The Councillor, the Strata body and strange code of conduct ‘comings and goings’ – Part 1

Recently we ran a story about issues at the Lismore City Council and then drew a number of comparisons with the Coffs Harbour City Council.

By The Editor

In an editorial at the bottom of that article we argued;

“The Code of Conduct (C of C) process is a broken system that fails the basic test of justice. Namely that it must be seen to be done………. We are in possession of several Confidential CHCC C of C investigation report/findings that strongly suggest to the lay person that different outcomes seem to apply to different cases and that consistency is arguable at best……….One suspects a one rule for Group A and another rule for Group B ‘procedure’ may be occurring.”


See; https://coffscoastoutlook.com.au/lismore-code-of-conduct-report-rings-chcc-alarm-bells/

Today we look at the two Code of Conduct cases we refer to.

In Part 2 we will compare the outcomes of the investigation/report into these to one other we know of and also to another process aimed at penalising Councillors.


The code of conduct documents in our possession have been confirmed as being both true and accurate as they both were involved in a civil legal case held in 2020 in the NSW Civil and Administrative Tribunal (NCAT). Specifically Cases SC 20/29716 and SC 20/29714.


Case 1 – An offer or an Invitation to Treat?


This dates back to 2018 but occurred during the life of the current Council. The complaint alleges the improper conduct and abuse of power by a Councillor and that the said Councillor allegedly used their position to obtain a private benefit.

The cover page of the Confidential investigation/report by Train Reaction into Calder v Adendorff in 2018


The investigation/report, marked Confidential, was carried out by Sydney based Train Reaction who do much, if not all, of this sort of work for the Coffs Harbour City Council (CHCC).


The complainant was Mr Stephen Calder and the respondent was Cr Michael Adendorff.


The investigation and report, some 242 pages long including interview transcripts, finds in favour of Cr Adendorff on what many laypeople might consider a legal technicality. Namely, that under the common law of contract Cr Adendorff did not make a formal offer to Mr Calder but rather made a non-binding ‘invitation to treat’.


Much other evidence is discussed and considered, including Cr Adendorff’s opinions on some peripheral actors but the essence of Train Reaction’s finding relates to the ‘invitation to treat’ defence.

Intriguingly in transcripts of interviews Cr Adendorff asks keenly as to whether the investigation/report will remain confidential. To which the answer essentially is; “yes”.


Case 2 – The Councillor, The Strata Body and The ‘Confidential Code of Conduct’.


This code of conduct case arises from a civil dispute tabled to be heard at the NSW Civil and Administrative Tribunal (NCAT) on 8 February 2021.

The case in question is Adendorff, T. v Strata Plan SP16629.

It relates to alleged unapproved building, plumbing and other amendments done to a Strata property in Coffs Harbour’s CBD. Work that SP16629 argue also needed CHCC inspection and which they believe did not occur.


As part of the depositions for the case Cr Adendorff, submitted to the Tribunal on behalf of T. Adendorff’s claim the Confidential Train Reaction report on Calder v Adendorff.


After considering the report the Tribunal decides the Confidential Calder v Adendorf investigation/report is not relevant and declines to accept it as a document on behalf of the plaintiff.


However, as a result, Strata Plan SP16629 believed Cr Adendorff was misusing a confidential report paid for by the CHCC in a civil case that had nothing to do with Council or his role as a Councillor.


SP16629 then take a Code of Conduct complaint against Cr Adendorff through CHCC and allege; “The use of the Confidential Investigation Report by Cr Adendorff for Cr Adendorff’s private purposes is a serious matter because the report was prepared for Coffs Harbour City Council and the report is headed “Confidential Investigation Report”.

They also argue “there can be no doubt that the report was confidential and that it was a Coffs Harbour City Council document, yet Cr Adendorff sought to use it for his own private purposes regardless of that confidentiality.
The report was either obtained by Cr Adendorff in his position as a councillor or it was already in his possession and Cr Adendorff has misused his position as a councillor by using the confidential report for his own private use and benefit.”

