Wearne v Roberts
[2001] WASCA 279
•7 SEPTEMBER 2001
WEARNE -v- ROBERTS [2001] WASCA 279
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASCA 279 | |
| Case No: | SJA:1127/2001 | 24 & 28 AUGUST 2001 | |
| Coram: | HASLUCK J | 7/09/01 | |
| 24 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| A | |||
| PDF Version |
| Parties: | STUART JOHN WEARNE CHRISTOPHER LANCE ROBERTS |
Catchwords: | Local Government Act Legal proceedings for declaration as to disqualification of councillor Proceedings brought by Chief Executive Officer Ruling by Magistrate against CEO Standing of CEO to appeal the decision Whether CEO a "person aggrieved" per appeal provisions of Justices Act CEO held to be person aggrieved Arguable case held to exist Extension of time to appeal allowed Leave to appeal granted |
Legislation: | Justices Act 1902, s 184, s 185(2), s 187, s 206C Local Government Act 1995, s 2.25, s 2.27, s 5.3, s 5.5 |
Case References: | Attorney General of the Gambia v N'Jie [1961] AC 617 Australian Conservation Foundation Inc v The Commonwealth of Australia (1980) 146 CLR 493 Baker v Carr (1962) 369 US 186 Boyce v Paddington Borough Council [1903] 1 Ch 109 Ealing Corporation v Jones [1959] 1 QB 384 Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 Gouriet v UPW [1978] AC 435 In re Bromfield; ex parte West Australian Newspapers Ltd (1991) 6 WAR 153 Johnson v Lapham (1992) 6 WAR 359 Koowarta v Bjelke-Petersen (1982) 153 CLR 168 London Passenger Transport Board v Moscrop [1942] AC 332 Onus v Alcoa of Australia Ltd (1981) 149 CLR 27 Robinson v Western Australian Museum (1977) 138 CLR 283 Roddan v Walker (1996) 17 WAR 277 Sen v The Queen (1991) 30 FCR 173 Solihull Metropolitan Borough Council v Maxfern Ltd [1977] 1 WLR 127 The Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue [2001] HCA 49 Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421 Cheatley v Q (1972) 127 CLR 291 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
CHRISTOPHER LANCE ROBERTS
Respondent
Catchwords:
Local Government Act - Legal proceedings for declaration as to disqualification of councillor - Proceedings brought by Chief Executive Officer - Ruling by Magistrate against CEO - Standing of CEO to appeal the decision - Whether CEO a "person aggrieved" per appeal provisions of Justices Act - CEO held to be person aggrieved - Arguable case held to exist - Extension of time to appeal allowed - Leave to appeal granted
Legislation:
Justices Act 1902, s 184, s 185(2), s 187, s 206C
Local Government Act 1995, s 2.25, s 2.27, s 5.3, s 5.5
Result:
Application allowed
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Category: A
Representation:
Counsel:
Applicant : Mr D W McLeod
Respondent : Mr P A Kyle
Solicitors:
Applicant : McLeod & Co
Respondent : Kyle & Co
Case(s) referred to in judgment(s):
Attorney General of the Gambia v N'Jie [1961] AC 617
Australian Conservation Foundation Inc v The Commonwealth of Australia (1980) 146 CLR 493
Baker v Carr (1962) 369 US 186
Boyce v Paddington Borough Council [1903] 1 Ch 109
Ealing Corporation v Jones [1959] 1 QB 384
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Gouriet v UPW [1978] AC 435
In re Bromfield; ex parte West Australian Newspapers Ltd (1991) 6 WAR 153
Johnson v Lapham (1992) 6 WAR 359
Koowarta v Bjelke-Petersen (1982) 153 CLR 168
London Passenger Transport Board v Moscrop [1942] AC 332
Onus v Alcoa of Australia Ltd (1981) 149 CLR 27
Robinson v Western Australian Museum (1977) 138 CLR 283
Roddan v Walker (1996) 17 WAR 277
Sen v The Queen (1991) 30 FCR 173
Solihull Metropolitan Borough Council v Maxfern Ltd [1977] 1 WLR 127
The Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue [2001] HCA 49
Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421
Case(s) also cited:
Cheatley v Q (1972) 127 CLR 291
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1 HASLUCK J: This is an application by the applicant, Stuart John Wearne, for an extension of time for leave to appeal against a decision in the Court of Petty Sessions handed down on 11 April 2001.
2 The applicant also seeks leave to appeal against the decision. Arguments directed to both these issues were heard on the same occasion.
3 The respondent opposes both applications. This has brought into play a number of subsidiary issues including the question of whether the applicant has standing to bring the proposed appeal and the question of whether the proposed grounds of appeal reveal an arguable case.
4 I must begin by looking briefly at the circumstances giving rise to the proposed appeal.
5 The applicant is the chief executive officer or CEO of the Town of East Fremantle. At all material times, the respondent has been an elected member of the municipal council. It seems that differences of opinion arose as to matters of administration and this led to a close consideration being given to the respondent's attendances at council meetings.
6 It appears to be common ground that there were three meetings of the council in August 2000, namely, 9th, 15th and 22nd of that month, with two being called by the council and one by the mayor.
7 It was common ground at the hearing before me and at the earlier hearing before the learned Magistrate that the respondent did not attend any of those meetings. A question then arose as to whether this gave rise to a disqualification.
