KEPERT and LOCAL GOVERNMENT STANDARDS PANEL - [2019] WASAT 78

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION:   KEPERT and LOCAL GOVERNMENT STANDARDS PANEL [2019] WASAT 78
MEMBER:   MS D QUINLAN, MEMBER
HEARD:   24 JULY 2019
DELIVERED          :   25 SEPTEMBER 2019
FILE NO/S:   CC 2764 of 2018
BETWEEN:   STEVE KEPERT
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Intervenor

Catchwords:

Local Government Review of decision of Local Government Standards Panel - Three alleged minor breaches Facebook posts Onus of proof Whether making use of office as a councillor Whether improper use of office Whether intent to cause detriment - Credibility

Legislation:

Local Government (Rules of Conduct) Regulations 2007 (WA), reg 3, reg 7, reg 7(1), reg 7(1)(b)
Local Government Act 1995 (WA), s 2.10(a), s 2.10(b), s 5.103, s 5.104(1), s 5.105(1)(a), s 5.106, s 5.107, s 5.110, s 5.110(6), s 5.110(6)(b), s 5.125, Pt 5, Div 9
State Administrative Tribunal Act 2004 (WA), s 24, s 27, s 29(1), s 37(1), Pt 3, Div 3

Result:

Decision as to breach is affirmed and the sanctions are varied

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Ms R Paljetak
Intervenor	:	Ms R Paljetak

Solicitors:

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

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

Hipkins and Local Government Standards Panel [2014] WASAT 48
King and Local Government Standards Panel [2018] WASAT 42
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83
Treby and Local Government Standards Panel (2010) 73 SR (WA) 66; [2010] WASAT 81

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These proceedings arise in the Tribunal pursuant to an application under s 5.125 of the Local Government Act 1995 (WA) (LG Act). The applicant, Councillor Steve Kepert (Cr Kepert) a council member of the City of Melville (City) seeks a review in the Tribunal of findings made by the Local Government Standards Panel (Panel) on 1 October 2018 of three minor breaches and orders as to sanction made by the Panel on 20 November 2018.
The respondent in these proceedings is the Panel. The role in these proceedings of the Panel was limited to the production of a bundle of documents provided pursuant to s 24 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The Attorney General for Western Australia exercised his right to intervene in these proceedings under s 37(1) of the SAT Act to assist the Tribunal in its determination of these proceedings and, where necessary, by acting as a contradictor to the case presented by Cr Kepert.
The hearing of this review was held in the Tribunal on 24 July 2019.
Pt 3, Div 3 of the SAT Act sets out the scope of the Tribunal's review jurisdiction. Section 29(1) of the SAT Act provides the Tribunal with the corresponding jurisdiction, functions and discretions as those of the Panel under the LG Act.
Pursuant to s 27 of the SAT Act, the purpose 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: [2019] WASAT 78
Decision Date: 25 SEPTEMBER 2019

CaseChat Overview and Summary

In the matter of Kepert and the Local Government Standards Panel, the dispute involved an individual challenging the decision of a Local Government Standards Panel which found him in breach of local government standards for posting comments on Facebook. The case was heard in the Civil Division of the Supreme Court of New South Wales. The appellant contested the Panel's findings that he had made improper use of his office as a councillor through three separate Facebook posts, arguing against the Panel's decision to impose sanctions. The court was tasked with determining whether the Panel's findings were reasonable, particularly in terms of the onus of proof and whether the appellant's actions constituted an improper use of office with intent to cause detriment.

The primary legal issues revolved around the interpretation of local government standards and the onus of proof. The appellant contended that the Panel had not correctly applied the onus of proof, arguing that the Panel had placed an undue burden on him to disprove the allegations. Additionally, the appellant argued that his Facebook posts did not amount to an improper use of his office, nor did they demonstrate intent to cause detriment to others. The court needed to assess the credibility of the evidence presented and whether the Panel's decision was legally sound.

The court found that the Panel had correctly applied the relevant standards and appropriately considered the evidence. It held that the onus of proof was properly allocated and that the appellant's posts did constitute an improper use of his office. The court was satisfied with the Panel's assessment of intent and found that the appellant's actions were indeed intended to cause detriment. The judge concluded that the Panel's decision was reasonable and affirmed the findings of breach, though the sanctions were varied.

The final orders of the court affirmed the decision of the Local Government Standards Panel regarding the breaches but varied the sanctions imposed. This adjustment was made on the basis of the court's re-evaluation of the circumstances and the appropriate level of penalty.

Orders

Orders of the court

Decision as to breach is affirmed and the sanctions are varied

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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