Shire Of Mundaring and Black - [2009] WASAT 100

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: LOCAL GOVERNMENT ACT 1995 (WA)

CITATION: SHIRE OF MUNDARING and BLACK [2009] WASAT 100

MEMBER: MR D R PARRY (SENIOR MEMBER)

HEARD: 28 APRIL 2009

DELIVERED : 20 MAY 2009

FILE NO/S: DR 496 of 2008

BETWEEN: SHIRE OF MUNDARING
Applicant
AND
KEVIN ALAN BLACK
Respondent

Catchwords:

Local government - Disqualification of member of council - Absence from three consecutive council meetings without leave of council - Application for declaration by Tribunal as to disqualification - Resignation of member of council from office of councillor - Whether member resigned from office before third consecutive council meeting from which he was absent - Whether notice of resignation delivered to Chief Executive Officer before third meeting

Legislation:

Local Government Act 1995 (WA), s2.25, s 2.25(4), s 2.27(3), s 2.27(4), s 2.27(6), s 2.31, s 2.31(2), s 2.31(4)

Result:

Respondent disqualified from continuing his membership of applicant

Category: B

Representation:

Counsel:

Applicant: Mr DW McLeod
Respondent: In person

Solicitors:

Applicant: McLeods
Respondent: Self-represented

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

Shire of Waroona and Fitzpatrick [2007] WASAT 219; (2007) 54 SR (WA) 195

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mr Kevin Black, who was elected as a councillor of the Shire of Mundaring in 2007, was absent from three consecutive ordinary meetings of the Council without first obtaining leave of the Council. A council member who is absent, without first obtaining leave, from three consecutive ordinary council meetings is disqualified from continuing as a member. However, Mr Black argued that he had resigned as a councillor before the third meeting and was, therefore, no longer a member of the Council at the relevant time.
The Tribunal determined that Mr Black did not resign as a councillor prior to the third ordinary meeting of the Council. It was probable that Mr Black did not post a letter of resignation to the Shire as he claimed. Furthermore, in order to effect a resignation as a councillor, a written notice of resignation must be delivered to the Chief Executive Officer of the council. The evidence showed that a notice of resignation from Mr Black was not delivered to the Chief Executive Officer of the Council prior to the third meeting.
The Tribunal declared that Mr Black was disqualified from continuing his membership of the Council.

Mr Black's failure to attend three consecutive ordinary meetings

In 2007, Mr Kevin Black was elected as a councillor of the Shire of Mundaring (Shire or Council).
In 2008, ordinary meetings of the Council were held on the fourth Tuesday of each month. During the months of August, September and October 2008, the only ordinary meetings of the Council were held on 26 August 2008, 23 September 2008 and 28 October 2008.
The minutes of the ordinary meetings of the Council on 26 August 2008, 23 September 2008 and 28 October 2008 show that Mr Black was absent from the whole of each of those meetings. The minutes of the ordinary meetings of the Council held on 22 July 2008 (the last ordinary meeting prior to 26 August 2008), 26 August 2008, 23 September 2008 and 28 October 2008 do not record that leave of the Council was granted for Mr Black's absence from any of the ordinary meetings of the Council held on 26 August 2008, 23 September 2008 or 28 October 2008.
Section 2.25(4) of the Local Government Act 1995 (WA) (LG Act) states as follows:
A member who is absent, without first obtaining leave of the council, throughout 3 consecutive ordinary meetings of the council is disqualified from continuing his or her membership of the council.
If the Chief Executive Officer (CEO) of a council has reason to believe that a member of a council is disqualified, then the CEO is required by s 2.27(3) of the LG Act to give the member a written notice indicating the reasons why the CEO believes the member to be disqualified. Section 2.27(4) of the LG Act requires that the CEO's notice under s 2.27(3) has to inform the member that -
•if the member believes that he or she is not disqualified, then he or she may advise the CEO in writing within 28 days from the date of service of the notice; and
•if the member accepts that he or she is disqualified in accordance with the terms of the notice, then he or she is to advise the CEO in writing.
Section 2.27(6) of the LG Act requires the CEO to apply to the Tribunal for a declaration as to whether or not the member is disqualified unless, within 28 days of the date of service of the CEO's notice under s 2.27(3), the member either satisfies the CEO that the member is not disqualified or advises the CEO in writing that the member accepts that he or she is disqualified.
By letter dated 31 October 2008, Mr Jonathan Throssell, the CEO of the Shire, gave written notice to Mr Black, in accordance with s 2.27(3) and s 2.27(4) of the LG Act, indicating that Mr Throssell had reason to believe that Mr Black was disqualified from continuing his membership of the Council by virtue of his absence, without first having obtained leave of the Council, throughout the three consecutive ordinary meetings of the Council held on 26 August 2008, 23 September 2008 and 28 October 2008.
On 3 December 2008, the Shire received a facsimile from Mr Black addressed to Mr Throssell which included the following:
•You received my original resignation well within time of the council meeting.
•That resignation and other allegations of you/your associates [sic] illegal activity and bullying was then sent to numerous others throughout Western Australia.
•You then denied having received that resignation - out of 200 plus individuals sent that resignation you claim you were the only one who didn't receive it.
On 17 December 2008, Mr Throssell applied to the Tribunal on behalf of the Shire for a declaration under s 2.27(6) of the LG Act as to whether or not Mr Black is disqualified from continuing his membership of the Council.
During the hearing of the Shire's application on 28 April 2009, Mr Black conceded that he was absent, without first obtaining leave of the Council, throughout three consecutive ordinary meetings of the Council on 26 August 2008, 23 September 2008 and 28 October 2008. These facts were also established by the evidence of Mr Throssell and the Council minutes.
As Justice Chaney held in Shire of Waroona and Fitzpatrick [2007] WASAT 219; (2007) 54 SR (WA) 195 at [16], where the Tribunal finds as a matter of fact (or where it is conceded) that a member of a council was absent, without first obtaining leave of the council, throughout three consecutive ordinary meetings of the council, 'there is no element of discretion'; if what his Honour termed 'the disqualifying condition' of absence by a member and lack of prior leave by the Council exists, then the Tribunal must make a declaration that the member is disqualified.
However, Mr Black argued that, although he was absent, without first obtaining leave of the Council, throughout the three consecutive ordinary meetings of the Council, the disqualifying condition does not exist in this case, because he resigned from the office of councillor prior to the third meeting and was, therefore, no longer a 'member' for the purposes of s 2.25(4) of the LG Act at the time of the third meeting. The Shire contended that Mr Black had not resigned prior to the third meeting and was, therefore, a member at the relevant time.

