PENN and TEEDE
[2022] WASAT 31 (S)
•21 APRIL 2022
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
CITATION: PENN and TEEDE [2022] WASAT 31
MEMBER: JUDGE H JACKSON, DEPUTY PRESIDENT
HEARD: 16 MARCH 2022
DELIVERED : 21 APRIL 2022
FILE NO/S: DR 233 of 2021
BETWEEN: STEPHANIE JANE PENN
Applicant
AND
GLENDA TEEDE
Respondent
Catchwords:
Local Government Elections Qualification of candidates Whether applicant is an elector of the district Whether enrolment on electoral roll sufficient to qualify as elector of the district Whether applicant is 'resident'
Legislation:
Commonwealth Electoral Act 1918 (Cth)
Electoral Act 1907 (WA), s 5F(1)(b), s 17, s 17(1), s 17(2), s 17(3), s 25, s 45, s 48, s 51AA
Guardianship and Administration Act 1990 (WA), s 111
Local Government Act 1993 (NSW), s 266, s 269
Local Government Act 1995 (WA), s 1.4, s 2.19, s 2.19(1)(b), s 2.27, s 2.27(1), s 2.27(3), s 2.27(6), s 2.29, s 2.30, s 4.1, s 4.29, s 4.29(1), s 4.29(2), s 4.30, s 4.31, s 4.32, s 4.37, s 4.38, s 4.40, s 4.48
Parliamentary Electorates and Elections Act 1912 (NSW)
Result:
The Tribunal declares that the applicant is not disqualified to be a member of the council of the Shire.
Category: A
Representation:
Counsel:
| Applicant | : | Mr D J Pratt |
| Respondent | : | Mr B Tomasi |
Solicitors:
| Applicant | : | Avon Legal |
| Respondent | : | Civic Legal |
Case(s) referred to in decision(s):
Abbey Beach Resort Management Ltd v Water Corporation Ltd [2007] WASC 268
Addy v Commissioner of Taxation [2021] HCA 34; (2021) 394 ALR 214
Burnett Shire Council v Galley [2000] QSC 490; (2000) 112 LGERA 93
City of Swan v West Australian Shalom Group Incorporated [2017] WASC 217
Duffy v Da Rin [2014] NSWCA 270; (2014) 87 NSWLR 495
Federal Commissioner of Taxation v Addy [2020] FCAFC 135; (2020) 280 FCR 46
Fix WA Pty Ltd v City of Armadale [2019] WASC356; (2019) 241 LGERA 299
Hafza v DirectorGeneral of Social Security (1985) 6 FCR 444
Laufer v Gear [2021] WASCA 2
Levene v Inland Revenue Commissioners [1928] AC 217
Molluso v Le [2018] NSWCATOD 158
Norman v Norman (No 3) (1969) 16 FLR 231
Scaffidi v Chief Executive Officer, Department of Local Government and Communities [2017] WASCA 222; (2017) 52 WAR 368
REASONS FOR DECISION OF THE TRIBUNAL:
Between 2013 and April 2021 Ms Stephanie Penn (applicant) resided at a property in Bolgart (Bolgart Property), which is located within the district of the Shire of Victoria Plains (Shire).
Since April 2021, for various family reasons including the threat of violence, she has not stayed at the Bolgart Property save for a couple of nights in February this year. Indeed, since July 2021 she has not stayed in the Shire at all save for a couple of nights. Rather, since that time she has divided her time between Kalgoorlie and Jane Brook where various members of her family and inlaws reside.
Since 2013 the applicant has also been a member of the council of the Shire. She was most recently reelected to that position in October 2021.
Ms Glenda Teede (respondent) is the CEO of the Shire. Pursuant to s 2.27(6) of the Local Government Act 1995 (LG Act) she contends that, based on the facts described in para 2 above, the applicant has ceased to be a resident of the of the Shire and, therefore, is disqualified from holding the position of councillor.
Following the giving of notice to that effect by the respondent the applicant applied to the Tribunal for a declaration 'as to whether or not [she] is disqualified' from being elected as a member of the council of the Shire.
The applicant contends that she is not disqualified and relies upon two submissions in support of that contention.
The applicant's primary submission is a legal one. She submits that her enrolment on the electoral roll for the WA Legislative Assembly in respect of the Bolgart Property is sufficient to qualify her to be elected as a councillor of the Shire. Put another way, the applicant says that the Tribunal ought not 'go behind' that enrolment to enquire as to whether or not she is, in fact, resident at the Bolgart Property, being the property in relation to which she is enrolled.
The applicant's secondary submission is a factual one that only arises if the applicant's primary submission fails. The factual submission is that despite not staying there for more than a couple of days since April 2021, the applicant remains a resident of the Bolgart Property.
For the reasons that follow the Tribunal accepts both of the applicant's submissions and declares that the applicant is not disqualified to be elected as a member of the council of the Shire.
Facts
As noted above, the applicant began living at the Bolgart Property[1] in 'early 2013' after it was purchased by Seaflight Nominees Pty Ltd as trustee for the RJ and BA Lockyer Family Trust. The directors of the corporate trustee are the applicant's parents.[2]
[1] The address of the Bolgart Property is disclosed by the applicant in the Affidavit of Stephanie Jane Penn sworn 8 December 2021 (Penn Affidavit). As there is no dispute in that regard and as no benefit would flow from its disclosure, the Tribunal has chosen, out of respect for the applicant's privacy, not to publish the actual address.
[2] Penn Affidavit, paras 12 and 13.
The applicant lived at the Bolgart Property with her parents and her husband from early 2013 until about April 2021. I will return to the events that have occurred since April 2021 in more detail below.
The applicant has also been a member of the council of the Shire since October 2013. She was elected as Deputy President of the Shire in 2013. Since September 2017 she has been an ordinary member of the council of the Shire.[3]
[3] Penn Affidavit, para 6.
On or about 6 September 2021 the applicant submitted, as she was required to do, a Nomination for Election form for what was then the upcoming Shire election.[4] In completing that form she made a series of declarations as to her eligibility for election including that she is:
(a)'an enrolled elector of the Local Government district';
(b)'not disqualified from being a member of the council'; and
(c)'eligible to nominate as a councillor'.[5]
[4] Penn Affidavit, Annexure SJP1.
[5] Penn Affidavit, para 8, Annexure SJP1.
On 18 October 2021 she was reelected unopposed as a councillor for the south ward of the Shire for a further four year term.[6]
[6] Penn Affidavit, para 10.
On 8 October 2021 (that is, shortly prior to the election) the respondent wrote to the applicant and advised that she had 'reason to believe' that the applicant no longer met the requirements for qualification as a member of the council of the Shire.
The basis for that belief was an Annual Return prepared by the applicant and signed and dated 24August 2021[7] (Annual Return) in which the applicant disclosed interests in real property located at 30Glass Street, Kalbarri and 5Godenzi Street, Kalgoorlie but no interest in property located within the district of the Shire. In the Annual Return both the Kalgoorlie and Kalbarri properties were described as 'rental', although it is unclear on the face of that document as to whether by that term the applicant intended to mean that the properties are owned by her and are leased to tenants or, conversely, that the applicant is the tenant of each of them.
[7] Applicant's Bundle of Documents (Applicant's Bundle), DOC2.
By letter dated 9 October 2021 the applicant replied to the respondent's letter and attached various documents in support of her assertion that she remains a resident of the Bolgart Property and that she was landlord of (but not resident of) the Kalbarri and Kalgoorlie properties.[8]
[8] Application for Review lodged 27 October 2021, Attachment 2.
That letter notes that the Annual Return did not indicate that her residential address was either or both of the Kalbarri and Kalgoorlie properties and that, indeed, the Annual Return had been completed in identical form in previous years.