8 Section 5.3 of the Local Government Act 1995 provides that a council is to hold ordinary meetings not more than three months apart and may hold special meetings. By s 5.5, the CEO is to convene an ordinary meeting by giving each council member at least 72 hours' notice of the date, time and place of the meeting and an agenda for the meeting. The CEO is to convene a special meeting by giving each council member notice, before the meeting, of the date, time, place and purpose of the meeting.
9 Section 2.25 deals with disqualification for failure to attend meetings. A council may, by resolution, grant leave of absence, to a member. 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.
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10 Section 2.27 sets out a procedure to determine qualification to retain membership of the council.
11 By section 2.27(3), if the CEO has reason 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.
12 By section 2.27(5), if the member satisfies the CEO that the member is not disqualified, the CEO is to give the member a written notice to that effect.
13 Section 2.27(6) is in these terms:
"(6) Unless, within 28 days from the date of service of the CEO's notice under subsection (3), the member -
(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 a court of summary jurisdiction asking for a declaration as to whether or not the member is disqualified."
15 An application is to be instituted by complaint under the Justices Act 1902. By s 2.27(9), a person who acts as a member of a council while disqualified commits an offence.
16 It was against this background that the applicant, as CEO of the Town of East Fremantle, issued a complaint in these terms:
"The member having been absent without first obtaining leave of the council of the Town of East Fremantle throughout three consecutive ordinary meetings of the council the complainant alleges the member is thereby disqualified from continuing his membership of the council pursuant to section 2.25(4) of the Local Government Act 1995 ('the Act'). The complainant hereby applies to this court for a declaration as to whether or
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- not the member is disqualified pursuant to the provisions of section 2.27(6) of the Act."
17 The evidentiary materials brought before me establish that on 11 December 2000, the learned Magistrate made a preliminary determination that the issues raised by the complaint would be determined on the criminal standard of proof, as it involved a "penal type provision".
18 The matter then proceeded to a hearing with both parties being represented by counsel. The learned Magistrate handed down his reasons for decision on 11 April 2001.
19 The learned Magistrate accepted as an acknowledged fact that the respondent had sought leave of absence from 15 August 2000 on the grounds that he would be overseas. He went on to note that the respondent had taken issue with two primary areas of dispute, namely, whether the meetings of 9 and 22 August, although called ordinary meetings, were actually special meetings in the guise of ordinary meetings. Further, whether proper notice had been given to the respondent of the meetings the subject of the complaint.
20 It appears from the learned Magistrate's reasons that he was satisfied the meetings were properly called ordinary meetings. He eventually concluded, however, that there was insufficient evidence before him that proper notice had been given to the respondent and that the meetings of 9 and 15 August 2000 were properly convened.
21 The learned Magistrate therefore proceeded to make a declaration that the respondent was not disqualified and awarded costs against the complainant.
22 Section 184 of the Justices Act 1902 provides that an appeal lies to the Supreme Court by leave.
23 Section 185(2) of the Justices Act is in these terms:
"(2) The application may be made by -
(a) any person who is aggrieved by the decision; or
(b) the Attorney General,
or by each of them, and shall be made ex parte unless the judge orders that the application be served on any person."
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24 The effect of s 187 of the Justices Act is that the Judge shall grant leave to appeal unless he considers that the appeal is frivolous or vexatious or that the grounds of appeal advanced do not disclose an arguable case.
25 The High Court has recently held in regard to a provision of this kind that reasons must be provided as to why leave is granted or refused, although such reasons need not be extensive: The Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue [2001] HCA 49. The grounds upon which the Judge may refuse leave must be clearly demonstrated, but that will be done if it is established that upon the grounds of appeal advanced the case is one which has no real prospect of success: Roddan v Walker (1996) 17 WAR 277 at 280.
26 The effect of O 65A r 2 of the Supreme Court Rules is that an application for leave to appeal is to be made within 21 days from the decision in question. By O 65A r 2A, an order granting leave shall be in form 82AA.
27 The Supreme Court Rules contain provision for time to be extended. However, more specifically, s 206C of the Justices Act provides that the court may, on such terms as it thinks fit, extend or shorten the time allowed under this Part or by rules of court for doing any act. An application for an extension shall be made ex parte unless it is ordered that the application be served on any person.
28 It emerged in the course of argument before me that within a period of 21 days from the date on which the learned Magistrate's decision was handed down, namely, 11 April 2001, papers seeking leave to appeal were lodged at the Supreme Court by solicitors representing the Town of East Fremantle. The papers in question indicated that the applicant for leave to appeal and proposed appellant was to be the Town of East Fremantle ("the first application").
29 The solicitors for the respondent then foreshadowed a challenge to the authority and standing of the Town of East Fremantle to bring such an appeal. The legal issues included the question of whether the Town could properly be characterised as a "person aggrieved" by the learned Magistrate's decision within the meaning of s 185(2) of the Justices Act.
30 This challenge to the validity of the proposed appeal was not conceded by the solicitors for the Town of East Fremantle. Nonetheless, out of a sense of caution, they lodged with the Supreme Court the application which is now before me and a supporting affidavit. The
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- applicant for leave to appeal on this occasion was the chief executive officer, or CEO, of the Town of East Fremantle ("the second application").
31 As a consequence of the preceding events, the present application was lodged outside the prescribed time limit of 21 days. It is for this reason that the second application includes an application for an extension of time. Not surprisingly, a further period of time elapsed before the second application was brought on for hearing.
