YATES and LOCAL GOVERNMENT STANDARDS PANEL - [2011] WASAT 196

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: LOCAL GOVERNMENT ACT 1995 (WA)

CITATION: YATES and LOCAL GOVERNMENT STANDARDS PANEL [2011] WASAT 196

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)

HEARD: 25 OCTOBER 2011

DELIVERED : 6 DECEMBER 2011

FILE NO/S: DR 228 of 2011

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

Catchwords:

Local government - Regulation of councillors - Whether councillor made a 'statement' that a local government employee is incompetent or dishonest - Whether a 'statement' that a local government employee is incompetent or dishonest can be made by implication - Councillor said that costing for road works prepared by local government employee 'has been exaggerated' and that the local government employee's 'report [is] at a pricing to stop the budget' - Words and phrases: 'dishonest', 'statement'

Legislation:

Interpretation Act 1984 (WA), s 18
Local Government (Rules of Conduct) Regulations 2007 (WA), reg 10, reg 10(3), reg 10(3)(a)
Local Government Act 1995 (WA), s 5.104(1), s 5.105(1)(a), s 5.110(6), s 5.110(6)(b)(ii), s 5.125(1)

Result:

Finding of minor breach and imposition of public apology affirmed

Category: B

Representation:

Counsel:

Applicant:     Self-represented
Respondent:     Mr I Repper
Intervener:     Mr I Repper

Solicitors:

Applicant:     Self-represented
Respondent:     State Solicitor's Office
Intervener:     State Solicitor's Office

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

Bell v Australasian Recyclers (WA) Pty Ltd (1986) ATPR 40644
Hargreaves and Local Government Standards Panel [2008] WASAT 300

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

At the ordinary meeting of the Town of Bassendean held on 13 July 2010, Mr Donald Yates, then a council member, spoke against a recommendation made by Mr Ian McDowell, a local government employee, in his report containing a cost estimate of roadworks, that the Council should take no further action in relation to the works. Mr Yates said during the debate that Mr McDowell's 'costing has been exaggerated' and that his report was 'at a pricing to stop the budget'.
Mr McDowell and a council member each complained about Mr Yates' statement. The Local Government Standards Panel found that Mr Yates committed a breach of reg 10(3)(a) of Local Government (Rules of Conduct) Regulations 2007 (WA) which relevantly states that a council member must not, at a council meeting at which members of the public are present, 'orally, in writing or by any other means … make a statement that a local government employee is incompetent or dishonest'. The Panel ordered Mr Yates to make a public apology to Mr McDowell in two newspapers. Mr Yates sought review by the Tribunal.
The contested issues for determination by the Tribunal were:
1.Whether a 'statement' can be made by implication; and
2.Whether Mr Yates' words at the Council meeting implied dishonesty or incompetence on the part of Mr McDowell.
The Tribunal determined that a 'statement', that is, a communication or declaration in speech or writing, can be made by implication, provided that the implication is sufficiently clear. The Tribunal also determined that for…

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: [2011] WASAT 196
Decision Date: 6 DECEMBER 2011

CaseChat Overview and Summary

In Yates and Local Government Standards Panel, the case before the court involved the conduct of a councillor, Yates, and whether certain remarks made by him amounted to a statement that a local government employee was incompetent or dishonest. The Local Government Standards Panel had found that Yates had breached the code of conduct by making such a statement, and this decision was being appealed. The crux of the dispute centred on the interpretation and application of the relevant provisions of the Local Government Act, which govern the conduct of councillors.

The primary legal issue the court had to resolve was whether the statements made by Yates could be construed as a statement that a local government employee was incompetent or dishonest. Specifically, the court had to determine whether such a statement could be made by implication. Yates had argued that his comments, which suggested that the costing for road works was exaggerated and that the report was intended to halt the budget, did not explicitly state that the employee was incompetent or dishonest. Instead, he claimed that these remarks were a critique of the costing and not an attack on the employee's integrity.

The court examined the statutory language and the context in which the statements were made. It held that while Yates's comments were critical of the costing and report, they could be reasonably interpreted as implying that the employee was either incompetent in preparing the costing or dishonest in their intentions. The court found that the statements went beyond mere criticism of the work product and implicated the personal integrity of the employee. Consequently, the court upheld the decision of the Local Government Standards Panel, finding that Yates had indeed made a statement that the employee was incompetent or dishonest. The appeal was dismissed.

In summary, the court found that the statements made by Yates were sufficient to imply that the local government employee was either incompetent or dishonest. The appeal was dismissed, and the original decision of the Local Government Standards Panel was affirmed.

Orders