Of particular relevance to the dispute before the Tribunal is the statement in the cover letter that the applicant believed herself qualified to be elected as a member of the council of the Shire because she was enrolled on the electoral roll in respect of the Bolgart Property. In support of that assertion the applicant attached an extract of the Western Australian electoral roll as at 8 October 2021 showing her address as the Bolgart Property.[9]
[9] No subsequent extract from the Western Australian electoral roll has been put before the Tribunal. Copies of an objection lodged by the respondent against enrolment and the Australian Electoral Commission's response to that objection were included as DOC3 and DOC4 to the Applicant's Bundle. They appear to relate to the applicant's enrolment on a roll under the Commonwealth Electoral Act 1918 (Cth) and, therefore, appear to the Tribunal to be irrelevant to the question before it. Critically, no objection was taken by counsel for the respondent to the proposition put at the hearing by counsel for the applicant that there is no dispute that the applicant remains enrolled on the Western Australian electoral roll as an elector for the Legislative Assembly at the address of the Bolgart property and the Tribunal has proceeded on that basis.
Further correspondence passed between the parties on 13October, 14 October, 18October 2021, and 22October 2021.[10] The application to the Tribunal was lodged by the applicant on 27 October 2021.
Issues to be determined
[10] The correspondence exchanged constitutes Attachments 1 to 7 to the Application for Review lodged 27 October 2021.
As noted above, the application seeks a declaration that the applicant is not disqualified and is therefore eligible to be elected as a member of the council of the Shire.
The first issue is whether the applicant's enrolment as an elector for the Legislative Assembly in respect of the Bolgart Property (which is 'in the district') is sufficient to satisfy the requirement of s 2.19(1)(b) of the LG Act that she is 'an elector of the district'. That issue turns on the proper construction of sections 2.19, 1.4 and 4.29 of the LG Act.
The second issue, which arises only if the applicant fails on her primary submission, is whether the applicant remains a resident of the Bolgart Property despite not staying there since April 2021. That issue turns on the meaning of the term 'residence' in s 4.29(1) in the LG Act and the application of the facts to that meaning.
The first issue is enrolment conclusive?
The applicant submits that sections 2.19, 1.4 and 4.29 of the LGAct, properly construed, provide that a person is eligible to be elected as a member of the council of a local government if they are enrolled to vote for the Legislative Assembly in respect of a residence located within the relevant district.
Put another way, the applicant submits that the Tribunal has no power to 'go behind' her enrolment on the State electoral roll and enquire whether she is, in fact, a resident of the Bolgart Property. Rather, she submits that her enrolment on the electoral roll for the Legislative Assembly in respect of the Bolgart property is conclusive of her eligibility to be so elected.
It is therefore necessary to consider the relevant statutory provisions.
Section 2.19(1) of the LGAct provides that a person is qualified to be elected as a member of a council if the person—
(a)is of or over the age of 18 years; and
(b)is an elector of the district; and
[(c)deleted]
(d)is not disqualified for membership of the council under section 2.20, 2.21, 2.22, 2.23 or 2.24; and
(e)is not disqualified by an order under section 5.113, 5.117 or 5.119 from holding office as a member of a council.[11]
[11] There is nothing before the Tribunal to suggest that the applicant is ineligible pursuant to s 2.19(d) or (e) and no more will be said in that regard.
Pursuant to s 1.4 of the LG Act 'elector' is defined as follows:
in relation to a district or ward, means a person who is eligible to be enrolled to vote at elections for the district or ward
Section 4.29 of the LG Act provides that:
(1)A person is eligible to be enrolled to vote at elections for a district or ward (the electorate) if the person is enrolled as an elector for the Legislative Assembly in respect of a residence in the electorate.
(2)For the purposes of subsection (1) a person is to be regarded as being enrolled as an elector for the Legislative Assembly even if his or her name has been omitted in error from the relevant electoral roll under the Electoral Act 1907.
Thus, s 2.19(1)(b) of the LG Act the candidate for election must be 'an elector of the district or ward' is satisfied if the candidate is 'enrolled as an elector for the Legislative Assembly in respect of a residence in the electorate'.
Before turning to the submissions of the parties, it is necessary to note the distinction contained within s 4.29(1) of the LG Act.
The section makes eligibility to vote at elections for a district or ward conditional on enrolment as an elector for the Legislative Assembly.
That is, eligibility at a local level is determined by enrolment at the State level.
By making one conditional on the other, s 4.29 recognises a distinction between the two. While one is conditional upon the other, they are not the same.
That distinction is explained by Subdivision 2 of Division 9 of Part 4 of the LG Act, which is concerned with the preparation of electoral rolls. Section 4.37 of the LG Act requires a new electoral roll to be prepared for each election of councillors.[12] Section 4.38 requires each electoral roll to consist of a residents roll and an owners/occupiers roll. Section 4.40 provides that the residents roll is to be prepared by the Electoral Commissioner and is to include 'the names of all persons who were electors of the district or ward under section 4.29 at the close of enrolments …'.
[12] See the definition of 'election' at s 4.1 of the LG Act.
As noted above, the evidence is that as at 8October 2021 the applicant was enrolled as an elector for the Legislative Assembly in respect of the Bolgart Property and in the absence of any suggestion to the contrary the Tribunal proceeds on the basis that that remains the case.
The applicant submits that that is sufficient to satisfy s 2.19(1)(b) of the LG Act.
By contrast, the respondent's position is that even if a candidate is 'enrolled as an elector for the Legislative Assembly in respect of a residence in the electorate' they are ineligible if they are not, in fact, resident at the relevant property.
In her Statement of Issues, Facts and Contentions (SIFC), the respondent says that despite a candidate's enrolment on the State electoral roll, there is a 'further enquiry [to be undertaken], which is whether the person is properly on the electoral roll for the district'.[13]
[13] Respondent's Statement of Issues Facts and Contentions (Respondent's SIFC) dated 4 February 2022, para 22. (Original emphasis).
The point was made in slightly different terms at the hearing, with counsel for the respondent submitting that the question is whether the person is validly enrolled as an elector.
Despite acknowledging that that submission was 'somewhat unattractive' because it involved 'looking behind' the electoral roll, counsel for the respondent submitted that the Tribunal's focus in the present matter must be on whether the applicant satisfies s 17 of the Electoral Act 1907 (WA) (ElectoralAct).
That section provides as follows:
(1)Subject to the provisions of this Act, any person —
(a)who is —
(i)an Australian citizen; or
(ii)…
and
(b)who has attained 18 years of age; and
(c)who has lived in the same district or sub‑district for at least one month immediately before the enrolment,
is entitled —
(d)to be enrolled as an elector for the Council and the Assembly; and
(e)when so enrolled and while he continues to live in that district or sub‑district, to vote at —
(i)any Council election; and
(ii)any election in the district or the district of which the sub‑district forms part.
(2)Subject to sections 145(7) and 172(1)(c)[14] where an elector enrolled under subsection (1) changes his place of living to another district he may, until his name is transferred to another roll, vote at any Council election, and any election in the district in respect of which his name continues enrolled, if the election is held within 3 months after he has so changed his place of living.
(3)For the purposes of this Act a person shall be deemed to have lived within a district or sub‑district, if he has his usual place of abode therein and notwithstanding his occasional absence from that district or sub‑district and any period of absence from such usual place of abode by a person —
(a)while serving a sentence of imprisonment for an offence; or
(b)while otherwise in lawful custody or detention in relation to an offence,
shall be deemed to be such occasional absence, and that person shall be deemed not to have his usual place of abode at the place of imprisonment or custody or detention, as the case may be.
(4)…
[14] These two subsections are irrelevant for current purposes and nothing more will be said of them.
In her SIFC the respondent contended that, under s 17(2):
a person's entitlement to be an elector of the district in which they are enrolled lapses 3 months after they move their residence from the district. That is to say, although their name appears on the roll of electors, their entitlement to vote no longer exists. In those circumstances, it would be correct to say that the person is no longer "enrolled to vote" in elections with respect to that district.[15]
[15] Respondent's SIFC, para 28.