32 Counsel for the respective parties accepted that the earlier, or first, application for leave to appeal should remain in abeyance pending a determination of the matters in issue raised by the second application.
33 Counsel for the applicant relies upon the sequence of events I have just described as an explanation for the failure to comply with the prescribed time limit and for subsequent delay in the matter being brought on for hearing.
34 I digress briefly to note that although applications of this kind are generally to be dealt with upon an ex parte basis, counsel on both sides seem to accept that, having regard to the complexity of the objection as to standing raised by the respondent, it was appropriate that counsel for the respondent should be heard before any determination was made as to whether time should be extended and/or leave to appeal granted.
35 Put shortly, counsel for the respondent contends that in regard to the second application also there is no party before the court who can properly be characterised as a "person who is aggrieved by the decision" in the court below. This issue is said to have a bearing upon the question of whether time should be extended and upon the further question of whether there is an arguable case to be presented to the Supreme Court.
36 I must now turn to the legal principles bearing upon the issue of standing and the meaning of s 185(2) of the Justices Act whereby an application for leave to appeal may only be made by the Attorney General or "any person who is aggrieved by the decision" in the court below.
37 All developed legal systems have had to face the problem of adjudicating conflicts between two aspects of the public interest, namely, the desirability of encouraging individual citizens to participate actively in the enforcement of the law, and the undesirability of encouraging the professional litigant and the meddlesome interloper to invoke the
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- jurisdiction of the courts in matters that do not concern him: De Smith: Judicial Administrative Action (3rd ed) page 362.
38 The adversary system requires party presentation and party prosecution in a forum presided over by an impartial arbiter. Self-interest is seen as the motivating force that will ensure that the parties present their respective positions in the best possible light. The courts exist to resolve disputes that are presented in this way. If the motivation of self-interest is absent, that is, if the dispute is not with respect to contested rights and obligations of the parties themselves, then this important circumstantial guarantee of diligent preparation and argument is lost: Baker v Carr (1962) 369 US 186.
39 Lord Diplock noted in Gouriet v UPW [1978] AC 435, at 496, that courts of justice do not act of their own motion. In our legal system, it is their function to stand by until their aid is invoked by someone recognised by law as entitled to claim the remedy in justice that he seeks. Courts of justice cannot compel anyone to invoke their aid who does not choose to do so; nor can they demand of him an explanation for his abstention.
40 His Lordship went on to observe that in English public law every citizen still has the right to invoke the aid of courts of criminal jurisdiction for the enforcement of the criminal law, although it is a right which seldom needs to be exercised by an ordinary member of the public, for since the formation of regular police forces the need for prosecutions to be undertaken by private individuals has largely disappeared. Nonetheless, it still exists and is a useful constitutional safeguard against capricious, corrupt or biased failure or refusal of the police to prosecute offenders against the criminal law.
41 There are, however, some procedures by which the aid of a court of justice can be anticipatively invoked before any crime, even inchoate, has actually been committed. One of these is the application to a court of civil jurisdiction for an injunction or for declaratory relief to restrain a potential offender from doing something unlawful in the future.
42 His Lordship noted that in modern statutes whose object is to protect the health or welfare of a section of the public by prohibiting conduct of a particular kind, it is not infrequently the case that the prohibited conduct is made both a criminal offence and a civil wrong for which a remedy in private law is available to any individual member of that section of the public who has suffered damage as a result of it. Nonetheless, the general
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- rule has been that, whenever public rights are in issue, relief may only be sought by the Attorney General.
43 He observed also that it is when an infringement of rights in the future is threatened that the jurisdiction to make declarations of right can be most usefully invoked. He added: "But the jurisdiction of the court is not to declare the law generally or to give advisory opinions; it is confined to declaring contested legal rights, subsisting or future, of the parties represented in the litigation before it and not those of anyone else".
44 A useful authority on this latter point is to be found in London Passenger Transport Board v Moscrop [1942] AC 332. In that case, a question arose as to whether a driver was entitled to be represented at a hearing by a trade union advocate. The House of Lords held that as there had been no interference with any private right of the respondent driver, who had suffered no damage peculiar to himself, he was not entitled to a declaration that the condition was unlawful without joining the Attorney General as a party. Furthermore, a declaration should not be granted to the respondent in an action in which the persons really interested, the named trade union, had not been joined as parties.
45 Reasoning of this kind was reflected in the earlier decision of Buckley J in Boyce v Paddington Borough Council [1903] 1 Ch 109 in which the learned Judge indicated that a plaintiff can sue without joining the Attorney General in two cases, namely, first, where an interference with a public right involves interference with some private right of a plaintiff; second, where no private right of the plaintiff is interfered with, but he, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right.
46 The notion that access to the courts must be restricted to those who have a specific interest in the subject matter of the dispute is reflected in various decided cases in Australia. In Australian Conservation Foundation Inc v The Commonwealth of Australia (1980) 146 CLR 493, the High Court held that the Foundation had no standing to maintain proceedings challenging the validity of governmental decisions to approve a tourist resort in Queensland which might adversely affect the surrounding environment. In the absence of special damage or adverse detriment to the complainant itself, a private body had no standing to bring an action to prevent what was alleged to be a breach of public law as a matter of principle.