Did Mr Black resign from the Council?

Section 2.31(2) of the LG Act states that a councillor may resign from the office of councillor. Subsections (3) and (4) of s 2.31 of the LG Act state as follows:
(3)Written notice of resignation is to be signed and dated by the person who is resigning and delivered to the CEO.
(4)The resignation takes effect from the date of delivery of the notice or from a later day specified in the notice.
The terms 'delivered' and 'delivery' are not defined in the LG Act. The noun 'delivery' relevantly means 'the delivering of letters, goods, etc' and the verb 'deliver' is relevantly defined as 'to carry and pass over (letters, goods, etc) to the intended recipient or recipients' (The Macquarie Dictionary (Macquarie, Sydney, 4th edition, 2005), page 282).
Mr Black gave evidence that he was aware, prior to the ordinary meeting of the Council on 28 October 2008, that he had already missed two consecutive ordinary meetings of the Council and that, if he missed the third consecutive meeting, then he would be disqualified from continuing his membership of the Council under s 2.25(4) of the LG Act. Mr Black said that, because he did not wish to be disqualified, he resigned as a councillor before he could be disqualified under the LG Act.
Mr Black said that he wrote a letter of resignation on Saturday, 25 October 2008, and that he finalised the letter on Sunday, 26 October 2008. He said that he 'posted it at Mundaring Post Office around 10.30 am [on Sunday, 26 October 2008], after being previously advised by the post office that any mail posted on Sunday would be sorted on Monday and delivered on Tuesday at the latest'.
Mr Black also said that he attempted to fax his letter of resignation to the Shire on three occasions over a one and a half hour period on Monday, 27 October 2008. However, the facsimile was not transmitted on any of these occasions. In response to a question in cross‑examination as to whether he attempted to fax the letter of resignation to the Shire again on Tuesday, 28 October 2008, Mr Black said 'possibly. I don't know'. Mr Black did not suggest that a facsimile was transmitted to the Shire containing his letter of resignation on 28 October 2008.
Mr Throssell gave evidence that he was present at the Shire office during working hours on Monday, 27 October 2008 and Tuesday, 28 October 2008. He said that he did not receive any notice of resignation from Mr Black or any notification of Mr Black's intention to resign as a councillor prior to 7 November 2008. On 7 November 2008, Mr Throssell received a copy of a facsimile from Mr Black to Mr Throssell dated Tuesday, 28 October 2008, not directly from Mr Black, but rather from West Australian Newspapers. The facsimile dated 28 October 2008 included the following:
As of today I am resigning in disgust at the way the shire and councillors have acted …
Mr Throssell's evidence that he did not receive any notice of resignation from Mr Black or any notification of Mr Black's intention to resign prior to 7 November 2008 is supported by the Shire's records which show that the Shire did not receive any correspondence from Mr Black from 26 October 2008 to 31 October 2008.
The Tribunal finds that it is more probable than not that Mr Black did not post a notice of resignation to Mr Throssell on 26 October 2008 for the following four reasons.
First, the evidence of Mr Throssell and the Shire's records of received correspondence show that a notice of resignation was not received on either 27 October 2008 or 28 October 2008 (or, for that matter, by 31 October 2008).
Second, the fact that Mr Black unsuccessfully attempted to fax notice of resignation to the Shire on three occasions over a one and a half hour period on 27 October 2008 (and, possibly, on 28 October 2008) is inconsistent with having posted the letter on 26 October 2008 after being previously advised by the post office that it would be sorted, relevantly, on 27 October 2008 and delivered, relevantly, on 28 October 2008 at the latest. While Mr Black said in answer to a question in cross‑examination on this topic that he tried to fax the letter on 27 October 2008 'to cover my backside, because the behaviour of the CEO was always going to be my problem', this statement is not a credible explanation for having sought to fax the document to the Council. If Mr Black had posted the letter and been given the indication by the post office that he said he was given, then there would have been no purpose served in attempting to fax the letter to the Shire on 27 October 2008.
