MUMMERY and LOCAL GOVERNMENT STANDARDS PANEL - [2020] WASAT 158

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION:   MUMMERY and LOCAL GOVERNMENT STANDARDS PANEL [2020] WASAT 158
MEMBER:   MS C BARTON, MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   18 DECEMBER 2020
FILE NO/S:   CC 460 of 2020
BETWEEN:   MALCOLM MUMMERY
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent
ATTORNEYGENERAL OF WESTERN AUSTRALIA
Intervener

Catchwords:

Local government - Rules of conduct - Minor breach - Request for draft council documents - Meaning of threat - Whether conduct amounted to a threat - Whether intention to influence local government employee - Appropriate sanction for minor breach - No sanction imposed - Turns on own facts

Legislation:

Criminal Code (WA), s 123, s 123(1)
Interpretation Act 1984 (WA), s 18, s 19, s 19*2)
Local Government (Rules of Conduct) Regulations 2007 (WA), reg 3, reg 10, reg 10(1)(b), Pt 2
Local Government Act 1995 (WA), s 5.92, s 5.104(1), s 5.105, s 5.105(1)(a), s 5.106, s 5.110, s 5.110(1)(b), s 5.110(6)(b)(iii), s 5.125, s 5.125(1)
State Administrative Tribunal Act 2004 (WA), s 24, s 60(2)

Result:

Decision of the Local Government Standards Panel varied as to penalty but otherwise affirmed

Category: B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A
Intervener	:	N/A

Solicitors:

Applicant	:	In Person
Respondent	:	State Solicitor's Office
Intervener	:	State Solicitor's Office

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

City of Fremantle v Imago Holdings Pty Ltd [2020] WASCA 61
Director of Public Prosecutions v ACME Storage Pty Ltd [2017] VSCA 90
Divine v The State Of Western Australia [2019] WASCA 49
Mohammadi v Bethune [2018] WASCA 98
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Smith v The State of Western Australia [2014] HCA 3; (2014) 250 CLR 473
Treby v Local Government Standards Panel [2010] WASAT 81; (2010) SR (WA) 66

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

In February 2019, Mr Malcolm Mummery (applicant) was a member of the Council of the City of Subiaco (City) when he requested that the Chief Executive Officer (CEO) make certain documents available to him relating to the preparation of the City's Corporate Carbon Reduction Plan (Draft plan). The CEO refused the applicant access to the Draft plan on the basis that it was in draft form.
Following a series of emails between the applicant and the CEO, the CEO made a complaint to the Local Government Standards Panel (respondent) alleging that the applicant had contravened reg 10 of the Local Government (Rules of Conduct) Regulations 2007 (WA) (Regulations) (Complaint).
On 5 June 2019, the respondent concluded that the applicant had breached reg 10(1)(b) of the Regulations on the basis that the applicant had made threatening comments to the CEO in his email correspondence to her (breach decision). On 23 August 2019, the respondent determined that the appropriate penalty for the breach was to order the applicant to undertake…

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: [2020] WASAT 158
Decision Date: 18 DECEMBER 2020

CaseChat Overview and Summary

In the matter of Mummery and the Local Government Standards Panel, the applicant, a former councillor of the City of Subiaco, appealed against decisions made by the Panel that he had breached a regulation concerning misconduct and that a penalty should be imposed for that breach. The crux of the case revolved around whether the applicant's conduct, specifically his request for draft council documents, constituted a threat under the relevant statutory provisions, and whether there was an intention to unduly influence a local government employee. The respondent, the Panel, argued that the applicant's actions warranted a breach finding and a subsequent penalty. The Tribunal was tasked with interpreting the statutory language, determining the nature of the applicant's conduct, and assessing whether a penalty was appropriate.

The central legal issues addressed by the Tribunal included the definition of a "threat" as used in the regulations, whether the applicant's request for the draft plan amounted to such a threat, and whether there was an intention to influence the conduct of a local government employee. The Tribunal had to consider both the literal wording of the regulations and the broader context in which the applicant's actions took place. Additionally, the Tribunal needed to weigh the appropriate sanction for a minor breach, if any, under the circumstances presented.

The Tribunal concluded that the applicant's conduct did not constitute a threat as defined in the regulations. It found that the applicant's request for the draft plan was made in good faith and did not carry the element of coercion or intimidation necessary to qualify as a threat. Furthermore, the Tribunal determined that there was no intention to influence the conduct of the CEO. Consequently, while the Tribunal upheld the breach decision, it set aside the penalty decision, deeming no further penalty necessary. The Tribunal's decision was based on the unique facts of the case and the absence of any substantial influence or coercion in the applicant's actions.

In summary, the Tribunal affirmed the breach decision but set aside the penalty decision, ultimately declining to impose any penalty on the applicant. This outcome reflects the Tribunal's careful consideration of the statutory language, the specific circumstances of the case, and the nature of the applicant's conduct.

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

On 5 June 2019, the respondent concluded that the applicant had breached reg 10(1)(b) of the Regulations on the basis that the applicant had made threatening comments to the CEO in his email correspondence to her (breach decision). On 23 August 2019, the respondent determined that the appropriate penalty for the breach was to order the applicant to undertake training (sanction decision). However, the respondent subsequently suspended the Complaint because the applicant had ceased to be a council member. On 7 April 2020, the applicant commenced proceedings in the Tribunal under s 5.125(1) of the Local Government Act 1995 (WA) (LG Act) seeking a review of the breach and sanction decisions. The applicant seeks orders from the Tribunal setting aside the respondent's decisions and dismissing the Complaint. For the reasons set out in this decision, the Tribunal will affirm the breach decision, set aside the sanction decision and decline to impose a penalty on the applicant. The respondent does not play an active role in review proceedings under the LG Act and has confined its participation to placing relevant documents before the Tribunal under s 24 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The reasons for the respondent's limited role in review proceedings was explained by Pritchard J in Treby v Local Government Standards Panel [2010] WASAT 81; (2010) SR (WA) 66 at [16]. In view of the respondent's limited participation, the Tribunal was assisted by the intervention of the AttorneyGeneral of Western Australia (Intervener) who acted as a contradictor in the proceedings. In determining whether the applicant's conduct in requesting the Draft plan from the CEO was contrary to reg 10(1)(b) of the Regulations, the Tribunal considered the proper construction of the statutory provision and dealt with the following issues:1)What constitutes a threat for the purposes of reg 10(1)(b) of the Regulations?2)Did the applicant's conduct amount to a threat?; and3)Was there an intention by the applicant to influence the conduct of a local government employee? Both the applicant and Intervener filed with the Tribunal and gave to each party a statement of issues, facts and contentions. On 3 June 2020, the respondent filed a bundle of documents under s 24 of the SAT Act. On 27 July 2020, the applicant and Intervener filed a statement of agreed facts and an agreed bundle of documents. The applicant and Intervener also filed written submissions and decided cases on which each party relied, with the applicant filing a reply to the Intervener's submissions on 26 August 2020. The matter was determined entirely on the documents pursuant to s 60(2) of the SAT Act. The parties do not contest that the following events are relevant to the determination of the proceedings. The applicant was elected a councillor of the City of Subiaco in October 2015. By 16 February 2019, the City was in possession of the Draft plan prepared for the City by Josh Byrne & Associates.

Ratio Decidendi

Legal Principle Established

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