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47 In the course of a lengthy judgment, Gibbs J said that in the absence of clear words, it was impossible to impute to parliament an intent to confer on any private citizen the right to espouse the observance of the proper procedures of administration in the conduct of government activity.
48 He went on to say that a person might have a special interest in the preservation of a particular environment. However, an interest for present purposes does not mean a mere intellectual or emotional concern. A person is not interested within the meaning of the rule unless he is likely to gain some advantage other than the satisfaction of righting a wrong, upholding a principle or winning a contest, if the action succeeds, or to suffer some disadvantage other than a sense of grievance, or a debt for costs if his action fails.
49 It is apparent from his Honour's reasoning that a belief, however strongly felt, that the law generally, or a particular law, should be observed, or that conduct of a particular kind should be prevented, does not suffice to give its possessor locus standi. The assertion of public rights, and the prevention of public wrongs by means of legal remedies is the responsibility of the Attorney General who may proceed ex officio or on the relation of a private individual with sufficient standing.
50 A number of other decisions have reflected a similar approach: see Robinson v Western Australian Museum (1977) 138 CLR 283; Onus v Alcoa of Australia Ltd (1981) 149 CLR 27.
51 In the case of In re Bromfield; ex parte West Australian Newspapers Ltd (1991) 6 WAR 153, the Full Court in this State undertook a comprehensive review of principles bearing upon the issue of standing and ruled ultimately that the newspaper in question had standing to be heard before Magistrate in relation to the suppression of publication of certain court proceedings. The nature of the newspaper's business gave it a special interest in the matter.
52 In the course of his judgment, Malcolm CJ noted at page 163 that in the context of certiorari the principles relating to standing have traditionally been more liberal than in the case of an application for a declaration or an injunction. As the case before him involved an application for prerogative relief, some caution must therefore be observed in applying the approach adopted in that case to the circumstances of the present situation in which the issue before the court
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- is whether the CEO of the Town of East Fremantle can be characterised as a "person aggrieved" by the learned Magistrate's decision.
53 It is important to note, however, that in the Bromfield case at page 161, his Honour the Chief Justice observed:
"In general, standing will be accorded to an applicant who is a person aggrieved by the decision complained of, in that he has a particular grievance beyond that which he may have suffered in common with the rest of the public."
54 In other words, it is implicit in the passage just mentioned that the notion of being a "person aggrieved" must be considered within the context of discussion about the requirements of locus standi.
55 Before leaving the Bromfield case, I note also the observation made by Malcolm CJ at page 167 that the newspaper was "directly affected" by the making of the suppression order in that it was bound on pain of contempt not to frustrate the purpose of the order by publishing material in breach of the same.
56 A number of other cases also suggest that the reasoning applicable to the question of whether a person has sufficient standing to press a claim is applicable to the question of whether a person can be characterised as a "person aggrieved".
57 In Ealing Corporation v Jones [1959] 1 QB 384, an enforcement notice served by the local planning authority was quashed by an inferior court. The authority sought to appeal pursuant to provisions which allowed a right of appeal to "any person aggrieved".
58 The Court of Appeal held that assuming the words "any person" were capable of including a local planning authority, the authority in question was not a "person aggrieved" as no financial or legal burden had been placed upon it as a result of the decision. If parliament had intended the local planning authority to have a right of appeal, it would have said so clearly and used words which placed the matter beyond all doubt.
59 Donovan J observed at page 392 that if one came to the expression without reference to judicial decision, one would say that the words "person aggrieved by a decision" mean no more than a person who had had the decision given against him; but the courts have decided that the words mean more than that, and have held that the word "aggrieved" is not synonymous in this context with the word "dissatisfied". The word
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- "aggrieved" connotes some legal grievance, for example, a deprivation of something, an adverse effect on the title to something, and so on, and he could not see that the description fitted the case before him. The local planning authority had simply been told that it could not enforce the discontinuance of the present use of the land by means of an enforcement notice.
60 In the course of his judgment in the same case, Lord Parker CJ said at page 390 - 391:
" … a person aggrieved is not a person who is disappointed or annoyed at the decision. It is also clear that a person is not aggrieved when that person being a public body has been frustrated in the performance of one of its public duties … Accordingly, I am satisfied that a mere annoyance that what was thought to be a breach of planning control turned out not to be a breach of planning control, and, equally, the mere fact that the authority, charged with certain duties under the Act, is being frustrated in the performance of what it thought was its public duty, are not of themselves sufficient to make the local planning authority an aggrieved person."
61 I note in passing that in the Ealing Corporation case (supra) Lord Parker CJ observed at page 391 that if costs had been awarded in a case against a local authority, the local authority would be an aggrieved person. Equally, if the result of the decision was to put some legal burden on the public body concerned, that would also make it a person aggrieved.
62 In Attorney General of the Gambia v N'Jie [1961] AC 617, a question arose as to whether the Attorney General of the country in question had standing to petition for special leave to appeal when a question arose as to whether a legal practitioner should be struck off the roll.