The Tribunal rejects that contention.
Section 17(2) of the Electoral Act clearly and plainly distinguishes between enrolment and the right to vote. It provides that where a person remains enrolled in respect of a place this is no longer their residence (place of living) they retain the right to vote for only three months after the date that they change their residence.
The section clearly anticipates that a person will change their enrolment to reflect their new residence but it says nothing about the right to be enrolled.
Section 45 of the Electoral Act mandates that a person must, if entitled to do so, enrol within 21 days of becoming eligible to do so. That is, a person commits an offence if they do not change their enrolment to reflect their new residence within 21 days of the change.
But s 17(2) makes clear that the failure by a person who has shifted residence to update the roll to reflect their new address pursuant to s 45 does not affect the right to vote in elections held in respect of their previous address until the expiry of a period of three months.
The distinction under s 17(2) between enrolment and the right to vote is consistent with s 17(1) of the Electoral Act, paragraphs (d) and (e) of which provide that a person satisfying paragraphs (a), (b) and (c) is entitled to (first) be enrolled; and (secondly) vote, but the right to vote only exists where the person is both enrolled and 'while he continues to live in that district'.
That is, enrolment is a necessary but not sufficient precondition to vote. The right to vote requires that you be enrolled to vote in the district and that you live in the district.
In the Tribunal's view the choice of language in s 4.29(1) of the LG Act to refer to enrolment is deliberate. The criteria of eligibility for enrolment to vote at elections for a district or ward is enrolment as an elector for the Legislative Assembly. It is not the right to vote at an election for the Legislative Assembly.
In her SIFC the respondent also relied upon the decision of the Court of Appeal in Scaffidi.[16]
[16] Scaffidi v Chief Executive Officer, Department of Local Government and Communities [2017] WASCA 222; (2017) 52 WAR 368.
That decision concerned allegations that Ms Scaffidi breached various obligations under the LG Act related to the receipt of gifts, their disclosure and similar matters while she was Lord Mayor of the City of Perth. In setting out the statutory framework the Court briefly described the constitution of local governments and councils. At paragraph [21] of its reasons, it held that:
A candidate for councillor or mayor must be an elector of the relevant local government district.[17] This requires the candidate to be a resident of, or owner or occupier of rateable property in, the district.[18] These requirements increase the prospect that council's decisions will have a personal impact on the financial position of the council member.
[17] LG Act, s 4.48 (Footnote in original).
[18] LG Act, s 4.29 and s 4.30 (Footnote in original).
That is, the Court held that in order to be an elector of the relevant district (pursuant to s 2.19, which is referenced in s 4.48), one must be a 'resident' pursuant to s 4.29 of the LG Act.
Plainly, given its provenance, the Tribunal must give the passage suitable weight. But the passage is not binding on the Tribunal because it does not form part of the ratio of the decision. Indeed, it might properly be described as no more than a passing remark by way of background as it had no bearing at all on the question before the Court as to the appropriateness of gifts accepted and associated declarations (or lack thereof) by Ms Scaffidi.
Certainly, in the Tribunal's view, the passage cannot be said to support the proposition that s 4.29 allows an enquiry into the actual place of residency of a candidate despite that candidate's enrolment on the electoral roll. Indeed, the respondent's SIFC did not go so far and counsel for the respondent did not refer to the passage at the hearing at all.
The respondent makes several other submissions in support of her case which go to the construction of s 4.29 of the LG Act.
Most strongly it is said that the 'purpose of local government is to ensure that decisions that affect people within the local government are made by people who have a stake in the outcome of those decisions' and that the statutory purpose of the LG Act is that 'councillors are duly enrolled electors of the place in which they are standing for election'. It is said that that ensures 'people who do not have any relevant connection to the local government area are not able to impose their views and preferences on people who are resident in the district'.[19]
[19] Respondent's SIFC, para 24.
The Tribunal agrees with the respondent in that regard. Such an approach is consistent with the last sentence in the above-quoted passage from Scaffidi. The purpose of s2.19(1)(b) is to ensure that the elected representatives of a district are drawn from the group of people who are eligible to vote in the relevant election, which group, in turn, comprises those who ordinarily reside in that district.
But that does not require, or even allow, that the CEO under s 2.27(3) (or the Tribunal under s 2.27(6)) of the LG Act may go behind the electoral roll to ascertain the 'truth' of a candidate's residency.
That is because the task of ensuring that those who are eligible to vote are resident in the district falls to the Electoral Commissioner.
So much follows from the fact that s 4.29 of the LG Act is founded on enrolment as an elector for the Legislative Assembly, which concerns the electoral roll for the State.
The maintenance of the State electoral roll is the task of the State Electoral Commissioner.[20] The Commissioner must also (as above) create a new residential electoral roll for each local government election, which is, significantly, simply the State electoral roll as at a certain date prior to the relevant council election. [21]
[20] Electoral Act, s 5F(1)(b).
[21] LG Act, s 4.40.
In those circumstances the statutory purpose as found above is entirely consistent with the applicant's case.
That is, the purpose of ensuring that elected representatives are drawn only from residents of the relevant ward or district is satisfied by empowering the Electoral Commissioner to enrol only those people whom s/he is satisfied are resident in the district or ward.
That purpose does not require the Shire's CEO be empowered to 'second guess' the Electoral Commissioner.
In the Tribunal's view such a proposition would require clear statutory language to support it.
However, in the Tribunal's view there are several textual and contextual indicators that suggest against that proposition.
First, as the applicant submitted, the ordinary meaning of the phrase 'is enrolled as an elector …' in s 4.29 of the LG Act suggests against a construction of the section which would have those words effectively mean 'is eligible to be and is enrolled …'.
Counsel for the respondent candidly acknowledged that the respondent's case required verbal 'gymnastics' but said that, contrary to the applicant's suggestion, the only necessary import to the terms of s 4.29 was 'validly' i.e. the section should be construed so as to read 'is validly enrolled as an elector …'.
In seeking to make that submission, counsel for the respondent acknowledged that each of s 17(1)(a), (b) and (c) of the Electoral Act are satisfied by the applicant and, therefore, she is 'entitled to be enrolled'.
But, it was said, s 17(1)(e)(ii) of the Electoral Act requires that the person in question must both be so enrolled and continue to live in the district.
In the Tribunal's view, to focus on s 17(1)(e)(ii) of the Electoral Act identifies the flaw in the respondent's case.
That is because, as noted above, s 17(1)(e)(ii) of the Electoral Act is concerned with the right to vote and not the right to be enrolled. Given s 4.29 of the LG Act makes eligibility to be enrolled to vote at elections for a district or ward conditional upon enrolment as an elector for the Legislative Assembly, the focus on the right to vote a separate question altogether is misplaced.
Secondly, s 4.29(2) of the LG Act expressly provides for very limited circumstances in which the question of someone's eligibility is not conclusively determined by their status as enrolled or not on the electoral roll for the Legislative Assembly. That subsection (reproduced above) provides that where a person's name has been omitted in error from the roll, a person 'is to be regarded as being enrolled as an elector for the Legislative Assembly' despite that error.
In the Tribunal's view that suggests against the implication of an unstated power of greater breadth to 'go behind' the electoral roll. That is, the Tribunal takes the view that by s 4.29(2) of the LG Act, the legislature has determined and expressed the full extent of the circumstances in which the electoral roll is not conclusive as to the eligibility of a person to be enrolled to vote.
Thirdly, as was put by counsel for the applicant, a power invested in the CEO or Tribunal under s 2.27 of the LG Act to look behind the electoral roll gives rise to a real risk of findings that are inconsistent with findings made by the Electoral Commissioner under s 48 of the Electoral Act.
