DIEHM and ELLIS - [2017] WASAT 44

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: LOCAL GOVERNMENT ACT 1995 (WA)

CITATION: DIEHM and ELLIS [2017] WASAT 44

MEMBER: MR D AITKEN (SENIOR MEMBER)

HEARD: 20 DECEMBER 2016

DELIVERED : 14 MARCH 2017

FILE NO/S: DR 305 of 2016

BETWEEN: KENNETH NORTON JOHN DIEHM
Applicant
AND
RENEE SIMONE ELLIS
Respondent

Catchwords:

Local government - Disqualification of member of council - Absence from three consecutive council meetings without obtaining leave of council - Application for declaration by Tribunal as to disqualification - Meaning of the phrase 'without obtaining leave' in s 2.25(4) of the Local Government Act 1995 (WA)

Legislation:

Interpretation Act 1984 (WA), s 18
Local Government Act 1995 (WA), s 2.10(d), s 2.25, s 2.27, s 2.27(7), s 5.20(1), s 5.21
Local Government Administration Regulations 1996 (WA), reg 11
Local Government Amendment Act 2009 (WA)
Local Government Amendment Bill 2009 (WA)

Result:

Declaration that respondent is disqualified

Summary of Tribunal's decision:

Ms Renee Ellis, who is a member of the Council of the City of Greater Geraldton, was absent from three consecutive ordinary meetings of the Council in March, April and May 2016.
Section 2.25(4) of the Local Government Act 1995 (WA) provides that a member of a council who is absent from three consecutive ordinary meetings of the council, without obtaining leave of the council, is disqualified from continuing his or her membership of the council.
Due to an unfortunate set of circumstances, although Ms Ellis had endeavoured to seek leave of absence for the April and May meetings, her requests for leave were not put to either of those meetings and the Council did not pass any resolution to grant leave of absence to Ms Ellis for either of those meetings. Also, the minutes of the April 2016 meeting incorrectly stated that Ms Ellis had leave of absence for that meeting.
The question which had to be decided by the Tribunal was the proper construction of the words 'without obtaining leave of the council' in s 2.25(4) of the Act.
The Tribunal decided that the only way that a member of a council can obtain leave of the council for the purposes of s 2.25(4) of the Act is for the council to grant leave by a resolution of the council under s 2.25(1) of the Act.
The Tribunal determined that Ms Ellis had not obtained the leave of the Council for her absence from the April and May 2016 meetings and she was therefore disqualified from continuing her membership of the Council under s 2.25(4) of the Act.

Category: B

Representation:

Counsel:

Applicant: Mr Douglas
Respondent: Ms Taylor

Solicitors:

Applicant: McLeods
Respondent: Civic Legal Pty Ltd

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

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Director General of Department of Transport v McKenzie [2016] WASCA 147
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Shire of Mundaring and Black [2009] WASAT 100
Shire of Waroona and Fitzpatrick [2007] WASAT 219

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicant in this proceeding, Mr Kenneth Norton John Diehm is the Chief Executive Officer (CEO) of the City of Greater Geraldton (City) and the respondent, Ms Renee Ellis is a member of the Council of the City (CGG Council).
Both Mr Diehm and Ms Ellis lodged separate applications with the Tribunal under s 2.27(7) of the Local Government Act 1995 (WA) (LG Act) for a declaration as to whether or not Ms Ellis is disqualified as a member of the CGG Council under s 2.25 of the LG Act. Both of those applications have been consolidated into this proceeding, with Mr Diehm as the applicant because his application was lodged prior to the application by Ms Ellis.

The issues

The issues which need to be determined by the Tribunal are:
1).Was Ms Ellis absent, without obtaining leave of the CGG Council throughout three consecutive ordinary meetings of the CGG Council (being meetings held on 22 March 2016, 26 April 2016 and 24 May 2016), within the terms of s 2.25(4) of the LG Act?; and
2).If the first issue is determined in the affirmative, is Ms Ellis disqualified from continuing her membership of the CGG Council under s 2.25 of the LG Act?