63 In delivering the judgment of their Lordships, Lord Denning noted that the court below was sitting not as a court of law but as a disciplinary authority. They were not required to decide a suit between parties. There was no prosecutor as in a criminal case, nor any plaintiff as in a civil suit. He went on to say at page 634:
"The words 'person aggrieved' are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busy body who is interfering in things which do not concern him: but they do include a person who
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- has a genuine grievance because an order has been made which prejudicially affects his interest. Has the Attorney General a sufficient interest for this purpose? Their Lordships think that he has. The Attorney General in a colony represents the Crown as the guardian of the public interest. It is his duty to bring before the judge any misconduct of a barrister or solicitor which is of sufficient gravity to warrant disciplinary action. True it is that if the judge acquits the practitioner of misconduct, no appeal is open to the Attorney General. He has done his duty and is not aggrieved. But if the judge finds the practitioner guilty of professional misconduct, and a Court of Appeal reverses the decision on a ground which goes to the jurisdiction of the judge, or is otherwise a point in which the public interest is concerned, the Attorney General is a 'person aggrieved' by the decision and can properly petition her Majesty for special leave to appeal."
64 This judgment of the Privy Council was brought to the attention of the High Court in Koowarta v Bjelke-Petersen (1982) 153 CLR 168. In that case, an Aboriginal who had been active in arranging the purchase of a pastoral property in Queensland by the Aboriginal Land Fund Commission, being a property he expected to be used by himself and other members of his tribe, brought an action against members of the Queensland government for breaches of s 9 and s 12 of the Racial Discrimination Act 1975. The statute in question allowed a person aggrieved by a discriminatory Act to institute a proceeding by way of civil action in a court of competent jurisdiction.
65 The High Court held that the plaintiff was a "person aggrieved" within s 24 of the Racial Discrimination Act because his case came within provisions of the Act forbidding discrimination.
66 Gibbs CJ noted at page 184 that the words "person aggrieved" have appeared in many statutes. In the end, the meaning of the words must depend on the context of the particular statute. It has often been said that the words connote a person with a legal grievance. The cases under the trademarks Acts to which reference had been made in the course of argument were consistent with that view in that they suggested that a person is "aggrieved" by an Act which operates in restraint of what would otherwise have been his legal rights. However, in Attorney General of Gambia v N'Jie (supra), Lord Denning had said that the words are of wide import and should not subjected to a restrictive interpretation. His Honour held that the plaintiff, Mr Koowarta, had a genuine grievance
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- because he had been deprived of the possibility of obtaining a legal right to go onto the land. Further, there was a possibility that he might be able to obtain damages as a consequence of the various steps that had been taken.
67 In Tooheys Ltd v Minister for Business and Consumer Affairs (1981) 54 FLR 421, a person who paid customs duty on an item imported by another party sought a determination from the Minister which might have resulted in no duty being payable. The applicant was held to be a person aggrieved by the Minister's refusal to make a determination and to have standing accordingly.
68 Ellicott J said that the phrase covered a person who could show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the public. In many cases that grievance will be shown because the decision directly affects his or her existing or future legal rights. In some cases, however, the effect may be less direct. It may affect him or her in the conduct of a business or may affect his or her rights against third parties.
69 In Johnson v Lapham (1992) 6 WAR 359, a convicted offender's adoptive father sought to be substituted as an appellant in the relevant proceedings. It was held that as he was not the personal representative of the deceased appellant and no financial penalty was involved, he could not be characterised as a person aggrieved within the meaning of s 185(1) of the Justices Act. It was not enough that the applicant wished to clear his son's name, because the expression "person aggrieved" does not refer to the state of mind of the party, but to his legal position, and whether or not any right of his has been infringed. The court followed Sen v The Queen (1991) 30 FCR 173.
70 A number of recurrent themes are to be found in these cases. It is not enough to be annoyed by an apparent lack of compliance with the law. A person claiming to be a "person aggrieved" must have a real interest in the outcome of the dispute. A financial interest will usually be sufficient, but cannot be regarded as a necessary requirement. It is open to parliament to confer upon a party the right to enforce compliance with proper procedures in the public interest. Nonetheless, the language used in the statute in question has to be construed against the background of a long established tradition that whenever public rights are in issue, the general rule is that relief may be sought only at the request of the Attorney General.
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71 In Gouriet's case (supra) Lord Edmund-Davies noted at page 513 that there are certain exceptions to the general rule just mentioned. He gave as an example a provision of the Local Government Act 1972 in England at that time which enabled a local authority to instituted civil proceedings for the promotion or protection of the inhabitants of their area.
72 The case cited by Lord Edmund-Davies in support of his proposition was Solihull Metropolitan Borough Council v Maxfern Ltd [1977] 1 WLR 127. In that case, the council in question had sought to obtain an injunction against the use of certain premises for the purposes of holding a Sunday market. The respondent to the claim contended that the action was misconceived because, being an action for the enforcement of public rights, it required to be instituted in the name of the Attorney General.
73 The council relied upon the provision of the Local Government Act 1972 just mentioned, namely, that where a local authority considered it expedient for the promotion or protection of the interests of the inhabitants of their area, they were at liberty to prosecute or defend in any legal proceedings and, in the case of civil proceedings, could institute such proceedings in their own name. Oliver J held that this provision enabled a local authority to sue in their own name in cases where formerly the concurrence of the Attorney General had been necessary.
74 This brings me to a consideration of various provisions of the Local Government Act 1995 in this State.
75 I have already noted that by s 2.27 a procedure is prescribed for determining qualification to retain membership of council. In the context of the present case, the key provision is s 2.27(6) whereby, unless the member of the council in question satisfies the CEO that the member is not disqualified, "the CEO is to apply to a court of summary jurisdiction asking for a declaration as to whether or not the member is disqualified".