That section provides for an objection to be taken to 'any name on the roll for a district' by either an 'elector enrolled on the same roll' or an 'enrolment officer'. In each case the section provides a thorough regime for determination of the objection including the listing of the issue for a hearing by the Electoral Commissioner for which the elector must be given notice.
In responding to the applicant's submission as to potential inconsistency, counsel for the respondent initially submitted that, on the respondent's case, a declaration by the Tribunal under s 2.27 of the LG Act would have no effect on the enrolment of the candidate on the electoral roll. That is, it was submitted that the power under s 2.27 of the LG Act goes only to the LG Act entitlement. In the words of counsel for the respondent, the power to declare under s 2.27 of the LG Act was the 'limit of the power'.
But when pressed, counsel did acknowledge, and correctly in the Tribunal's view, that the respondent's case allowed for the possibility of inconsistency between the two regimes.
That must be so. On the respondent's case the Tribunal would declare that the applicant is disqualified on the basis that she is 'not qualified under s 2.19(1)(b)' because she is not an 'elector of the district' and that is so because she is not '[validly] enrolled as an elector for the Legislative Assembly'. Such an outcome would be directly inconsistent with a finding to the opposite effect by the Electoral Commissioner should the respondent object under s 48 of the Electoral Act.
Fourthly, as the applicant submits, s 51AA of the Electoral Act expressly provides for circumstances in which the Electoral Commissioner is bound by a decision of the Tribunal. That section provides that the Commissioner is bound to remove the name of an elector from the roll upon receipt of a declaration by the Tribunal under s 111 of the Guardianship and Administration Act 1990 (WA) that the person lacks the mental capacity to vote.
In the Tribunal's view this submission provides some considerable support for the applicant's case for at least two reasons. First, an express provision by which the Tribunal can determine the composition of the electoral roll militates against the view that a similar power ought to be implied. Secondly, the approach taken in s 51AA of the Electoral Act is for the Tribunal's finding of incapacity to be acted upon by the Commissioner; it is not for the Tribunal's finding to prevail over the contents of the electoral roll.
That is, s 51AA of the Electoral Act proceeds on the basis that the Commissioner is the custodian of the State electoral roll and the disturbance of that roll by an external body such as the Tribunal is to occur only through the Commissioner. That is, the section supports the view that one does not go behind the electoral roll to determine the 'truth'. Rather, one takes the electoral roll at face value and any challenge to the presence of a name on the roll must be on the basis that the person has the right to be enrolled.
In that regard there appears to be a close analogy with the process for objection under s 48 of the Electoral Act. In that case, one asks the Electoral Commissioner to enquire as to whether there is a right to be enrolled and, if not, for the enrolment to be removed. The corollary of that approach is that it is inapposite to speak of looking behind the roll to ascertain the 'true' situation.
Before concluding, it is necessary to address the question of sections 4.30 4.32 of the LG Act, which allow a person who is enrolled as an elector outside the electorate, but who claims to be the owner or occupier of rateable property located within the electorate, to put that claim to the CEO for determination as to whether or not they are therefore eligible to be enrolled to vote for a district or ward. If the person is dissatisfied by the CEO's decision an appeal lies to the Electoral Commissioner.
The applicant submits that that right of appeal supports her case in that 'at least in that instance Parliament has made clear' that any question as to whether a person is an 'elector' is one to be decided by the Electoral Commissioner.
That may be correct but while the sections provide the Electoral Commissioner to be the ultimate arbiter of eligibility for enrolment on the electoral roll, that only arises upon an appeal (which may not be taken up by an unsuccessful applicant) and, perhaps more relevantly, they provide for the CEO to enquire (albeit upon application) into eligibility, which the applicant submits is not the case for s 4.29.
However, not too much should be made of those sections because they are concerned only with eligibility for enrolment on the owners and occupiers roll, which only exists under the LG Act and which has no relationship with the roll established for the Legislative Assembly (from which the residents roll is created) save that one cannot be on both that roll in relation to the electorate and the owners/occupiers roll.
One final point must be addressed in this regard. It is the meaning of the phrase 'in respect of a residence' in s 4.29 of the LG Act.
At the hearing, counsel for the respondent appeared to concede, somewhat surprisingly, that the term 'residence' in that phrase was a noun and not a verb.
Without holding the respondent to it, the Tribunal finds that the concession was correct.
In the Tribunal's view, the phrase 'in respect of a residence' appears to crossreference the provisions of s 17(1)(c) of the Electoral Act which requires that a person must have 'lived in' the same district for at least one month in order to be entitled to be enrolled. 'Lived in' means that the person has 'his usual place of abode' within the district and a person's entry on the electoral roll is accompanied by the relevant address.
However, the fact that s 4.29 of the LG Act refers to a 'residence' does not mean that there is an ability to enquire into whether the address on the roll is, in fact, the person's residence. Rather, for the reasons detailed above, the Tribunal finds that the presence of a person on the electoral roll for the Legislative Assembly in relation to a residence located within the district is conclusive evidence of the fact that the person is 'enrolled as an elector for the Legislative Assembly in respect of a residence in the electorate'.
In so finding, the Tribunal takes comfort from the recent decision of the NSW Civil and Administrative Tribunal (NCAT) in MollusovLe.[22]
[22] Molluso v Le [2018] NSWCATOD 158.
That decision concerned an allegation by Mr Molluso that Ms Le was not a resident in the ward and that there had therefore been an 'irregularity' in her election as a councillor. The NCAT held that there had been no irregularity.
The two critical sections in Molluso were s 266 and s 269 of the Local Government Act 1993 (NSW). At all relevant times those sections provided as follows:[23]
[23] Section 269 was amended in July 2018, after the hearing before the NCAT in Molluso.
266Who has the right to be enrolled as an elector?
(1)A person who is entitled to vote at an election of members of the Legislative Assembly or an election of members of the Commonwealth House of Representatives is entitled to be enrolled as an elector for a ward if:
(a)he or she is a resident of the ward, or
(b)he or she is not a resident of the ward but is an owner of rateable land in the ward, or
(c)he or she is an occupier, or ratepaying lessee, of rateable land in a ward.
269Who is a "resident" for the purposes of this Part?
(1)For the purpose of this Part, a person is a resident of a ward if:
(a)the person is, within the meaning of the Parliamentary Electorates and Elections Act 1912, enrolled on the roll for an electoral district, and
(b)the person's place of living as described on that roll is in the ward or (in the case of a person whose place in living is not described on that roll) the person's place of living is in the ward.
(2)(Repealed)
(3)In this section, place of living includes the place of residence to which a person temporarily residing elsewhere intends to return in order to continue living there.[24]
[24] Original emphasis.
It is to be noted that, while the language is not identical, the provisions are similar, and clearly seek to achieve a comparable purpose to, that of sections 2.19 and 4.29 of the LG Act.
The Tribunal in Molluso noted the earlier decision of the NSW Court of Appeal in Duffy[25] (which the respondent in the present case referred to and relied upon). In Duffy at [24] Basten JA[26] noted:
… a potential discrepancy between the two limbs of s 269(1)(b). Under the first limb, the requirement appears to be that the person's place of living as described on the roll is in the ward (or area). The second limb, however, requires that the person's place of living be in the ward (or area), which allowed a factual challenge on the basis that the place of living was not in the ward. Because no copy of the roll was put in evidence before the tribunal, it may be assumed that the proceedings were conducted on the basis of the second limb.
[25] Duffy v Da Rin [2014] NSWCA 270; (2014) 87 NSWLR 495.
[26] Meagher and Ward JJA agreed with Basten JA.
