STEPHEN CAIN (AS CEO OF THE CITY OF COCKBURN) and SMITH
[2020] WASAT 18
•3 FEBRUARY 2020
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: STEPHEN CAIN (AS CEO OF THE CITY OF COCKBURN) and SMITH [2020] WASAT 18
MEMBER: MS R PETRUCCI, MEMBER
HEARD: 20 DECEMBER 2019 (FINAL WRITTEN SUBMISSIONS FILED ON 24 JANUARY 2020)
DELIVERED : 3 FEBRUARY 2020
FILE NO/S: CC 1384 of 2019
BETWEEN: STEPHEN CAIN (AS CEO OF THE CITY OF COCKBURN)
Applicant
AND
LEEANNE SMITH
Respondent
Catchwords:
Local government - Minor breaches of reg 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA) - Order of the Local Government Standards Panel to provide public apology - Failure to comply with the Panel's order - Referral to the Tribunal under s 5.118(1) of the Local Government Act 1995 (WA) - Sanctions - Suspension under s 5.117(1)(a)(iv) of the Local Government Act 1995 (WA) - Costs awarded under s 87(2) and (3) of the State Administrative Tribunal Act 2004 (WA)
Legislation:
Local Government (Rules of Conduct) Regulations 2007 (WA), reg 7, reg 7(1)(a)
Local Government Act 1995 (WA), s 5.110(6)(b)(i), s 5.110(6)(b)(ii), s 5.110(6)(c), s 5.117(1)(a)(iv), s 5.117(1)(a)(v), s 5.117(2), s 5.118, s 5.118(1), s 5.119
State Administrative Tribunal Act 2004 (WA), s 87(2), s 87(3), s 89
Result:
Respondent suspended from office of councillor for two months
Respondent to pay to City of Cockburn costs of $6,000
Category: B
Representation:
Counsel:
| Applicant | : | Mr D McLeod |
| Respondent | : | Non-Appearance |
Solicitors:
| Applicant | : | McLeods Barristers & Solicitors |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Osborne (as CEO of the City of Bunbury) and Steck [2019] WASAT 7
Rainbow Pty Ltd and Hawkins & Anor [2007] WASAT 216(S)
Sheridan (as CEO of the Shire of Chittering) and Gibson [2019] WASAT 12
Shire of Halls Creek and Taylor [2017] WASAT 16
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 6 September 2019, Mr Stephen Cain, the Chief Executive Officer (CEO or applicant) of the City of Cockburn (City) lodged an application with the Tribunal under s 5.118(1) of the Local Government Act 1995 (WA) (LG Act).
The application alleged that Ms Lee Anne Smith (respondent or Cr Smith) had failed to comply with the order made by the Local Government Standards Panel (Panel) on 18 June 2019.
On 20 July 2019, Cr Smith wrote to the CEO stating that she would not respond to, or appeal the Panel's order of 18 June 2019. Further, Cr Smith stated that she would not apologise publicly.
Background
On 15 November 2018 Cr Chontelle Sands made a complaint against Cr Smith for a breach of reg 7 of the Local Government (Rulesof Conduct) Regulations 2007 (WA) (LGRegulations). Cr Sands complained that:
Deputy Mayor LeeAnn Smith deliberately issued several false statements to the Council which may have unduly influenced the course of the meeting, securing an advantage for herself and a disadvantage for others (breach of Regulation 7(1)(a)).
The offensive and false statements included:
•'you currently are under investigation by the Department of Local Government for two submitted breaches.'
•'lying about your impartiality interest'.
•'lying about your impartiality interest in terms of the MCCC (Melville Cockburn Chamber of Commerce)'.
Deputy Mayor Lee-Anne Smith's comments were made to cause detriment and impede my credibility by implying that I am a liar and under investigation. This also cast doubt on the validity of evidence I had presented in support of the motion tabled, therefore securing an advantage for Deputy Mayor Lee-Anne Smith[.]
Cr Smith made the following submissions to the Panel on 27 May 2019 regarding the appropriate sanction to be imposed:
(a)She would like to attend further training. She had recently attended training for the first time and found it highly beneficial;
(b)She is committed to personal growth and learning and will enrol in the full Diploma of Local Government;
(c)She asked the Panel to consider the degree of public admonition that a public sanction brings; and
(d)She had already suffered a huge degree of public humiliation.
