Shire Of Waroona and Fitzpatrick

[2007] WASAT 219

SHIRE OF WAROONA and FITZPATRICK [2007] WASAT 219

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2007] WASAT 219
Act:	LOCAL GOVERNMENT ACT 1995 (WA)
Case No:	DR:210/2007	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	JUDGE J CHANEY (DEPUTY PRESIDENT)	Delivered:	29/08/07
No of pages:	9	Judgment Part:	1 of 1
Result:	Declaration that respondent is disqualified
Category:	B
PDF Version

Parties:	SHIRE OF WAROONA PAUL FITZPATRICK
Catchwords:	Local government ­ Disqualification of member of council ­ Absence from three consecutive council meetings with leave of council ­ Application for declaration by Tribunal as to disqualification ­ Whether State Administrative Tribunal has any discretion in relation to declaration where absences established.
Legislation:	Local Government Act 1995 (WA), s 2.25, s 2.25(4), s 2.27(3), s 2.27(4), s 2.27(5), s 2.27(6)
Case References:	Nil
Orders	1. Paul Fitzpatrick 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 Waroona.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : LOCAL GOVERNMENT ACT 1995 (WA) CITATION : SHIRE OF WAROONA and FITZPATRICK [2007] WASAT 219 MEMBER : JUDGE J CHANEY (DEPUTY PRESIDENT) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 29 AUGUST 2007 FILE NO/S : DR 210 of 2007 BETWEEN : SHIRE OF WAROONA

Applicant

AND

PAUL FITZPATRICK
Respondent

Catchwords:

Local government ­ Disqualification of member of council ­ Absence from three consecutive council meetings with leave of council ­ Application for declaration by Tribunal as to disqualification ­ Whether State Administrative Tribunal has any discretion in relation to declaration where absences established.

Legislation:

Local Government Act 1995 (WA), s 2.25, s 2.25(4), s 2.27(3), s 2.27(4), s 2.27(5), s 2.27(6)

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Result:

Declaration that respondent is disqualified

Category: B

Representation:

Counsel:

Applicant : Self-represented
Respondent : Self-represented

Solicitors:

Applicant : Self-represented
Respondent : Self-represented

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

Nil

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REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 Mr Paul Fitzpatrick has been a Councillor of the Shire of Waroona since 2001, and between 2003 and 2005 was Shire President. He has made a significant contribution to the affairs of the local government over that time. Between February 2007 and April 2007, Mr Fitzpatrick was absent from three consecutive council meetings. On each occasion he tendered his apologies prior to the meeting. It is apparent that his absences were caused by either unforeseen circumstances arising or business commitments overseas.

2 Section 2.25 of the Local Government Act 1995 (WA) provides that a member of a local government who is absent from three consecutive ordinary meetings of the Council, without leave of the Council, is disqualified from continuing his or her membership of the Council. Alive to that provision, and in accordance with his obligations under the Local Government Act 1995 (WA), the Chief Executive Officer of the Shire gave notice to Mr Fitzpatrick, in May 2007, that he was disqualified as a councillor by operation of the provisions of the Act. After receiving an explanation from Mr Fitzpatrick concerning his absences, the Chief Executive Officer applied, as he was required to do, to the Tribunal for a declaration as to whether or not Mr Fitzpatrick is disqualified. The Shire's position was that his disqualification was most undesirable and it preferred that he not be disqualified.

3 The Tribunal reviewed the provisions of the Local Government Act 1995 (WA), and the circumstances of this case, and determined that it had no discretion but to declare that Mr Fitzpatrick is disqualified. While recognising the underlying object of the disqualification provisions of the Act, the Tribunal noted that, in the circumstances of this case, the outcome caused considerable inconvenience to the Shire and was harsh on Mr Fitzpatrick.

Background

4 Mr Paul Fitzpatrick was elected to the Council of the Shire of Waroona in 2001. He was re-elected from time to time, most recently for a term ending in 2009.

5 Mr Fitzpatrick did not attend the ordinary Council meetings of the Shire on 27 February 2007, 27 March 2007 and 24 April 2007. It is common ground that they were consecutive ordinary meetings of the Council.

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6 In each case, his apologies for his absence were conveyed to the Council prior to the commencement of the meeting, and were recorded in the minutes.

7 Section 2.25(4) of the Local Government Act 1995 (WA) (LG Act), provides:

"(4) a member who is absent, without first obtaining leave of the Council, throughout three consecutive ordinary meetings of the Council is disqualified from continuing his or her membership of the Council."