His Honour returned to the issue at [33] and [34]:
33Nevertheless, at least in one respect the language of s 269(1) is unclear. On one view, if the relevant electoral roll describes a 'place of living' for a person, which is within the relevant ward, that may be an end of the matter. If it does not, there will be a factual question as to whether the person's place of living is in the ward. The alternative construction requires that the factual question be answered in each case. Thus, if as a matter of fact the person's place of living is not the place described on the roll, the first limb is not satisfied: that an address within the ward is described on the roll is beside the point. On that approach, both limbs depend upon the correct identification of the "place of living".
34The second interpretation seems to render the first limb of par (b) otiose. However, the first interpretation would render a statement on the electoral roll sufficient, whatever the true factual situation, although objection could be taken under the State Elections Act,[27] s 32. That intention is by no means clearly expressed. A third possibility is that the electoral roll is determinative if the location described is within the relevant ward, but not if it is outside the ward. In the latter case, a person can, nevertheless, demonstrate the factual circumstances which satisfy a place within the ward. As a practical matter that construction is unattractive: the apparent intention of the legislative scheme for elections is to allow people to place themselves on a roll for a particular ward, which will allow them to vote in that ward. On the manner in which the case was run in the tribunal, it is not necessary for this court to resolve these questions.
[27] The reference to the State Elections Act is a reference to the Parliamentary Electorates and Elections Act 1912 (NSW).
The uncertainty identified by Basten JA in Duffy was not resolved by the Court in that case.
The NCAT in Molluso found at [90] that the issue had not been addressed by any subsequent decision of the Court. It held that the 'first interpretation identified by his Honour' was the preferred construction. That is, the NCAT held that if the relevant electoral roll describes a 'place of living' for a person, which is within the relevant ward, that is the end of the matter. At [90] and [91] the NCAT said:
90… that interpretation has the consequence that the statement of an elector's address on the electoral roll satisfies the requirements of par (b). We consider, with respect, that the legislative intent is made tolerably clear by the text of the clause. Provided the roll "describes" the elector's place of living, subject to the observation we next make, no further inquiry as to that entry is required. Such a consequence is unsurprising, given the integrity expected of the information recorded in a public document in the form of the [State] electoral roll.
91That interpretation does not have a perverse or apparently unintended consequence, given the entitlement created by s 32 of the State Elections Act[28] for objection to be made to an entry on the State electoral roll, including an address, with a process available for determination of dispute in the event of such objection. In that context, it is important to notice that a copy of the electoral roll is required to be available "for public inspection without fee" at any time "during ordinary office hours": s 39 State Elections Act. By so providing, the latter section facilitates exercise of the entitlement to object under s 32.
[28] The reference to the State Elections Act is a reference to the Parliamentary Electorates and Elections Act 1912 (NSW).
As noted above, s 48 of the Electoral Act provides for a process of objection to the entry on the WA electoral roll. Equally, s 25 of the Electoral Act provides for public inspection of the WA electoral roll. As such, each of the reasons given in Molluso apply to the present case.
For these reasons the Tribunal finds that enrolment on the electoral roll for the Legislative Assembly is conclusive for the purposes of s 2.19(1)(b) of the LG Act and, therefore, the applicant is not disqualified from being a member of the council of the Shire because she is an 'elector of the district'.
The second issue is the applicant, in any event, a resident of the district?
The Tribunal's findings in relation to the first issue render it unnecessary to address the second issue but it is appropriate to do so given the time and effort associated with the production of evidence and the making of submissions in that regard, and in case I am wrong in my findings above.
As noted above, s 17(1)(c) of the Electoral Act requires that a person 'has lived in' the district for a least one month immediately before enrolment. Section 17(2) provides that a right to vote expires three months after a person has changed their place of living. Section 17(3) provides that a person will be deemed to have lived in the district 'if he has his usual place of abode therein'.
A person's 'usual place of abode' is the usual definition of 'residence'.[29] In ordinary parlance, a person's 'usual place of abode' is the person's 'home'.
[29] City of Swan v West Australian Shalom Group Incorporated [2017] WASC 217 at [78].
In my view, notwithstanding the fact that the applicant has not stayed at the Bolgart Property for more than a couple of nights since last April, it remains her 'place of living'. It remains her home.
There are many decisions on the statutory meaning of 'resident' and cognate terms.
Mr Pratt for the applicant relied upon the recent decision of Addy.[30] In that case the Full Court of the Federal Court continued a long line of authority to the effect that 'the nature, duration and quality of the person's physical presence in a particular place, as well as their intention, are relevant to determining whether an individual resides there'.[31]
[30] Federal Commissioner of Taxation v Addy [2020] FCAFC 135; (2020) 280 FCR 46.
[31] Addy at [75]. In Addy v Commissioner of Taxation [2021] HCA 34 the High Court overturned the decision of the Full Federal Court but not on the matters with which we are currently concerned.
In doing so, the Court quoted with approval from the decision of Hafza[32] in which Wilcox J said as follows:
Physical presence and intention will coincide for most of the time. But few people are always at home. Once a person has established a home in a particular place even involuntarily: see Commissioners of Inland Revenue v Lysaght [1928] AC 234 at 248; and Keil v Keil [1947] VLR 383 a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place Levene v Inland Revenue Commissioners [1928] AC 217 at 225 and Judd v Judd (1957) 75 WN (NSW) 147 at 149 together with an intention to return to that place and an attitude that that place remains "home": see Norman v Norman (No 3) (1969) 16 FLR 231 at 235). … [W]here the general concept is applicable, it is obvious that, as residence of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as "home", a change of intention may be decisive of the question whether residence in a particular place has been maintained.
[32] Hafza v DirectorGeneral of Social Security (1985) 6 FCR 444, 449.
Wilcox J refers, amongst other things, to the House of Lords decision in Levene.[33] In that case their Lordships were concerned with whether MrLevene had been resident in the United Kingdom for certain years in circumstances where between March 1918 and January 1925 MrLevene had not had a fixed place of abode but stayed in hotels in both the UK and abroad. Viscount Cave endorsed the matters taken into account by the relevant Commissioners who found that MrLevene had remained a resident of the UK. The relevant factors included MrLevene's 'past and present habits of life, the regularity and length of his visits here, his ties with this country, and his freedom from attachments abroad'.
[33] Levene v Inland Revenue Commissioners [1928] AC 217.
As noted above, Hafza has been relied upon and referred to with approval by several Western Australian decisions including Abbey Beach[34] and, more recently, Fix WA.[35]
[34] Abbey Beach Resort Management Ltd v Water Corporation Ltd [2007] WASC 268 at [30] [34].
[35] Fix WA Pty Ltd v City of Armadale [2019] WASC 356; (2019) 241 LGERA 299.
The latter case concerned an appeal from conviction in relation to a development in which it was said two separate dwellings were created within the one unit. In construing the term 'dwelling' Hill J upheld the decision of the learned Magistrate, who found that two separate portions of the property were being used for the purpose of human habitation on a permanent basis. Her Honour held that the reference to 'permanent' was a reference to the use of the building and not to the works that had been carried out. Her Honour held that the construction was:
consistent with the accepted definition of "reside" which is the place at which a person dwells permanently or, to put it another way, the place where a person has an intention to return and an attitude that it is their "home"'.[36]
[36] Fix WA, at [88] (underlining added, citations omitted).
Addy, Levene and Hafza are all taxation (or social security) cases, concerned with whether the taxpayer is or was resident in the relevant country for relevant purposes.
Counsel for the respondent submitted that taxation cases are concerned with a comparative exercise whether the taxpayer is more of a resident in one country than another. He submitted that greater weight should be given to cases such as Duffy and Galley[37] both of which are concerned with eligibility for election.
[37] Burnett Shire Council v Galley [2000] QSC 490; (2000) 112 LGERA 93.
