reasons being sufficient in the circumstances.
82	In addition to the above, Scott submitted that as the statement of reasons are tabled, and any other communications pertaining to the arbitration remain confidential, there is good reason for the arbiter not to set out in ‘chapter and verse’ what the parties said to each other.  It was put that the parties knew in great detail what was said to be unduly personal, and Harvey did not need to traverse what should otherwise remain confidential between them.  
83	Although Harvey did not seek to actively defend the proceeding, to assist the Court, he helpfully made submissions in respect of an arbiter’s duty to give reasons under the Act.  It was put that, in considering the relevant context of an arbiter’s decision-making powers under the Act, I should have regard to the following:
(a)	An arbiter is not a court, and is an administrative decision-maker;
(b)	An arbiter may be, but need not be, a lawyer;
(c)	The parties to an arbitration have no right to representation;
(d)	An arbiter deals with less serious misconduct allegations than those that are referred to either Councillor Conduct Panels or VCAT;
(e)	The sanctions that might be imposed by an arbiter are correspondingly less.
84	Harvey submitted that many of the prescribed standards invite evaluative judgments about conduct which, even in the judicial context, are ‘[f]requently … not susceptible of any great explication’.
85	Harvey submitted that in light of the statutory context, the standard of reasons required by an arbiter could be, at most, no higher than the standard which the High Court determined was applicable to medical panels in Wingfoot Australia Partners Pty Ltd v Kocak.
Analysis
86	The High Court in Wingfoot provided guidance as to the standard of reasons required of an administrative decision maker.  That case, in part, concerned the adequacy of reasons of a medical panel which had examined an injured worker in respect of  his entitlement to statutory compensation benefits under the Accident Compensation Act (1985) (Vic).  The panel was obliged under the relevant legislation to provide reasons for its opinion.  
87	The Court noted that where a duty to provide reasons is imposed by statute, the standard required for those reasons is to be:
…determined as an exercise in statutory construction.  In the absence of express statutory prescription, that standard can be determined only by a process of implication. 
88	The Court also stated:
It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question.
89	After considering the function of a medical panel, and the objective within the relevant legislation of requiring written reasons, the Court held that a panel’s reasons must explain its actual path of reasoning in sufficient detail to enable a court to see whether or not the opinion involves any error of law.  Further, the benefit in requiring a statement of reasons to always meet this standard is that it enables a person whose legal rights are affected by the opinion to obtain relief in the form of certiorari, removing the legal effect of the opinion infected by error.  
90	However, the Court in Wingfoot expressly stated that the standard of reasons required of a medical panel cannot be equated with the standard required of a judge giving reasons for a final judgment after trial of an action in court.  The Court made clear that the reasons of a medical panel are not required to meet this higher standard – a panel is under no obligation to explain why it did not reach an opinion it did not form.  
91	Undertaking this exercise of statutory construction in respect of the standard required of an arbiter providing reasons for a decision, I note that a purpose of the Act is to ensure good government of each municipal district.  It can be inferred from Part 6 that this purpose is to be achieved, in part, through the expectation that councillors will act with integrity.  In exercising powers conferred under the Act, an arbiter is expected to advance that stated purpose.  It can also be inferred that the purpose of the arbiter being required to give reasons for a decision (which is then tabled at the next Council meeting and recorded in the minutes of the meeting) is to hold councillors to account for a breach of the standards, and to promote integrity and accountability of councillors for the benefit of all within the municipality.  
92	As stated by the Court in Wingfoot at [88] above, the function of a medical panel is not arbitral, whereas the role of an arbiter may involve choosing between competing contentions – just as Harvey did in his determination of the complaint.  
93	Despite that apparent difference, there are some similarities between the obligations and expectations imposed on a medical panel under workers compensation legislation, and an arbiter under the Act.  Both statutory bodies are obliged to give reasons; both must act informally; neither are bound by rules of evidence; both are obliged to observe procedural fairness;  attendance before each entity is private; and there is no automatic entitlement to appear with legal representation.  
94	It is clear that a lower standard is required of an arbiter under the Act than that of a court giving reasons for a final judgment.  Synthesising the observations in [91]–[93] above, and applying the Court’s reasoning in Wingfoot, the standard required of an arbiter under the Act lies somewhere between that of a medical panel and a court of law.  On this standard, the reasons of Harvey are inadequate.  However, even if applying (as was submitted by Harvey) the lesser standard required of a medical panel as articulated in Wingfoot,  I still consider the reasons to be inadequate, as they are devoid of a clear path of reasoning.  
95	Given so many of Lew’s allegations about Scott related to his personal affairs, and Harvey dismissed Scott’s specific allegations of breaches of the standards, it is puzzling as to what Harvey meant by there being ‘no justification’ for Lew making matters of concern personal. 
