Background
Hika Tarawa Te-Kowhai, then chief executive officer of the Cobowra Local Aboriginal Land Council, was disciplined by the Registrar under the Aboriginal Land Rights Act 1983 (NSW). The Registrar found misconduct arising from a telephone conversation in which Mr Te-Kowhai made violent threats and racist and derogatory comments about people connected with the New South Wales Aboriginal Land Council and Cobowra’s administrator. The Registrar reprimanded him and disqualified him from office as a board member or CEO for two years.
On an external appeal, NCAT conducted a merits review. It found the telephone-call allegations proved to the Briginshaw standard and held that the conduct breached the statutory duties in s 183 to act in the Land Council’s best interests and to exercise reasonable care and diligence. NCAT reduced the disqualification to nine months, while rejecting five other allegations because they were inadequately particularised or not established.
The Court’s Holding
Rigg J dismissed Mr Te-Kowhai’s summons seeking leave to appeal on questions of law under s 83(1) of the Civil and Administrative Tribunal Act 2013 (NSW). The Court held that NCAT had not found the telephone-call allegations inadequately particularised, and that Mr Te-Kowhai had not shown a denial of procedural fairness. He had received the substance of the allegations, the Registrar’s decision identified s 183, and no request for further particulars or adjournment had been made before NCAT.
The Court also refused leave on the asserted misconstruction of “misconduct.” Mr Te-Kowhai had not disputed before NCAT that the alleged conduct, if proved, could breach s 183. NCAT’s reasoning adequately connected the threats, abusive and racist language, and undermining of work colleagues and the administrator to the CEO’s statutory duties. The arguments advanced did not concisely identify a question of law or demonstrate clear injustice.
Key Takeaways
- Leave to appeal from NCAT requires a precisely identified question of law and a basis for granting leave.
- Findings about deficient particulars for some disciplinary allegations do not establish unfairness concerning separate, adequately stated allegations.
- Threatening, racist and abusive conduct by a Land Council CEO toward work-related personnel was capable of constituting misconduct through breach of s 183 duties.
Why It Matters
The decision underscores the limited role of the Supreme Court on an application for leave to appeal from NCAT. Parties cannot convert factual or evaluative disagreement with a tribunal’s merits-review findings into a legal appeal without clearly identifying an error of law.
It also confirms that statutory duties owed by senior Aboriginal Land Council staff can extend to conduct that damages safe workplaces, constructive working relationships and the governance arrangements they are required to support.