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PENN and TEEDE

PENN and TEEDE

Case [2022] WASAT 31 21 April 2022

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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…

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

AGLC: PENN and TEEDE [2022] WASAT 31
Case: [2022] WASAT 31
Decision Date

CaseChat Overview and Summary

The case of Penn and Teede [2022] WASAT 31 involved a dispute between Stephanie Penn, the applicant, and Glenda Teede, the CEO of the Shire of Victoria Plains. The central issue was whether Ms Penn was disqualified from being a member of the council of the Shire based on her residency status. Ms Penn had resided at a property in Bolgart, which is within the Shire, since 2013. However, since April 2021, she had not stayed there due to family reasons, including the threat of violence. Ms Teede argued that Ms Penn had ceased to be a resident of the Shire and was, therefore, disqualified from holding her council position. The State Administrative Tribunal, presided over by Judge H Jackson, considered two main issues. The first issue was whether Ms Penn's enrolment on the electoral roll for the Legislative Assembly in respect of the Bolgart Property was sufficient to satisfy the requirement of being an elector of the district. The Tribunal held that enrolment on the electoral roll for the Legislative Assembly in respect of a residence located within the district is conclusive evidence of the fact that a person is enrolled as an elector for the Legislative Assembly in respect of a residence in the electorate. The second issue was whether Ms Penn remained a resident of the Bolgart Property despite not staying there since April 2021. The Tribunal found that Ms Penn's departure from the Bolgart Property was due to fear for her safety, and her intention to return was demonstrated by the ongoing presence of her belongings at the property. Consequently, the Tribunal declared that Ms Penn was not disqualified to be a member of the council of the Shire.

Orders