96	Having read both the application and transcript of the hearing, it is not apparent what conduct of Lew’s Harvey considered had breached the introductory words of standard 1.  In his statements to the ARC, Lew sought to query the potential conflict of interest arising from Scott’s personal association with some of the recipients of the COVID-19 grants program.  It is clear from the complaint that Scott alleged parts of Lew’s statements at the meeting were deliberately misleading, and he found them to constitute threatening behaviour and victimisation.  However, Harvey dismissed each of the specific breaches claimed by Scott. 
97	In respect of the misconduct finding, it is simply unclear what it is actually based upon.  At the hearing, Scott disavowed a complaint as to Lew being disrespectful.  The transcript does not reveal any personal attacks being made by Lew beyond his allegation of the connection between Scott and certain organisations, and those aspects of Scott’s complaint were dismissed by Harvey. There is no reference to inappropriate or offensive language, which may have offended Scott on a personal level.  This, together with Griffin’s account as to Lew’s conduct at the meeting, presents a picture of Lew’s conduct (including his statements made at the meeting) consistent with robust political debate, but nothing more.  Therefore, having found to the contrary, Harvey was required to explain how he reached his decision in respect of the finding of misconduct, and, at the very least, state the conduct it was based upon.
98	In the absence of clear identification of the offending conduct, Harvey’s reasons cannot be excused as a mere evaluative judgment incapable of further explication.   
99	Further, the purpose of the Act cannot be advanced if the reasons for the decision are so opaque that the offending conduct is not apparent.  Neither Lew, nor any councillors (or members of the Stonnington municipality) reading the decision, can be guided as to what to do, or rather, what not do, in the future.  
100	It is necessary to weigh the publication of reasons so as to promote transparency in findings of councillor misconduct, and the unnecessary disclosure of information provided for the purpose of an arbitration.  Consistent with this balancing act, a chapter and verse account of the complaint was not required from Harvey.  However, in his reasons, Harvey certainly needed to go much further than he did.  This is particularly so when Scott’s specific allegations were dismissed, and Harvey’s finding of misconduct was based on his assessment that Lew showed a lack of respect and fairness. 
101	For the sake of completeness, I was not assisted by Lew’s reference to the standard of reasons referred to in Dimatos.  That decision was in respect of judicial review of a VCAT decision.  Given the reasoning in Wingfoot, the expectations expressed in Dimatos are of a higher quality than that expected of an arbiter under the Act. 
Alternate grounds of review
102	The paucity of reasons in respect of the misconduct finding inhibits my ability to sensibly consider Lew’s other grounds of review relating to the decision.  This is the very vice identified in Wingfoot.  As was explained by the High Court, it is necessary for a path of reasoning to be of sufficient detail to enable a court to identify any error of law by the decision maker in forming its opinion.  I consider any analysis by me of the remaining grounds of review relating to the decision would be so hindered by those inadequate reasons, that it would be of no assistance to the parties, or any others reading this judgment.  
Refusal to stay ground of review
103	Whilst it is not strictly necessary for me to decide whether Harvey erred in refusing to stay the complaint, this was an isolated ground of review, the analysis of which is not compromised by inadequate reasons as to the misconduct finding.  There is a dispute between the parties as to whether  an arbiter has a power to stay an arbitration under the Act.  As this is the first judicial proceeding concerning such provisions, I will briefly deal with the parties submissions in respect of this issue. 
104	The part of the decision relevant to the stay application is as follows:
26.	On 13th May [Lew] requested that the application be temporarily stayed on the basis that the allegations being considered in this matter are encompassed in a Serious Misconduct Application being determined elsewhere by a Councillor Conduct Panel. It was indicated that “in the event that a stay is not granted, we advise that it is our intention to file an injunction in the Supreme Court early next week to stop the matter being heard”.
27.	No satisfactory information was provided to support this request and the arbiter indicated the matter would proceed as planned on 24th May 2022.
28.	No injunction was filed.
105	Scott submitted that there were three questions to be determined relevant to this ground of review:
(1)	Does an arbiter have the power to grant a temporary stay of a complaint? If yes, was it within Harvey’s power to stay, or refuse to stay, the complaint pending the determination of the Hely complaint?
(2)	If yes, then is it open to Lew to raise the refusal to stay as a ground of judicial review, or did his failure to issue an injunction at the time of the arbiter’s refusal constitute a waiver of his right to challenge the refusal now? 
(3)	If it is open for Lew to rely upon this ground of review, did Harvey err in refusing to grant the stay of the complaint?
106	At hearing, the parties made submissions in respect of each of these cascading questions.  For the reasons that follow, I am satisfied that the arbiter has no power to stay an application, and thus I will only deal with the first question. 