Train Reaction is asked to investigate…..again

Train Reaction is once more tasked by the CHCC to investigate the SP16629 Code of Conduct complaint even though central to it is the use of a confidential report from 2018 originally done by Train Reaction.

A copy of the front page of Train Reaction’s letter of determination is published below with identifiers removed.

The citations below come from this letter of determination


In her investigation/report of this Code of Conduct, Ms Kathy Thane of Train Reaction, also the author of the 2018 investigation/report, states; “I find it difficult to understand on what legal basis Councillor Adendorff believed that the report would have assisted his case before NCAT as there was no evidence or findings in that report that related to the NCAT matters.“


Ms Thane then goes on to further state; “It is also difficult to understand on what basis Councillor Adendorff believed that he was entitled to use the code of conduct report in the NCAT proceedings, as it was clearly a confidential Council document and his use was a private use and/or to obtain a private advantage. “ (Emphasis added).


Then comes this; “Councillor Adendorff’s conduct still constitutes a prima facie breach of Council’s Code of Conduct since he was not entitled to disclose or use the document in question under any conditions.”


Next Ms Thane states; “I am satisfied, on a prima facie basis, that Councillor Adendorff has acted in contravention of Council’s statutory requirements and policies, has acted in a manner that is improper and unethical, is an abuse of power and involves the misuse of his position as Councillor to obtain a private benefit (contrary to clauses 3.1 (b), (c), (d) and (f) of Council’s Code of Conduct). (Emphasis added)

2.6  I am satisfied, on a prima facie basis, that Councillor Adendorff has accessed Council information that was in his possession for a private purpose and/or to seek to gain an improper advantage, and that he released it contrary to established policies and procedures (contrary to clauses 8.9 (a), (b), (c) and (d) of Council’s Code of Conduct).

2.7  I am satisfied, on a prima facie basis, that Councillor Adendorff has failed to maintain the integrity and security of confidential information or to protect that information, he has released that information without authority, and used it in a way that it was not intended to be used, (contrary to clauses 8.10, 8.11 (a), (b), (c), (d) and (e) of Council’s Code of Conduct).“

Inappropriate behaviour admitted – but counseling the Councillor is ‘the answer’

Then comes this;

“In my opinion and after having regard to the complaint assessment criteria (and in particular, the seriousness of the alleged conduct, having regard to the items referred to in clause 6.23 of the Procedures) and all the circumstances, including the fact that steps were taken by Councillor Adendorff (albeit misguided) to preserve confidentiality around the report, and the nature of the confidential information disclosed, it is considered to be most appropriate that the matter be resolved through alternative and appropriate strategies and in particular explanation, and counselling, as opposed to resolving the matter by proceeding to investigation in order to impose a formal sanction by Council.” (Emphasis added)


Which then leads to this in Ms Thane’s report; “Councillor Adendorff was given the opportunity to provide background and context and to explain why he had done what he did. He expressed considerable remorse for his actions, understood that he had acted inappropriately, and he indicated that he would not repeat the offending behaviour.” (Emphasis added)


And lastly there is this; “After conducting the session with Councillor Adendorff, I was satisfied that the matter can now be regarded as having been satisfactorily resolved by appropriate and alternative strategies without the need for any further action.”

SP16629 were successful in the NCAT hearing with the tribunal ruling in the Strata Body’s favour. CCO understand an appeal was lodged but that it was withdrawn approximately one month ago.


Questions, questions and yet more questions


We are of the view that what is detailed above raises more questions than there could be answers. Things such as how this compares to at least one other CHCC code of conduct case involving another Councillor we know about for example.


Or how it compares to a different action taken against Councillors. The fining of two months Councillors pay for four Have one group been treated differently depending on voting patterns and stands on key issues?

Has justice been seen to be done?

Is the process transparent?

Can it be appealed and if so how?

How is it an investigator gets to investigate and decide on a case which includes centrally something they themselves authored earlier? Do ‘conflict of interest’ arguments arise?


