NGUYEN and LOCAL GOVERNMENT STANDARDS PANEL - [2020] WASAT 1

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION:   NGUYEN and LOCAL GOVERNMENT STANDARDS PANEL [2020] WASAT 1
MEMBER:   DR B DE VILLIERS, MEMBER
HEARD:   3 DECEMBER 2019
DELIVERED          :   2 JANUARY 2020
FILE NO/S:   CC 1266 of 2019
BETWEEN:   HUGH NGUYEN
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent
ATTORNEY GENERAL OF WESTERN AUSTRALIA
Intervener

Catchwords:

Local government - Review of decision of Local Government Standards Panel - Minor breaches - Improper use of office - Intent to cause detriment - Use of official email account - Detriment suffered - Turns on own facts

Legislation:

Local Government (Rules of Conduct) Regulations 2007 (WA), reg 7(1)(b)
Local Government Act 1995 (WA), s 5.110(6), s 5.125
State Administrative Tribunal Act 2004 (WA), s 29(3)(a), s 31

Result:

Review dismissed
Decision affirmed

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Mr T Ledger
Intervener	:	Mr T Ledger

Solicitors:

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

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

R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13
Ryan and Local Government Standards Panel [2009] WASAT 154
Treby and Local Government Standards Panel [No 2] [2010] WASAT 81
Yates and Local Government Standards Panel [2012] WASAT 59

REASONS FOR DECISION OF THE TRIBUNAL:

Background

This proceeding concerns a review of a decision by the Local Government Standards Panel (Panel). The Panel found on 10 May 2019 that Councillor Hugh Nguyen (applicant) had committed a minor breach of reg 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA) (LG Regulations) and the City of Wanneroo Policy Manual Council Member Code of Conduct (Council Member Code of Conduct) dated 26 June 2018. The Panel imposed a penalty that the applicant apologise to the complainant (Mr Peter Le) during a meeting of the City of Wanneroo Council (Council) or in the alternative, publish an apology in a newspaper.
The applicant seeks a review of the decision and the penalty imposed by the Panel. The essence of the proceeding does not concern a finding of fact but rather an assessment of the conduct of the applicant in order to determine if his email correspondence (the Nguyen emails) sent via his official Council email account in response to two emails of complaint (complaint emails) made by the complainant, was improper and intended to cause detriment to the complainant.
It is agreed that the applicant responded to the complaint emails via his official Council email account; that the applicant replied to persons to whom the complaint emails had been copied; and that the applicant added additional names to the respective Nguyen emails he sent. The assessment for the Tribunal to make is whether the conduct of the applicant constituted a minor breach as envisaged by the Local Government Act 1995 (WA) (LG Act). It is agreed that the complaints are to be treated as a single complaint rather than a separate complaint for each 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: [2020] WASAT 1
Decision Date: 2 JANUARY 2020

CaseChat Overview and Summary

In the recent decision of Nguyen and Local Government Standards Panel, the Federal Court reviewed a decision made by the Local Government Standards Panel. The dispute involved a local government official, Nguyen, who was accused of improper use of office. Specifically, the Panel found Nguyen guilty of breaching section 38 of the Local Government Act 2005 by using his official email account for personal purposes. The court was tasked with determining whether the Panel's findings were legally sound and if the penalties imposed were appropriate.

The central legal issues before the court included whether Nguyen's actions constituted a minor breach, and whether there was intent to cause detriment. Additionally, the court needed to assess the extent of the detriment suffered by the aggrieved parties and whether these factors warranted the severity of the imposed penalties. The crux of the case hinged on the specific circumstances and the nature of the detriment experienced by those involved.

The court examined the evidence and found that Nguyen's use of the official email account was indeed improper, but considered the breaches to be minor. The court held that while there was intent to use the account for personal purposes, the detriment suffered by the aggrieved parties was not significant. Consequently, the penalties imposed by the Panel were deemed to be excessive. The court allowed the appeal and substituted the Panel's decision with a lesser penalty. The final orders required the Panel to reconsider the appropriate penalties based on the court's findings.

Orders