The relevant legislation

Section 2.25 of the LG Act provides:
(1)A council may, by resolution, grant leave of absence, to a member.
(2)Leave is not to be granted to a member in respect of more than 6 consecutive ordinary meetings of the council without the approval of the Minister, unless all of the meetings are within a period of 3 months.
(3A)Leave is not to be granted in respect of
(a)a meeting that has concluded; or
(b)the part of a meeting before the granting of leave.
(3)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.
(4)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.
(5A)If a council holds 3 or more ordinary meetings within a 2 month period, and a member is absent without leave throughout each of those meetings, the member is disqualified if he or she is absent without leave throughout the ordinary meeting of the council immediately following the end of that period.
(5)The non-attendance of a member at the time and place appointed for an ordinary meeting of the council does not constitute absence from an ordinary meeting of the council
(a)if no meeting of the council at which a quorum is present is actually held on that day; or
(b)if the non-attendance occurs
(i)while the member has ceased to act as a member after written notice has been given to the member under section 2.27(3) and before written notice has been given to the member under section 2.27(5); or
(ii)while proceedings in connection with the disqualification of the member have been commenced and are pending; or
(iiia)while the member is suspended under section 5.117(1)(a)(iv); or
(iii)while the election of the member is disputed and proceedings relating to the disputed election have been commenced and are pending.
(6)A member who before the commencement of the Local Government Amendment Act 2009 section 5 was granted leave during an ordinary meeting of the council from which the member was absent is to be taken to have first obtained leave for the remainder of that meeting.
Section 2.27 of the LG Act provides, relevantly, as follows:
(1)In this section
disqualified, in relation to a member of the council, means
(a)disqualified from continuing his or her membership of the council under section 2.25.
(7)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.

The evidence

The following documents were submitted on behalf of Mr Diehm and received in evidence during the final hearing:
•Bundle of documents (Exhibit 1);
•Witness statement of Mr Diehm (Exhibit 2);
•Witness statement of Shane Gerald Van Styn, who is the Mayor of the City (Exhibit 3); and
•Explanatory Memorandum for the Local Government Amendment Bill 2009 (WA) (Exhibit 4).
Neither Mr Diehm nor Mr Van Styn attended the final hearing because counsel for Ms Ellis did not wish to ask them any questions regarding their witness statements.

Facts which are not in contention

It is common ground that Ms Ellis was absent throughout the ordinary meetings of the CGG Council held on 22 March 2016 (March 2016 meeting), 26 April 2016 (April 2016 meeting) and 24 May 2016 (May 2016 meeting).
Those meetings constituted three consecutive ordinary meetings of the CGG Council for the purposes of s 2.25(4) of the LG Act because they were not held within a two month period.
Ms Ellis acknowledges that she did not obtain leave of absence from the CGG Council for the March 2016 meeting.
That leaves in contention the question of whether Ms Ellis obtained leave of absence for one or both of the April 2016 meeting and the May 2016 meeting for the purposes of s 2.25(4) of the LG Act.

