Clr Kellie Darley wins court action to quash Code of Conduct findings
I was pleased to represent Clr Kellie Darley in the Supreme Court. The judgment delivered on 29 August 2025 was a vindication for the courageous stance taken by Clr Darley to insist on being treated fairly by City of Parramatta (CoP).
Case Summary
Darley v City of Parramatta [2025] NSWSC 990 (Darley) provides important guidance for councillors, councils, complaints coordinators and Conduct Reviewers. The Supreme Court makes it clear that the role of Conduct Reviewer is to be independent and objective. It also makes clear that interferences by Council staff, from either the complaints coordinator or the General Manager, in a way which might influence the findings of the investigation, and the way it is presented to the Council, can be fatal to the Code of Conduct process.
Further, attempts to prevent the Councillors debating the entire Final Investigation Report, or having access to the attachments to the report, are procedurally unfair and may result in disqualifying a Council decision to censure a councillor.
The Facts
In December 2023 Clr Darley shared a Sydney Morning Herald (Herald) article which described the decision of City of Parramatta to sponsor the Parramatta Eels Rugby League team. The decision had been made in a closed (confidential) meeting of CoP but the Herald had managed to obtain some details. The Mayor and two councillors were quoted in the article (Clr Darley being one). Clr Darley shared the Herald report on her Facebook page.
Three councillors made formal complaints that Clr Darley had breached the NSW Code of Conduct for Councillors (Code) by disclosing confidential information by her Facebook post. Under the Code a ‘Conduct Reviewer’ (Reviewer) is appointed by the Complaints Coordinator (Coordinator) from a panel of accredited persons. The Reviewer and Coordinator are required to follow the Procedures for the Administration of the Model Code of Conduct for local councils in NSW (Procedures).
The Reviewer produced a draft investigation report which made a finding that Clr Darley had breached the Code by disclosing confidential information, however that Draft Report noted the information was already in the public domain. The Reviewer did not recommend Clr Darley be censured. Instead the Reviewer recommended training sessions for all councillors on how to appropriately use social media.
Departures from the Procedures by the Coordinator and the Reviewer
On request the Reviewer provided a Draft Report to the Coordinator before sending it to Clr Darley. The Coordinator then provided a detailed critique of the draft report and included suggested changes that the Reviewer might make. At [79] the judgment identifies a long list of actions via which the Complaints Coordinator, without objection from the Reviewer, intervenes in the investigation process in a way which exceeds the authority of the Complaints Coordinator.
These interventions included:
· Requesting to be informed prior to the Reviewer contacting any of the Councillors;
· providing an opinion to the Reviewer on the role of Councillors under the Act and the role of the Councils Social Media Policy;
· contacting the Office of Local Government and asking them to expedite the process
· Discussing with the Reviewer the format which the General Manager would like the report to be in.
Critically the judgment summarised, at [79], that after receiving the Coordinator’s suggestions:
The result was that while in his original draft report Mr O’Toole did not recommend censure under cl 7.37, but that Council conduct an information session and the revision of the social media policy, as cl 7.39 permitted, he revised the draft sent to Ms Darley recommending, without explanation, her censure;
At the time Clr Darley was not aware of the submission being made by the Coordinator and had no opportunity to reply to them. The Court found the process was procedurally unfair and declared that the Reviewer’s Final Investigation Report quashed on the basis of a reasonable apprehension of bias.
The court found with regard to the Reviewer at [95]:
But what the Code and Procedures do not envisage is the process Mr O’Toole pursued, by which he reported to Ms Renneberg his ongoing progress, gave her oversight of how he conducted his investigation, involved her in the crafting of his reports and even entertaining her submissions about the recommendations which he should make and the form in which he should make them.
In short the Court found that neither the Coordinator nor the Reviewer complied with the Code and Procedures, and therefore there was an error of law. The Court also found that the Reviewer was affected by a reasonable apprehension of bias and unable to bring the impartial and unprejudiced mind to the resolution of the questions that he had to decide in relation to the complaints: see [95].
The Court also found that the Final Investigation Report did not contain adequate reasons for reaching the conclusion it did: see [116] – [118].
The elected Council’s consideration of the Investigation Report
The Court was critical of the elected Councillors consideration of the Final Investigation Report. It observed: that the CoP resolution did not disclose the reasons for the purported censure as required by Clause 7.59 of the Procedures; the Coordinator and General Manager refused to provide the attachments to the Report which was unfair; and the Councillors were wrongly advised they could not discuss the full Report.
At [131] the judgment observes that once the General Manager refers the complaint to the Coordinator they have no further role to play. However after the Coordinator removed the Attachments to the Final Investigation Report the General Manager also refused to provide them. The Court found that pursuant to Section 335(f) of the Act the General Manager was required to give the Councillors all the information they require to make a decision and further, that they had no discretion to withhold the Attachments to the Final Investigation Report
Regarding the actual meeting to which the Final Investigation Report was presented, the Court found that while Council could not invite submissions from other persons in order to seek to rehear evidence the investigator had already considered, the advice which the councillors were given that they could not discuss any part of the Report except the findings, was incorrect. Rather the Court found it was necessary for the Councillors to consider the whole report. The Court found that the incorrect advice stifled the debate of the Report by the Councillors.
The Court found, as it had previously in Nichols v Singleton Council (No 2) [2011] NSWSC, that the Councillors sitting as the governing body were not obliged to follow the recommendations of the Final Investigation Report and they must satisfy themselves as to the nature and adequacy of the enquiry undertaken by the reviewer and must itself come to a view about the matters raised by the complaint: at [170].
Consequently the Procedures had not been complied with and Clr Darley had been denied procedural fairness. The CoP decision, like the Final Investigation Report, was quashed by the Court.
The Hardiman Principle
Finally the Court found that the CoP should not have defended its decision to Censure Clr Darley and it had acted contrary to the Hardiman principle: see [51]. The Hardiman Principle derives from The Queen v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13 and applies to public authorities which, on having an administrative decision overturned by a court, have an obligation to hear the matter again. The principle guards against the public authority appearing to lose it’s impartiality if it is called on to reconsider the matter (in this case the original complaint made against Clr Darley).
The court found that … it must be accepted that the role the Council pursued by its appearance in these proceedings to defend its own decision, did not enhance the appearance of its impartiality. It observed that the CoP’s decision to defend its own decision would be reflected in the costs awarded.
James Ryan
8 September 2025