Yates v Local Government Standards Panel
[2013] WASCA 8
YATES -v- LOCAL GOVERNMENT STANDARDS PANEL [2013] WASCA 8
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 8 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:21/2012 | 5 DECEMBER 2012 | |
| Coram: | PULLIN JA BUSS JA NEWNES JA | 16/01/13 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | DONALD YATES LOCAL GOVERNMENT STANDARDS PANEL ATTORNEY GENERAL FOR WESTERN AUSTRALIA |
Catchwords: | Application for leave to appeal Meaning of 'statement' within reg 10(3)(a) of the Local Government (Rules of Conduct) Regulations 2007 (WA) |
Legislation: | Local Government (Rules of Conduct) Regulations 2007 (WA), reg 10(3)(a) Local Government Act 1995 (WA), s 5.104(1), s 5.105(1), s 5.110(6), s 5.125(1) State Administrative Tribunal Act 2004 (WA), s 105 |
Case References: | City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120; (2009) 169 LGERA 15 Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389 Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280 Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1 Life Insurance Co of Australia Ltd v Phillips [1925] HCA 18; (1925) 36 CLR 60 Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : YATES -v- LOCAL GOVERNMENT STANDARDS PANEL [2013] WASCA 8 CORAM : PULLIN JA
- BUSS JA
NEWNES JA
- Appellant
AND
LOCAL GOVERNMENT STANDARDS PANEL
First Respondent
ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Second Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL OF WESTERN AUSTRALIA
Coram : JUDGE D R PARRY (DEPUTY PRESIDENT)
Citation : YATES and LOCAL GOVERNMENT STANDARDS PANEL [2011] WASAT 196
File No : DR 228 of 2011
Catchwords:
Application for leave to appeal - Meaning of 'statement' within reg 10(3)(a) of the Local Government (Rules of Conduct) Regulations 2007 (WA)
Legislation:
Local Government (Rules of Conduct) Regulations 2007 (WA), reg 10(3)(a)
Local Government Act 1995 (WA), s 5.104(1), s 5.105(1), s 5.110(6), s 5.125(1)
State Administrative Tribunal Act 2004 (WA), s 105
Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
Appellant : In person
First Respondent : No appearance
Second Respondent : Mr C S Bydder
Solicitors:
Appellant : In person
First Respondent : No appearance
Second Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120; (2009) 169 LGERA 15
Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389
Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1
Life Insurance Co of Australia Ltd v Phillips [1925] HCA 18; (1925) 36 CLR 60
Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
(Page 4)
1 PULLIN JA: The appellant seeks leave to appeal against an order made by the State Administrative Tribunal (Tribunal) on 6 December 2011. The application for leave to appeal had to be commenced within 28 days of the date of the decision appealed against. The original appeal notice seeking leave to appeal was filed on 6 March 2012, well after the expiry of 28 days from the date on which the orders were made.
2 The appeal is concerned with words spoken by the appellant at a local government council meeting on 13 July 2010. The background and the proceedings leading to the decision of the Tribunal were as follows.
3 Between December 2008 and October 2011, the appellant was a member of the council of the Town of Bassendean (Town). At its ordinary council meeting held on 16 June 2010, the council passed a motion, moved by the appellant, 'that a report be brought back to council on how to upgrade Morley Drive between Wicks and Lord Street with additional revised nib and turning pocket treatments'.
4 At the next ordinary council meeting, held on 13 July 2010, Mr Ian McDowell, the Town's Manager of Asset Services, presented a report in response to the resolution that contained 'a preliminary cost estimate' of $51,909 for the construction of a rounded nib and a right turn pocket at the intersection. The cost estimate was broken down into 16 components, but did not include costs associated with design work or service relocation. Mr McDowell recommended that the council should resolve to take no further action in relation to the roadworks on the basis that 'the intersection is no longer a recognised accident Black Spot', 'traffic volumes and speeds are not considered a major issue', and a significant amount of vegetation had been removed, with the result that Main Roads WA was 'satisfied that motorists could safely execute a U-turn at the intersection'.
5 In the debate in relation to this item, the appellant spoke against Mr McDowell's recommendation. In the course of his speech, the appellant said that 'I seriously question some of the budget figures that are coming out that are being put before Council', and proceeded to question, in particular, cost estimates in Mr McDowell's report in relation to spreading sand and removing trees. The appellant then said:
In other words it's a report at a pricing to stop the budget.
