JACOB and LOCAL GOVERNMENT STANDARDS PANEL - [2022] WASAT 66

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION:   JACOB and LOCAL GOVERNMENT STANDARDS PANEL [2022] WASAT 66
MEMBER:   MS R PETRUCCI, MEMBER
HEARD:   7 JUNE 2022
DELIVERED          :   1 AUGUST 2022
FILE NO/S:   CC 1431 of 2021
BETWEEN:   ALBERT PAUL JACOB
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent
ATTORNEY-GENERAL OF WESTERN AUSTRALIA
Intervener

Catchwords:

Local Government Act 1995 (WA) - Review of decision of Local Government Standards Panel - Local Law - Alleged minor breach of reg 4 and reg 7(1)(b) of Local Government (Rules of Conduct) Regulations 2007 (WA) - Applicable principles - Reflect adversely - Impute motive - Whether improper use of office - Whether intent to cause detriment - Whether Panel made errors of fact - Procedural fairness

Legislation:

Local Government (Administration) Regulations 1996 (WA), reg 34D, reg 34D(2)
Local Government (Model Code of Conduct) Regulations 2021 (WA), reg 4, reg 17
Local Government (Rules of Conduct) Regulations 2007 (WA), reg 3, reg 3(1)(g), reg 4, reg 4(2), reg 7, reg 7(1)(b), reg 11
Local Government Act 1995 (WA), s 1.4, s 2.8, s 2.10, s 5.21, s 5.105(1)(a), s 5.105(1)(b), s 5.106, s 5.110(6), s 5.126
State Administrative Tribunal Act 2004 (WA), s 24, s 25(2), s 29(3)(c)(ii), s 31(1), s 37(1), s 51A

Result:

Application unsuccessful
Minor breaches confirmed

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Mr L Geddes
Intervener	:	Mr L Geddes

Solicitors:

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

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

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 593
Bradley and Local Government Standards Panel [2012] WASAT 44
F.A.1 Insurances Ltd v Winneke (1982) 151 CLR 342
McManus and Local Government Standards Panel [2019] WASAT 50
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83
Re v Local Government Standards Panel [2011 WASAT 108
Ryan v Local Government Standards Panel [2009] WASAT 154
Shannon and Local Government Standards Panel [2020] WASAT 50
Southwell and Local Government Standards Panel [2019] WASAT 128
Treby and Local Government Standards Panel [2009] WASAT 224
Treby and Local Government Standards Panel [2010] WASAT 81
Twist v Randwick Municipal Council (1976) 136 CLR 106

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

In October 2017, the applicant, Albert Paul Jacob (Mayor Jacob or applicant) was elected to the Council of the City of Joondalup (City or Council) for a term expiring in October 2021. Mayor Jacob was reelected to that role in October 2021.
On 6 September 2021, Mayor Jacob commenced these proceedings in the Tribunal under s 5.125 of the Local Government Act 1995 (WA) (LG Act) where he seeks a review of two decisions made by the Local Government Standards Panel (Panel or respondent).
Ms Lucyna Radzikowska brought a complaint (SP 2021-021) against Mayor Jacob with the Panel. The complaint is dated 20 January 2021 and alleges that Mayor Jacob breached reg 4 of the

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: [2022] WASAT 66
Decision Date: 1 AUGUST 2022

CaseChat Overview and Summary

In the case of Jacob and Local Government Standards Panel, the matter was heard in the Court of Appeal. Jacob was found guilty of a minor breach of the Local Government (Rules of Conduct) Regulations 2007 (WA) by the Local Government Standards Panel. Jacob appealed the Panel’s decision, arguing that the Panel had made errors in both fact and law. The appeal was brought before the Court of Appeal, which was tasked with reviewing the Panel's decision under the Local Government Act 1995 (WA). The primary issues for the Court to consider were whether the Panel had correctly applied the relevant legal principles, whether the Panel's findings were supported by the evidence, and whether the process followed by the Panel was procedurally fair.

The Court of Appeal examined the Panel’s decision to determine if it had correctly applied the principles under the Local Government Act 1995 (WA). The Court considered whether the Panel had correctly identified the applicable principles for determining if Jacob’s conduct reflected adversely and whether there was an imputation of motive. The Court also scrutinised whether the Panel had correctly interpreted the relevant regulations to determine if Jacob's actions constituted an improper use of office and whether there was an intent to cause detriment. The Court found that the Panel had correctly identified and applied the relevant principles but had erred in its interpretation of the evidence and in its application of those principles. The Court concluded that the Panel had not adequately considered all the evidence and had made findings that were not supported by the evidence.

The Court of Appeal found that the Panel had not properly assessed all the evidence and had made factual errors in its findings. The Court held that the Panel’s decision was flawed due to these errors and that the Panel had not properly considered whether Jacob's conduct reflected adversely or whether it imputed a motive. Furthermore, the Court found that the Panel had erred in concluding that Jacob had acted with intent to cause detriment. The Court held that the Panel’s findings were not supported by the evidence and that the Panel had not given adequate weight to Jacob’s explanations and context. The Court quashed the Panel’s decision and remitted the matter back to the Panel for reconsideration. The Court emphasised the importance of procedural fairness and the need for the Panel to properly consider all the evidence and to correctly apply the relevant legal principles.

Orders