| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : LOCAL GOVERNMENT ACT 1995 (WA) CITATION : MATSUMOTO and SHIRE OF BROOME [2013] WASAT 194 MEMBER : MR P McNAB (SENIOR MEMBER) HEARD : 17 SEPTEMBER 2013 DELIVERED : 17 SEPTEMBER 2013 PUBLISHED : 29 NOVEMBER 2013 FILE NO/S : DR 265 of 2013 BETWEEN : PHILIP FRANCIS MATSUMOTO Applicant
AND
SHIRE OF BROOME
Respondent
Catchwords: Local government Disqualification of member of council Absence from three consecutive ordinary council meetings without leave of council Application for declaration by Tribunal as to disqualification Whether Tribunal has any discretion in relation to declaration where reasonable excuse for nonattendance established Whether receipt of apologies can amount to leave of absence Observations made on the statutory changes concerning the regulation of absent councillors Declaration made by Tribunal
(Page 2)
Legislation: Local Government Act 1995 (WA), s 2.25(1), s 2.25(4), s 2.27 Result: Declaration of disqualification made
Summary of Tribunal's decision: Because of medical reasons, Councillor Philip Matsumoto was absent from three consecutive ordinary council meetings of the Shire of Broome in April, May and June 2013. Although he had tendered his apologies he had neither sought nor obtained leave of absence from the Council of the Shire of Broome.
Councillor Matsumoto sought a declaration as to whether he was disqualified from sitting as a councillor. The Shire of Broome maintained that by operation of law he was so disqualified. Both parties were represented by counsel and the relevant facts were not in dispute between the parties.
The Tribunal agreed with the Shire of Broome. Previous cases in the Tribunal had held that there is no element of discretion available to the Tribunal. Once the disqualifying conditions of absence by a member of council and lack of prior leave by the Council existed then the Tribunal must make a declaration that the member is disqualified.
Here, the disqualifying conditions had been met. The receipt of an apology by the Council did not amount to the grant of leave of absence.
The Tribunal, sitting in Broome, made a declaration of disqualification in the terms sought by the respondent Shire.
Category: B
Representation: Counsel:
Applicant : Mr T Savu
Respondent : Mr D Dragovic
Solicitors:
Applicant : Savu Esq
Respondent : Freehills
(Page 3)
Case(s) referred to in decision(s):
Ryan v Heiler (1990) 69 LGRA 307
Shire of Mundaring v Black [2009] WASAT 100; (2009) 64 SR (WA) 7
Shire of Waroona v Fitzpatrick [2007] WASAT 219; (2007) 54 SR (WA) 195
Wearne v Roberts [2001] WASCA 279; (2001) 117 LGERA 127
(Page 4)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 This is an application under s 2.27(7) of the Local Government Act 1995 (WA) (LG Act) for a declaration in relation to the qualification to continue to hold office brought by a councillor of the Shire of Broome (Shire). Subsection 2.27(7) of the LG Act reads as follows: The CEO [that is, the Chief Executive Officer] 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. 2 It is not contested that the applicant for review, Mr Philip Matsumoto, who was said to be disqualified from being a councillor under the LG Act, has standing under that provision to make application to the Tribunal for a declaration whether he was disqualified under the LG Act. See also s 2.27(6) of the LG Act which is set out below. 3 The Tribunal heard the matter in Broome and made a declaration of disqualification shortly after the conclusion of the hearing. The Tribunal gave its reasons for making the declaration orally. What follows is taken from the transcript of those reasons and has been formally revised and edited for publication.
Notice of disqualification: no leave of absence 4 The alleged disqualification comes about by reason of the application to Councillor Matsumoto of s 2.25(4) of the LG Act which reads: 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. 5 The essential facts in this matter are not in dispute. Councillor Matsumoto apologised for not attending (and was not present at) three ordinary meetings of the respondent Shire's Council, namely those of 18 April 2013, 16 May 2013, and 20 June 2013. Despite the apologies tendered, importantly, no grant or act of leave accompanied the receipt of such apologies. Indeed, leave of absence has never been sought or obtained from Council. 6 It may be accepted that Councillor Matsumoto had, as his counsel Mr Savu has documented, a serious medical condition that either caused (Page 5)
or significantly contributed to (if not fully or partly justified) his absence from council on all of these occasions. 7 Mr Dragovic, who appeared for the Shire and the Chief Executive Officer (CEO), submits (I think, correctly) that three elements must be satisfied to justify disqualification under s 2.25(4) of the LG Act which, in turn, can lead to a notice as was given by the CEO to Councillor Matsumoto (see below). 8 Those three elements are: First, there must be three ordinary consecutive meetings of council with a relevant absence from each meeting. Next, it must be established that no leave was granted in respect of those absences. Finally, it must be established that such absences were not within the two month period referred to in the proviso to the legislation ('… unless all of the meetings are within a 2 month period.': s 2.25(4)). 9 Mr Dragovic submits to the effect that, by admission or otherwise, the relevant and necessary facts have been established in this case which justify the steps taken by the CEO to give Councillor Matsumoto a notice of disqualification under s 2.27(4) of the LG Act. Section 2.27, so far as is relevant, provides as follows: 2.27. Procedure to determine qualification to retain membership of council (1) In this section (2) A member who considers that he or she is disqualified is to advise the CEO in writing without delay. (3) If the CEO has reason (other than through receiving a notice under subsection (2)) to believe that a member of a council is disqualified the CEO is to give the member a written notice without delay indicating the reasons why the CEO believes the member to be disqualified. (4) The CEO's notice under subsection (3) has to inform the member (Page 6)
