PHILLIPS and LOCAL GOVERNMENT STANDARDS PANEL - [2012] WASAT 97

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: LOCAL GOVERNMENT ACT 1995 (WA)

CITATION: PHILLIPS and LOCAL GOVERNMENT STANDARDS PANEL [2012] WASAT 97

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 9 MAY 2012

FILE NO/S: DR 4 of 2012
BETWEEN: DONALD PHILLIPS
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
First Respondent
DENNIS WELLINGTON
Second Respondent
JILL BOSTOCK
Third Respondent
DAVID ERIC BOSTOCK
Fourth Respondent
ROLAND PAVER
Fifth Respondent
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Intervener

FILE NO/S :DR 12 of 2012

BETWEEN :DONALD PHILLIPS
Applicant
AND
LEGAL GOVERNMENT STANDARDS PANEL
First Respondent
DENNIS WELLINGTON
Second Respondent
ROBERT SUTTON
Third Respondent
JOY MATLA
Fourth Respondent
DESMOND WOLFE
Fifth Respondent
CHRISTOPHER HOLDEN
Sixth Respondent
DONALD DUFTY
Seventh Respondent
JAMES SWANN
Eighth Respondent
JILL BOSTOCK
Ninth Respondent
DAVID ERIC BOSTOCK
Tenth Respondent
RAYMOND HAMMOND
Eleventh Respondent
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Intervener

Catchwords:

Local government Regulation of local government councillors Preliminary issues Jurisdiction Statutory interpretation Whether there is a right of review of a finding of the Local Government Standards Panel that a breach alleged in a complaint did not occur Whether there is a right of review of a finding of the Local Government Standards Panel that the Local Government Standards Panel does not have jurisdiction to determine a complaint against a former council member Whether Local Government Standards Panel has jurisdiction to determine a complaint against a former council member Use of secondary materials Response to a question in Parliament

Legislation:

Local Government (Rules of Conduct) Regulations 2007 (WA), reg 7(1)(b)
Local Government Act 1995 (WA), s 5.105(1), s 5.106, s 5.107(1), s 5.107(3), s 5.110(2), s 5.110(2)(a), s 5.110(5), s 5.110(6)(a), s 5.110(6)(b), s 5.111, s 5.125, s 5.125(1), s 5.125(2)
State Administrative Tribunal Act 2004 (WA), s 3(1), s 13, s 14, s 29(1), s 37(1), s 38, s 47, s 47(1)(a), s 47(1)(b), s 47(2), s 51(1), s 54(1), s 54(3), s 60(2)

Result:

Section 5.125 of the Local Government Act 1995 (WA) does not confer a right of review of a finding of the Local Government Standards Panel that a minor breach alleged in a complaint did not occur or a finding of the Local Government Standards Panel that it does not have jurisdiction to determine a complaint of a minor breach against a former council member
Applications for review dismissed as misconceived pursuant to s 47(2) of the State Administrative Tribunal Act 2004 (WA)

Category: B

DR 4 of 2012

Counsel:

Applicant:     Self-represented
First Respondent          :     Mr CS Bydder
Second Respondent      :     Mr JE Wyatt
Third Respondent        :     Self-represented
Fourth Respondent      :     Self-represented
Fifth Respondent         :     Self-represented
Intervener:     Mr CS Bydder

Solicitors:

Applicant:     Self-represented
First Respondent          :     State Solicitor's Office
Second Respondent      :     Sparke Helmore Lawyers
Third Respondent        :     Self-represented
Fourth Respondent      :     Self-represented
Fifth Respondent         :     Self-represented
Intervener:     State Solicitor's Office

DR 12 of 2012

Counsel:

Applicant:     Self-represented
First Respondent          :     Mr CS Bydder
Second Respondent      :…

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: [2012] WASAT 97
Decision Date: 9 MAY 2012

CaseChat Overview and Summary

The case before the State Administrative Tribunal involved a dispute between Mr Phillips and the Local Government Standards Panel, with the Attorney General of Western Australia intervening. Mr Phillips sought to review the Panel's findings in two separate proceedings, DR 4 of 2012 and DR 12 of 2012, which related to complaints made against former council members of the City of Albany. The central issue in this case was whether Mr Phillips had the right to review the Panel's findings under section 5.125 of the Local Government Act 1993 (WA), specifically regarding the Panel's determination that no breach had occurred and that it lacked jurisdiction to hear a complaint against a former council member.