Third, Mr Black's facsimile to Mr Throssell received on 3 December 2008 did not refer to his notice of resignation having been posted on 26 October 2008 or at all. Rather, the facsimile said that 'out of 200 plus individuals sent that resignation you claim that you are the only one who didn't receive it'. Mr Black confirmed in evidence that he sent a resignation notice to many recipients, including ministers, councillors of other local governments and media organisations, by facsimile. Mr Black's terminology in the facsimile received by the Shire on 3 December 2008 clearly indicates that he sent notice of his resignation to the '200 plus individuals', including Mr Throssell, by the same means, namely facsimile.
Finally, Mr Black gave the following evidence in relation to his resignation from the Council:
My intention was to hand in my resignation, ensure the CEO Throssell received it before the Council Meeting on Tuesday 7 PM but in the event I had some positive reaction from my faxes requestion [sic] protection/assistance I would then withdraw my resignation and show up at the council meeting.
However, as noted earlier, a written notice of resignation takes effect under s 2.31(4) of the LG Act 'from the date of delivery of the notice or from a later day specified in the notice'. As no later day was specified in the notice that Mr Black said he sent to Mr Throssell by post on 26 October 2008, if the notice was in fact sent and was received by Mr Throssell, it would have taken effect from the date of delivery as no later day was specified. Mr Black could not then have withdrawn his resignation, as the resignation would have taken effect. This casts further doubt on Mr Black's evidence that he posted a letter of resignation on 26 October 2008.
Furthermore, even if a notice of resignation had been sent by Mr Black by post on 26 October 2008, it was not delivered, that is, carried and passed over to Mr Throssell, the intended recipient, prior to the ordinary meeting of the Council on 28 October 2008.
Consequently, Mr Black had not resigned under s 2.31 of the LG Act and remained a member of the Council for the purposes of s 2.25 of the LG Act during the ordinary meeting of the Council on 28 October 2008.
Mr Black sought to cast doubt, variously, on the Council's record‑keeping in relation to received correspondence and on the honesty and integrity of the Council's members and various officers. Mr Black suggested that, because mail can be opened by one officer, but entered into the Shire's electronic document management system by a second officer in the same section, his notice may not have been properly recorded when it was received. Mr Black also suggested that, because he has been, in his own words, a 'whistle blower' and a 'thorn in Council's side', making many allegations of illegal or improper conduct over three years, it 'suits their purpose of having me disqualified rather than having me resign'.
However, there is no basis in the evidence presented to doubt either Mr Throssell's recollection that he did not receive notice of Mr Black's resignation prior to the ordinary meeting of the Council on 28 October 2008 or the Shire's records that notice was not received from Mr Black by 31 October 2008.
There is no credible basis in the evidence to support what can only be described as Mr Black's conspiracy theories in relation to councillors and officers of the Shire. Furthermore, it is unclear how Mr Black's disqualification, rather than resignation, would have suited 'their purposes'; in either case, Mr Black would no longer be a member of the Council.

Conclusion

It follows that Mr Black did not resign as a councillor prior to the ordinary meeting of the Council on 28 October 2008. As Mr Black was a member of the Council who was absent, without first obtaining leave of the Council, throughout three consecutive ordinary meetings of the Council, he is disqualified from continuing his membership of the Council.

Order

The Tribunal orders that Kevin Alan Black is disqualified pursuant to s 2.25(4) of the Local Government Act 1995 (WA) from continuing his membership of the Council of the Shire of Mundaring.

I certify that this and the preceding [34] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR D R PARRY, SENIOR MEMBER