A new interpretation of what constitutes serious misconduct by a councillor prompted Hume council to withdraw its Supreme Court appeal against the Victorian Civil and Administrative Tribunal’s decision to clear Cr Trevor Dance of serious misconduct.
As reported by Star Weekly, council withdrew its appeal during a Court of Appeal hearing on August 24.
Council decided to lodge the appeal on December 19, 2022, after VCAT president Justice Michelle Quigley cleared Cr Dance of the serious misconduct charge on December 8, 2022.
At the time, council said the appeal was necessary because “there are wider governance matters of relevance to the local government sector that need to be clarified as a result of the VCAT decision”.
Cr Dance had applied to VCAT for a review of a Hume council-convened councillor conduct panel’s (CCP) decision to suspend him from council for three months after finding he had engaged in serious misconduct.
The CCP found Cr Dance had breached council’s internal arbitration process by failing to attend two arbitration hearings in June, 2021, in relation to his allegations of misconduct against Cr Jack Medcraft. The hearings cleared Cr Medcraft of any misconduct.
Cr Dance had cited his mental health for refusing to attend the hearings, but the CCP concluded Cr Dance “did not attend the hearings because he chose not to attend in circumstances where no medical evidence to support his non-attendance was provided by him”.
Cr Dance served two weeks of his suspension before VCAT granted him a stay.
Justice Quigley found Cr Dance’s claims about his mental health should have been considered more seriously.
“On the material before me I do not accept the failure to comply was wilful and deliberate in the proper sense. It was not without any reasonable excuse, ” Justice Quigley said in her decision.
“He took active steps to participate in the hearings.
“Concern for his mental health and psychological safety is a factor which I give significant weight to in forming my opinion of the circumstances in issue here.”
Council said it withdrew its appeal once it became apparent that based on the Supreme Court Justices’ interpretation of the relevant legislation, the matter should never have reached a councillor conduct panel in the first place.
Council said this was a new interpretation, raised by the court for the first time during the hearing.
“At every stage of this process there has been a different interpretation of what constitutes serious misconduct. This reflects the fact that the legal framework is flawed, and requires review,” council chief executive Sheena Frost said.
“Had this interpretation been put forward earlier in the process – at the councillor conduct panel or at VCAT, or in the written submissions in the appeal – the parties would have been saved a lot of time and money. It is really disappointing.
“No one wins today, as reflected in the cost order awarded by the Supreme Court in acknowledgement of the legal interpretation no one has come up with until today. Council has been ordered to cover only 50 per cent of the legal costs as assessed on a standard basis. ”
In a statement on Friday, August 25, Cr Dance said council’s decision to lodge the appeal was made behind closed doors.
“Hume ratepayers should be asking their council why it has spent hundreds of thousands of dollars of their hard-earned money on a legal case that clearly – by the outcome – had no merit,” he said.
Documents presented to council’s July 24 meeting revealed the appeal had cost council $27,368 as of June 30, 2023.
Cr Dance has called for council and the state government to review his case.
“In my efforts to seek greater transparency, accuracy, and accountability in council decision-making, I have raised a number of concerns about the conduct of Hume city councillors via the new internal arbitration process established under wide-ranging changes to Victoria’s Local Government Act (the act) in 2020. Doing this has not endeared me to the majority of my fellow councillors,” he said.
“My experience of these new provisions has been of a rigid, unsupportive and sometimes hostile process that has played out publicly … Fighting to clear my name has caused me great stress, as has the very public discussion of my personal health matters.”
Council will provide an update of associated legal costs as part of its next quarterly report on costs, due in October this year.
