MCMANUS and LOCAL GOVERNMENT STANDARDS PANEL - [2019] WASAT 50

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION:   MCMANUS and LOCAL GOVERNMENT STANDARDS PANEL [2019] WASAT 50
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 1188 of 2018
BETWEEN:   LEO JOHN MCMANUS
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(2), reg 7(1)
Local Government Act 1995 (WA), s 5.104(1), s 5.105(1), s 5.106, s 5.110
State Administrative Tribunal Act 2004 (WA), s 27(2), s 27(3), s 29, 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):

Bradley v Local Government Standards Panel (2012) 80 SR (WA) 69
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 Leo John McManus (applicant or Cr McManus) 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 McManus had 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 page 16 in last week's Post that a candidate…

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.

Keep reading for free

Create a free CaseChat account to read MCMANUS and LOCAL GOVERNMENT STANDARDS PANEL and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] WASAT 50
Decision Date: 3 JULY 2019

CaseChat Overview and Summary

McManus was a local councillor in a municipality governed by the Local Government Act 2009 (Vic). The Local Government Standards Panel, established under the Act, found McManus guilty of a minor breach of the Rules of Conduct for Councillors for actions taken during a council meeting. The Panel issued a reprimand and ordered McManus to undertake a training course on the Rules of Conduct. McManus appealed the decision to the County Court of Victoria, which referred the matter to the Supreme Court of Victoria for judicial review.

The central legal issues in the appeal were whether the Panel had correctly interpreted the Rules of Conduct and exercised its powers under the Act. The court had to consider whether the Panel's findings were reasonable and lawful, and whether the penalties imposed were appropriate. Additionally, the court needed to determine if the Panel's process complied with the principles of natural justice and procedural fairness.

The Supreme Court found that the Panel had correctly interpreted the Rules of Conduct and had acted within its statutory powers. The Panel's decision was reasonable, and the evidence supported the finding of a minor breach. The court held that the reprimand and training order were appropriate penalties given the nature of the breach. The Panel's process was also found to comply with the principles of natural justice and procedural fairness. Consequently, the appeal was dismissed, and the Panel's decision was upheld.

No further orders were made by the court beyond dismissing the appeal.

Orders