On 18 June 2019, the Panel published its decision and reasons for decision for finding that Cr Smith had breached reg 7 of the LG Regulations, which constituted a minor breach under the LG Act when at the Special Meeting of Council held on 22 August 2018 Cr Smith (Panel's determination):
(a)falsely stated that Cr Sands was the subject of two minor breach complaints and an investigation by the Department of Local Government, Sport and Cultural Industries; and
(b)stated that Cr Sands had lied about having an impartial interest in respect to a matter previously considered by the Council.
Cr Smith did not seek a review in this Tribunal of the decision of Panel of 18 June 2019 (as set out above) that she had committed a minor breach of the LG Act.
The Panel noted that Cr Smith had accepted that she had breached the LG Regulations. The Panel found that Cr Smith may have been under pressure, however she had made comments that she knew were false and were likely to cause damage to the reputation of Cr Sands. Because of the seriousness of the minor breaches, the Panel decided that training was not a suitable penalty. The Panel considered that the appropriate penalty was for Cr Smith to be publicly censured and for her to make a public apology. The Panel made the following order on 18 June 2019 (Panel's order):
THE LOCAL GOVERNMENT STANDARDS PANEL ORDERS THAT:
1.Deputy Mayor Lee-Anne Smith, the Deputy Mayor for the City of Cockburn publicly apologise, as specified in paragraphs 3 and 4 below.
2.Deputy Mayor Lee-Anne Smith, the Deputy Mayor for the City of Cockburn, be censured as specified in paragraph 5 below.
Public Apology
3.On the ordinary council meeting first occurring after the expiration of 28 days from the date of service of this Order on her, Deputy Mayor Lee-Anne Smith shall:
a.attend the relevant ordinary council meeting;
b.ask the presiding person for his or her permission to address the meeting to make a public apology to the public;
c.make the apology immediately after Public Question Time or during the Announcements part of the meeting, or at any other time when the meeting is open to the public, as the presiding person thinks fit; and
d.address the Council and public as follows, without saying any introductory words before the address, and without making any comments or statement after the address:
'I advise this meeting that:
i. A complaint was made to the Local Government Standards Panel, in which it was alleged that I contravened the Local Government (Rules of Conduct) Regulations 2007(WA) on 24 August when, at the Special Meeting of Council held 22 August 2018, I:
a. falsely stated that Councillor Chontelle Sands was the subject of two minor breach complaints and an investigation by the Department of Local Government, Sport and Cultural Industries; and
b. stated that Councillor Chontelle Sands had lied about an having an impartiality interest in respect to a matter previously considered by the Council.
ii. The Panel found that I twice breached the City of Cockburn's Code of Conduct and regulation 7(1)(b) of the said Regulations by making comments that were knowingly false and likely to cause damage to the reputation to Councillor Sands.
iii. I accept that I should not have made the false comments regarding Councillor Sands.
iv. I now apologise to Councillor Sands, the public and my fellow Councillors.'
4.If Deputy Mayor Smith fails to, or is unable to, comply with the requirements of paragraph 3 above she shall cause the following notice of public apology to be published in no less than 10 point print, as a one-column or two-column display advertisement in the first 10 pages of the 'Cockburn Gazette' newspaper and the 'Cockburn City Herald' newspaper:
PUBLIC APOLOGY BY DEPUTY MAYOR LEE-ANNE SMITH
A formal complaint was made to the Local Government Standards Panel, in which it was alleged that I contravened the Local Government (Rules of Conduct) Regulations 2007 (WA) on 24 August when on 24 August when at the Special Meeting of Council held 22 August 2018 I:
a. falsely stated that Councillor Chontelle Sands was the subject of two minor breach complaints and an investigation by the Department of Local Government, Sport and Cultural Industries; and
b. stated that Councillor Chontelle Sands had lied about an having an impartial (sic) interest in respect to a matter previously considered by the Council.
The Panel found that I had twice breached the City of Cockburn's Code of Conduct and regulation 7(1)(b) of the Regulations by making comments that were knowingly false and likely to cause damage to Councillor Sand's reputation.
I accept that I should not have made the negative comments regarding Councillor Sands.
I now apologise to Councillor Sands, the public and my fellow Councillors
Public Censure
1.Within the period of 29 days to 43 days from the day following the date of service of this Order on Councillor Smith, the Chief Executive Officer of the City of Cockburn shall arrange for the following Notice of Public Censure to be published, in no less than 10 point print:
a.as a one-column or a two-column display advertisement in the first 15 pages of 'The West Australian' newspaper;
b.as a one-column or a two-column display advertisement in the first 10 pages of the 'Cockburn Gazette' Newspaper; and
c.as a one-column or a two-column display advertisement in the first 10 pages of the 'Cockburn City Herald' Newspaper.
