Is calling someone a "bitch" worse than calling them a "boofhead"? And is it a breach of a local councillor's duties to tell the mayor, "I hope you choke on your sandwich"?
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The NSW Civil and Administrative Tribunal (NCAT) in Sydney is grappling with these vexed legal questions amid a bitter dispute between members of Lithgow Council, situated on the western edge of the Blue Mountains.
Long-serving independent councillor Martin Ticehurst, who was elected deputy mayor of the council in October, was found by NCAT to have engaged in misconduct over a range of breaches of the councillor's code of conduct, including threatening then mayor Maree Statham.
He is facing a potential suspension from office, which would trigger an automatic five-year disqualification from council under "three strikes" laws because he has been suspended from council twice before.
In a decision published in September, the tribunal found Cr Ticehurst breached the councillors' code of conduct by calling Cr Statham a "bitch" and saying "I hope you choke on your sandwich" following a heated meeting in October 2014.
But Cr Ticehurst vehemently denies the allegations and wants the Independent Commission Against Corruption to investigate the dispute, including his claim the recording of the exchange was made illegally and subsequently doctored.
NCAT Senior Member James Renwick, SC, said in his decision that Cr Ticehurst had contended "he had actually used the word 'bitchy'" and the comment about the sandwich was directed "to some other person, who was in fact eating a sandwich".
But Senior Member Renwick said "the word I heard clearly was 'bitch', not 'bitchy'" and he accepted the evidence of witnesses that both statements were directed at the then mayor.
He found there was "no evidence" the recording was doctored and it was not made illegally.
The tribunal will hear submissions on the appropriate penalty on December 13.
In his submissions to the tribunal, Cr Ticehurst says no penalty should apply. He attaches an excerpt from Hansard setting out a ruling of the NSW upper house president which said "boofhead" was not unparliamentary language.
The Office of Local Government says in reply the ruling has "no bearing in the present case" and "the term 'bitch' is very different in character to the term 'boofhead'".
"It is worse than the terms the president considered to be unparliamentary, such as 'scabs', 'rats', 'treacherous turncoat' and so on," the submissions said.