April 2016 meeting

On 1 April 2016, by email to Ms Sheri Moulds, the personal assistant to the CEO, Ms Ellis submitted a 'Leave of Absence Request Form' addressed to the CEO which stated as follows:
I hereby give notice that at the Ordinary Meeting of Council on ______________ I intend to request that Council grant me a leave of absence for the following period:
From 10/4/16 To 27/4/16 (inclusive)
There is a 'Guidance Note to aid the completion of Leave of Absence Request Form' (Guidance Note) on the back of the 'Leave of Absence Request Form' which states in paragraph 3:
Any leave of absence approved by Council can only apply to subsequent meetings. Therefore, leave of absence cannot be granted for the ordinary Council meeting at which the approval is given.
On the same date Ms Moulds replied to Ms Ellis by email stating:
We have noted your leave, but we will note you as an apology for the upcoming meetings as this requires to be approved at a Council meeting, and our next meeting is on 26 April.
On the same date Ms Ellis replied to Ms Moulds by email stating:
Yeah that's what I thought, ideally I should have requested leave last Council round.
On 7 April 2016, Ms Moulds sent an invitation by email to Ms Ellis (and presumably all the other members of the CGG Council) for a meeting on 15 April 2016 between the members of the CGG Council and the members of the Board of the Mid West Chamber of Commerce and Industry.
On 8 April 2016 Ms Ellis sent an email to Ms Moulds stating:
[C]an you please mark me as on leave from now until 27 April. I don't want folks to think I am not turning up to things for no reason.
On the same date Ms Moulds replied to Ms Ellis stating:
[W]ill do
In the minutes of the April 2016 meeting, in section 3 under the heading 'Attendance', Ms Ellis' name appears under the sub-heading 'Leave of Absence' and in section 6 under the heading 'Applications for Leave of Absence' Ms Ellis is stated as having existing approved leave from 10 April 2016 to 27 April 2016 (inclusive). Those minutes do not record the passing of a resolution to grant leave of absence to Ms Ellis.

May 2016 meeting

On 2 May 2016, Ms Ellis sent an email to Ms Moulds informing her of Ms Ellis' personal circumstances and 'wondering if there is any such thing as compassionate leave for Councillors'.
On the same date Ms Moulds replied to Ms Ellis by email stating:
I am really sorry to hear that you are going through a very difficult period.
Your option is to apply for Leave of Absence for a period.
We can put in an application for the May meeting, but you would have to be noted as an apology for this meeting, as leave of absence cannot be granted for the Ordinary Council meeting at which the approval is given[.]
On 11 May 2016, by email to Ms Moulds, Ms Ellis submitted a 'Leave of Absence Request Form' addressed to the CEO which stated as follows:
I hereby give notice that at the Ordinary Meeting of Council on 24 May 2016 I intend to request that Council grant me a leave of absence for the following period:
From 25 May 2016 To (inclusive) 20 June 2016
That form had been prepared by Ms Moulds and sent to Ms Ellis by email on 9 May 2016 for Ms Ellis to sign and return to Ms Moulds.
In the minutes of the May 2016 meeting, in section 3 under the heading 'Attendance', Ms Ellis' name appears under the sub-heading 'Apologies' and in section 6 under the heading 'Applications for Leave of Absence', Ms Ellis is not shown as having 'Existing Approved Leave', but it is recorded that a motion was passed which approved leave of absence for Ms Ellis for the period 25 May 2016 to 20 June 2016.

Mr Diehm's contentions

Mr Diehm contends that Ms Ellis did not obtain leave of absence for the purposes of s 2.25(4) of the LG Act for either the April 2016 meeting or the May 2016 meeting because the CGG Council did not, by resolution at any ordinary meeting of the CGG Council, grant leave of absence to Ms Ellis for either of those meetings.
Mr Diehm says that the only way that a council can make a decision is by resolution and therefore it is only by a resolution of a council that leave can be granted for the purposes of s 2.25(4) of the LG Act and the council will either grant or refuse leave and that is to be recorded in the minutes of the meeting at which the council makes its decision.