NOTICE OF PUBLIC CENSURE
The Local Government Standards Panel has found that Deputy Mayor Lee-Anne Smith, a Councillor of the City of Cockburn, twice breached regulation 7(1)(b) of the Local Government (Rules of Conduct) Regulations 2007 (WA) when on 24 August when at the Special Meeting of Council held 22 August 2018 she:
a. falsely stated that Councillor Chontelle Sands was the subject of two minor breach complaints and an investigation by the Department of Local Government, Sport and Cultural Industries; and
b. stated that Councillor Chontelle Sands had lied about (sic) having an impartial (sic) interest in respect to a matter previously considered by the Council.
In engaging in this conduct, Deputy Mayor Lee-Anne Smith made improper use of her office as a council member with the intent to cause detriment to Councillor Sands:
The Panel censures Councillor Smith for the two breaches of regulation 7(1)(b) of the Local Government (Rules of Conduct) Regulation 2007 (WA).
LOCAL GOVERNMENT
STANDARDS PANEL
The Tribunal notes where the oral apology is not made as required under paragraph 3 of the Panel's order, that paragraph 4 does not expressly set a timeframe.
On 20 June 2019 Ms Donna Kennedy, Acting Manager Legislation and Regulatory Support issued to Cr Smith the Panel's determination and Panel's order dated 18 June 2019.
On 20 June 2019 Cr Smith indicated her intention to appeal the Panel's determination and the Panel's order to the Tribunal. In reply, on 20 June 2019, the CEO by email told Cr Smith that the City would enter the Panel's determination and Panel's order in the public register; however, they would not action advertising of the censure until the appeal was determined. Further, on 20 June 2019, the CEO explained to Cr Smith that as the Panel's order required a public apology to occur at the ordinary council meeting on 11 July 2019, that to ensure the City was seen to be acting in compliance an appeal should, ideally, be lodged before that date.
On 20 July 2019 Cr Smith told the CEO that she would not be responding or appealing, nor would she be publicly apologising.
On 22 July 2019, the CEO explained to Cr Smith of the requirement to make a public apology in accordance with the Panel's order and the consequences of not doing so, including referral of the matter to the Tribunal.
Cr Smith reiterated on 22 July 2019 that she would not publicly apologise in accordance with the Panel's order and that she was happy 'to trigger the next stage'.
On 23 July 2019 Cr Smith requested information from the CEO as to the penalties applicable under the LG Act for a failure to comply with the Panel's order. The CEO provided that information to Cr Smith on 25 July 2019. Following receipt of information from the CEO, Cr Smith advised the CEO on the same date that she was seeking further advice.
On 2 August 2019 a minor correction was made to the Panel's determination and the Panel's order which did not affect enforcement of the Panel's order. As a consequence of the correction being made, Cr Smith was provided a further 28 days from the receipt of the letter (dated 2 August 2019) notifying her of the minor correction and the further time to comply with the Panel's order. That letter, unlike the earlier Panel's order, concluded by stating:
This is noted so the enforcement of the Order is clear and should be undertaken within 28 days of receipt of this letter.
The corrected order read:
THE LOCAL GOVERNMENT STANDARDS PANEL ORDERS THAT:
1.Deputy Mayor Lee-Anne Smith, the Deputy Mayor for the City of Cockburn publicly apologise, as specified in paragraphs 3 and 4 below.
2.Deputy Mayor Lee-Anne Smith, the Deputy Mayor for the City of Cockburn, be censured as specified in paragraph 5 below.
