PENN and LOCAL GOVERNMENT STANDARDS PANEL - [2019] WASAT 83

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION:   PENN and LOCAL GOVERNMENT STANDARDS PANEL [2019] WASAT 83
MEMBER:   DR B DE VILLIERS, MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   7 OCTOBER 2019
FILE NO/S:   CC 1370 of 2018
BETWEEN:   STEPHANIE PENN
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent
ATTORNEY GENERAL OF WESTERN AUSTRALIA
Intervener

Catchwords:

Review of decision by Local Government Standards Panel - Application for costs against Intervener - Role of the Intervener - Substantial delay or prolongation of hearing

Legislation:

Legal Profession (State Administrative Tribunal) Determination 2018 (WA)
State Administrative Tribunal Act 2004 (WA), s 9(b), s 26(1), s 27, s 37, s 46, s 47, s 48, s 87, s 87(1), s 87(2), s 87(3), s 88, s 88(1)

Result:

Orders made for costs

Category: B

Representation:

Counsel:

Applicant	:	Ms D Bechelet
Respondent	:	Mr C Bydder & Mr E Fearis
Intervener	:	Mr C Bydder & Mr E Fearis

Solicitors:

Applicant	:	Avon Legal
Respondent	:	State Solicitor's Office
Intervener	:	State Solicitor's Office

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

Burnside City Council v Attorney-General (SA) (1994) 63 SASR 65
Chew and Director General of the Department of Education and Training [2006] WASAT 248
Gill & Ors and Wildnight Pty Ltd [2008] WASAT 135
Medical Board of Western Australia and Kyi [2009] WASAR 22
Pearce and Anor and Germain [2007] WASAT 291 (S)
Tanner v The Queen [2001] WADC 207
Treby and Local Government Standards Panel [2010] WASAT 81
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32

REASONS FOR DECISION OF THE TRIBUNAL:

Background

This application for costs arises from a decision by the Tribunal to revoke a sanction imposed by the Local Government Standard Panel (the Panel) on Ms Stephanie Penn (the applicant). The Tribunal found on 16 January 2019 that there was inadequate evidence that the applicant made a threat to leave the council meeting of 16 November 2016; or that the applicant left the meeting with the intent, knowledge, understanding or expectation that three other councillors would also leave the meeting after her; or that the previous conduct of councillors at earlier meetings established a basis of common intent to boycott or disrupt the meeting of 16 November 2016.
The applicant is now seeking costs from the Attorney General of Western Australia (the Intervener) since she says the proceeding was void of merit; the proceeding was unnecessarily drawn out by counsel for the Intervener; and that the Intervener ought to be ordered to pay for costs wasted as a result of the proceeding.

Issue

•Should an award of costs be made against the Intervener?

Status of the Intervener in proceedings of this nature

The respondent is not an active party to the proceeding since it had completed its function as a statutorily created body to determine a complaint about the conduct of a councillor of a local government. The Attorney General of Western Australia therefore sought to intervene in the proceeding and leave…

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: [2019] WASAT 83
Decision Date: 7 OCTOBER 2019

CaseChat Overview and Summary

In the matter of Penn and Local Government Standards Panel, the respondent sought a review of the decision made by the panel regarding an allegation of misconduct. The applicant, Penn, was the subject of the investigation and the Local Government Standards Panel had found against them. An intervener, who was not a party to the original proceedings, sought to participate in the review. The intervener's involvement led to delays in the proceedings, which Penn claimed warranted an award of costs against the intervener.

The central legal issues the court had to address were whether the intervener's participation was justified and whether the delay caused by the intervener's involvement was substantial enough to warrant costs being awarded against them. The court had to balance the right of the intervener to participate in the proceedings with the need to ensure that the proceedings were not unduly delayed.

The court held that the intervener's participation was justified as their involvement was relevant to the issues being reviewed. However, the court found that the intervener's conduct had caused a substantial delay in the proceedings. The court held that the intervener was responsible for the delay and ordered them to pay costs to the applicant. The court emphasised the importance of ensuring that proceedings were not unduly delayed and that all parties must act in a manner that facilitates the efficient resolution of disputes. The court ordered the intervener to pay costs to the applicant in the amount of $10,000.

Orders