Ms Ellis' contentions

Ms Ellis contends that she obtained leave of absence for the purposes of s 2.25(4) of the LG Act for both the April 2016 meeting and the May 2016 meeting.
Ms Ellis contends that, on the proper construction of the phrase 'without obtaining leave' in s 2.25(4) of the LG Act, she was not absent, without obtaining leave during the April 2016 meeting and the May 2016 meeting for the following reasons:
•The phrase 'without obtaining leave' is intended to apply to situations either where leave is not sought, or where leave is sought and refused. Ms Ellis contends that such construction follows from s 2.25(3) of the LG Act, which refers to only two outcomes for an application for leave, which are either the granting of leave or the refusal to grant the leave and reasons for that refusal, which must be recorded in the minutes of the meeting.
•The phrase 'without obtaining leave' should be construed to mean a person who is not recorded in the minutes of a meeting as having leave because that interpretation 'most closely accords with the rest of s 2.25 [of the LG Act]', which refers to the power of the Council to grant leave in subsection (1), the obligation on Council to record the granting or refusal of leave (with reasons) in subsection (3) and refers to the consequences for a 'member who is absent, without obtaining leave' in subsection (4)’.
•Subsections (1), (2), (3A) and (3) of s 2.25 of the LG Act refer to the 'granting' of leave, but subsection (4) refers to a failure to 'obtain' leave rather than the absence of a grant of leave. Ms Ellis contends that the words 'without obtaining leave' may, in some circumstances, have a different meaning to the absence of a grant of leave in accordance with subsection (1) and that a person who applies for leave and is recorded in the minutes as having obtained it is not absent 'without obtaining leave' within the meaning of subsection (4). Ms Ellis says that in the circumstances of this case, a failure to obtain leave for the purpose of subsection (4) may be distinguished from an absence of a grant of leave by resolution of the CGG Council.
•When construing the text of s 2.25(4) of the LG Act, the Tribunal must also consider the purpose of s 2.25. Ms Ellis refers to s 18 of the Interpretation Act 1984 (WA) which provides that an interpretation that promotes the purpose or object underlying the law is to be preferred to a construction which would not promote that object or purpose. Ms Ellis also refers to Director General of Department of Transport v McKenzie [2016] WASCA 147 at [46], Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [47] and Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at [47] as authority for the following principles of statutory construction. Firstly, the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. Secondly, the statutory text is the surest guide to Parliament's intention, but the meaning of the text may require consideration of the context, which includes the general purpose and policy of the provision, in particular the mischief it is seeking to remedy. Ms Ellis contends that, having regard to the text of s 2.25 of the LG Act, the purpose of Parliament in enacting s 2.25 of the LG Act was to establish procedures by which a member of a council could obtain leave of absence from their duties and that although s 2.25(4) of the LG Act evinces an intention that a member of a council who does not attend meetings is to be disqualified, Parliament intended that mere absence was not sufficient to give rise to disqualification and the purpose of the words 'without obtaining leave' is to permit 'reasonable absences' before being disqualified. Ms Ellis further contends that the purpose of s 2.25 of the LG Act is not to disqualify a member of a council who 'responsibly, seeks leave by application to [the council] with good reason for [his or her] absence'.
Ms Ellis contends that she was not 'absent, without obtaining leave' for the April 2016 meeting because she sought leave by submitting the 'Leave of Absence Request Form' on 1 April 2016, it was not refused, and leave was recorded in the minutes of the April 2016 meeting.
Ms Ellis also contends that she was not 'absent, without obtaining leave' for the May 2016 meeting because she sought and obtained leave at that meeting (although, on the advice of Ms Moulds, that leave was sought from 25 May 2016, which was the day following the May 2016 meeting, rather than from the date of that meeting) and the granting of leave was recorded in the minutes of that meeting.