Public Apology
3.On the ordinary council meeting first occurring after the expiration of 28 days from the date of service of this Order on her, Deputy Mayor Lee-Anne Smith shall:
a.attend the relevant ordinary council meeting;
b.ask the presiding person for his or her permission to address the meeting to make a public apology to the public;
c.make the apology immediately after Public Question Time or during the Announcements part of the meeting, or at any other time when the meeting is open to the public, as the presiding person thinks fit; and
d.address the Council and public as follows, without saying any introductory words before the address, and without making any comments or statement after the address:
'I advise this meeting that:
i. A complaint was made to the Local Government Standards Panel, in which it was alleged that I contravened the Local Government (Rules of Conduct) Regulations 2007 (WA) on 24 August when, at the Special Meeting of Council held 22 August 2018, I:
a. falsely stated that Councillor Chontelle Sands was the subject of two minor breach complaints and an investigation by the Department of Local Government, Sport and Cultural Industries; and
b. stated that Councillor Chontelle Sands had lied about an having an impartiality interest in respect to a matter previously considered by the Council.
ii. The Panel found that I twice breached the City of Cockburn's Code of Conduct and regulation 7(1)(b) of the said Regulations by making comments that were knowingly false and likely to cause damage to Councillor Sand's reputation.
iii. I accept that I should not have made the false comments regarding Councillor Sands
iv. I now apologise to Councillor Sands, the public and my fellow Councillors'.
4.If Deputy Mayor Smith fails to, or is unable to, comply with the requirements of paragraph 3 above she shall cause the following notice of public apology to be published in no less than 10 point print, as a one-column or two-column display advertisement in the first 10 pages of the 'Cockburn Gazette' newspaper and the 'Cockburn City Herald' newspaper:
PUBLIC APOLOGY BY DEPUTY MAYOR LEE-ANNE SMITH
A formal complaint was made to the Local Government Standards Panel, in which it was alleged that I contravened the Local Government (Rules of Conduct) Regulations 2007(WA)
on24 August when on 24 Augustwhen at the Special Meeting of Council held 22 August 2018 I:a. falsely stated that Councillor Chontelle Sands was the subject of two minor breach complaints and an investigation by the Department of Local Government, Sport and Cultural Industries; and
b. stated that Councillor Chontelle Sands had lied about
anhaving an impartial (sic) interest in respect to a matter previously considered by the CouncilThe Panel found that I had twice breached the City of Cockburn's Code of Conduct and regulation 7(1)(b) of the Regulations by making comments that were knowingly false and likely to cause damage to Councillor Sand's reputation.
I accept that I should not have made the negative comments regarding Councillor Sands.
I now apologise to Councillor Sands, the public and my fellow Councillors.
Cr Smith did not comply with the Panel's order as corrected on 2 August 2019 in the additional 28 day period that she had to comply.
On 6 September 2019, as required by s 5.118(1) of the LG Act, the CEO commenced these proceedings in the Tribunal referring to Cr Smith's alleged failure to comply with the Panel's order.
On 26 September 2019 the CEO advised Cr Smith by email of the proceeding before the Tribunal.
The first directions hearing in the Tribunal listed was listed for 1 October 2019. At that directions hearing the usual programming orders were made programming the matter through to a final hearing on 15 November 2019.
On 15 October 2019 the CEO duly filed written submissions and a bundle of documents.
Cr Smith failed to file her written submissions and bundle of documents as ordered.
On 1 November 2019 Cr Smith emailed the Tribunal stating that she had not been able to meet the Tribunal's order to file her submissions and documents by the due date (of 29 October 2019) and sought an extension of time to comply with the Tribunal's order. The Tribunal tried to contact Cr Smith to discuss her request but without success.
On 8 November 2019 Cr Smith emailed the Tribunal stating that she is 'still working through [her] response'. She concluded by stating:
I do not want the tribunal to think I am being dismissive, ignorant or rude in any shape of form, I am just struggling under the pressure.
By order dated 12 November 2019, the Tribunal granted Cr Smith an extension of time to comply with the Tribunal's orders of 1 October 2019 until 13 December 2019. Further, the Tribunal vacated the hearing set down for 15 November 2019 and relisted the matter for a final hearing on 20 December 2019.
Cr Smith filed her written submissions and documents on 16 December 2019.
Subsequently, on 19 December 2019 the Tribunal received an email from Cr Smith stating that she was:
… going to be away with work at the time of my appearance. Am I able to phone in please.
The Tribunal declined her request and Cr Smith was advised accordingly. Later, during the course of the day on 19 December 2019 Cr Smith emailed the Tribunal wherein she stated:
Apologies, I am overseas and will not be back until tomorrow evening. I hope you have enough information to make a fair decision.
Mr D McLeod from McLeods Barristers & Solicitors appeared for the CEO at the hearing on 20 December 2019. Cr Smith failed to attend the hearing. The Tribunal is satisfied that Cr Smith was notified of the hearing and therefore proceeded in her absence.