(Page 5)
6 The appellant then foreshadowed a motion:
[T]hat … the Council seeks a review of the engineering treatment of the U-turn and slip road at the intersection of Morley Drive and Wicks Street ah, and ah I guess it is for the community that I'm actually asking that situation because so many items that are coming out now where the pricing that comes before the Council to consider appears to be exaggerated. (emphasis added)
7 Following a point of order, the appellant continued as follows:
What we have here is a budget in the order of $50,000 to do this particular nib and slip road treatment. I guess really what I'd like to see is actually what a private contractor could actually do the nib and slip road treatment for. For example there is a cost in there, I think it is for about $5,000 for safety signage, road management related costs. Now these particular people on contract earn typically about $100/hour. What you are suggesting with a budget of something like $5,000 they're going to be there for a week. For a week to put in a slip road and nib suggests that again that the costing has been exaggerated. (emphasis added)
8 Mr McDowell and Ms Michelle Stubbs, a councillor of the council, each made a complaint in relation to what the appellant said at the council meeting. The complaints were referred to the Local Government Standards Panel (Panel).
9 The Panel found that, during the debate in relation to Mr McDowell's report, the appellant committed a breach of reg 10(3)(a) of the Local Government (Rules of Conduct) Regulations 2007 (WA) (Conduct Regulations):
[I]n that he orally made statements implying that Mr Ian Craig McDowell (a Town employee at the date and the author of the officer report that was before Council on such item) was dishonest by deliberately including in that report: (a) unnecessary items of expenditure to improperly inflate the total budget for the project concerned to such an extent that the Council would not approve the carrying out of the project; and (b) pricings that were dishonest in that they were deliberately 'exaggerated'.
10 Regulation 10(3)(a) of the Conduct Regulations states as follows:
If a person, in his or her capacity as a council member, is attending a council meeting, committee meeting or other organised event and members of the public are present, the person must not, either orally, in writing or by any other means -
(a) make a statement that a local government employee is incompetent or dishonest.
(Page 6)
11 The Conduct Regulations were made under s 5.104(1) of the Local Government Act 1995 (WA). Under s 5.105(1)(a) of the Local Government Act, a council member 'commits a minor breach if he or she contravenes … a rule of conduct under section 5.104(1)'.
12 Having found that the appellant committed a minor breach by contravening reg 10(3)(a) of the Conduct Regulations, the Panel dealt with the breach by ordering, pursuant to s 5.110(6)(b)(ii) of the Local Government Act, that the appellant publicly apologise to Mr McDowell by placing a notice of public apology in The WestAustralian and the Eastern Suburbs Reporter newspapers.
13 The appellant then applied to the Tribunal pursuant to s 5.125(1) of the Local Government Act for a review of the Panel's decision.
14 There was no dispute that the appellant attended the council meeting on 13 July 2010 in his capacity as a council member of the Town, that the public were present at the meeting, that during the debate in relation to Mr McDowell's report the appellant said the words referred to above, and that on the date of the meeting Mr McDowell was a local government employee.
15 Before the Tribunal the appellant contended that the words spoken did not imply dishonesty or incompetence on the part of Mr McDowell. The Tribunal determined that for a council member to say that a local government employee 'exaggerated' a costing required by a resolution of the local government and presented the pricing in order to 'stop the budget', that is, in order that the local government would not proceed with the project, implied that the employee was dishonest. That is, there was an implication that he or she was not honourable in principles, intentions and actions, was not upright, was not truthful, creditable or candid, and had lied about the real cost of doing the work and was, therefore, disposed to lie.
16 The other argument advanced by the appellant before the Tribunal was that a 'statement' that an employee was dishonest had to be expressly and not impliedly made before it would infringe reg 10(3)(a) of the Conduct Regulations.
17 As to that the Tribunal said:
The term 'statement' is not defined in the legislation. According to its most apposite ordinary meaning, a 'statement' is 'a communication or declaration in speech or writing setting forth facts, particulars, etc' (The Macquarie
(Page 7)
- Dictionary, 5th edition, 2009, page 1609). A communication or declaration in speech or in writing can be made by implication, provided that the implication is sufficiently clear. Expressed in another way, a 'statement' does not have to be expressly made.
This has been recognised in decisions in relation to trade practices law. For example, in Bell v Australasian Recyclers(WA) Pty Ltd (1986) ATPR 40-644 at 47 220, Toohey J observed that:
… a statement relating to future conduct may contain an implied statement as to present fact or past fact. It may represent impliedly that the promisor has a present intention to make good the promise and it may represent impliedly that he has the means to do so. (Emphasis in bold added).
Furthermore, s 18 of the Interpretation Act 1984 (WA) states:
In the interpretation of a provision of a written law, a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object.