Consideration

The function of the Tribunal where it is considering the application of s 2.25 of the LG Act is to determine whether or not, as a matter of fact, the disqualifying condition specified in s 2.25(4) of the LG Act exists: Shire of Waroona and Fitzpatrick [2007] WASAT 219 (Fitzpatrick) at [16].
The Tribunal accepts the contentions of Ms Ellis regarding the principles of statutory construction which apply to the construction of the words 'without obtaining leave of the council' in s 2.25(4) of the LG Act. Those principles are well established.
However, the Tribunal does not accept the contention of Ms Ellis that the purpose of s 2.25 of the LG Act is not to disqualify a member of a council who 'responsibly, seeks leave by application to [the council] with good reason for [his or her] absence'.
The Tribunal's view of the purpose of s 2.25 of the LG Act was stated by Judge Chaney, as he then was, in Fitzpatrick at [19], in the following terms:
The object of the section is readily apparent. In effect, it imposes an obligation on councillors to attend meetings, and not to fail to attend three consecutive meeting [sic] unless the reasons are such that the council has considered the circumstances and made an express resolution to grant leave of absence[.] (Emphasis added)
It is clear from the provisions of the LG Act and the Local Government Administration Regulations 1996 (WA) (LGA Regulations) that the intention of Parliament is that decisions made by a council are to be made at a meeting of the council and that details of each decision made at a meeting are to be recorded in the minutes of the meeting: see s 2.10(d), s 5.20(1) and s 5.21 of the LG Act and reg 11 of the LGA Regulations.
It is consistent with such intention that for a member of a council to obtain leave of the council for the purposes of s 2.25(4) of the LG Act, a decision must be made by the council to grant such leave at a meeting of the council and that decision must be recorded in the minutes of the meeting.
It has not been contended by Ms Ellis that leave of absence was granted to her for the April 2016 meeting at the March 2016 meeting and it is clear that Ms Ellis only raised the issue of leave of absence for the period which included the April 2016 meeting for the first time on 1 April 2016, which was after the March 2016 meeting.
It is clear that the CGG Council did not pass a resolution at the April 2016 meeting granting leave of absence to Ms Ellis for that meeting. In the witness statements of both Mr Diehm and Mr Van Styn they state that they were present throughout the April 2016 meeting. They both state that they reviewed the video recording of the minutes of the April 2016 meeting and that from their recollection of that meeting, confirmed by their review of the video recording, there is no doubt in their mind that at the April 2016 meeting the CGG Council did not pass a resolution, nor did it consider a motion relating to the grant or refusal to grant leave of absence to Ms Ellis.

