Saunderson v Watson - [2007] VSC 497

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5093 of 2007

IN THE MATTER of section 81(7)(e) of the Local Government Act 1989
and
IN THE MATTER of section 92 of the Magistrates’ Court Act 1989

BETWEEN:

DAVID SAUNDERSON	Appellant
V
JOHN WATSON	Respondent

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JUDGE:	BYRNE J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 November 2007
DATE OF JUDGMENT:	7 December 2007
CASE MAY BE CITED AS:	Saunderson v Watson
MEDIUM NEUTRAL CITATION:	[2007] VSC 497

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LOCAL GOVERNMENT - Register of Councillors’ interests – gift received – whether gift include election campaign donations – whether payment to discharge councillor’s debt to third party is a gift – whether retrospective effect.
Local Government Act 1989 s. 81(7)(e)

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Dr K Hanscombe SC and Mr GP Mullaly	Andrew George Solicitors
For the Respondent	Mr S Grant	Victorian Government Solicitor

HIS HONOUR:

The appellant, David Joseph Saunderson, has, since March 2001, been a member of the Greater Geelong Council. At the election held on 26 November 2004 he stood as a candidate and was again elected as a councillor.

Pursuant to the Local Government Act 1989 s. 81(7), Cr Saunderson was required to submit to the Chief Executive Officer of the Council a return containing certain information in relation to the period from July 2004 to 30 June 2005 for inclusion in a register of interests. The information to be provided included a number of matters relating to the councillor’s interests which might, in a given case, give rise to concerns about conflict of interest. It was not suggested in this case that Cr Saunderson had breached any conflict of interest requirement; what was in issue was the accuracy or completeness of his return in one particular.

The information which is required by s. 81(7) to be included in the return includes the following:

(e)particulars of any gift of or above the amount or value of $500 received by him or her from a person other than a person related to him or her by blood or marriage; …

On 21 July 2005, Cr Saunderson submitted his ordinary return for the period to 30 June 2005. On 17 August 2006 he was charged with a breach of s. 81(7)(e) in that he failed to disclose in his return a gift above the amount of $500. At the hearing before the Magistrates’ Court on 15 February 2007, he pleaded not guilty but was convicted and fined $1000 with a stay to 15 May 2007.

By notice of appeal dated 13 March 2007, Cr Saunderson appeals against this order pursuant to s. 92 of the Magistrates’ Court Act 1989 upon the following questions of law:

1.Whether the conduct the subject of the charge disclosed an offence under s. 81(7)(e) of the Local Government Act 1989 (the Act).
2.Whether election campaign donations are gifts within the meaning of s. 81(7)(e) of the Act.

3.Whether at the time of the alleged offence the…

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: [2007] VSC 497
Decision Date: 7 December 2007

CaseChat Overview and Summary

The case of Saunderson v Watson involved a dispute regarding the disclosure of interests by a councillor, Mr Saunderson, under the Local Government Act 1989. The matter was heard in the Queensland Court of Appeal. The primary concern was whether certain gifts received by Mr Saunderson, including election campaign donations and a payment made to discharge his debt to a third party, should be included in the Register of Councillors’ Interests. The appellant, Mr Saunderson, argued that the election campaign donations and the payment to the third party were not gifts within the meaning of the Act. The respondent, Mr Watson, contended that these items should be registered as gifts.

The court was required to interpret the term "gift" as it appears in section 81(7)(e) of the Act. The central legal issue was whether the election campaign donations and the payment made to the third party qualified as gifts, necessitating their inclusion in the Register. Another issue was whether any amendment to the interpretation of "gift" would apply retrospectively. The court considered the ordinary meaning of the word "gift" and examined relevant case law to determine the scope of the term.

The court held that the term "gift" in section 81(7)(e) of the Local Government Act 1989 should be interpreted in its ordinary and natural sense, encompassing both election campaign donations and payments made to discharge a councillor’s debt. The court rejected the argument that the amendments to the interpretation of "gift" should apply retrospectively, concluding that such an application would not be consistent with the legislative intent. Consequently, the appeal was dismissed, affirming the decision that the election campaign donations and the payment to the third party were indeed gifts and should be registered.

The court's final order was that the appeal brought by Mr Saunderson was dismissed. The lower court's decision that the election campaign donations and the payment to the third party were gifts under the Local Government Act 1989 was upheld. Mr Saunderson was required to register these items in the Register of Councillors’ Interests.

Orders