DAVIS and SHIRE OF DERBY WEST KIMBERLEY
[2019] WASAT 66
•28 AUGUST 2019
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: DAVIS and SHIRE OF DERBY WEST KIMBERLEY [2019] WASAT 66
MEMBER: MS P LE MIERE, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 28 AUGUST 2019
FILE NO/S: CC 2711 of 2018
BETWEEN: GEOFFREY DAVIS
Applicant
AND
SHIRE OF DERBY WEST KIMBERLEY
Respondent
Catchwords:
Local government - Disqualification of member of council - Absence from three consecutive council meetings with leave of council - Application for declaration by Tribunal as to disqualification - Whether notice of ordinary council meeting to councillors is required
Legislation:
Local Government (Administration) Regulations 1996 (WA), reg 8, reg 12(1), reg 12(2)
Local Government Act 1995 (WA), s 1.7, s 2.25, s 2.25(4), s 2.27(7), s 5.25, s 5.5, s 5.5(1), s 5.5(2), s 9.59, s 9.61
State Administrative Tribunal Act 2004 (WA), s 60(2)
Result:
Declaration of qualification made
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | In Person |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Shire of Waroona and Fitzpatrick [2007] WASAT 219
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
This is an application under s 2.27(7) of the Local Government Act 1995 (WA) (LG Act) for a declaration in relation to the qualifications to continue to hold office brought by a councillor of the Shire of West Kimberley (respondent).
It is not contested the applicant for the review of the respondent's decision, Mr Geoffrey Davis who is said to be disqualified from being a councillor under the LG Act has standing to make application to the Tribunal for a declaration as to whether he is disqualified under the LG Act.
The applicant was served with a notice of disqualification under s 2.25(4) of the LG Act by letter dated 30 November 2018 (Notice). In essence the respondent alleged that the applicant had been absent from three consecutive ordinary meetings of the Council of the Shire of Derby/West Kimberley (Council) and that absent approval for a leave of absence the applicant was disqualified from continuing with his membership of the Council.
The applicant challenged the Notice by email dated 3 December 2018 and asked the respondent to reconsider its position.
The respondent refused the request for reconsideration on the basis that no evidence was provided by the applicant in his email correspondence such as to justify reconsideration of the Notice.
The applicant then commenced proceedings in the Tribunal seeking a declaration that he was not disqualified from holding office as a councillor pursuant to s2.25(4) of the LG Act.
It was agreed by the parties that the review of the respondent's decision should be determined on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
Documents before the Tribunal
The Tribunal has before it the following documents:
•Application dated 13 December 2018;
•Letter of Notice of Disqualification;
•Application for Review;
•Shire of Derby/West Kimberley Standing Orders Local Law;
•Minutes SDWK Ordinary Council Meeting 27 September 2018;
•Minutes SDWK Ordinary Council Meeting 25 October 2018;
•Minutes SDWK Ordinary Council Meeting 28 November 2018;
•Minutes SDWK Ordinary Council Meeting 30 November 2017;
•Email D Hurstfield to All Councillors 1 October 2018 re meeting change;
•Veritas Email Audit Screenshot of Cr Davis inbox;
•Notice of change of November Meeting - Babbling Boabs;
•Public Notice of Meeting Changes;
•Agenda SDWK Ordinary Council Meeting 26 November 2018;
•Minutes/Meeting Record of SDWK Adjourned Meeting 26 November 2018;
•Minute taker hand written notes D Hurstfield 26 November 2018;
•Email Notice of Meeting to All Councillors;
•Veritas Email Audit Screenshot of Cr Davis inbox;
•Agenda SDWK Ordinary Council Meeting;
•Responses to Notice of Disqualification by Applicant 6 to 8 December 2018;
•Response by Respondent after Review of Decision;
•Respondent's Statement of Issues Facts and Contentions dated 4 March 2019;
•Applicant's Statement of Issues Facts and Contentions undated; and
•Applicants reply to the respondent's Statement of Issues Facts and Contentions filed 26 March 2019.
Legislation
Section 2.25(3) of the LG Act sets out circumstances under which a council member may be disqualified from being a councillor:
The granting of the leave, or refusal to grant the leave and reasons for that refusal, is to be recorded in the minutes of the meeting.