8 Section 2.27 of the LG Act relevantly provides:

"…

(3) If the CEO has reason (other than through receiving a notice under subsection (2)) to believe that a member of a council is disqualified the CEO is to give the member a written notice without delay indicating the reasons why the CEO believes the member to be disqualified.

(4) The CEO's notice under subsection (3) has to inform the member ¾


(a) that if the member believes that he or she is not disqualified, he or she may advise the CEO in writing within 28 days from the date of the service of the notice; and

(b) that if the member accepts that he or she is disqualified in accordance with the terms of the notice, he or she is to advise the CEO in writing.


(5) If, within 28 days from the date of service of the CEO's notice under subsection (3), the member satisfies the CEO that the member is not disqualified, the CEO is to give the member a written notice to that effect.

(6) Unless, within 28 days from the date of service of the CEO's notice under subsection (3), the member -

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(a) satisfies the CEO that the member is not disqualified; or

(b) advises the CEO in writing that the member accepts that he or she is disqualified,

the CEO is to apply to the State Administrative Tribunal asking for a declaration as to whether or not the member is disqualified.

…"

9 In accordance with this obligation under s 2.27(3), Mr Ian Curley, the Shire's CEO, gave notice on 9 May 2007 to Mr Fitzpatrick advising him that Mr Curley believed Mr Fitzpatrick was disqualified from continuing as the East Ward Councillor of the Shire of Waroona.

10 In accordance with s 2.27(4), Mr Fitzpatrick responded in the following terms:

"I refer to your letter of the 9 May 2007 regarding your claims that I am disqualified as an East Ward Councillor as per clause 2.25(4) of the Local Government Act 1995.

As pursuant to clause 2.27 (4) I am responding within the 28 day requirement to advise you that I believe I am not disqualified. As per clause 2.25 (40 [sic] of the Act.

Upon been [sic] elected a councillor in 2001 I was advised that only planned short to long term leave absences would require a council approved leave of absence. In all other cases as an emergency arose a councillor needed to inform the council prior to the scheduled meeting of his/her pending absence to ensure their apologies were recorded in the minutes. If this was not forwarded prior to the meeting for 3 consecutive meetings then and only then a councillor would be disqualified from attending any future meetings as an elected representative of the shire.

Each of my reasons for not been [sic] able to attend was due to last minute unforeseen circumstances in relation to my business commitments here and overseas. (Western Australia is experiencing the highest growth per capita in the world at present) On each occasion an email or a phone call was made direct to the Shire.

(Page 6)

A point that must be considered here is I did advise the council and I did have my apologies recorded. The March and February meeting[s] were held outside council chambers at Preston Beach and Lake Clifton due to renovations of the council chamber.

No advice was forwarded to me by you as CEO to inform me that I would need any special leave at the next meeting if I was unable to attend.

My understanding now of the rules is that even if I was aware of pending issues over the following 2 meetings I would be disqualified as I needed to be in attendance to apply for leave. Hence the same would apply if a health issue arose during this period and any councillor would be disqualified under the current Act.

My involvement as a councillor since 2001 has seen me accept a number of roles in the Peel region including Shire President, Board member of the Peel Development Commission. Chairman of the Peel Economic Development Unit, Member of the Peel Planning Committee since 2003 as well as local committees within the shire.

During this time we have seen the Peel region become the fastest growth region in Australia and now enjoy substantial growth due to dedicated people within the region who share my vision and passion for the area.

At all times I have endeavoured to make myself available for committee participation and other Local Government appointments. These commitments have at all times been given a high priority where possible with my personal farm, local and international business commitments."

11 The contents of Mr Fitzpatrick's letter of 18 May 2007 did not satisfy the CEO that Mr Fitzpatrick is not disqualified, and accordingly the CEO applied to the Tribunal for a declaration as to whether or not Mr Fitzpatrick is disqualified.

12 At the initial directions hearing before the Tribunal, the parties were given the opportunity to lodge written submissions generally and in particular as to whether the Tribunal has any discretion as to whether or not it should make a declaration. It was otherwise agreed that the matter should be dealt with on the papers. A subsequent

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submission from Mr Fitzpatrick indicated that the only matter that he wished to add to the contents of his letter of 18 May 2007 was that his reason for missing the March meeting was not a business commitment here or overseas, but rather an issue concerned with personal circumstances beyond his control. It is not necessary, for present purposes, to elaborate on the nature of those circumstances.