76 By s 2.27(8), an application is to be instituted by complaint under the Justices Act and can only be determined by a Stipendiary Magistrate.
77 The prescribed procedure needs to be considered in the context of various other provisions of the Local Government Act.
78 By s 2.5 of the Act, when an area of the State becomes a district pursuant to provisions of the Act, a local government is established for the district. The local government is a body corporate with perpetual
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- succession and a common seal. The local government has the legal capacity of a natural person.
79 By s 2.6, each local government is to have an elected council as its governing body. By s 1.3, "CEO" means the chief executive officer of a local government. By s 2.10, the role of councillors is described, including an obligation to participate in the local government's decision-making processes at council and committee meetings.
80 I have already noted that by s 2.27(9), a person who acts as a member of a council while disqualified commits an offence. The prescribed penalty is $5,000 or imprisonment for 1 year.
81 Section 9.24 provides that anyone can commence proceedings for an offence against the Local Government Act. By s 9.27, the liability of a person in civil proceedings is not affected by the commencement of proceedings against the person for an offence or the conviction of the person in proceedings for an offence.
82 By s 9.28, in any case in which the Attorney General might take proceedings on the relation, or on behalf, or for the benefit of a local government for or with respect to enforcing, securing the observance of, or preventing the breach of a statutory provision administered by the local government, the local government sufficiently represents the interests of the public and may take the proceedings in its own name.
83 Section 9.29(2) provides that in proceedings a person who is the CEO may represent the local government in all respects as though the person were the local government. The person representing the local government is entitled to be reimbursed for any money paid or required to be paid by the person as a result of representing the local government in the proceedings.
84 I must now endeavour to apply these principles and statutory provisions to the circumstances of the present case.
85 For the moment, I will put to one side the question of whether specific statutory provisions to be found in the Local Government Act modify or displace the precepts that might otherwise apply to the circumstances of the present case.
86 At a first glance, it might seem that an application pursuant to s 2.27(6) of the Local Government Act to have the qualification of a councillor determined is arguably to be regarded as a prosecution for an
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- offence, for such an application is instituted by complaint under the Justices Act and is in respect of circumstances that might amount to the commission of an offence.
87 It is important to keep in mind, however, that the prescribed procedure is essentially a claim for declaratory relief. Such a procedure is akin to the conventional approach reflected in the reasoning of Lord Diplock in Gouriet's case (supra) mentioned earlier, whereby a civil remedy such as declaratory relief or injunction is invoked to restrain a threatened wrong.
88 It is significant, having regard to the facts of the present case, that the complaint issued against Mr Roberts does not allege that he has committed an offence, but simply raises the question, to be resolved by a declaration, as to whether or not he is disqualified. The complaint does allege, however, that he has been absent from three consecutive ordinary meetings and is "thereby disqualified from continuing his membership of the council". An allegation in this form strongly suggests that a justiciable issue has arisen between the parties to the legal proceedings.
89 This in turn suggests that the special procedure for determining disqualification prescribed by the Local Government Act should be characterised as a civil proceeding. It is well-known that courts are not at liberty to give advisory opinions. Thus, if special statutory provisions allow for declaratory relief, this surely indicates that the matter in issue between the parties, namely, the question of disqualification, is to be regarded as in the nature of a lis or justiciable issue.
90 The corollary is that if a ruling goes against one of the two parties to the justiciable issue, especially if the ruling includes an order for costs, as in the present case, then the unsuccessful party should be regarded as a party with standing, or an "aggrieved party", when one turns to the avenue of appeal prescribed by s 185(1) of the Justices Act.
91 Accordingly, irrespective of those provisions of the Local Government Act which allow for persons other than the Attorney General to enforce compliance with the Act, it seems that the CEO of the Town of East Fremantle can be characterised as a person aggrieved by the learned Magistrate's decision in circumstances where the CEO was the complainant in the relevant proceedings for declaratory relief and a ruling was made contrary to the position contended for by the CEO.
92 Counsel for the respondent submitted that weight should be given to that portion of the Privy Council's judgment delivered by Lord Denning in
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- Attorney General of the Gambia v N'Jie (supra) in which it was suggested (at page 634 as quoted earlier) that where a Judge acquitted the practitioner of misconduct no appeal was open to the Attorney General. He had done his duty by placing the issue and related evidentiary materials before the court and could not therefore be regarded as a party aggrieved. He might be disconcerted or annoyed by the outcome, but that, of itself, is not sufficient.
93 Likewise, so the argument ran, the function of the CEO in the present case was simply to place the issue before the learned Magistrate pursuant to the prescribed procedure and then to abide the outcome. The CEO did not have a specific interest in the outcome, or any private right at stake, and therefore could not be characterised as "a person who is aggrieved" if the ruling was contrary to the position he had contended for.
94 It follows from my earlier observations that I am not persuaded by such a view. The CEO cannot be regarded as a neutral party who simply places certain materials before the court. The effect of s 2.27(3) and following provisions is that the CEO must have a reason to believe that a member of a council is disqualified and then, after certain prescribed exchanges, must be satisfied or not as to whether the member is disqualified. It is only if the member fails to satisfy the CEO that the claim for declaratory relief can be instituted. This means, as in civil litigation, that essentially a lis or justiciable issue has been joined between the parties that has to be resolved.