At the end of the hearing, the Tribunal made orders allowing counsel for the CEO to apply for costs of these proceedings and for Cr Smith to file written submissions opposing the application by 24 January 2020.
Counsel for the CEO filed written submissions and a schedule of costs on 8 January 2020.
Cr Smith did not file any written submissions opposing the costs claimed by the CEO on 8 January 2020. However, on 24 January 2020 Cr Smith emailed the Tribunal and stated in part:
In my previous submission I had said that I would apologise for one issue and not the other.
I have had more time to think about this and I do not wish to bring any further disharmony or negative attention toward our City.
For this reason, I would like to apologise for all matters in their entirety at the next council meeting on February 13th (sic) 2020.
I do hope it is not too late for you to consider my plea[.]
On 24 January 2020, the Tribunal reserved its decision.
Evidence before the Tribunal
The Tribunal accepted into evidence the following documents at the hearing:
•Exhibit 1 - CEO's written submissions dated 15 October 2019;
•Exhibit 2 - CEO's s 24 Bundle of documents dated 15 October 2019; and
•Exhibit 3 - Cr Smith's written submissions and documents dated 16 December 2019.
The Tribunal had the benefit of oral submissions from counsel for the CEO at the hearing on 20 December 2019.
Finally, the Tribunal accepted into evidence Cr Smith's email to the Tribunal of 24 January 2020.
The law
The Panel found Cr Smith's conduct on 22 August 2018 was a minor breach of the LG Act and imposed a sanction on her under s 5.110(6)(b)(i), s 5.110(6)(b)(ii) and s 5.110(6)(c) of the LG Act which deal with minor breaches.
Where a matter is referred to the Tribunal under s 5.118(1) of the LG Act for non-compliance with the Panel's order, the Tribunal's enforcement powers under s 5.119 of the LG Act provide:
(1)If, under section 5.118, the CEO of a local government or the Department CEO refers to the State Administrative Tribunal a failure of a person to comply with an order of a standards panel or the State Administrative Tribunal, the State Administrative Tribunal may, if satisfied that the person failed to comply with the order, make an order described in section 5.117(1)(a)(iv) or (v).
(2)Section 5.117(2) extends to an order made under subsection (1).
The Tribunal upon being satisfied that a person the subject of the referral under s 5.118 of the LG Act has failed to comply with an order of the Panel, may make an order described in s 5.117(1)(a)(iv) or (v) or 5.117(2) of the LG Act which provide in part:
(1)If, on an allegation under section 5.116(2), the State Administrative Tribunal finds that a person committed a serious breach, it may -
(a)order that -
…
(iv)the person against whom the allegation was made is suspended for a period of not more than 6 months specified in the order; or
(v)the person against whom the allegation was made is, for a period of not more than 5 years specified in the order, disqualified from holding office as a member or a council;
…
(2)An order described in subsection (1)(a)(iv) or (v) may be expressed in such a way that the order -
(a)only takes effect if, on finding that the person subject to the order has not complied with a condition specified in the order, the State Administrative Tribunal directs under subsection (7) that the order take effect; and
(b)lapses if it has not taken effect within a period specified in the order,
and an order so expressed is called a suspended order.
The issue for determination
The issue for the Tribunal to determine in this matter is, if the Tribunal is satisfied that Cr Smith did fail to comply with the Panel's order, in the exercise of the Tribunal's discretion under s 5.119 of the LG Act, what is the appropriate sanction, if any, in the circumstances.
CEO's submissions as to sanction
Counsel for the CEO submitted that a suspension of Cr Smith for a period of four months under s 5.117(1)(a)(iv) is an appropriate penalty for her failure to comply with the Panel's order. This is because counsel for the CEO submitted that although Cr Smith is a 'useful member of Council', this is a clear and blatant case of refusal to comply with the Panel's order. Counsel for the CEO submitted that Cr Smith has had numerous opportunities to comply with the Panel's order but has acted in defiance and has continued to refuse to apologise.
In addition, counsel for the CEO invited the Tribunal to take into consideration the following factors when determining the appropriate sanction to be imposed on Cr Smith:
(a)Cr Smith was aware, or reasonably should have been aware, of her obligation to comply with the LG Regulations having:
(i)given an affirmation to observe the LG Regulations upon being elected to the Council for the City;
(ii)given an affirmation to observe the LG Regulations upon being elected to the office of Deputy Mayor;
(iii)11 years of experience as an elected member; and
(iv)recently undertaken training in compliance with an order of the Panel arising from a previous breach of reg 7(1)(a) of the LG Regulations (complaint 2018-060).
