MULLANEY and CITY OF WANNEROO - [2025] WASAT 80

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION:   MULLANEY and CITY OF WANNEROO [2025] WASAT 80
MEMBER:   MS C BARTON, MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   30 JULY 2025
FILE NO/S:   DR 12 of 2025
BETWEEN:   ADAM MULLANEY
Applicant
AND
CITY OF WANNEROO
Respondent

Catchwords:

Local government - Volunteer bush fire brigade - Termination of membership - Decision made under a local law - Objection to decision - Whether jurisdiction to review decision - Whether decision made under the Local Government Act - Statutory construction - Meaning of made a decision under an Act

Legislation:

Bush Fires Act 1954 (WA), s 35A, s 38, s 41, s 41(1), s 62, s 62(1)
Local Government Act 1995 (WA), s 3.11, s 3.25, s 9.1, s 9.1(1), s 9.1(2), s 9.1(3), s 9.2, s 9.5, s 9.6, s 9.7(2), Pt 9, Div 1, Pt 3, Div 2
State Administrative Tribunal Act 2004 (WA), s 60(2)

Result:

Preliminary issue answered in the negative
Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A

Solicitors:

Applicant	:	N/A
Respondent	:	McLeods

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

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian National University v Burns (1982) 43 ALR 25
Griffith University v Tang (2005) 221 CLR 99
Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicant, Mr Mullaney (applicant), is a former member of the Wanneroo Central Volunteer Bush Fire Brigade (Brigade) who held the position of Deputy Bush Fire Control Officer under s 38 of the Bush Fires Act 1954 (WA) (BF Act).
On 11 February 2022, the Executive Management Committee of the Brigade decided to terminate the applicant's membership. The applicant subsequently lodged an objection to that decision with the respondent, the City of Wanneroo (City or respondent), which, on 4 December 2024, dismissed the applicant's objection (City's decision).
On 20 January 2025, the applicant commenced a proceeding in the Tribunal for a review of the City's decision pursuant to s 9.7(2) of the Local Government Act 1995 (WA) (LG Act). The applicant is seeking an order that the termination of his membership be overturned.
A preliminary issue has arisen for determination in this proceeding which concerns the jurisdiction of the Tribunal.
On 21 March 2024, the Tribunal made orders that the preliminary issue is to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SATAct).

Issue for determination

The following preliminary issue arises for determination:
(1)Is the City's decision, the subject of the application, a decision to which Pt 9, Div 1 of the LG Act applies and, therefore, one that the Tribunal has jurisdiction to review?
For the reasons that follow, I have concluded that the City's decision is not one to which Pt 9, Div 1 of the LG…

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.

Continue reading MULLANEY and CITY OF WANNEROO

Details

AGLC: MULLANEY and CITY OF WANNEROO [2025] WASAT 80
Case: [2025] WASAT 80
Decision Date: 30 JULY 2025

CaseChat Overview and Summary

The case between Mullaney and the City of Wanneroo involved a dispute regarding the termination of the plaintiff's membership in the volunteer bush fire brigade by the City of Wanneroo. The decision to terminate the membership was made under a local law, and the plaintiff objected to this decision. The legal issue before the court was whether the decision was made under the Local Government Act 1993 (WA) (LG Act), thus granting the tribunal jurisdiction to review the decision.

The court held that for the purposes of section 9.1(1) of the LG Act, a decision to cancel an authorisation is made under the LG Act if the LG Act is the source of power to make the decision. The term "under" connotes "in pursuance of" or "under the authority of" the relevant enactment. The court found that the City's decision was made under clause 8.18 of the Constitution, a schedule to the Local Law, which was made under the Bush Fires Act 1954 (WA) (BF Act) and not the LG Act. Therefore, the City's decision was not made under the LG Act. The court also found that the Local Law did not provide that a decision made under it was one to which the LG Act applied, nor did it state that a person specified in the Local Law was an "affected person" for the purposes of the LG Act. Consequently, the court held that the tribunal did not have jurisdiction to review the decision.

The court dismissed the plaintiff's application for review and made an order dismissing the application. The court accepted the respondent's contentions in relation to the construction of section 9.1 of the LG Act and the Local Law.

Orders

Orders of the court

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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

For the purposes of s 9.1(1) of the LG Act, a decision to cancel an authorisation will be made under the LG Act if the LG Act is the source of power to make the decision.[13] Where a decision is made under an enactment, the word 'under' connotes 'in pursuance of' or 'under the authority of' the relevant enactment.[14] [13] See TheMinister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 at 295; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 377.[14] Griffith University v Tang (2005) 221 CLR 99 at [146] citing Australian National University v Burns (1982) 43 ALR 25 at 31 - 32. I find that the City's decision was made under cl 8.18 of the Constitution, a schedule to the Local Law, which was made under s 41 and s 62 the BF Act. Because the Local Law was made under the BF Act and not the LG Act, it follows that the City's decision under cl 8.18 of the Constitution was not a decision made under the LG Act. Consequently, for the purposes of s 9.1(1) of the LG Act, the provisions of Pt 9, Div 1 of the LG Act which relate to objections and give a person affected by a local government decision a right of review of the decision on an objection to the Tribunal do not apply to the City's decision. For these reasons, I find that the LG Act is not the source of power under which the City's decision was made and, therefore, s 9.1(1) of the LG Act does not enliven the Tribunal's review jurisdiction in respect of the City's decision. Where a person is given a notice pursuant to s 3.25 of the LG Act, the giving of the notice is to be regarded as the making of a decision to which Pt 9, Div 1 of the LG Act applies.[15] It was common ground that neither the decision of the Executive Management Committee nor the City's decision involved the giving of a notice under s 3.25 of the LG Act. Consequently, I find that s 9.1(2) of the LG Act does not enliven the Tribunal's review jurisdiction in respect of the City's decision.[15] LG Act, s 9.1(2) and definition of 'decision' in s 9.2. Finally, the Local Law does not provide that a decision made under it is one to which Pt 9, Div 1 of the LG Act applies; nor does it state that a person specified in the Local Law is an 'affected person' for the purposes of Pt 9, Div 1 of the LG Act. I observe that cl 8.18 of the Constitution reflects the form of s 9.6 of the LG Act in respect of the manner in which an objection may be disposed of by Council. However, cl 8.18 of the Constitution does not provide that the manner in which the objection is disposed of by Council is a decision to which Pt 9, Div 1 of the LG Act applies or that a person whose application for membership is terminated is an 'affected person'. In the absence of any such statement in the Local Law, I find that s 9.1(3) of the LG Act does not enliven the Tribunal's review jurisdiction in respect of the City's decision. Because the Tribunal has no jurisdiction to review the decision, I will make an order dismissing the application for review. I accept the respondent's contentions in relation to the construction of s 9.1 of the LG Act and the Local Law.