95 This, in turn, means that the CEO, being the party in a state of dissatisfaction as a result of the earlier exchanges, must inevitably become a proponent of the view that a reason exists for disqualification which must be investigated.
96 If, after the matter has proceeded to a hearing, the CEO considers that the Magistrate has made an error, particularly if the error turns on a question of proof of an incidental formality, then the CEO's state of dissatisfaction would not be changed. He remains dissatisfied as to whether the respondent to the complaint is properly qualified as a member of the council.
97 Accordingly, if the decision of the Magistrate in the Court of Petty Sessions does not resolve the CEO's dissatisfaction, then the CEO, in my view, can properly be described as a "person aggrieved" within the meaning of s 185(1) of the Justices Act.
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98 It is implicit in the provisions of s 2.27 of the Local Government Act that there is considered to be a public interest in ensuring that where a member of a council is disqualified, the issue must be properly determined. If there is reason to believe that a Magistrate determining the issue has made an error, then the public interest in the case will continue.
99 It must also be remembered that by s 2.5 of the Act a local government has the legal capacity of a natural person. By s 9.29, a person who is the CEO may represent the local government in all respects as though the CEO were the local government. He is entitled to be reimbursed for any costs incurred. These provisions, viewed in combination, strongly suggest that the CEO, as a representative of the local government, has a duty to ascertain whether the governing body of the local government is properly constituted, and should therefore be characterised as a "person aggrieved" if the ruling goes against him.
100 I note in passing that, at the end of the day, notwithstanding the passage of dicta relied on by counsel for the respondent, the Attorney General in the Gambia case was held to have standing because it was his duty to bring a matter of misconduct before the court. This, too, suggests that in the present case the CEO should be regarded as a "person who is aggrieved" if the ruling leaves him in a state of dissatisfaction.
101 The conclusion I have arrived at is reinforced when one turns to those provisions of the Local Government Act which are obviously designed to ameliorate the effect of the general rule at common law, that is to say, that whenever public rights are in issue relief may be sought only at the request of the Attorney General.
102 Section 9.28 of the Local Government Act makes is clear that in any case in which the Attorney General might take proceedings on the relation, or on behalf of, or for the benefit of the local government, the local government sufficiently represents the interests of the public and may take the proceedings in its own name. This is supplemented by s 9.29 whereby the CEO may represent the local government in all respects as though the CEO were the local government.
103 I note in passing that statutory provisions of this kind are consistent with the reasoning of Lord Diplock in Gouriet's case (supra) and with the reasoning of Oliver J in Solihull Metropolitan Borough Council v Maxfern Ltd (supra) mentioned earlier. It is consistent also with a theme to be found in a number of the decided cases that parliament can expressly confer upon any person the right to insist upon compliance with the
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- proper conduct of governmental activity provided sufficiently clear language is used in the relevant statute.
104 Finally, and in any event, even if it could be argued that the CEO is not aggrieved by the declaration in regard to disqualification, the same argument cannot apply to the appeal in regard to costs. An order for costs has been made against the CEO (albeit that he is entitled to be indemnified by the local government) and this represents a pecuniary burden as a result of which he must be regarded as an "aggrieved person" within the meaning of s 185(1) of the Local Government Act.
105 In summary, then, to this point, I conclude that the CEO of the Town of East Fremantle, being the complainant in the proceedings before the learned Magistrate, and the applicant before me for leave to appeal, does have sufficient standing as an "aggrieved person" to apply for leave to appeal. Accordingly, I must now turn to the further questions to be decided as to whether the proposed grounds of appeal disclose an arguable case and as to whether an extension of time should be granted.
106 Ground 1 of the proposed appeal is that the learned Magistrate misdirected himself in holding that the proceedings should be determined as if they involve penal-type provisions and, thus, imposed a criminal onus of proof upon the applicant local government when, in fact, he ought to have proceeded upon the basis that the onus of proof would be discharged on the balance of probabilities.
107 It emerges from earlier discussion that s 2.27(9) of the Act certainly acknowledges that a person who acts as a member of a council while disqualified commits an offence. It must be kept steadily in mind, however, that the matter before the learned Magistrate was not a prosecution. The effect of the complaint before him was to seek a declaration as to whether or not the respondent was disqualified as a consequence of having missed three consecutive meetings.
108 It follows from my review of the decided cases that a procedure of this kind can be regarded as consistent with the notion that civil proceedings can be initiated to restrain or clarify a threatened breach of the law.
109 I digress briefly to note that one cannot necessarily assume that proceedings under the Justices Act are exclusively criminal. Proceedings under the Dividing Fences Act 1961 are but one example of the way in which a procedure prescribed by the Justices Act can be utilised to resolve what is essentially a civil dispute.
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110 I do not find it to be necessary at this stage to make any final determination as to whether the matter before the learned Magistrate should be characterised as civil or as criminal proceedings. For the purposes of granting leave to appeal, it is sufficient to say that there appears to be an arguable case that the Magistrate was in error in holding that the matter should be determined on the criminal standard of proof. I consider that the applicant has an arguable case in respect of this ground of appeal.
111 Grounds 2 to 6 are directed to the question of whether proof of service of certain documents was required. It is said that the learned Magistrate misdirected himself in that he required proof of service of the notice and the agenda for each meeting as if such notice of meeting was a document to be given or served. It is said further on behalf of the applicant that there was sufficient evidence before the court that the respondent knew of the meetings and had therefore necessarily been given notice. Further, or in the alternative, there was sufficient evidence before the court that sufficient notice of the meetings had been given through public notification.