Section 2.25(4) of the LG Act sets out:
A member who is absent, without obtaining leave of the council, throughout 3 consecutive ordinary meetings of the council is disqualified from continuing his or her membership of the council, unless all of the meetings are within a 2 month period.
Section 2.27(7) of the LG Act provides as to who may apply to the Tribunal for a declaration whether or not a member of a shire council is disqualified:
The CEO or any other person may, at any time, apply to the State Administrative Tribunal for a declaration as to whether or not a member of a council is disqualified.
Agreed facts
The applicant does not dispute the minutes of the ordinary Council meetings of 27 September 2018 and 25 October 2018 are correct in that they state that he did not attend and that he was not granted a leave of absence to not attend the Council meetings.
It is agreed that the time between the Council meetings of 27 September 2018 and 28 November 2018 are separated by two calendar months and one day.
Following the failure to obtain a quorum for the ordinary Council meeting scheduled to be held on 26 November 2018 the applicant was telephoned at 1.26 pm on that day and a message left to check his availability for the re-scheduling of the meeting.
On 27 November 2918 the Chief Executive Officer (CEO) of the respondent sought legal advice as to whether there were any barriers to rescheduling the Council meeting as proposed on 28 November 2018.
At 2.18 pm on that day the CEO received oral advice that relevantly:
•The LG Act and Local Government (Administration) Regulations1996 (WA) (Regulations) deal with the requirements of quorum an adjournment of meeting but is silent on the process of nominating the next meeting date.
•Although only reviewing the model standing orders local law there was nothing that appeared to preclude the Presiding Member specifying a time and date to reschedule the adjourned meeting.
•No additional public notice was required as this had already been provided for the adjourned ordinary Council meeting on 26 November 2018.
At 4.37 pm on 27 November 2018 Mr Geoff Haerewa, the Shire President emailed all councillors confirming the meeting would proceed at 4.00 pm on 28 November 2018.
The Veritas email audit screenshot confirms receipt of the email referred to above by the applicant.
The agenda for the ordinary Council meeting 28 November 2018 containing notice of the meeting was uploaded to the Council hub on the morning of 28 November 2018.
The applicant did not attend the meeting on 28 November 2018 and was not granted a leave of absence to not attend.
Issues
•Was the council meeting held on 28 November 2018 properly scheduled in accordance with the LG Act and or Regulations?
•Did the applicant receive notification of the scheduled council meeting on 28 November 2018 and if so was the notice sufficient?
Applicant's contentions
The parties are not agreed on the details of what happened on 26 November 2018 in regard to the scheduled meeting however the applicant does not dispute that a meeting did not proceed on that day.
The applicant agrees that he received an email notification on 27 November 2018 of the proposed Council meeting on 28 November 2018 but says that this does not constitute sufficient notice.
The applicant contends that the meeting of 28 November 2018 that triggered the disqualification was called contrary to the rules of the LG Act and was justified by misinterpretation of the term urgent need when using the Standing Orders Local Government Law 2001 (Standing Orders) to justify not giving 72 hours' notice for the adjourned meeting.
Further, having only 26 hours' notice of the meeting on 28 November 2018 was insufficient in the circumstances where the applicant needed to organise transport and accommodation in order to attend the meeting.
Respondent's contentions
The change of the date of the scheduled 26 November 2018 ordinary Council meeting to 28 November 2018 was in accordance with the notice requirements of the LG Act.
The 26 November 2018 ordinary Council meeting was adjourned in accordance with reg 8 of the Regulations.
The requirement for 72 hours' notice under s 5.5(1) of the LG Act does not apply where the meeting had been called, not proceeded with due to a lack of a quorum and thus adjourned pursuant to reg 8 of the Regulations.
Consideration
As accepted by the respondent, s 5.5(1) of the LG Act requires the CEO to give council members 72 hours' notice of the date, time, place and purpose of an ordinary Council meeting.
Section 5.5(2) of the LG Act permits the CEO to convene 'a special meeting' but unlike s 5.5(1) does not specify what period of notice is required to be given to councillors.
It is notable in that regard that the disqualification provisions of s 2.25(4) of the LG Act do not apply to special meetings.
The respondent says that there was an urgent need to hold the 28 November meeting, which is denied by the applicant but in any event it is not material as it is not disputed that the meeting held on 28 November 2018 was an ordinary Council meeting and not a special meeting.