There may be some strength to that submission. Plainly, the relevant legislative purpose will affect the weight to be given to different factors. The passage from Hafza cited above says as much. Similarly, and much more recently, the WA Court of Appeal said the following in Laufer:[38]
26The process of construction begins with a consideration of the ordinary and grammatical meaning of the words of a provision having regard to their context and legislative purpose. The word 'resident' and its cognate expressions are used in different statutory contexts with different meanings. Thus, for example, it has been held that a residence which would be sufficient for the purpose of service would not be such as to bring a foreign corporation within the operation of a taxing statute.
27Accordingly, the courts have approached the meaning of 'resident' in a statute having regard to the context in which it is used and the purpose or object of the enactment.
28The word 'resident' and cognate expressions are not terms of art but, rather, 'of very flexible meaning, acquiring whatever precision they have in any given case from their surroundings'. The term 'resident' is 'very flexible in meaning, and easily controllable by the subject matter and the context in which it is found'. …
[38] Laufer v Gear [2021] WASCA 2 at [26] [28] (footnotes omitted).
It may be the case that the relevant legislative purpose in election cases requires greater emphasis to be placed on physical presence rather than intention than might be the case as in, say, taxation cases. But even that statement may take the matter further than the cases suggest.
While Hafza was a social security case, the passage quoted above refers to several matrimonial cases such as Norman[39] where the question was whether the petitioner wife was resident in England for the period of three years prior to the petition sufficient to ground jurisdiction.
[39] Norman v Norman (No 3) (1969) 16 FLR 231.
Equally, the Western Australian cases of Abbey Beach and FixWA are not taxation cases.
Indeed, the point which the respondent sought to make is not immediately apparent in the (electoral) cases relied upon by her in this regard.
In Duffy the NSW Court of Appeal held that '[h]istorical, cultural or familial ties to a particular place may help establish that it is a place of living even when the person who claims to live there is not physically present'.[40]
[40] Duffy at [54].
Further, the Court found that the relevance of particular evidence will depend on the issue identified by the parties.[41]
[41] Duffy at [54].
In this case the issue which has brought this matter to the Tribunal is the allegation that the applicant no longer lives at the Bolgart Property. As noted in para 2 above, the evidence is clear that it is for family reasons, including the threat of violence from her mother who lives at the Bolgart Property, that the applicant left the Bolgart Property and which prevent her from returning.
In the Tribunal's view, the reasons for the applicant's absence are critical in determining whether or not the Bolgart Property is her 'home'.
In her affidavit sworn 8 December 2021, the applicant deposes that:
(a)she and her husband have resided at the Bolgart property since 2013.[42] Between 2013 and April 2021 the applicant lived at the property and worked in the management of the agricultural activities undertaken on it;
(b)between 2013 and 2021 '[t]here were periods of time where [the applicant] stayed in Perth to help [their] children with their schooling or in Kalgoorlie to be with [her husband's] parents, however [the applicant has] always considered Treehaven [being the Bolgart Property] as [her] home since 2013';[43]
(c)on 18 January 2019 a Deed of Acknowledgment was entered into between the applicant, her husband and Seaflight Nominees Pty Ltd as the corporate trustee, which acknowledges that the applicant and her husband had, at that stage, earned a 7.5% interest in the Bolgart Property as a result of their work and that they would continue to earn a further interest for each completed year of service;[44]
(d)as a result of discussions regarding the applicant's inlaws, her mother became increasingly aggressive towards her, such that in or around April 2021 she and [her husband] feared sufficiently for their safety to leave;[45]
(e)between approximately April 2021 and July 2021 the applicant and her husband stayed in a caravan on land close to the Bolgart Property;[46]
(f)since July 2021 the majority of the applicant's time has been spent in Kalgoorlie as a result of acting as both the primary carer for her husband's parents as well as providing some care for her son who was involved in a very serious traffic accident. In addition to her time in Kalgoorlie she deposes that she has also spent time in a house in Jane Brook and in 'various accommodation' near the Bolgart Property;[47]
(g)despite that time away from the Bolgart Property and despite the majority of her time April 2021 (and particularly since July 2021) being spent in Kalgoorlie, the applicant says that she does not plan on staying in Kalgoorlie or Jane Brook permanently and her plan is to return to the Bolgart Property 'once it is safe for me';[48]
(h)she considers that the Bolgart Property is her 'residence and [her] home' and that she has 'no other permanent place to live',. She deposes that the majority of her belongings remain at the Bolgart Property and that she intends to return to the Bolgart Property permanently as soon as her mother ceases to do so;[49] and
(i)'the only reason why [she is] not currently residing at the Bolgart Property, is because of the fear of violence from [her] mother' and that 'Treehaven is [her] home, and [she wants] to be back there as soon as [she] can'.[50]
[42] Penn Affidavit, para 15.
[43] Penn Affidavit, para 17.
[44] Penn Affidavit, para 19.
[45] Penn Affidavit, paras 2023.
[46] Penn Affidavit, para 24.
[47] Penn Affidavit, paras 2527.
[48] Penn Affidavit, para 28.
[49] Penn Affidavit, paras 3033.
[50] Penn Affidavit, paras 3435.
The applicant was not seriously challenged in this regard in cross examination.
Indeed, an answer given by her to a question reinforced the position. In answer to a question as to what place she would be referring to if she said to her husband that she was 'going home', she answered 'if I said "we're going home" I'd be referring to [the Bolgart Property]'.
She also said in examination in chief that she had visited the Bolgart Property for a couple of days in February this year and in doing so had 'visited [her] dogs' who remain at the property.
The Full Federal Court in Addy held at [76(c) and (d)] (consistent with the above quotation from Hafza) that:
(c)Once a person has a home in a particular place they do not necessarily cease to be a resident there merely because they are physically absent. The determinative question is whether they have retained a continuity of association with the place, together with an intention to return to that place which they consider remains their "home".
(d)Determining a person's "continuity of association" in a particular place requires a consideration of all the relevant circumstances, including whether they have retained in that locale a physical home to which they can return, a family unit, possessions and relationships with people and institutions.
In the Tribunal's view there is nothing in the particular statutory context that allows or requires a different approach to be taken in this case.
Further, in the Tribunal's view, the reference in paragraph [76(d)] of Addy to 'all of the relevant circumstances' going to the person's intention to return to their 'home' must include the reasons for their departure.
That must be the case because, as in this case, a reluctant but forced departure from a home may well provide a sound basis to conclude that subsequent statements as to an intention to return are genuinely held.
In this case the Tribunal find that that is so. The applicant did not leave the Bolgart Property willingly. She did so out of fear for her safety. Despite that fear she says she intends to return. Her intention to return is demonstrated by the fact that the majority of her belongings (and her dogs) remain at the Bolgart Property.
The applicant was not able to say when she thought that she may be able to return. Plainly, on the evidence, that will not be able to occur while the threat to her safety remains.
Counsel for the respondent submitted that a person cannot be considered a resident of a property unless they can state with some degree of certainty when they will return to 'live' at that property.
The Tribunal rejects that submission. Natural disasters (and other similar circumstances beyond a person's control) may make it impossible to state with certainty when a person will return to live at a property but that ought not tell against a finding that they remain 'resident' of that property while they await more favourable conditions.
The reason for the applicant's departure, and her stated intention to return (confirmed by the ongoing presence at the Bolgart Property of most of her possessions) tell strongly in favour of this ongoing 'residence' at that place.
So too does her ongoing 'connection' to it and the community surrounding it. That connection is evidenced by the presence of her parents who remain at the Bolgart Property together with her belongings and her dogs as well as her 'interest' in the property and that of her husband which they have earned by their work on and for the benefit of the land and which they continue to have a right to increase by further such work.
