Re and Local Government Standards Panel - [2014] WASAT 111

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: LOCAL GOVERNMENT (RULES OF CONDUCT) REGULATIONS 2007 (WA)

CITATION: RE and LOCAL GOVERNMENT STANDARDS PANEL [2014] WASAT 111

MEMBER: MR P McNAB (SENIOR MEMBER)

HEARD: 15 APRIL AND 30 JULY 2014

PUBLISHED : 28 AUGUST 2014

FILE NO/S: DR 344 of 2013

BETWEEN: ELIZABETH RE
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent

Catchwords:

Local government Regulation of Councillors Local Government Standards Panel Rules of Conduct Minor breach Conduct at a Council meeting Mayor of Local Government lodging complaint of disruptive behaviour and breach of Standing Orders by Councillor Mayor making procedural ruling Mayor adjourning meeting temporarily Mayor alleging incident was improper use of office by Councillor Mayor alleging Councillor had intention to cause detriment by her conduct - Panel finding intention to cause detriment established - Panel ordering public censure - Councillor admitting to breach of Standing Orders and to an overreaction on Councillor's part in her exchange with Mayor Essential facts otherwise admitted by Councillor Councillor apologised to Panel below for her conduct Tribunal finding Councillor disorderly Tribunal finding breach of Standing Orders established Tribunal assuming that detriment and improper use of office had been established Sole issue to be determined was intention of Councillor Intention required sufficient proof of design or resolve to cause detriment Intent could be constructive where reasonable expectation or anticipation of result Proof of detrimental effect insufficient by itself to prove intent Proof of breach of Standing Orders insufficient by itself to prove intent Extent that breakdown in working relationship between Mayor and Councillor relevant Councillor alleged pattern of bullying, harassment and discrimination by Mayor Tribunal declining to make findings on wider issues or to apportion blame Tribunal finding intent to cause detriment not established Councillor's actions found to be spontaneous Councillor’s intention was to immediately challenge Mayor's criticism of Councillor Intention of Councillor to deal with a perceived injustice to her and to correct alleged factual errors by Mayor Extent of overreaction by Councillor insufficient by itself to demonstrate requisite intention Finding and sanction of Panel set aside Whether Tribunal could go on to impose a sanction for a breach of the Standing Orders Tribunal holding that it had jurisdiction to deal with breach of Standing Orders Public apology at Council meeting ordered by Tribunal for a breach of Standing orders Words and phrases: 'intent'; 'constructive intent'; 'detriment'; 'disorderly'

Legislation:

Local Government (Rules of Conduct) Regulations 2007 (WA), reg 3, reg 3(1), reg 3(2), reg 4, reg 4(1), reg 4(2), reg 7, reg 7(1)(b)
Local Government Act 1995 (WA), s 5.105(1)(a), s 5.105(1)(b), s 5.107(2), s 5.107(4), s 5.110(6), s 5.110, s 5.110(2)(a), s 5.110(6)(b)(i), s 5.110(6)(b)(ii), s 5.125, Sch 5.1 cl 8.6
State Administrative Tribunal Act 2004 (WA), s 29

Result:

Application for review successful in part; minor breach finding and sanction varied

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: [2014] WASAT 111
Decision Date: 28 AUGUST 2014

CaseChat Overview and Summary

The Local Government Standards Panel, under the Local Government Act, received a complaint from the Mayor of Local Government, Boothman, against Councillor Re. The complaint alleged that Councillor Re had disrupted a Council meeting, breached the Standing Orders, and improperly used her office. Boothman also alleged that Councillor Re's conduct was intended to cause detriment to Boothman and the City. The Panel found that Councillor Re had breached the Rules of Conduct, established intent to cause detriment, and ordered a public censure. Councillor Re admitted to breaching the Standing Orders and apologized for her conduct.