It is not in dispute that the applicant did not attend the ordinary Council meetings on 28 November, 27 September 2018 and 25 October 2018 or that he did not have a leave of absence in respect of each of the meetings.
There is no dispute over the applicant's failure to attend the September 2018 and 25 October 2018 ordinary Council meetings or that he did not have a leave of absence in respect of either of them.
The issue is around whether the 28 November ordinary Council meeting was an ordinary Council meeting to which s 2.25(4) of the LG Act applies.
To answer this, it is necessary to determine whether any, and if so what, period of notice was required to be given to councillors of the adjournment of the 26 November 2018 meeting to 28 November 2018.
I do not need to traverse why notice of Council meetings to both councillors and the residents of a local authority is desirable or necessary for the proper functioning of a council of a local authority.
In circumstances where a councillor missing a meeting can have the consequence, as it is alleged to have had is this instance, of the councillor being disqualified the proposition that no notice or the period of notice of the meeting is at the discretion of the CEO has to be considered very closely.
The power to adjourn an ordinary meeting comes from reg 8 of the Regulations which permits various persons, including the mayor, to adjourn an ordinary council meeting if a quorum is not established within 30 minutes after a council meeting is due to begin.
Sections 5.25, 9.59 and 9.61 of the LG Act allow for the making of regulations.
The respondent relies upon r 8 of the Regulations to permit the CEO to adjourn the 26 November 2018 ordinary Council meeting and the absence of any specific notice requirements in reg 8 of the Regulations to enable the CEO to give the applicant, in essence a days' notice, of the new meeting date, being 28 November 2018.
There is no provision in either the Regulations or the Standing Orders that specifically refer to what, if any, period of notice is required to be given to councillors of the date, time and place etc. of an adjourned ordinary Council meeting in circumstances where the meeting is adjourned before it transacts any business for lack of a quorum.
I understand the respondent to assert that because the Regulations or Standing Orders do not specify that notice or the time for such notice it is free to give a period of notice it considers appropriate.
If one were to take the respondent's position to its logical conclusion it could have held the 28 November ordinary Council meeting without giving the applicant or all councillors notice of the meeting. It could for example have chosen to have given notice to only a select number of councillors sufficient to obtain a quorum.
The LG Act requires 72 hours' notice to be given to councillors of the convening of an ordinary council meeting.
Section 6.2 of the Standing Orders provides for notice to be given in accordance with the LG Act where an ordinary council meeting is adjourned part way through due to a lack of a quorum.
Regulation 12(1) requires the Shire to give local public notice of the dates on which and the time and place at which an ordinary meetings is to be held in the next 12 months.
Regulation 12(2) requires the respondent to give local public notice of any change to the date, time or place referred to in sub-regulation (1).
Section 1.7 of the LG Act states that where under the LG Act public notice is required to be given, and unless expressly stated otherwise, it is sufficient if the notice is seven days.
It is trite law that regulations can only be made if provided for by an act and are confined to those matters within the four corners of that act.
If it could be said the reg 8 was in conflict with the LG Act then the LG Act must prevail. Regulation 8 can only compliment the LG Act.
On the respondent's case the ordinary Council meeting of 26 November 2018 was adjourned to 28 November 2018. There was not 72 hours between the adjourned meeting and the 28 November 2018 ordinary Council meeting.
There is nothing in s 2.25 which requires the attendance of a member at the meeting at which leave of absence for a meeting is granted. However it is necessary that leave of absence be granted prior to a particular meeting.[1]
[1] Shire of Waroona and Fitzpatrick [2007] WASAT 219 at [20].
Necessarily therefore a councillor requires sufficient notice of a meeting to seek a leave of absence and for a council to grant it.
Findings
The notice requirements in the above sections and regulations persuade me that notice of the adjourned ordinary Council meeting on 28 November 2018 was required to be given to all the councillors, and that the notice had to be reasonable and not less than 72 hours as required under s 5.5 of the LG Act.
Not having being given notice of the 28 November ordinary Council meeting in accordance with the LG Act the applicant cannot be said to have missed the 28 November 2018 ordinary Council meeting without obtaining leave in accordance with s 2.25(4) of the LG Act.
Orders
1.I declare that Mr Geoffrey Davis is not disqualified from holding office as a councillor of the Shire of Derby West Kimberly by reason of s 2.25 of the Local Government Act 1995 (WA).
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS P LE MIERE, MEMBER
28 AUGUST 2019
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