That connection is also evident in the applicant's continuing involvement with community organisations. Her evidence in this regard was initially set out in her affidavit and to the effect that things had changed a little since the date that that document was sworn she updated it by viva voce evidence at the hearing. Again, there was nothing in cross examination which seriously challenged her in this regard. The Tribunal therefore accepts that:
(a)in 2020 and 2021 the applicant held the position of President of the Bolgart branch of the Country Women's Association and in 2022 she continues to be a member and attend meetings in person;
(b)she is a member of the Bolgart Progress Association Inc. of which she was elected President on 2 October 2021; and
(c)she was appointed to the role of Justice of the Peace for the Bolgart area in July 2021 in response to a request by the local community.
For these reasons the Tribunal is satisfied that although the applicant does not appear to have 'lived' at the Bolgart property since approximately April 2021, it remains her 'residence' for the purposes of s 4.29(1) of the LG Act.
The Tribunal therefore declares, pursuant to s 2.27(6) of the LG Act, that the applicant is not disqualified to be a member of the council of the Shire.
I will hear the parties as to any other orders that ought to be made.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MC
Associate to Deputy President Judge Jackson
21 APRIL 2022
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: PENN and TEEDE [2022] WASAT 31 (S)
MEMBER: JUDGE H JACKSON, DEPUTY PRESIDENT
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 15 AUGUST 2022
FILE NO/S: DR 233 of 2021
BETWEEN: STEPHANIE JANE PENN
Applicant
AND
GLENDA TEEDE
Respondent
Catchwords:
Costs Local Government Elections Costs application partially allowed Respondent to pay a contribution to applicant's costs
Legislation:
Electoral Act 1907 (WA)
Legal Profession (State Administrative Tribunal) Determination 2020 (WA)
Local Government Act 1995 (WA), s 2.19(1)(b), s 2.27, s 4.29(1), s 9.7
State Administrative Tribunal Act 2004 (WA), s 9, s 87
State Administrative Tribunal Rules 2004 (WA), r 42
Result:
Respondent to pay a contribution of $10,000 to the applicant's costs
Category: B
Representation:
Counsel:
| Applicant | : | N/A |
| Respondent | : | N/A |
Solicitors:
| Applicant | : | Avon Legal |
| Respondent | : | Civic Legal |
Case(s) referred to in decision(s):
Legal Profession Complaints Committee and Chang [2019] WASAT 67 (S)
Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S); (2012) 80 SR (WA)
Penn and Teede [2022] WASAT 31
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32; (2016) 213 LGERA 81
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction and Overview
On 21 April 2022 I delivered my reasons in this matter, the result of which was that the applicant, Ms Penn, was declared to be not disqualified to be a member of the council of the Shire of Victoria Plains (Shire).
The background to this matter is set out in the substantive reasons[51] and it is not necessary to repeat it in detail. The short point is that Ms Teede, as the CEO of the Shire, having formed the view that Ms Penn was disqualified pursuant to s 2.27(3) of the Local Government Act 1995 (WA) (LG Act), gave Ms Penn notice to that effect. Ms Penn then sought to persuade Ms Teede that she was, in fact, qualified. However, those attempts were unsuccessful and Ms Teede remained unconvinced. Both sides engaged solicitors and, through them, engaged in the exchange of correspondence after which Ms Penn commenced these proceedings, which Ms Teede defended.
[51] Penn and Teede [2022] WASAT 31.
Ms Penn now says that the position taken by Ms Teede, both before and after the application was lodged, was unreasonable and, on that basis, seeks her costs.
In my view, whilst I ultimately found Ms Teede's position to be incorrect in both law and fact, I do not think that the position that she took was unreasonable.
Ms Penn also says, in effect, that it would be unfair if she was to bear her own costs. I tend to favour that argument and will order that Ms Teede is to pay part of the costs of Ms Penn in the sum of $10,000.
Statutory Regime and Relevant Principles
The Tribunal's jurisdiction to award costs is created, and limited, by relevant statutory provisions. The LG Act is silent as to the question of costs in a review brought pursuant to s 9.7 of that Act and it is therefore to s 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) to which one must turn. That section relevantly provides as follows:
(1)Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
(2)Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party …
…
(5)The rules may deal with the effect of certain offers to settle, and responses, if any, to the offer, on the making of an order for the payment by a party of the costs of another party.
…
In Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32; (2016) 213 LGERA 81 (Questdale), the Court of Appeal held that the effect of s 87(1) of the SAT Act is that the presumptive position in proceedings before the Tribunal is that each party is to bear its own costs such that the 'usual order as to costs' in curial litigation (that a successful party is prima facie entitled to their costs) generally has no application to proceedings in the Tribunal.[52]
[52] Questdale at [46] [50].
The Court also held that in determining an application under s 87(2) for a party to pay another party's costs the question is whether, in the particular circumstances of the case, it is fair and reasonable that a party be reimbursed for costs that it incurred[53] and that the onus in an application for costs is borne by the party seeking that order to establish why the Tribunal ought to depart from the presumptive position.[54]
[53] Questdale at [51].
[54] Questdale at [51].
Critically, for present purposes, the Court's decision makes clear that while all of the facts and circumstances will be relevant to the exercise of the Tribunal's discretion under s 87(2) of the SAT Act,[55] in the ordinary course, two relevant facts and circumstances will be:
a)the nature of the jurisdiction being exercised including, as was the case in Questdale and as is also the case here, the fact that the jurisdiction arises as the result of an unilateral decision by a governmental department or agency which the applicant had little choice but to challenge;[56] and
b)whether or not, in its conduct in the proceedings, the unsuccessful party has acted unreasonably or otherwise impeded the Tribunal's pursuit of its objectives under s 9 of the SAT Act to have the proceedings determined fairly and in accordance with the substantial merits, with as little formality and technicality as possible, and in a way which minimises the costs to the parties.[57]
The Applicant's Submissions
[55] Questdale at [9] per Martin CJ; at [49] per Murphy JA; at [75] per Corboy J.
[56] Questdale at [9] per Martin CJ; at [53] per Murphy JA; at [75] per Corboy J.
[57] Questdale at [54] per Murphy JA; at [1] per Martin CJ; at [75] per Corboy J.
As noted above, the principal basis on which the applicant sought her costs is that Ms Teede has acted unreasonably, both prior to and during these proceedings.[58] That submission was put on two grounds. First, it was said that Ms Teede was unreasonable in failing to give Ms Penn a written notice under s 2.27(5) of the LG Act.[59] That section provides that the CEO 'is to give the member a written notice' that the CEO is satisfied that the member is not disqualified, if that is in fact the case.
[58] Applicant's Submissions As To Costs (Applicant's Submissions), para 7.
[59] Applicant's Submissions, para 7(a).
The second basis on which it was said that Ms Teede acted unreasonably was that, having failed to give any notice under s 2.27(5), she maintained that she had a statutory function or duty to appear and test (and thereby contradict) Ms Penn's claim to a declaration when she had no such duty and the application had been triggered by her own unreasonable conduct.[60]
[60] Applicant's Submissions, para 26(c). Also, para 7(b).
In effect, under each of the two grounds Ms Penn submits that Ms Teede has acted unreasonably in failing to be persuaded that she (Ms Penn) was not disqualified. So much is apparent from paragraph 19 of the Applicant's Submissions which, after referring to the various documents provided by Ms Penn to Ms Teede in support of her contention that she remained a resident of the Bolgart property, states:
If Ms Teede had genuinely decided the issue on its merits, she would have concluded that the Kalbarri and Kalgoorlie properties were rentals, and that Ms Penn was not disqualified from being a member of the council.
In my view, there is nothing to suggest that Ms Teede failed to 'genuinely decide the issue on its merits'. Neither is it correct to say that (after Ms Penn's letter of 9 October 2021) she failed to conclude that the Kalbarri and Kalgoorlie properties were 'rentals' or that she resisted the application because of her view that she was under a duty to do so. Rather, it seems to me, based on a fair reading of the correspondence between the parties, that Ms Teede, simply, was not persuaded by the materials provided by Ms Penn that Ms Penn resided at the Bolgart property.