The Tribunal was tasked with determining the scope of its jurisdiction to review the Panel's findings and whether Mr Phillips had a right to appeal these decisions. Additionally, the Tribunal had to consider whether the Panel had the authority to hear complaints against former council members and whether secondary materials, such as responses to parliamentary questions, could be used in interpreting the relevant legislation. The Tribunal acknowledged the potential for these issues to consume significant resources and affect the community, highlighting the importance of resolving the matter efficiently.

In its reasoning, the Tribunal noted the potential for underlying tensions and community concerns to be exacerbated by prolonged litigation. It recognised the importance of mediation as a means to address these issues and ordered it to run in parallel with the determination of the preliminary matters. The Tribunal emphasised its duty to avoid unnecessary time and expense while ensuring that the justice system serves the community effectively. The court's decision focused on the statutory interpretation of the Local Government Act and the proper use of secondary materials in this context. The outcome of the case hinged on the Tribunal's ability to interpret the legislation correctly and to determine the appropriate scope of its review powers in relation to the Panel's findings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

By letters dated 15 December 2011, the presiding member of the Panel advised Mr Phillips of the Panel's findings. On 10 January 2012, Mr Phillips commenced proceeding DR 4 of 2012 seeking review by the Tribunal of the Panel's 'decision' in its proceeding SP 55 of 2010. On 16 January 2012, Mr Phillips commenced proceeding DR 12 of 2012 seeking review by the Tribunal of the Panel's 'decision' in its proceeding SP 56 of 2010. In commencing each of these proceedings, Mr Phillips purported to exercise a right of review of a 'decision' conferred on 'a party' by s 5.125(1) of the LG Act. Section 5.125 of the LG Act states as follows:(1)A party may apply to the State Administrative Tribunal for a review of a decision of a standards panel.(2)In subsection (1) decision means a decision to dismiss a complaint or to make an order. The proceedings were listed for a directions hearing before myself and Senior Member Peter McNab on 10 February 2012. At the directions hearing, Mr CS Bydder appeared as counsel for the Panel and also for the Attorney General for Western Australia (Attorney General) who intervened in the proceedings pursuant to s 37(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). On behalf of the Attorney General, Mr Bydder foreshadowed jurisdictional issues as to whether Mr Phillips has a right of review under s 5.125 of the LG Act in relation to the Panel's findings. At the directions hearing, the Tribunal also considered and granted applications by Cr Wellington, Ms Bostock (who has ceased to be a council member of the City), Cr David Bostock and Mr Paver (who has also ceased to be a council member of the City) for leave to be joined as parties, pursuant to s 38 of the SAT Act, in proceeding DR 4 of 2012, and applications by Cr Wellington, Cr Sutton, Ms Matla, Mr Wolfe, Cr Holden, Cr Dufty, Mr Swann, Ms Bostock, Cr David Bostock and Cr Hammond for leave to be joined as parties in proceeding DR 12 of 2012. After noting the jurisdictional issue and determining the applications for joinder, the Tribunal said the following:That brings [us] to the third category of issues, which is something that the Tribunal raised, and that was the possibility of the Tribunal allocating a senior member to attempt to mediate the issue which is before the Tribunal and, if possible, within the context of resolving that issue, to address underlying matters. [We are] deeply concerned about the underlying matters in this matter or in this proceeding. Albany is a small community and it appears that the issues that are the subject of the complaint are now also the subject of other proceedings in courts and may be the subject of even further proceedings in courts, we were told.All of that will only result in additional time, expense, and is unlikely to resolve the underlying tension or community concern that has been foreshadowed or has been indicated. As members of the justice system, that is a matter of great concern to us. We have seen all too often matters that begin perhaps even as matters of principle consuming, like a whirlwind or a tsunami, everybody in its path. In a small community, that can be even more devastating than in a larger community, and in all places it's something to be avoided at all costs if at all possible. Life is short, and it is better lived.We note that Mr Phillips in particular has expressed some significant doubts about mediation in this matter. Other parties have perhaps indicated that mediation is a useful process but that [it] has been tried with the Local Government Department. We are satisfied that we should order mediation in parallel to the process of determining the preliminary issues. The Tribunal has the power to order mediation despite the positions of the parties, and bearing in mind that which [we anticipate] will occur if this proceeding does not result in a resolution of underlying concerns in terms of time, expense for everyone concerned as well as for the justice system, it would be remiss [we] think of the Tribunal not to make an effort. That is not open-ended. In fact it is quite closed as to what the Tribunal can do … (T:40.5T:41.2; 10.02.12)

Ratio Decidendi

Legal Principle Established

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