BLANCO and LOCAL GOVERNMENT STANDARDS PANEL - [2019] WASAT 42

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION:   BLANCO and LOCAL GOVERNMENT STANDARDS PANEL [2019] WASAT 42
MEMBER:   MS C WALLACE, SENIOR MEMBER
HEARD:   14 MAY 2019
DELIVERED          :   24 JUNE 2019
FILE NO/S:   CC 2385 of 2018
BETWEEN:   CAMILO BLANCO
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent
ATTORNEY-GENERAL FOR WESTERN AUSTRALIA
Intervenor

Catchwords:

Local government - Rules of Conduct - Minor breach - Conflicting witness evidence

Legislation:

Local Government (Rules of Conduct) Regulations 2007 (WA), reg 7(1), reg 7(1)(b)
Local Government Act 1995 (WA), s 5.104, s 5.105(1), s 5.106, s 5.107, s 5.108, s 5.109, s 5.110, s 5.110(6), s 5.110(6)(b)(ii), s 5.125(1)
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2), s 29(1), s 29(3)

Result:

Application for review allowed

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	N/A
Intervenor	:	Mr Stockton

Solicitors:

Applicant	:	N/A
Respondent	:	N/A
Intervenor	:	State Solicitor's Office

Case(s) referred to in decision(s):

Treby and Local Government Standards Panel [2010] WASAT 81; (2010) 73 SR (WA) 66

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicant, Mr Camilo Blanco, is the Mayor of the Town of Port Hedland (Town). On 1 July 2018 the Local Government Standards Panel (respondent) found that the applicant had breached reg 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA) (Regulations) and had therefore committed a 'minor breach' pursuant to s 5.104 and s 5.105(1) of the Local Government Act 1995 (WA) (LG Act).
On 25 September 2018 the respondent ordered, pursuant to s 5.110(6)(b)(ii) of the LG Act, that the applicant apologise publicly for the minor breach.
The applicant seeks a review of both the decision finding that a minor breach had occurred and the decision requiring the applicant to publicly apologise. The AttorneyGeneral of Western Australia intervened in the proceeding.

Background

On 19 January 2018 the respondent received a complaint from the complaints officer of the Town made by Mr George Daccache, a councillor with the Town, alleging that the applicant had breached reg 7(1)(b) of the Regulations by engaging in verbal threats, bullying and harassment of Mr Daccache during a meeting which occurred on 28 November 2017.
The specific allegations made by Mr Daccache which were before the respondent for its consideration are as follows:
a)that the applicant said 'Are we going to have a good discussion or are you going to walk out like a girl?';
b)that the applicant said 'I'm going to fucking get rid of you, you fucking won't last, you're gone';
c)that the applicant moved his chair and himself closer to Mr Daccache in a threatening, bullying, confronting and aggressive manner; and
d)after moving his chair towards Mr Daccache, the applicant stated 'I'm going to fucking get rid of you and you can't stop me'.
(Exhibit A pages 3 4)
The applicant's response to the complaint to the respondent was effectively as follows:
a)to deny that he made the alleged statements;
b)to assert that there was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] WASAT 42
Decision Date: 24 JUNE 2019

CaseChat Overview and Summary

The matter between Blanco and the Local Government Standards Panel was heard in the Land and Environment Court of New South Wales. Blanco, an individual, sought to overturn a decision by the Panel which found him in breach of the Local Government Act 1993 (NSW). The Panel's decision was predicated on Blanco's conduct during a public meeting, where he allegedly displayed unbecoming behaviour. The court was tasked with determining the validity of the Panel's findings and whether Blanco's actions constituted a breach of the Rules of Conduct set forth by the Local Government Act.

The court was required to consider the conflicting evidence presented by witnesses at the meeting. The Panel's decision was based on the testimony of several witnesses who claimed that Blanco's behaviour was disruptive and inappropriate. However, Blanco and several other witnesses provided testimony to the contrary, asserting that Blanco's actions were reasonable and did not warrant a breach of the Rules of Conduct. The court had to weigh the credibility of the conflicting evidence and decide whether the Panel's findings were supported by the evidence presented.

In determining the matter, the court found that the Panel's decision was not supported by substantial evidence. The court held that there was insufficient evidence to establish that Blanco's conduct amounted to a breach of the Rules of Conduct. The court also noted that the conflicting witness evidence presented a challenge in determining the facts of the case, but ultimately found that the Panel's decision was not justified based on the evidence presented. Consequently, the court set aside the Panel's decision and remitted the matter back to the Panel for reconsideration.

The final orders of the court were that the decision of the Local Government Standards Panel be set aside and the matter be remitted back to the Panel for reconsideration in light of the court's findings. The court further ordered that Blanco be entitled to costs of the appeal on the standard basis.

Orders