The key legal issues the court needed to address were whether the Tribunal had jurisdiction to review the Panel's decision and whether the Panel's findings were justified. Specifically, the court needed to determine if the Tribunal could impose a sanction for a breach of the Standing Orders and if the Panel's finding of intent to cause detriment was legally sound. The court also needed to consider whether the Tribunal could make findings on wider issues such as bullying, harassment, and discrimination, which were raised by Councillor Re but not addressed by the Panel.

The court found that the Tribunal did have jurisdiction to review the Panel's decision, as the Panel had made a finding that the alleged breach occurred. The court further determined that the Tribunal could impose a sanction for a breach of the Standing Orders. However, the court found that the Panel's finding of intent to cause detriment was not supported by the evidence. The court held that intent required sufficient proof of design or resolve to cause detriment, and that Councillor Re's actions were spontaneous and intended to challenge Boothman's criticism and correct perceived factual errors. The court concluded that the extent of Councillor Re's overreaction did not demonstrate the requisite intention. Consequently, the Panel's finding and sanction were set aside. The Tribunal ordered Councillor Re to make a public apology at a Council meeting for breaching the Standing Orders.

The court's decision underscored the importance of clear evidence of intent in disciplinary proceedings and the need for Tribunals to focus on the specific allegations made in the complaint. The court emphasized that a breach of the Standing Orders and detrimental effect alone were insufficient to prove intent, and that broader issues such as bullying and harassment should not be considered unless directly relevant to the allegations. The court's ruling clarified the scope of the Tribunal's review jurisdiction and provided guidance on the standards of proof required in disciplinary matters.

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

The review jurisdiction of this Tribunal is found in s 5.125 of the LG Act, which provides 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.Thus, it seems that the Tribunal's jurisdiction will be confined to a review of the Panel's decision where, in effect, it has made a finding that 'the breach alleged in the complaint occurred' (s 5.110(2)(a) of the LG Act, emphasis added). That is the case here. The complainant, Mayor Boothman, on the approved administrative form 'Complaint of Minor Breach form' ('Official Conduct Form 1') ticked the box identifying reg 7 of the Rules of Conduct ('Securing personal advantage or disadvantaging others') but did not tick the box referring to reg 4 of the Rules of Conduct ('Breach of local law relating to conduct of meeting'). Such a complaint must detail in writing the following matters (s 5.107(2) of the LG Act):(a) who is making the complaint; and(b) who is alleged to have committed the breach; and(c) the contravention that is alleged to have resulted in the breach; and(d) any other information that the regulations may require [not relevant]. Notwithstanding that a breach of reg 7 of the Rules of Conduct is identified on the administrative form, the complaint raises, from the outset, a history of alleged breaches of the Standing Orders by Councillor Re: see page 1 of the attachment to the complaint form specifying in the second paragraph specific clauses of the Standing Orders said to have been breached. The complaint goes on to develop this theme in relation to the events of the evening of 27 September 2011, leading to an allegation of detriment to both the complainant and the City and an allegation of conduct on the part of the applicant which 'does not in any way exhibit any of the general principles of behaviour of Council members as outlined in the rules of conduct legislation'. In Bloomfield v Real Estate and Business Agents Supervisory Board of Western Australia (1995) 13 SR (WA) 138 (Bloomfield), the District Court took a wide view of the power to, in effect, amend 'charges' during disciplinary hearings, subject to the giving of appropriate notice. At 145, Barlow DCJ said:I am of the view that once an inquiry into the conduct of an agent has been initiated, the Board may, during the course of such inquiry, investigate any matters which come to its attention which indicate that the person the subject of the inquiry may not have acted in conformity with the agent's code of conduct and/or may have failed to comply with a requirement of the Act. In my view the Board would be remiss if it failed to investigate such conduct. In reaching this view I have had regard to the nature and function of the Board, namely the regulation and supervision of persons acting in respect of real estate transactions in certain business transactions. Bloomfield is consistent with the common law position applying to disciplinary tribunals as is discussed, for example, in Justice in Tribunals (JRS Forbes, Federation Press, 4th ed, 2014), at pages 133 to 136 and 141 to 144.

Ratio Decidendi

Legal Principle Established

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