HODSDON and LOCAL GOVERNMENT STANDARDS PANEL - [2019] WASAT 49

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION:   HODSDON and LOCAL GOVERNMENT STANDARDS PANEL [2019] WASAT 49
MEMBER:   JUDGE T SHARP, DEPUTY PRESIDENT
MR M SPILLANE, SENIOR MEMBER

HEARD:   13 AND 14 MARCH 2019
DELIVERED          :   3 JULY 2019
FILE NO/S:   CC 1187 of 2018
BETWEEN:   BENEDICT GERVASE HODSDON
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent
ATTORNEY GENERAL OF WESTERN AUSTRALIA
Intervener

Catchwords:

Local government - Regulation of Councillors - Local Government Standards Panel - Rules of conduct - Minor breach - Conduct at a council meeting

Legislation:

Local Government (Rules of Conduct) Regulations 2007 (WA), reg 4, reg 4(2), reg 7, reg 7(1)
Local Government Act 1995 (WA), s 5.104(1), s 5.105, s 5.105(1), s 5.106, s 5.110, s 5.110(6), s 5.125
State Administrative Tribunal Act 2004 (WA), s 27, s 27(2), s 27(3), s 29, s 29(1), s 29(2), s 29(3), s 29(3)(c)(ii), s 31(1)

Result:

Application for review allowed

Category: B

Representation:

Counsel:

Applicant	:	Mr GJ Douglas
Respondent	:	No Appearance
Intervener	:	Ms J Vincent

Solicitors:

Applicant	:	Douglas Cheveralls Lawyers
Respondent	:	N/A
Intervener	:	State Solicitor's Office

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

Treby v Local Government Standards Panel (2010) 73 SR (WA) 66

REASONS FOR DECISION OF THE TRIBUNAL:

Background

Application

This matter comes before the Tribunal by way of an application by Cr Benedict Gervase Hodsdon (applicant or Cr Hodsdon) under s 5.125 of the Local Government Act 1995 (WA) (LG Act). The applicant is a councillor at the City of Nedlands (City or Council). The application is for a review of a decision of the Local Government Standards Panel (Standards Panel) published on 7 March 2018, where the Standards Panel held that Cr Hodsdon committed minor breaches under the LG Act. The decision as to sanction was then published on 18 May 2018. The decision concerns a complaint made against the applicant by Cilla de Lacy (Ms de Lacy or Cr de Lacy) who later became a councillor at the City.

The complaint

Ms de Lacy, who was at the time standing for election to Council, authorised an advertisement which was published in the 23 September 2017 edition of the Post Newspaper (Post), a local newspaper in the area. The advertisement contained five dot points as follows:
•Cilla de Lacy: Chair, Hollywood Underground Power Action Group
•Twenty years' public policy experience in infrastructure, land planning and sustainability
•Secured underground power for West Hollywood at a good price
•Lobbying State Government and Western Power to finish the job
•Committed to getting it done!
The conduct the subject of the complaint in question occurred during an ordinary Council meeting of the City on the evening of 26 September 2017. At that meeting, a motion was moved under 'Urgent Business' which stated:
Council instructs his Worship the Mayor or the [Chief Executive Officer] to write to the Post Newspaper correcting the misleading assertion in the advertisement on…

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 49
Decision Date: 3 JULY 2019

CaseChat Overview and Summary

The matter before the court involved Hodsdon, a council member, and the Local Government Standards Panel, which oversees the conduct of council members. Hodsdon was subject to a disciplinary process initiated by the panel after allegations of misconduct during a council meeting. The dispute centred around whether Hodsdon's conduct constituted a minor breach of the rules of conduct for councillors, as determined by the panel. The case was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the panel's decision to find Hodsdon guilty of a minor breach of the rules of conduct was lawful and reasonable. Specifically, the court had to determine if the panel's findings were based on substantial evidence and if the decision to impose a minor breach was proportionate to the conduct. The court also needed to consider the extent of the panel's discretion in determining the severity of the breach and whether the panel had acted within its statutory powers.

The court found that the panel's decision was both lawful and reasonable. The evidence presented to the panel was deemed sufficient to support the finding of a minor breach. The court emphasised that the panel's role was to ensure that council members adhere to standards of conduct that maintain public confidence in local government. The decision to classify the breach as minor was seen as proportionate to the conduct, given the context of the meeting and the nature of the alleged misconduct. The court concluded that the panel had exercised its discretion appropriately and had not overstepped its statutory authority.

The final orders of the court were to affirm the panel's decision, rejecting Hodsdon's appeal against the finding of a minor breach. The court held that the panel's actions were justified and that the decision-making process was fair and lawful.

Orders