107	Lew submitted that it was inherent in the internal arbitration scheme established under the Act and the Regulations that Harvey had the power to stay the Scott complaint pending the determination of the Hely complaint, which was an incident of his power to control his own proceeding.  There was nothing under the Act which either compelled him to proceed with the hearing of the complaint at that particular time, or displaced jurisprudence guarding against a ‘real risk’ of unfairness to a party as a result of contradictory findings.
108	Lew contended that Harvey had power to stay the proceeding on the basis that he had exercised discretion over the form and timing of the complaint hearing.  Lew submitted that this was demonstrated by the fact that Harvey issued a notice to the parties advising he was considering whether or not to hold an oral hearing or determine the matter on the papers, and that this made clear the form and timing of the hearing were ‘in his hands’.  It was said that, as Harvey had the power to adjourn the hearing, this was, in effect, an exercise of the same power with the same outcome.
109	Lew submitted that, whatever limitations may constrain Harvey’s discretion under s 143(1)of the Act, to suggest that he lacked the power to stay the complaint displayed a ‘fundamental ignorance of the political context’ of the misconduct process and its ‘vulnerability to abuse by political opponents’.  Further, that this was ‘fundamental’ to the scope of the s 143(1) discretion.
110	Harvey did not make submissions in respect of whether, assuming he had the power to stay the complaint, his refusal to do so was a power properly exercised.  Instead, so as to assist the Court, he made submissions on the general powers and procedures of an arbiter under the Act.
111	Harvey submitted that an arbiter, not being a superior court of unlimited jurisdiction, possessed no inherent power to stay the complaint.  Harvey submitted that the question to be asked was whether an arbiter possessed the implied power to stay a complaint, having regard to the statutory scheme.  He submitted that the test for establishing the implication is whether the asserted power is necessary for the ‘effective exercise of a jurisdiction which is expressly conferred’, where ‘necessary’ meant ‘reasonably required or legally ancillary’.
112	Harvey submitted that, as there was no express power to stay, Lew was required to show that he held a power which was reasonably required or legally ancillary to the effective exercise of his jurisdiction.  Harvey submitted that it was far from clear that this necessary criterion had been made out.
113	In so submitting, Harvey relied upon Grassby v The Queen in which the High Court held that a magistrate (in exercising an executive or ministerial function) had no implied power to stay committal proceedings as an abuse of process.
114	Harvey also relied upon Medical Board of South Australia v N in which the majority of the Full Court of the Supreme Court of South Australia held that the Medical Practitioners Professional Conduct Tribunal had no implied power to stay a complaint alleging unprofessional conduct.  That decision was subsequently considered in Carson v Turner, in which this Court held that the Building Appeals Board did not have an implied power to stay or dismiss a proceeding as an abuse of process.
115	Harvey submitted that, in this case, the scheme of the Act does not admit an implied power for an arbiter to stay proceedings before them as:
(i)	an arbiter is not a court, let alone a court of record;
(ii)	an arbiter need not be a lawyer, and the parties have no right to representation;. 
(iii)	an arbiter deals with less serious misconduct allegations, compared with those dealt with by Councillor Conduct Panels and VCAT; 
(iv)	the sanctions that might be imposed by an arbiter are correspondingly lesser; and 
(v)	the internal arbitration process is intended to be of a summary nature and, in that spirit, and consistent with the rules of procedural fairness, is intended to be quick. 
116	Harvey submitted that the use of the word ‘may’ in s 143(1) of the Act was intended to be expressed as a power, coupled with a duty, for an arbiter to hear an application for which they are appointed to determine, and that it was not intended to repose in the arbiter an undefined discretion not to hear a matter once appointed.  He submitted that if the Registrar is satisfied an arbiter should be appointed to hear the complaint, and an arbiter is then appointed, the circumstances in which the arbiter may decline to hear a matter are clearly specified.  That is, if the arbiter, once appointed, believes that the conduct the subject of the application appears to involve ‘serious misconduct’ and would more appropriately be dealt with as an application to a Councillor Conduct Panel, the arbiter ’must refer the matter’.  Further, the arbiter is specifically empowered to discontinue the hearing if the arbiter considers that the application is vexatious, misconceived, frivolous or lacking in substance, or the applicant has not responded (or has responded inadequately) to a request for further information.
117	Harvey submitted that Part 6 of the Act specifically provides for the suspension of applications and proceedings which relate to either serious misconduct or gross misconduct.  He submitted that this provision to suspend an application was the equivalent of a stay of a proceeding, and that the Act made no mention of this power extending to applications involving the internal arbitration process. 