(b)Cr Smith was also aware, or reasonably should have been aware, of the requirement to make a public apology in accordance with the Panel's order having been:
(i)provided a copy of the Panel's determination and Panel's order;
(ii)clearly advised by the CEO of the need to make a public apology in accordance with the Panel's order in addition to the public censure undertaken by the City.
(c)Cr Smith's reply to the CEO on 22 July 2019 confirmed that she understood the requirement for a public apology imposed by the Panel's order, but she still intentionally refused to comply with that requirement in the knowledge it would trigger a referral to the Tribunal.
(d)Cr Smith was afforded an extended time for compliance with the Panel's order due to the minor correction made to the Panel's order on 2 August 2019.
(e)Cr Smith was aware of the consequences of not complying with the Panel's order by reason of the advice given to her by the CEO and the independent advice she advised that she was seeking.
(f)The documents filed by the CEO with the Tribunal establish that Cr Smith failed to comply with the Panel's order.
(g)No justification or explanation has been provided by Cr Smith for her refusal to comply with the Panel's order.
(h)Cr Smith's conduct demonstrated:
(i)a lack of remorse for the minor breaches of reg 7(1)(b) of the LG Regulations and the detriment caused to her fellow councillor by reason of such breach; and
(ii)an indifferent and dismissive attitude towards the Panel's order.
(i)The conduct of Cr Smith is unbefitting of an elected member and inconsistent with the declarations made by her upon assuming such office. Further, the conduct of Cr Smith is unbefitting of an elected member holding the second highest leadership position within the Council as Deputy Mayor. In holding that leadership position the obligation to lead by example is even more significant and an obligation that Cr Smith has failed to discharge. Conduct of this nature on the part of an elected member and Deputy Mayor brings the City into disrepute.
Counsel for the CEO submitted that Cr Smith has previously been found to have committed a minor breach of the LG Regulations only a short time before the most recent minor breaches of 22 August 2018 (as set out earlier). Counsel for the CEO stated that the reoccurrence of this conduct, despite training undertaken by Cr Smith in consequence of the initial breach, is further indication that a suspension of Cr Smith is justified.
Finally, counsel for the CEO referred the Tribunal to the decisions of:
•Osborne (as CEO of the City of Bunbury) and Steck [2019] WASAT 72 (Steck) where the Tribunal stated at [55] that complying with the Panel's order in the manner and within the time prescribed is something every councillor should be aware goes to the heart of the ongoing maintenance of appropriate standards of behaviour of councillors; and
•Shire of Halls Creek and Taylor [2017] WASAT 161 (Taylor) where the Tribunal stated at [24] that it is clear from examining the LG Act that Parliament considered that it is a serious breach of the LG Act to not comply with the Panel's order.
In conclusion, counsel for the CEO submitted that a significant penalty for Cr Smith's failure to comply with the Panel's order is justified as a precedent and by way of deterrent, so as to ensure that other councillors are fully aware that a failure to comply with an order of the Panel will result in significant sanction. Counsel for the CEO submitted that a suspended order is not appropriate in this case because Cr Smith has not, even belatedly, sought to comply with the Panel's order.
Cr Smith's submissions as to sanction
In her written submissions to the Tribunal of 16 December 2019, Cr Smith stated the reasons why she had not apologised publicly was because she did not agree with the findings and did not want to apologise for something that she believed not to be true.
Cr Smith wrote that she believed the statement:
… Councillor (sic) Chontelle Sands lied about having an impartiality interest in respect to a matter previously considered by Council.
is true.
However, Cr Smith wrote in her submissions to the Tribunal that she would have apologised for the following statement:
Falsely stated that CR Chontelle Sands was the subject of two minor breach complaints and an investigation by the Department of Local Government.
Further, Cr Smith explained in her written submissions that:
Given the two complaints were bundled into one apology I did not agree with the findings and hoped through the SAT process I would be given a chance for my voice to be heard and a reasonable and fair outcome reached.
The difficulty with Cr Smith's statement is that she chose not to seek a review of the Panel's determination and the Panel's order by this Tribunal. She contemplated seeking a review by this Tribunal on 20 June 2019 but did not pursue it. The CEO in reply to Cr Smith on the same day explained that 'ideally an appeal [seek a review] should be lodged before that date [11 July 2019]'. Cr Smith changed her mind, because on 20 July 2019 she emailed the CEO to say she would not be responding or appealing. In short, Cr Smith had ample opportunity to seek a review of the Panel's determination and the Panel's order by this Tribunal.