The Shire's attitude to the application

13 Mr Curley has acted entirely appropriately, and in accordance with his obligations under the LG Act, in giving notice to Mr Fitzpatrick, and bringing the application before the Tribunal. Notwithstanding that it was his duty to act as he did, in submitting the application, Mr Curley advised the Tribunal that Mr Fitzpatrick had, as well as being a Councillor since 2001, been Shire President from 2003 to 2005. The Chief Executive Officer said that Mr Fitzpatrick is:

"a Councillor of good standing and has represented the interests of the Shire locally, and through much involvement at a regional level. It would be a loss for Council and community for Councillor Fitzpatrick to be disqualified under these circumstances."

14 Mr Curley also advised that the Shire ordinarily has eight councillors, although one has recently resigned. The vacancy for that position is to be filled at the election on 20 October 2007. It follows that, if Mr Fitzpatrick is deemed disqualified, the Council will only have six councillors to fulfil its obligations with no time to fill the position before the October elections. He advised that another Councillor had sought leave of absence from the July Council meeting which would leave only five councillors available, excluding Councillor Fitzpatrick.

15 It was the clear preference of the Shire that, in the circumstances of the case, Mr Fitzpatrick be able to continue his role and contribution as a councillor.

Function of the Tribunal

16 Section 2.27(6) of the LG Act makes it clear that the function of the Tribunal is to make "a declaration as to whether or not the member is disqualified." It is clear that, where the Tribunal is considering s 2.25, its function is to determine whether or not, as a matter of fact, the disqualifying condition exists. There is no element of discretion where the Tribunal finds that a member has been absent throughout three consecutive ordinary meetings without first

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having leave of the Council.

17 Mr Fitzpatrick accepts that he was not present at any time at any of the three consecutive ordinary meetings between February and April this year. The explanations which he provides in his letter of 18 May, while quite reasonable, do not challenge the essential facts. In considering a declaration under s 2.27(6) the Tribunal might make a declaration that a Councillor is not disqualified if it is satisfied that he or she were present for some or all of one of the three consecutive meetings, or that leave of absence was granted in relation to one or more of those meetings. If it is unable to reach that conclusion, then the only declaration open to the Tribunal (where absence from three consecutive meetings without leave of absence is established) is a declaration of disqualification. That is the position in this case.

18 As Mr Fitzpatrick rightly observes, the effect of s 2.25(4) is that a Councillor would be disqualified where, having missed two consecutive previous meetings, some unavoidable event, such as sudden illness or a car accident, prevented attendance at the last minute of the third meeting. Given the requirement that leave of the Council to be absent must be "first obtained", it would be too late for leave of absence to the granted at that third meeting.

19 The object of the section is readily apparent. In effect, it imposes an obligation on councillors to attend meetings, and not to fail to attend three consecutive meeting unless the reasons are such that the council has considered the circumstances and made an express resolution to grant leave of absence. Whether that strict rule should be relaxed to cater for exceptional circumstances, and whether the Tribunal should have some discretion to consider exceptional circumstances, is a matter for government. Given the circumstances of this case, the Tribunal proposes to forward a copy of this decision to the Minister for Local Government for information.

20 It is appropriate to take the opportunity to make an observation about a matter asserted in Mr Fitzpatrick's letter of 18 May 2007. That is the proposition that a Councillor needs to be in attendance to apply for leave of absence. There is nothing in s 2.25 which requires the attendance of a member at the meeting at which leave of absence for some future meeting is granted. It is necessary that leave of absence be granted prior to a particular meeting. Thus it would not appear possible, if a member is unexpectedly prevented from attending a particular meeting, to have a

(Page 9)

motion of leave for absence moved at that meeting. Where, however, a member, absent at one meeting, anticipates that he or she will not be able to attend the following meeting, there is nothing to prevent the Council resolving to grant leave of absence in respect to the following meeting, notwithstanding the absence of the member at the time the motion is put and carried.

Conclusion

21 In the circumstances, the facts establish that Mr Fitzpatrick was absent from three consecutive meetings without leave of the Council, and is, by virtue of s 2.25(4) of the LG Act disqualified from continuing his membership of the Council.

Orders

1. Paul Fitzpatrick 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 Waroona.

I certify that this and the preceding [21] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

JUDGE J CHANEY, DEPUTY PRESIDENT