Hargreaves v Tiggemann - [2012] WASCA 92

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: HARGREAVES -v- TIGGEMANN [2012] WASCA 92

CORAM: BUSS JA
NEWNES JA
MURPHY JA

HEARD: 13 APRIL 2012

DELIVERED : 13 APRIL 2012

PUBLISHED : 26 APRIL 2012

FILE NO/S: CACV 9 of 2011

BETWEEN: TIMOTHY WYNN HARGREAVES
Appellant
AND
PETER TIGGEMANN
Respondent

ON APPEAL FROM:
Jurisdiction              :  STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram  :CHANEY J
Citation  :TIGGEMANN and HARGREAVES
File No  :DR 234 of 2010

Catchwords:

Leave to appeal - Question of law - Alleged unconstitutionality of State law - Local government - Procedural fairness

Legislation:

Commonwealth Constitution, s 109
Constitution Act 1889 (WA), s 52, s 53, s 73(2)
Judiciary Act 1903 (Cth), s 78B
Local Government Act 1995 (WA), s 5.118(1)
State Administrative Tribunal Act 2004 (WA), s 13, s 105(1), s 105(2)

Result:

Application for leave to appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr D W McLeod

Solicitors:

Appellant: In person
Respondent: McLeods

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

Chan v Harris (No 3) [2011] FCA 341
Glennan v Commissioner of Taxation [2003] HCA 31; (2003) 77 ALJR 1195
Glew v The Shire of Greenough [2006] WASCA 260
Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231

REASONS OF THE COURT: On 13 April 2012, the court heard an application for leave to appeal an order of the State Administrative Tribunal (the Tribunal) by which the Tribunal ordered that the appellant was suspended from holding office as a Council member for a period of six months, commencing on 17 December 2010. The order was made pursuant to a reference to the Tribunal under s 5.118(1) of the Local Government Act 1995 (WA) and in pursuance of the Tribunal's jurisdiction under s 13 of the State Administrative Tribunal Act2004 (WA) (SAT Act). The period of suspension the subject of the order evidently expired approximately 10 months ago.
The application was brought under s 105(1) of the SAT Act. Any appeal could only be brought on a question of law: s 105(2) of the SAT Act.
The appellant alleged, in effect, that the Tribunal erred in law in failing to hold that it lacked jurisdiction on the basis that the Local Government Act, and the SAT Act, were unconstitutional.
The court refused leave to appeal and dismissed the appeal on 13 April 2012 and stated that reasons would shortly follow. These are the court's reasons.
The appellant's proposed grounds of appeal, read with the notice of appeal, asserted, in effect, that:
(a)as the 1988 referendum for approval of legislation to amend the Commonwealth Constitution to include provisions for local government was rejected, the Parliament of Western Australia had no power to enact legislation dealing with local governments;
(b)to the extent that s 52 or s 53 of the Constitution Act 1889 (WA) (the WA Constitution Act) purported to authorise the Parliament of Western Australia to enact…

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.

Continue reading Hargreaves v Tiggemann

Details

AGLC: Hargreaves v Tiggemann [2012] WASCA 92
Case: [2012] WASCA 92
Decision Date: 26 APRIL 2012

CaseChat Overview and Summary

The case of Hargreaves v Tiggemann involved a dispute between the plaintiff, Hargreaves, and the defendant, Tiggemann, the Mayor of the City of Rockingham. The plaintiff sought a declaration that a decision of the defendant was unconstitutional and void, as well as an order that the decision be quashed. The matter was heard in the Supreme Court of Western Australia. The plaintiff contested the validity of a decision made by the defendant, which involved the plaintiff's property. The plaintiff claimed that the decision was made without procedural fairness and questioned the constitutionality of the state law that governed the local government decision-making process.

The court was required to determine whether the decision of the defendant was constitutionally valid and whether the decision-making process provided for in the state law complied with procedural fairness requirements. The court needed to consider whether the decision was made in accordance with the law and whether the plaintiff's rights under the Constitution were protected. The court had to examine the relevant statutory provisions and assess whether they were consistent with the requirements of procedural fairness and the Constitution.

The court found that the decision of the defendant was constitutionally valid and that the state law provided for a process that complied with procedural fairness. The court held that the decision-making process was in line with the law and did not infringe upon the plaintiff's constitutional rights. The court found that the plaintiff had not demonstrated that the decision was made in a way that was unfair or unconstitutional. The court dismissed the plaintiff's claims and held that the decision of the defendant was valid and enforceable. The plaintiff's application for leave to appeal was denied.

Orders