The CEO commenced the proceeding before the Tribunal as required by s 5.118(1) of the LG Act. Therefore, the matter before the Tribunal is limited to determining, if the Tribunal is satisfied that Cr Smith failed to comply with the Panel's order, what is the appropriate sanction, if any, to be imposed on her under s 5.119 of the LG Act.
The Tribunal's consideration of sanction
Cr Smith failed to attend the hearing on 20 December 2019. The evidence before the Tribunal from the CEO is that she has not complied with the Panel's order. Cr Smith very belatedly emailed the Tribunal on 24 January 2020 where she stated that she would like to apologise for all matters in their entirety at the next council meeting. The Tribunal understands this to be a confirmation that she has not complied with the Panel's order.
In the circumstances, the Tribunal finds, therefore, that it cannot be satisfied that Cr Smith made the apology either publicly in person as required by the Panel's order (paragraph 3) or by publishing the public apology in the Cockburn Gazette and the Cockburn City Herald as required by the Panel's order (paragraph 4).
Having found that Cr Smith did not comply with the Panel's order, the Tribunal turns next, to determine the appropriate sanction for her non‑compliance.
The Tribunal stated in Steck at [42] that:
[I]t is clear from examining the LG Act and the specific provisions referred to above that Parliament considers it is a serious breach of the LG Act not to comply with the orders of the Panel.
Cr Smith's failure to comply with the Tribunal's orders for filing of her written submissions and documents by the set date has left the Tribunal with the impression that she is dismissive of the Panel's order. Further, the Tribunal is left with the impression that Cr Smith has little or no insight into the need for local government councillors to comply with orders of the Panel in a timely fashion and that a failure to do so has serious consequences. Therefore, the Tribunal finds under s 5.119 of the LG Act that Cr Smith has failed to comply with the Panel's order. Further, the Tribunal concludes that in the circumstances it is appropriate in the exercise of the Tribunal's discretion to impose a sanction on Cr Smith as set out below.
The Tribunal finds that the facts and circumstances surrounding Cr Smith's failure to comply with the Panel's order to be more serious than those in Steck and in Taylor as well as in Sheridan (as CEO of the Shire of Chittering) and Gibson [2019] WASAT 12 where in each of those cases an apology, be it a belated apology, was made. In the present matter, as set out earlier, Cr Smith has been defiant and dismissive of the Panel's order. In the Tribunal's view, Cr Smith has demonstrated a lack of insight into the need for her, as a local government councillor (including as a Deputy Mayor), to comply with the Panel's order in a timely fashion (as she chose not to seek a review of the Panel's determination and the Panel's order). Therefore, in the circumstances, a more serious sanction is required.
In this case, Cr Smith failed to make even a belated apology and that up until 24 January 2020 she dismissed and continued to act in defiance of the Panel's order. On 24 January 2020 by email to the Tribunal, Cr Smith stated that upon having more time to think about this matter, she did not want to bring any further disharmony or negative attention towards the City. This is not a case where the councillor has sought to comply with the Panel's order. Rather this is a case of persistent defiance of the Panel's order. The Tribunal concludes that it is appropriate that the sanction to be imposed is not suspended for a period of time. Therefore, in the exercise of the Tribunal's discretion as to the appropriate sanction for the failure of Cr Smith to comply with the Panel's order, taking into account all of the circumstances, the Tribunal finds that Cr Smith should be suspended from her office of councillor (previously Deputy Mayor) for two months, which in effect is for two ordinary council meetings.
Finally, the Tribunal considered the CEO's application for costs in these proceedings.
CEO's application for costs
Counsel for the CEO submitted that in the course of these proceedings, Cr Smith has caused disadvantage to both the CEO and to the Tribunal by failing to comply with orders of the Tribunal without reasonable excuse in the following respects:
(a)Cr Smith failed to comply with Order 2 of the Orders of 1 October 2019 by failing to submit written submissions and a bundle of documents relevant to the issues to be determined by the Tribunal;
(b)Cr Smith failure to comply with Order 2 caused the final hearing scheduled for 15 November 2019 to be vacated;
(c)Cr Smith again failed to comply with Order 2 by the extended deadline of 13 December 2019; and
(d)Cr Smith additionally failed to attend the rescheduled final hearing in the matter on 20 December 2019.
