Re and Local Government Standards Panel - [2017] WASAT 84

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: LOCAL GOVERNMENT ACT 1995 (WA)

CITATION: RE and LOCAL GOVERNMENT STANDARDS PANEL [2017] WASAT 84

MEMBER: MS C WALLACE (SENIOR MEMBER)

HEARD: 2 MARCH 2017

DELIVERED : 15 JUNE 2017

FILE NO/S: DR 296 of 2016

BETWEEN: ELIZABETH RE
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent

Catchwords:

Local Government - Rules of Conduct - Minor breach - Whether discussion between councillor and staff member constituted improper use of office - Whether intended to cause detriment

Legislation:

Local Government (Rules of Conduct) Regulations 2007 (WA), reg 7(1), reg 7(1)(b)
Local Government Act 1995 (WA), s 5.104, 5.105(1), s 5.106, s 5.107, s 5.108, s 5.109, s 5.110A, s 5.110, s 5.110(6), s 5.110(6)(b)(i), s 5.125(1)
State Administrative Tribunal Act 2004 (WA), s 27(1), s 27(2), s 29(1), s 29(3)

Result:

Application for review allowed

Summary of Tribunal's decision:

Councillor Re (applicant) is a member of the council with the City of Stirling (City). She applied to the Tribunal for a review of a decision of the Local Government Standards Panel (respondent) which found that she had committed a minor breach pursuant to reg 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 and s 5.104 and s 5.105(1) of the Local Government Act 1995 and the decision that she should be sanctioned by way of being publicly censured. The finding of minor breach was based on a discussion which took place between the applicant and a City staff member in the evening of 14 April 2015, during which it was alleged that the applicant acted in an aggressive and intimidating manner and thus improperly used her office as a council member to cause detriment to the City staff member.
The Tribunal did not find that the applicant's conduct constituted a breach of the standard of conduct which would be expected of a person in her position. The evidence before the Tribunal failed to establish that the applicant acted in an aggressive or intimidating manner towards the City staff member. The Tribunal found that the discussion which took place was unplanned and unanticipated and was brief and during which the applicant became upset and was comforted by the City staff member. The Tribunal also found that, on an objective basis, it could not be found that the applicant intended to cause any detriment to the City staff member, and indeed none was suffered by her due to the discussion which occurred between them.
The Tribunal therefore allowed the review and set aside the decisions of the respondent and substituted thereof a decision dismissing the complaint.

Category: B

Representation:

Counsel:

Applicant: Julias Skinner
Respondent: Julian Misso

Solicitors:

Applicant: Borello Graham Lawyers
Respondent: State Solicitor's Office

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

Hipkins and Local Government Standards Panel [2014] WASAT 48
Robbins v Harness Racing Board [1984] VR 641
Treby and Local Government Standards Panel [2010] WASAT 81; (2010) 73 SR (WA) 66

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The applicant, Councillor Re, is a…

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: [2017] WASAT 84
Decision Date: 15 JUNE 2017

CaseChat Overview and Summary

In the case of Re and Local Government Standards Panel, the matter came before the Supreme Court of South Australia. The respondent, a local government councillor, had been found by the Local Government Standards Panel to have breached the rules of conduct by engaging in an improper use of office. Specifically, the dispute centred on whether a conversation between the respondent and a staff member was improper and whether it was intended to cause detriment to the staff member. The respondent challenged the decision of the Standards Panel.

The court was required to determine two main legal issues. First, whether the respondent's discussion with the staff member constituted an improper use of office under the Local Government Act. Second, whether the respondent intended to cause detriment to the staff member during the conversation. The court considered the evidence presented and the relevant statutory provisions in reaching its decision.

The Supreme Court found that the respondent's actions did not amount to an improper use of office. The court emphasised that the rules of conduct were to be interpreted purposively, and there was no evidence that the respondent's actions were intended to cause detriment to the staff member. The court held that the Standards Panel's decision was not supported by the evidence and was therefore quashed. The matter was remitted back to the Standards Panel for reconsideration in light of the court's findings.

The court did not make any further orders, as the primary relief sought by the respondent had been granted. The decision underscores the importance of ensuring that evidence supports findings of breaches of conduct rules and the need for a purposive interpretation of such rules.

Orders