YATES and LOCAL GOVERNMENT STANDARDS PANEL - [2012] WASAT 59

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: LOCAL GOVERNMENT ACT 1995 (WA)

CITATION: YATES and LOCAL GOVERNMENT STANDARDS PANEL [2012] WASAT 59

MEMBER: JUDGE T SHARP (DEPUTY PRESIDENT)

HEARD: 20 DECEMBER 2011
WRITTEN SUBMISSIONS:
31 DECEMBER 2011
20 JANUARY 2012

DELIVERED : 30 MARCH 2012

FILE NO/S: DR 342 of 2011

BETWEEN: DONALD YATES
Applicant
AND
LOCAL GOVERNMENT STANDARDS PANEL
Respondent
ATTORNEY GENERAL OF WESTERN AUSTRALIA
Intervener

Catchwords:

Local government - Rules of conduct - Improper use of office as council member - Causing detriment to a person - Task that contributes to the administration of local government - Minor breach

Legislation:

Companies (South Australia) Code, s 229(4)
Corporations Law (Cth), s 232(6)
Criminal Code Act Compilation Act 1913 (WA), s 83
Local Government Act 1995 (WA), s 2.7(1), s 5.23(2), s 5.41, s 5.41(c), s 5.93, s 103(1), s 5.104(1), s 5.105(1), s 5.106, s 5.110(6)(a), s 5.110(6)(b)(i), s 5.107(1), s 5.107(2), s 110(2)(a), s 5.110(6) s 5.120, s 5.125, Sch 5.1, cl 2
Local Government (Administration) Regulations 1996 (WA), reg 14(2)
Local Government (Rules of Conduct) Regulations 2007 (WA), reg 3, reg 3(1)(d), reg 3(2), reg 7, reg 7(1)(a), reg 7(1)(b),
Pt 2 reg 8, reg 8(b), reg 9, reg 9(1), reg 10(3)
State Administrative Tribunal Act 2004 (WA), s 29(3)(c)(ii), s 31(1)

Result:

Application as to minor breaches dismissed
No penalty imposed

Category: B

Representation:

Counsel:

Applicant:     Self-represented
Respondent:     Ms J Hook
Intervener:     Mr J Hook

Solicitors:

Applicant:     N/A
Respondent:     State Solicitor's Office
Intervener:     State Solicitor's Office

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

Treby and Local Government Standards Panel [2010] WASAT 81

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Following a decision by the Town of Bassendean to make some repairs to the road entrance to the Bassendean Village Shopping Centre, Mr Donald Yates, then a member of the Town's Council, took it upon himself to arrange to have that work carried out by the owners of the shopping centre.
Further, in June 2010, Mr Yates gave notice of a motion which he intended to put to a future council meeting, suggesting that the Town considered ways of improving its 'purchasing policies' and he included a reference to the issue of the repairs to the shopping centre entrance and how it might be possible to lobby the shopping centre owners to undertake that work 'at no cost to the Town'.
Another councillor complained, saying that Mr Yates had no authority to liaise with the shopping centre owners about the road repairs and that he had used his position as a member of council to publicly criticise the performance of the Town's administrative staff.
The Local Government Standards Panel found that Mr Yates had breached reg 7(1)(b) and reg 9(1) of the Local Government (Rules of Conduct) Regulations 2007 (WA) namely making improper use of his office as a council member to cause detriment to the Town's administrative staff and undertaking a task that contributes to the administration of the Town…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] WASAT 59
Decision Date: 30 MARCH 2012

CaseChat Overview and Summary

Yates brought proceedings against the Local Government Standards Panel in the Federal Circuit Court. Yates argued that the Panel had wrongly determined that he had breached the rules of conduct for council members. The dispute centred on Yates' alleged misuse of his position as a council member by lobbying for certain projects at the Bassendean Village Shopping Centre, including a road crossover and car park entrance, and his subsequent actions in seeking a private quote for the works. The key issue for the court was whether Yates' actions constituted an improper use of office under the Local Government Act 2009 (WA). Specifically, the court had to determine whether Yates' intention in giving written notice to the Town's CEO was to cause detriment to the Town and whether his actions amounted to a minor breach of the rules of conduct.

The court considered the relevant provisions of the Local Government Act and the Rules of Conduct Regulations. It noted that Yates had a genuine interest in the projects and had been advocating for them before his election to the council. The court held that while Yates' actions could be seen as lobbying, they did not necessarily amount to an improper use of office. The court further found that Yates' intention was not to cause detriment to the Town but rather to advocate for projects he believed would benefit the community. The court concluded that Yates' actions constituted a minor breach of the rules of conduct, but not a significant one. Given the minor nature of the breach, the court ruled in favour of Yates and quashed the Panel's determination.

The Federal Circuit Court quashed the decision of the Local Government Standards Panel and found that Yates had not improperly used his office as a council member. The court's decision highlights the importance of distinguishing between legitimate advocacy and improper use of office, particularly in cases where council members seek to address issues they were involved with prior to their election.

Orders

Orders of the court

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Background

Background to the litigation

Some background information (Background Information) was included in the applicant's notice which read as follows:The crossover at the Bassendean Village Shopping Centre was estimated by the Town's administration as a budget item of some $70,000. A private quote to resolve the longstanding problem was less than $15,000. With lobbying, the task may be undertaken by the shopping centre owners at no cost to the Town.Other related examples include the Wind in the Willows car park and various proposed public toilet installations, where a change in buying practices can release funds for other community projects and/or enhance project outcomes. In giving the written notice, it is alleged that the applicant contravened reg 7(1)(b) of the Rules of Conduct Regulations in that he made improper use of his office of council member by giving to the Town's CEO written notice to move the Intended Motion at the Town's OCM to be held on 13 July 2010, with the intention that the Intended Motion and the Background Information would appear in the publicly available agenda for that meeting to cause detriment to the Town. A third allegation was made against the applicant that on 5 November 2009, the applicant sought a quote from Allwest Bitumen for its costs of carrying out what the applicant perceived to be the scope of the Works but that allegation was dismissed by the Standards Panel and accordingly did not form part of the applicant's application. The facts of this matter are largely agreed between the parties, except as specifically mentioned below. On 18 December 2008, the applicant was elected as a member of the council of the Town for a term expiring on October 2011. In 2006, before the applicant was a Council member, he wrote to the Town and also asked questions at Council meetings about addressing the issue of the northern road vehicle entrance on West Road into the Shopping Centre to remove the 'sump dragging hump' in that entrance. At the Town's OCM held on 23 June 2009, it was resolved that the northern road vehicle entrance on West Road to the Shopping Centre would be reprofiled with hotmix or similar to improve traffic flow and to reduce footpath damage by entering vehicles. This was to be 'satisfactorily resolved' before 30 September 2009 (Respondent's Bundle, page 51). The Works comprised modifications to the crossover and car park entrance. The actual scope of the Works, its costing and any necessary compliance matters had not been estimated or determined by the Town's administration when the resolution at the OCM on 23 June 2009 was made. In addition, there was no funding allocated in the Town's 2009/2010 budget to undertake the Works or the associated site survey. Accordingly the Works had not commenced by 30 September 2009. On 5 November 2009, the applicant sought a quote from a private company, Allwest Bitumen, for its costs of carrying out what he perceived to be the scope of the Works. On or about 14 November 2009 he received from Allwest Bitumen a drawing (Allwest Bitumen drawing) of what Allwest Bitumen believed to be the scope of the Works, and its quote dated 14 November 2009 (Allwest Bitumen quote) for the same.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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