118	Whilst Harvey acknowledged an arbiter may give general directions concerning the conduct of an internal arbitration process, or to adjourn a hearing where necessary so as to afford procedural fairness to the parties, this did not extend to a power to stay proceedings.  Instead, Harvey submitted that a party to an internal arbitration process seeking to restrain an arbiter from hearing a complaint could apply to this Court for such orders.
119	At hearing, Scott adopted the submissions of Harvey as set out above at [107]–[115].  
Analysis
120	There is no express power in the Act which gives an arbiter a power to stay a proceeding. 
121	Further, unlike this Court which has inherent powers as a superior court of unlimited jurisdiction, there is no authorising provision under the Act which provides an arbiter with inherent jurisdiction.
122	In the absence of an express or inherent power, it is therefore necessary for Lew to persuade me that an arbiter has an implied power to stay an internal arbitration process.  Having considered the text, context and purpose of the Act, and in particular Part 6, I am not so persuaded. 
123	The suspension of a complaint is analogous to the temporary stay which Lew sought until the conclusion of the Hely complaint.  The power to suspend a complaint in respect of serious misconduct and gross misconduct is expressly provided for in Division 7 of Part 6.  There is no equivalent provision in Division 5.  
124	Given the statute only provided the power to suspend in respect of two of the three levels of misconduct complaints established under this Part of the Act, it would be inconsistent with such provisions to imply a suspension power in respect of complaints involving the lowest level of alleged misconduct — that being those referred for internal arbitration under Division 5.  It can be presumed that if the legislature had intended for an arbiter to have such a power, it would have expressly provided for this, just as it did in respect of the avenues for complaints determined under Division 7. 
125	As to an arbiter’s discretion to hear an application under s 143(1), this must be considered in the context of the surrounding provisions.  Once the arbiter has been appointed to hear an application alleging misconduct, that arbiter has an express obligation to refer the matter to a Councillor Conduct Panel if the application appears to involve serious misconduct; or the express power to discontinue the hearing if the arbiter considers the application is vexatious, misconceived, frivolous or lacking in substance, or if the applicant has not responded to a request for further information.  The scenarios in which an arbiter can cease to consider an application are clearly set out in this section of the Division.  The presence of these provisions is inconsistent with an implied power to stay the arbitration process.  That is, the legislature expressly contemplated and provided for the circumstances of an arbitration not proceeding further.  Having identified those scenarios, it can be inferred the legislature did not intend that there otherwise be a general power to stay, suspend, refer or reject an arbitration for other reasons. 
126	The specific provisions in s 141(2) relating to an internal arbitration process include the right to be heard, the rules of natural justice, and an entitlement to legal representation if the arbiter considers it necessary to ensure the hearing proceeds fairly.  However, there is no such reference in s 141(2) to there being a power to stay. It is reasonable to expect that if the legislature intended to confer on an arbiter a power to stay an arbitration, it would have been so expressed with those other provisions, which can generally be seen as pertaining to fairness in the arbitration process.  
127	In view of the matters referred to above,  I have concluded that the text and context of Part 6, and the overall purpose of the Act, do not support a construction that an arbiter has an implied power to stay a complaint. 
128	In Medical Board of South Australia, the majority, in finding that the tribunal had no implied right to stay a complaint, observed that:
The question in this case is not whether it would be convenient or desirable for the Tribunal to have the power to stay proceedings before it, or whether it would be more convenient for a party to be able to make such an application to the Tribunal rather than institute an action in this Court. The question is whether as a matter of statutory construction such a power should be implied.
129	A similar observation may be made here.  I accept that it would be more convenient and cost efficient for a party to apply to an arbiter for a stay of the arbitration than to issue proceedings in this Court.  However, mere convenience is an impermissible basis to imply such a power under the Act. 
130	I reject Lew’s suggestion that to hold otherwise would be to ignore the context in which such complaints were to be made.  To the contrary, the legislature, which established the tripartite system, did so fully aware of the political environment it would be operating in, including the holding of general elections.  The granting of a power to suspend complaints pertaining to serious and gross misconduct, but not the lower level of misconduct, was enacted by the legislature with knowledge of how the local government system operated. 
131	Further, Lew’s submission that the power to adjourn a complaint is comparable to the power to temporarily stay a proceeding must also be rejected.  Such a submission, if accepted, would render nugatory well established principles relevant to stay of proceedings.  Without determining the point, it may be possible to imply an arbiter’s power to adjourn a complaint, if necessary to afford natural justice to the parties.  However, any such reasoning of necessity cannot extend to an application for a temporary stay, which was sought for convenience so as to avoid a multiplicity of common matters.  
132	Given my conclusion that an arbiter has no power to stay a proceeding under the Act, it is not necessary to consider the remaining questions which would only flow if there was such a power. 
Conclusion
133	I will hear from the parties in respect of the form of proposed orders sought.