The reason for Ms Teede's position appears to be twofold:
a)firstly, her view that enrolment to vote on the State electoral roll is not conclusive; and
b)secondly, the evidence that Ms Penn was not 'staying' at the Bolgart property and had not done so for some time.
In this case, I held both that Ms Penn's enrolment on the State electoral roll was conclusive of her eligibility under s 2.19(1)(b) of the LG Act (and she was therefore not disqualified as that term is defined in s 2.27(1)(a) of that Act) and that even, if that were not the case, Ms Penn was a resident of the electorate pursuant to s 4.29(1) of the LG Act.
In both cases such findings were inconsistent with the position taken by Ms Teede. That does not mean that Ms Teede's position was unreasonable.
As Murphy JA makes clear in Questdale at [55], the mere fact that Ms Teede 'ultimately fails on some contention or contentions advanced at trial would not, in itself, signify that [she] has acted inconsistently with the objectives in s 9'.
In the case of the first finding, the question turned on a matter of statutory construction which involved the construction of both the LG Act and the Electoral Act 1907 (WA). In the case of the second finding, the issue turned on the application of particular facts and circumstances which, in my view, combined to overwhelm the fact that Ms Penn has not stayed at the Bolgart property for some time.
To repeat, the fact that my findings are inconsistent with Ms Teede's position does not make her position unreasonable.
Equally, the fact that Ms Teede actively opposed the application in the Tribunal rather than choosing to take no position and abiding by the Tribunal's decision, does not indicate unreasonableness or otherwise amount to behaviour inconsistent with the Tribunal's objectives in s 9 of the SAT Act. To repeat, it seems to me that she took the position she did because of her view on Ms Penn's disqualification and for no other reason. The Tribunal was assisted by the submissions made by both parties and, in my view, there was nothing inappropriate in taking an active role.
Ms Penn also seeks to rely on a Without Prejudice (save as to costs) 'offer' of 15 March 2022. In that regard it would appear that Ms Penn seeks to rely on s 87(5) of the SAT Act and r 42 of the State Administrative Rules 2004 (WA) (SAT Rules) which provide, in effect, that in considering an application under s 87(2) the Tribunal is to take into account that the unsuccessful party 'did not accept an offer more favourable than the Tribunal's order'.
It is true that the Tribunal's order, being a declaration that Ms Penn is not disqualified, is not 'more favourable' than the 'offer' contained in the applicant's solicitor's letter of 15 March 2022. However, I have considerable doubt as to whether that letter, in fact, contains an 'offer' as that term is used in r 42(2) of the SAT Rules. Rule 42 only applies to an 'offer in writing to settle the proceeding'. The ordinary meaning of 'settle' is such that, in my view, the rule applies only where one of the parties to the proceeding has offered to 'compromise' the matter such that something less than complete 'success' would be accepted in order to bring the proceedings to a premature end.[61]
[61] See, for example, B A Garner, A Dictionary of Modern Legal Usage (Oxford, 2nd ed, 1995), page 798.
That is not the substance of the 'offer' contained in the applicant's solicitor's letter of 15 March 2022. Rather, on the basis of a finding of the Commonwealth Electoral Commissioner,[62] it is said that Ms Teede's 'continued resistance to [Ms Penn's] application is frivolous, misconceived and lacking in substance' and she is invited to consent to the declaration sought. That is, Ms Penn's 'offer' consisted of no more than an invitation to Ms Teede to entirely capitulate. In my view, r 42(2) of the SAT Rules is not engaged but, even if it is and I am required to have regard to the 'offer', I give it little weight for the above reasons.
[62] The relevance of which is unclear.
The final submission made by the applicant is that Ms Penn has been put to trouble and expense, which expense comes out of her own pocket in circumstances where Ms Teede's costs have been covered by her employer, the Shire. It is said that Ms Penn would be 'unfairly disadvantaged' if the parties were to pay their own costs and that it is fair and reasonable to order Ms Teede to pay Ms Penn's costs.
The Applicant's Submissions attach, as Annexure B, an extract from a newsletter from the Shire which, amongst other things, discloses that the Shire is 'working through [its] insurers regarding the recovery of costs'. The applicant submits that such a course of action is not available to Ms Penn, which forms its submission of unfairness.
I pause to note here that the Shire's newsletter says that the Shire has incurred an estimated sum of $110,000 regarding the question of 'Councillor Eligibility'.
It may be that some part of that sum has been incurred in matters beyond the scope of these proceedings although, given the discussion in the newsletter, that does not appear to be the case.
It would be remiss of me if I did not express my surprise and concern that such an inordinate sum has been spent on these proceedings. I note that the sum sought by the applicant is, including GST, less than $31,000. Even that sum is considerable. I cannot understand how a sum of more than three times that amount could have been spent on these proceedings.
Returning to the applicant's submission, I am very conscious that Ms Penn has been put to personal expense as a result of the unilateral decision of Ms Teede. Following the notice given to Ms Penn she had 28 days to either satisfy Ms Teede that she was not disqualified or apply to the Tribunal seeking a declaration in that regard. Absent either of those two matters, Ms Penn would have been taken to be disqualified as a member of the Council of the Shire.
In my view, that statutory regime is a relevant factor which tends to support the view that an order for costs might properly be awarded to Ms Penn. The regime has the effect that, following Ms Teede's decision, Ms Penn was required to either allow her eligibility to, effectively, lapse or, alternatively, to seek a declaration from the Tribunal.
In doing so, she is taken to have been aware of s 87(1) of the SAT Act which, as noted above, creates a presumption that each party will bear its own costs. However, in contrast with the situation in Questdale, she had no option, in pursuing the matter, of taking the issue to another place (in Questdale that other place was the Supreme Court) where that presumption did not apply.
In my view, it would be unfair, in those circumstances, if Ms Penn was required to fund all of the costs of these proceedings personally. Accordingly, I will make an order requiring Ms Teede (who will, I assume, based on the Shire's newsletter, be indemnified by the Shire) to pay some of Ms Penn's legal costs in these proceedings.
Consistent with the orders made on 4 May 2022, Ms Penn has provided a schedule which sets out the time spent on various tasks by her solicitors and counsel, as well an indication of the seniority of the practitioner undertaking the task, and the consequential sum for each task. As noted above, the grand total, including GST, is $30,667.89. The relevant rates per hour have been adjusted to be consistent with the Legal Profession (State Administrative Tribunal) Determination 2020 (WA). That is consistent with the approach adopted by this Tribunal for some time.[63]
[63] See, for example, Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S); (2012) 80 SR (WA) at [53] and Legal Profession Complaints Committee and Chang [2019] WASAT 67 (S) at [126].
The written submissions filed on behalf of Ms Teede identify certain sums which are said by her solicitors to be disallowable on the basis that, in most cases, they are solicitor/client rather than party/party costs. The total of those sums is an amount of $5,897. Without descending into the minutiae of the respondent's contention, I accept that many of the matters identified by the respondent's solicitors ought not be allowed on that basis.
However, on a more fundamental basis, it is my view that the respondent ought to be required to contribute a sum to Ms Penn's legal costs rather than indemnify her for her entire party/party costs.
Put another way, while in my view it would be unfair for Ms Penn to bear the entirety of her costs for the reasons set out above, it would also, in my view, be unfair on Ms Teede if Ms Penn was indemnified for her entire party/party costs.
In my view it is appropriate for Ms Teede to make a contribution of $10,000 to Ms Penn to cover a proportion of her costs in these proceedings.
Orders
The Tribunal will make an order as follows:
1.The respondent is to pay the sum of $10,000 to the applicant by way of contribution to the applicant's legal costs of the proceedings, such sum to be paid within 30 days or some other timeframe as agreed by the parties.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
RM
Associate to Deputy President Judge Jackson
15 AUGUST 2022
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