(5) If, within 28 days from the date of service of the CEO's notice under subsection (3), the member satisfies the CEO that the member is not disqualified, the CEO is to give the member a written notice to that effect. (6) Unless, within 28 days from the date of service of the CEO’s notice under subsection (3), the member (a) satisfies the CEO that the member is not disqualified; or (b) applies to the State Administrative Tribunal asking for a declaration as to whether or not the member is disqualified and gives a copy of the application to the CEO, the member is taken to have been disqualified for the reasons indicated in the CEO's notice. (7A) If subsection (6) applies to a member the CEO is to give the member a written notice to that effect. (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[.] 10 To avoid any doubt on the point, Mr Dragovic submits that there is a clear distinction between an apology and a grant of leave of absence and draws attention to s 2.25(1) of the LG Act (dealing with a specific resolution granting leave of absence). The respondent also relies on Ryan v Heiler (1990) 69 LGRA 307 (Young J) dealing with legislation to similar effect. I agree with this submission. 11 None of this is seriously challenged by Mr Savu as to the applicable law to be applied in this action. (Page 7)
Previous decisions of the Tribunal 12 Thus, on the matters established to this point, the respondent has made out a case for a declaration in the CEO's favour. This is especially so having regard to two previous cases in this Tribunal. 13 They are: Shire of Waroona v Fitzpatrick [2007] WASAT 219; (2007) 54 SR (WA) 195 (a decision of Chaney DCJ, as he then was) (Shire of Waroona) and Shire of Mundaring v Black [2009] WASAT 100; (2009) 64 SR (WA) 7 (a decision of Senior Member Parry, as he then was) (Shire of Mundaring). 14 As Shire of Mundaring, at [14], notes, these authorities stand for the proposition that, … where the Tribunal finds as a matter of fact (or where it is conceded) that a member of a council was absent, without first obtaining leave of the council, throughout three consecutive ordinary meetings of the council, 'there is no element of discretion'; if …'the disqualifying condition[s]' of absence by a member [of Council] and lack of prior leave by the Council exists, then the Tribunal must make a declaration that the member is disqualified.
'Unfairness' of the operation of the statute? 15 Although Mr Savu has withdrawn any suggestion that the unfairness that he submits that his client has suffered by reason of this, in effect, automatic disqualification should lead to the Tribunal not applying this law, Mr Savu nevertheless maintains that the LG Act ought to have an 'exceptional circumstances' or 'reasonable excuse' provision inserted into it to cover cases like that of Councillor Matsumoto. 16 These are essentially policy matters for government and I refrain from expressing any view on them. I note, however, that his Honour Judge Chaney was moved by the circumstances of Shire of Waroona, which in some respects are similar to the circumstances here, to say, at [19]: … Whether that strict rule should be relaxed to cater for exceptional circumstances, and whether the Tribunal should have some discretion to consider exceptional circumstances, is a matter for government. Given the circumstances of this case, the Tribunal proposes to forward a copy of this decision to the Minister for Local Government for information. 17 I do not intend to take that course here, but of course it is always open to the applicant and others to make what they will of the conclusions (Page 8)
and decision reached by the Tribunal in this case and to bring these matters to the attention of Ministers. Other matters 18 I should note two matters in conclusion on this point. The first is that Shire of Waroona dealt with circumstances under the legislation in its pre2009 formulation, which required the CEO to seek, in effect, confirmation of a disqualification. 19 That was removed in 2009, but as Mr Dragovic submits, and I accept, the declaratory jurisdiction given to this Tribunal was not relevantly affected by those 2009 amendments. And, I should note, that the Parliament appears to have only ameliorated the circumstances of disqualification by the creation of the two month period, which does not apply in these circumstances. 20 The other matter that I should record for the sake of completeness is Wearne v Roberts [2001] WASCA 279; (2001) 117 LGERA 127 (Wearne), which the Tribunal's own researches have revealed. Wearne does not appear to have been considered by or cited to the Tribunal to date. 21 The jurisdiction given to the Tribunal exercised here was previously exercised by Magistrates. Wearne was a case that dealt with an extension of time for an appeal brought by a local government CEO, where his application for a declaration of disqualification brought in the Court of Petty Sessions had been dismissed. 22 The various grounds of appeal appearing in that case are recorded at [106] - [117]. Hasluck J did not make any conclusive findings on these matters because of the interlocutory nature of the proceedings, but his Honour does record a number of interesting arguments. Of potential relevance in future cases, was the prolonged agitation before the Magistrate as to the standard of proof and the nature of the proof to establish the ordinary meetings (and notice thereof) that were said to lead to the absences of the Councillor concerned. 23 The profound change effected by the vesting of this jurisdiction in an administrative tribunal not bound by the rules of evidence (as well as the removal from the LG Act of the need to seek confirmation in a court or a tribunal) means that such arguments are likely to be rare. (Page 9)
24 An extension of time to appeal was granted by Hasluck J but I have not been able to discover any final result in the proceeding. It seems likely that the appeal did not proceed. 25 In the event, I make it clear that there is nothing in that case which would assist the applicant here and that case is not being considered by the Tribunal today.
Conclusions 26 To sum up, the law in this area is clear and I think that counsel have now reached a consensus on this matter. There is, unfortunately for the applicant, no express or implied discretion given to the Tribunal to ameliorate the circumstances (if any) leading to disqualification, and that is as a very clear result of the application of the cases that are cited above. 27 I therefore propose to make a declaration in terms of the respondent’s submissions, which is to the effect that Councillor Matsumoto is disqualified from holding office under the LG Act. Those orders will be issued from Perth and be sent to the parties as soon as practicable.
Orders For the foregoing reasons, the Tribunal makes the following orders: 1. The Tribunal declares that Philip Francis Matsumoto is disqualified pursuant to s 2.25(4) of the Local Government Act 1995 (WA) from continuing his membership of the Council of the Shire of Broome. 2. The application is otherwise dismissed.
(Page 10)
|