YATES and LOCAL GOVERNMENT STANDARDS PANEL - [2011] WASAT 195

YATES and LOCAL GOVERNMENT STANDARDS PANEL [2011] WASAT 195

Last Update :08/12/2011

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2011] WASAT 195
Published:
Act:	LOCAL GOVERNMENT ACT 1995 (WA)
Case No:	DR:218/2011	Heard:	25 OCTOBER 2010
Coram:	JUDGE D R PARRY (DEPUTY PRESIDENT)	Delivered:	02/12/2011
No Pages:	15	Judgment Part:	1 of 1
Result:	Finding of minor breach and imposition of public censure affirmed
Category:	B

Parties & CatchwordsOrders
Summary

Judgment

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : DEVELOPMENT & RESOURCES ACT : LOCAL GOVERNMENT ACT 1995 (WA) CITATION : YATES and LOCAL GOVERNMENT STANDARDS PANEL [2011] WASAT 195 MEMBER : JUDGE D R PARRY (DEPUTY PRESIDENT) HEARD : 25 OCTOBER 2010 DELIVERED : 2 DECEMBER 2011 FILE NO/S : DR 218 of 2011 BETWEEN : DONALD YATES

Applicant

AND

LOCAL GOVERNMENT STANDARDS PANEL

Respondent

ATTORNEY GENERAL FOR WESTERN AUSTRALIA

Intervener

Catchwords:

Local government - Regulation of councillors - Councillor had proximity interest in relation to recoding application - Councillor sent email to fellow councillors in relation to recoding application - Whether councillor made improper use of his office as a council member to gain an advantage for applicant for recoding

(Page 2)

Legislation:

Local Government (Rules of Conduct) Regulations 2007 (WA), reg 7(1), reg 7(1)(a)
Local Government Act 1995 (WA), s 5.60, s 5.60B(1), s 5.65, s 5.65(1), s 5.67, s 5.68, s 5.69, s 5.104(1), s 5.105(1), s 5.105(1)(a), s 5.110(5), s 5.110(6), s 5.110(6)(b)(i), s 5.125(1)
State Administrative Tribunal Act 2004 (WA), s 25(2)

Result:

Finding of minor breach and imposition of public censure affirmed

Category: B

Representation:

Counsel:

Applicant : Self-represented

Respondent : Mr I Repper

Intervener : Mr I Repper

Solicitors:

Applicant : N/A

Respondent : State Solicitor's Office

Intervener : State Solicitor's Office

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

Mazza and Local Government Standards Panel [2009] WASAT 165
Re and Local Government Standards Panel [2011] WASAT 108
Treby and Local Government Standards Panel [2010] WASAT 81

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 While Mr Donald Yates was a council member of the Town of Bassendean, his nextdoor neighbour applied to the Town for a recoding of her property. Under the Local Government Act 1995 (WA), Mr Yates had a 'proximity interest' in relation to the recoding application and was therefore precluded from participating in the decisionmaking processes of the Council in relation to that matter. Nevertheless, Mr Yates sent an email to seven of his fellow councillors and to the Chief Executive Officer of the Town in relation to the application shortly before the Council's consideration of the matter.

2 The Local Government Standards Panel found that, in sending the email, Mr Yates committed a breach of reg 7(1)(a) of the Local Government (Rules of Conduct) Regulations2007 (WA) which states that a council member must not make 'improper use of the person's office as a council member … to gain directly or indirectly an advantage for … any … person'. The Panel ordered that Mr…

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 195
Decision Date: 02/12/2011

CaseChat Overview and Summary

The case of Yates and Local Government Standards Panel involved the appellant, a council member, who was alleged to have improperly used his office to gain an advantage for an applicant for a recoding application. The Local Government Standards Panel found the appellant in breach of the Local Government Act 1993 (NSW) and imposed a public censure. The appellant appealed against the finding of minor breach and the imposition of public censure. The court was required to determine whether the appellant had made an improper use of his office as a council member to gain an advantage for the applicant for the recoding application.

The legal issues before the court were whether the appellant's conduct constituted an improper use of his office and whether the finding of minor breach and the imposition of public censure were appropriate sanctions. The court considered the relevant provisions of the Local Government Act 1993 (NSW) and previous case law on the meaning of "improper use of office." The court also considered the appellant's conduct, including his email to fellow councillors in relation to the recoding application, and whether it was reasonable for the Panel to find that the appellant had made an improper use of his office.

The court found that the appellant had made an improper use of his office by sending an email to fellow councillors in relation to the recoding application, which amounted to an attempt to influence the decision-making process. The court held that the finding of minor breach and the imposition of public censure were appropriate sanctions, given the appellant's proximity interest in the recoding application and the nature of his conduct. The court noted that the sanctions imposed were not excessive and served to maintain public confidence in the integrity of the council.

The court dismissed the appeal and affirmed the finding of minor breach and the imposition of public censure. The court held that the appellant's conduct had undermined the public's confidence in the integrity of the council and that the sanctions imposed were necessary to maintain that confidence. The court emphasised the importance of council members acting impartially and without bias in their decision-making and conduct.

Orders

Orders of the court

Finding of minor breach and imposition of public censure affirmed

Background

Background to the litigation

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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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