112 Counsel for the respondent conceded that the Act contains no provision requiring a particular method of giving each council member notice of the meeting. It was accepted that technically the Local Government Act may allow for notice of a meeting to be oral and possibly even for service of the agenda to be oral.
113 Again, I do not consider it to be necessary at this stage to undertake a full review of the evidence as to these grounds. There was evidence before the court concerning such matters. The weight to be given to the respective contentions is a task for the appeal court. In the absence of specific provisions in the Act concerning the manner in which notice of a meeting is to be given, I consider that the applicant is in a position to advance an arguable case. It cannot be said that he has no real prospect of success.
114 Ground 7 is to the effect that the learned Magistrate's findings as to non-compliance with the provisions of s 5(1) of the Local Government Act 1995 are inconsistent with his determination that the meeting were "properly called ordinary meetings".
115 Counsel for the respondent contended that the learned Magistrate found that the three meetings in August 2000 were "ordinary meetings" contrary to the submission on behalf of the respondent that two of the
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- meetings were in fact special meetings. The Magistrate referred to the meetings as "properly called ordinary meetings". In so doing, he was making a finding that they were correctly designated as ordinary meetings. He was not making any finding as to whether or not s 5.5(1) of the Local Government Act had been complied with.
116 This is a matter that will require careful consideration in the event of an appeal being fully argued. However, for present purposes I consider that there is an arguable case in respect of this ground of appeal.
117 Ground 8 is to the effect that the learned Magistrate imposed an order as to costs which was excessive having regard to his earlier determination in that regard.
118 The affidavit of the applicant evidences an assertion that on 7 February 2001 during cross-examination by the respondent's counsel, the learned Magistrate made a preliminary determination that costs would not be allowed over and above that day. However, a reading of the learned Magistrate's reasons as to costs at the conclusion of the matter suggests that he did not take his own preliminary determination into account and did not base the award of costs upon the applicable scale of costs, namely, the Legal Practitioners (Petty Sessions) (Contentious Business) Determination 2000.
119 The manner in which a discretion as to costs is exercised is often a contentious issue. It seems to me that the way in which this issue is viewed in the context of the present case will depend upon a resolution of some of the earlier grounds of appeal. Upon the basis of the materials presently before me, I consider that there is an arguable case in respect of this issue.
120 I turn now to the question of whether an extension of time for leave to appeal should be granted. I have already indicated in earlier discussion that, essentially, the principal reason why the present applicant is out of time is referable to the lodgement of the first application for leave to appeal in which the applicant was described as the Town of East Fremantle.
121 The circumstances are described in greater detail in the affidavit of Geoffrey Owen sworn 9 August 2001 in his capacity as a partner in the firm of McLeod & Co, such firm being the applicant's solicitors.
122 Mr Owen says that on 1 May 2001 he received instructions to lodge an application for leave to appeal against the decision handed down in the
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- Perth Court of Petty Sessions on 11 April 2001. He caused application for leave to appeal to be filed in the name of the Town of East Fremantle, with that application for leave being returnable on 1 June 2001. When the application came on for hearing on 7 June 2001, the respondent argued that the appeal was incompetent as the Town had not resolved to make an appeal.
123 The Town of East Fremantle subsequently authorised the lodgement of the application for leave to appeal. When the matter came on before the Supreme Court again, an argument was then raised by the respondent to the general effect that the Town of East Fremantle did not have standing, as it was not a person aggrieved by the relevant decision. Arrangements were then made for the issue to be set down for argument at a special appointment. It was against that background that the second application for leave to appeal - being the application presently before me - was lodged and brought on for hearing.
124 Mr Owen asserts that there is no prejudice to the respondent associated with the passage of time as the respondent has been represented by counsel throughout and by raising legal objections to the appeal is responsible in part for the passage of time. It emerged in the course of debate before me that Mr Roberts has been at liberty to attend council meetings since the date of the ruling and has, in fact, done so. Thus, arguably, the only prejudice is the degree of uncertainty that has surrounded his position in recent months as to whether an appeal will proceed.
125 I note that in Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, the Full Court considered that there were usually four major factors to be considered in exercising the court's discretion to extend time, these being the length of delay, the reason for the delay, whether there is an arguable case and the extent of any prejudice suffered by the respondent.
126 When I take account of these factors in the context of the present proceedings, I consider that I have been provided with a sufficient explanation for the delay. There has been no wilful or neglectful disregard of time limits. As I have already indicated, the explanation for the delay is largely referable to the points of law that have been raised as to matters such as standing and the presence of a resolution authorising the appeal.
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127 I am not prepared to hold that matters of this kind amount to a reprehensible default upon the part of the would-be appellant. I have already indicated that, in my view, when the various grounds of appeal are reviewed, it emerges that there is an arguable case to be presented to the Supreme Court on the hearing of an appeal. The passage of time has not been substantial and I have already noted that the respondent has not been precluded from continuing to sit as a member of the council.
128 Accordingly, for these reasons, I consider that time should be extended so as to allow the present appeal, SJA 1127 of 2001, to proceed. I will hear from the parties as to the appropriate orders required to carry these rulings into effect.
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