We will address these in Part 2.

10 thoughts on “The Councillor, the Strata body and strange code of conduct ‘comings and goings’ – Part 1

  1. Four more questions:

    1) At whose desk, owned by us and provided by us for use, in a CHCC office, also owned by us and provided by us for use, does final responsibility for this matter sit?

    2) Where does this matter sit in relation to the CCS voting timeline?

    3) Did somebody mention the ICAC?

    4) Have we got any cranes left?

  2. Residents must derive great comfort in knowing they’ve received leadership from someone with such impeccable judgement, high morals and unquestionable integrity during the past five years.

  3. Without Prejudice:-

    May I suggest Cr.Adendorff was likely in my opinion aided and abetted by the General Manager? But if not entirely, it appears Cr. Adendorff may well have been granted favoured treatment by the General Manager or someone else high up in Council?

    In which case, if true, I have two points – i) Michael Adendorff has disqualified himself in my view from becoming a re-elected Councillor and ii) the General Manager, in my opinion again, may possibly be complicit?

    Given what is being provided and exposed here, in what could become known as “The Adendorff Papers”, must be reported to ICAC in my opinion.

    Both Cr. Adendorff and Steve McGrath are in my view now no longer suited to represent the people of Coffs Harbour.

  4. Maybe I’m getting way too cynical as I get older but why is it after reading this twice my main conclusion has been;

    “Gee I suspect he was given this treatment because they needed his vote so as to maintain 4-4 and then the Mayoral casting vote”?

    Am I barking up the wrong tree?

    1. Rikki. You could be forgiven if you also questioned the decision not to hold an election or appoint the next qualified candidate to the vacancy. With nine votes we would never have been in this mess.

  5. Just to peg another point of consideration here under Part 1.

    What if ‘Train Reaction’, possibly more aptly named than intended, is the external body (recommended to him by someone in council?) that Michael Adendorff sought advice from regarding his suitability to vote on the CCS, such that by letter of the law, according to him, he had no conflict of interest?

    Would that also help explain the above conclusion/recommendation by Kathy Thane?

    The question, and that it reasonably exists, is cause enough for investigation in my opinion.

  6. Obviously this is not going away. In relation to my second comment above, surely a clarification from Michael Adendorff as to where he received his external advice regarding conflict of interest is now imperative, in the first instance?

    Now, given at the time of writing no clarification exists, here is a brief selection from the ‘Train Reaction’ website.

    It appears to me that ‘Train Reaction’ is a small operation run by an individual, located in Balmain, established in 2008. Under Kathy Thane’s bio:

    As a Sole Reviewer, on panels with over 100 local councils throughout Sydney and NSW, Kathy undertakes assessments and investigations of allegations of breach of Code of Conduct and Meeting Practice by Mayors, Councillors and Council staff. Coffs Harbour is specifially identified on her site among others.

    Through Train Reaction, Kathy has designed and delivered legal, real estate, business, code of conduct and ADR (mediation skills) training for NSW Real Estate Institute [].

    Prior to working with Train Reaction, Kathy was a licensed real estate agent (1984-1992), a council investigator and mediator (1993 – 1995), a law and town planning teacher (1993-1995) and a Tribunal Member and Strata Schemes Adjudicator on the NSW Consumer Claims, Building Disputes, Residential Tenancies, Fair Trading and Consumer Trader and Tenancy Tribunals (1995-2009).

    That snippet is not intended to present a whole or defining picture of Kathy’s work or business image, nor should not be taken as such. A better view of that can be obtained from her website: http://www.trainreaction.net.au/

    Her site also states:

    As a Sole Reviewer, on panels with over 100 local councils throughout Sydney and NSW, Kathy undertakes assessments and investigations of allegations of breach of Code of Conduct and Meeting Practice by Mayors, Councillors and Council staff.