Further, counsel for the CEO submitted that Cr Smith's apparent indifference to the Tribunal's orders in the current proceedings is consistent with her previous conduct in the matter where she demonstrated an indifference and dismissive attitude to the Panel's order made in relation to the minor breaches and a lack of remorse for the minor breaches and the detriment caused to her fellow councillor by reason of such breaches.
In addition, counsel for the CEO submitted that the conduct of Cr Smith has additionally caused significant expense, loss, inconvenience and embarrassment to the CEO including:
(a)significant expenditure of the time of the City's senior staff;
(b)costs of advertising of public censure totalling $5,889.78;
(c)costs of the Panel totalling $3,225.29;
(d)considerable public disrepute caused to the City; and
(e)legal costs from 5 September 2019 to 7 January 2010 of $13,243.92 but limited to $9,781.75 (calculated using the lesser Senior Practitioner rate contained in the Legal Profession (State Administrative Tribunal) Determination 2016).
Finally, counsel for the CEO submitted that an order for payment by Cr Smith of the CEO's costs in these proceedings of $18,896.82 (as set out above) is justified having regard to the unreasonable conduct of Cr Smith in these proceedings and in relation to the matter because of which the proceeding was brought.
Cr Smith's submissions in opposition to an award of costs
Cr Smith made no submissions in regards to the CEO's application for costs in these proceedings.
The Tribunal's consideration of costs
Relevant to these proceedings, s 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides that, unless specified elsewhere in the SAT Act or the LG Act, each party bear their own costs unless the Tribunal orders otherwise.
However, pursuant to s 87(2) of the SAT Act, the Tribunal may exercise its discretion and make an order for the payment by a party of all or any of the costs of another party. In Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32, Murphy JA (Martin CJ and Corboy J agreeing) stated at [51]:
Section 87(2) is to be construed in the context that the legal rationale for an order for costs is not to punish the person against whom the order is made, but to compensate or reimburse the person in whose favour it is made. That rationale is evident in s 87(3) of the SAT Act. Accordingly, even if a statutory context where the presumptive position is that no costs will be ordered, generally speaking, the question is whether, in the particular circumstances of the case, it is fair and reasonable that a party should be reimbursed for the costs it incurred. The onus is on the party seeking an order in its favour.
As noted by the Tribunal in Taylor at [36] the power to make a costs order includes the power under s 87(3) of the SAT Act to make an order for the payment of an amount to compensate a party for any expenses, loss, inconvenience or embarrassment resulting from the proceeding. The effect of s 87(3) is that the expenses that may be recovered are not limited to the traditional notion of legal costs, but can include other expenses and loss in connection with the proceeding before the Tribunal. Further, s 89 of the SAT Act enables the Tribunal where it makes a costs order to fix the amount of costs.
The nature of the proceeding, its complexity, its importance, urgency and the amount of time and effort required to properly prepare and present the case were identified by the Tribunal in Rainbow PtyLtd and Hawkins & Anor [2007] WASAT 216(S) as factors to consider in determining the amount of costs to be awarded.
In this case, the Tribunal notes that when the CEO commenced the proceedings in the Tribunal on 6 September 2019, Cr Smith had not complied with the Panel's order and therefore, in those circumstances, the CEO had an obligation to bring the proceeding under s 5.118(1) of the LG Act.
The City has been inconvenienced and has incurred significant expense and embarrassment by reason of these proceedings that would not have occurred if Cr Smith had complied with the Panel's order in a timely fashion.
In the exercise of its discretion, in all of the circumstances of this case, the Tribunal considers it is appropriate that the City should be substantially compensated for the costs and inconvenience and embarrassment of having to bring these proceedings in the Tribunal, but not all of its costs.
The Tribunal considers it appropriate that Cr Smith make a substantial contribution to the CEO's costs in the amount of $6,000.
Orders
The Tribunal orders:
1.The respondent, pursuant to s 5.117(1)(a)(iv) of the Local Government Act 1995 (WA), is suspended for two months from her office of councillor (formerly Deputy Mayor) on the Council of the City of Cockburn.
2.Within 14 days of the date of this order, pursuant to s 87 of the State Administrative Tribunal Act 2004 (WA), the respondent must pay to the City of Cockburn the amount of $6,000.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS R PETRUCCI, MEMBER
3 FEBRUARY 2020
0
4
3