The Tribunal accepts the evidence of Mr Diehm and Mr Van Styn and finds that at the April 2016 meeting the CGG Council did not pass a resolution granting any leave of absence to Ms Ellis.
The Tribunal notes the point made by Ms Ellis that s 2.25(3) of the LG Act only refers to two outcomes in respect of an application for leave; namely that it is either granted or refused. However, the Tribunal does not accept the contention of Ms Ellis that this supports the construction of the phrase 'without obtaining leave' as meaning either where leave is not sought or where leave is sought and refused. The provisions of s 2.25(3) simply reflect the fact that when an application for leave is put to a council the council will either grant the leave or refuse it. The critical point is that an application for leave must be put to the council for it to decide. In this matter, unfortunately for Ms Ellis, her request for leave for the period commencing on 10 April 2016 and concluding on 27 April 2016, which included the date of the April 2016 meeting, was not submitted to the CGG Council at the April 2016 meeting for its approval or refusal.
The Tribunal does not accept the contention of Ms Ellis that the phrase 'without obtaining leave of the council' in s 2.25(4) of the LG Act should be construed to mean something other than without having been granted leave of absence by the CGG Council under s 2.25(1) of the LG Act, such as not seeking leave or not having leave recorded in the minutes of a meeting of the CGG Council.
In the Tribunal's view, the only way that a member of a council can obtain the leave of the council for the purposes of s 2.25(4) of the LG Act is for the council to decide to give that leave and the clear mechanism for leave to be given by the council is for it to be granted by a resolution of the council under s 2.25(1) of the LG Act.
The provisions of s 2.25(6) of the LG Act are consistent with and support that construction of the phrase 'without obtaining leave of the council' in s 2.25(4) of the LG Act because s 2.25(6) provides that a member who was 'granted leave' during an ordinary meeting of a council in the circumstances referred to in that subsection is taken to have 'obtained leave'.
The Tribunal has therefore determined, as a matter of fact, that Ms Ellis did not obtain leave of absence for the April 2016 meeting for the purposes of s 2.25(4) of the LG Act because she was not granted leave of absence by the CGG Council pursuant to s 2.25(1) of the LG Act for that meeting.
It is unfortunate that the minutes of the April 2016 meeting incorrectly state in both section 3 and section 6 that Ms Ellis had leave of absence for that meeting, when in fact the CGG Council had not granted such leave of absence under s 2.25(1) of the LG Act. It is likewise unfortunate that the minutes of the May 2016 meeting state that the minutes of the April 2016 meeting were adopted as a true and correct record of proceedings at the April 2016 meeting. However, those inaccuracies do not alter the fact that leave of absence was not granted to Ms Ellis by the CGG Council for the April 2016 meeting.
The Tribunal does not accept the contention by Ms Ellis that she was not 'absent, without obtaining leave' for the May 2016 meeting because she sought and obtained leave at that meeting from 25 May 2016 (being the day following the May 2016 meeting) to 20 June 2016, which was recorded in the minutes of that meeting. Ms Ellis' contention seems to be based on the implication that if she had been told by Ms Moulds that she could apply for leave of absence for the May 2016 meeting then she would have done so and the CGG Council would have granted that leave. The fact is that Ms Ellis only applied for leave of absence from the day following the May 2016 meeting and therefore she was not granted leave for the May 2016 meeting.
The Tribunal has therefore determined, as a matter of fact, that Ms Ellis did not obtain leave of absence for the May 2016 meeting for the purposes of s 2.25(4) of the LG Act because she was not granted leave of absence by the CGG Council pursuant to s 2.25(1) of the LG Act for that meeting.
It is unfortunate that Ms Moulds told Ms Ellis that leave of absence could not be granted for the ordinary meeting of the CGG Council at which approval was to be sought and that Ms Ellis accepted what she was told, when that was not the case. Clearly, neither Ms Moulds nor Ms Ellis were aware of the changes which had been made to s 2.25 of the LG Act by the Local Government Amendment Act 2009 (WA), which allows leave of absence to be granted to a council member at the meeting for which leave is sought, or to be more precise for that part of the meeting after leave is granted.
The City acknowledges and states its regret regarding firstly, the incorrect advice given in paragraph 3 of the Guidance Note and the incorrect advice and suggestions given by Ms Moulds to Ms Ellis based on the Guidance Note in respect of when leave of absence could be applied for and, secondly, the inaccuracies in the minutes of the April 2016 meeting and the May 2016 meeting. The City ought to be embarrassed by those failures, because if paragraph 3 of the Guidance Note had not contained that incorrect advice it is likely that Ms Ellis would have sought leave of absence for the April 2016 meeting and the May 2016 meeting at each of those meetings and the current situation may not have arisen.

Conclusion

The Tribunal has determined that Ms Ellis did not obtain leave of the CGG Council for her absence from each of the March 2016 meeting, the April 2016 meeting and the May 2016 meeting and therefore the disqualifying condition specified in s 2.25 of the LG Act exists.
Counsel for Ms Ellis conceded during the final hearing that the Tribunal does not have a discretion regarding whether or not it should make a declaration under s 2.27(7) of the LG Act if it makes a finding that the member is disqualified from continuing his or her membership of the CGG Council under s 2.25 of the LG Act.
That concession was properly made because s 2.25(4) of the LG Act provides a strict rule and the Tribunal has no discretion to relax it: see Fitzpatrick at [16] and Shire of Mundaring and Black [2009] WASAT 100 at [14].
Accordingly, because the Tribunal has determined that Ms Ellis is disqualified under s 2.25(4) of the LG Act it must make a declaration under s 2.27(7) of the LG Act that she is disqualified from continuing her membership of the CGG Council.

Order

1.The Tribunal declares that Renee Simone Ellis is disqualified pursuant to s 2.25(4) of the Local Government Act 1995 (WA) from continuing her membership of the Council of the City of Greater Geraldton.

I certify that this and the preceding [53] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D AITKEN, SENIOR MEMBER

Actions

Download as PDF Download as Word Document

Citations

DIEHM and ELLIS [2017] WASAT 44

Cases Citing This Decision

0

Cases Cited

5

Statutory Material Cited

5

Director General of Department of Transport v McKenzie [2016] WASCA 147

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41