    At this point, and on first blush, a concern comes to mind that Ms Thane may have presided over the issues raised in the above article, on her own. We don’t know, of course. I think this point is better expressed by saying that I would feel more comfortable about this whole thing if the ‘Train Reaction’ website showed a large firm, whereupon decisions as in the above article, are made with collegiate advice. I do hope she hasn’t been led down a dangerous garden path.

    In relation to this comment, the tie-in with Real Estate and Code of Conduct (which includes conflict of interest) is clear, and by that no assumptions can be made nor are they intended.

    This comment is all intended and summarised in the form of questions. Where did Michael Adendorff get his external advice regarding ‘conflict of interest’ concerning his properties in the CBD? And did anyone in Council recommend where to get it? And was it possibly Kathy Thane at ‘Train Reaction’?

    How about Cr Adendorff publicly clears this up, first? Failing to do so, is, we can assume, a worry.

  7. This is from the minutes of the Ordinary Council 28th May, 2020.
    https://infocouncil.coffsharbour.nsw.gov.au/Open/2020/05/CO_20200528_MIN_2217_WEB.htm

    GM20/10 Code of Conduct Review Panel
    Executive Summary

    In accordance with Part 3 of Council’s adopted Procedures for the Administration of the Model Code of Conduct (Procedures), Council must resolve to establish a panel of conduct reviewers. The purpose of the panel is to have suitably qualitied and experience persons available to review and investigate Local Government Code of Conduct matters. Coffs Harbour City Council coordinated the expression of interest (EOI) on behalf of Mid North Coast Regional Organisation of Councils (MIDROC) which includes Bellingen Shire, Clarence Valley and Nambucca Valley Councils to establish a new conduct review panel. The purpose of this report is to present the results of the EOI and seek appointment of the nominated recommended panel members.

    During discussion Cr Tegan Swan declared a Non Pecuniary Significant interest in the following item, and took no part in further discussion or voting.

    2020/117

    Resolved (Cr Michael Adendorff / Cr Paul Amos)2020/117
    That Council appoint the following as Conduct Reviewers of Local Government Code of Conduct matters for Coffs Harbour City Council:

    1. Train Reaction Pty Ltd Kathy Thane

    It’s been cut off there, because, correct me if it’s wrong, it looks a lot to me like the motion was moved by Cr Michael Adendorff? Moving a motion generally signifies that the councillor enthusiastically supports the motion and is keen to see it accepted doesn’t it?

  8. Here is the remainder of that section for the record, from the Ordinary Council Meeting, 28th May, 2020.

    2. Weir Consulting Pty Ltd, Peter Harvey, Amanda Harvey, Christa Ludlow, Kate Molloy, Matthew Dacey, Mark Loves, Michael Symons, James Attenborough, Jackie Gallo, Kylie Rose

    3. Reinforcements Pty Ltd, Gary Kellar, David Broyd, Graham Webb,Judith Himstedt

    4. Bradley Allen Love (BAL) Lawyers Gabrielle Sullivan

    5. Locale Consulting Pty Ltd Emma Broomfield

    6. SINC Solutions Pty Ltd Kath Roach

    For: Crs Knight, Adendorff, Amos, Cecato and Townley

    Against: Crs Arkan and Rhoades

    So many questions. For now, the dates are important when considering Cr Adendorff’s involvement in this CCO story. Can we assume that Cr Adendorff was very happy with how he was treated? Are you?

    I note also that the Meeting Item says “establish a new conduct review panel”, why the need for a “new” panel is unknown, so too its significance or not.

    One immediate question is: Why did Crs Arkan and Rhoades vote against it? General Procedural Matters like this seem to be accepted wholly by the governing body, usually, as I’ve witnessed in meetings.

    And why is Kathy Thane at number one, given the above story, and is that of any significance?

    And it appears, then, that there are many external companies and personnel involved in this, more than one not experienced in this would have thought. We could pretty much safely presume that many would be involved prior to this date of seeking a new panel. So why was the one firm, one person, chosen to adjudicate in the two matters in the CCO story?

    Those questions only touch upon the surface.

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