As Deputy President Judge Chaney (as his Honour then was) said in Hargreaves and Local Government Standards Panel [2008] WASAT 300 at [17], reg 10 of the Conduct Regulations:
… is headed 'Relations with local government employees'. I accept the submissions of counsel for the Attorney General of Western Australia that reg 10(3) is designed to ensure that councillors do not use their position to publicly criticise employees within their local government. It is predicated on the proposition that concerns about the performance of employees should be dealt with within the local government organisation and through proper channels, rather than aired publicly in a council or committee meeting.
An interpretation of the word 'statement' that includes statements made by clear implication is consistent with, and promotes, the purpose of reg 10(3) of the Conduct Regulations to ensure that councillors do not use their position to publicly criticise local government employees. Criticism can be conveyed by implication. In contrast, Mr Yates' submission, that a 'statement' within the meaning of reg 10(3)(a) of the Conduct Regulations cannot be made by implication, would not promote the purpose of the regulation and, indeed, would compromise its efficacy [17] - [21].
18 The Tribunal thus rejected the appellant's argument.
19 The Tribunal then made the following orders on 6 December 2011:
1. The application for review is dismissed.
(Page 8)
- 2. The decision of the respondent that, during a debate at the ordinary meeting of the Town of Bassendean on 13 July 2010, the applicant committed a minor breach under s 5.105(1)(a) of the Local Government Act 1995 (WA) by contravening reg 10(3) of the Local Government (Rules of Conduct) Regulations 2007 (WA), in that he made a statement that Mr Ian Craig McDowell, a local government employee, was dishonest, is affirmed.
3. Within the period of 29 days to 43 days from the date of this order, the applicant must arrange for the following Notice of Public Apology 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 WestAustralian newspaper; and
(b) as a one-column or a two-column display advertisement in the first 15 pages of the EasternSuburbs Reporter newspaper.
21 During oral submissions, the appellant submitted that he did not believe Mr McDowell was dishonest and that Mr McDowell was simply following a usual practice of 'padding' figures. Therefore, the appellant argued, the words did not carry the meaning that Mr McDowell was dishonest. These submissions cannot be entertained. An appeal to this court can only be 'brought on a question of law': see s 105(2) of the State Administrative Tribunal Act 2004 (WA). The appellant's oral submissions that the words he used did not imply that Mr McDowell was dishonest are an attempt to challenge the Tribunal's decision that the words he used in making his statement did carry that meaning. The question about what meaning is conveyed by the use of ordinary words raises a question of fact, not a question of law: Hope v Bathurst City Council [1980] HCA 16; (1980) 144 CLR 1, 6 - 7.
(Page 9)
22 Leave to appeal is required by reason of s 105(1) of the State Administrative Tribunal Act. As the grounds of appeal have no merit, leave to appeal should be refused. In addition, the appellant made an application for an extension of time but it does not have to be considered because leave to appeal has been refused.
23 BUSS JA: The appellant has applied to this court for an extension of time to appeal, and leave to appeal, against a decision of the State Administrative Tribunal.
24 On 13 July 2010, at an ordinary meeting of the Council of the Town of Bassendean, the appellant, who was then a member of the Council, spoke against a recommendation made by the Town's employee, Ian McDowell, in a report as to the estimated cost of certain road works. Mr McDowell recommended to the Council that no further action be taken in relation to the proposed works. The appellant said at the meeting that Mr McDowell's 'costing has been exaggerated' and that his report was 'at a pricing to stop the budget'.
25 Mr McDowell and another person complained to the respondent about the appellant's statements. The respondent found that the appellant had breached reg 10(3)(a) of the Local Government (Rules of Conduct) Regulations 2007 (WA) which states, relevantly, 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 respondent ordered the appellant to make a public apology to Mr McDowell in two newspapers.
26 The appellant applied to the Tribunal for a review of the respondent's decision. The Tribunal dismissed the application and affirmed the respondent's decision.
27 On 6 December 2011, the Tribunal published reasons for decision and made formal orders.
The appellant's failure to apply for leave to appeal within time
28 Section 105(5) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides, relevantly, that an application for leave to appeal from a decision of the Tribunal must be made within 28 days after the Tribunal's decision is given. In the present case, any application for leave to appeal should have been made by 3 January 2012. The appellant's original notice of appeal was not filed until 6 March 2012. Section 105(7)
(Page 10)
- provides that the court to which the appeal lies may extend a time limit fixed by s 105, and the extension may be given even though the time limit has passed.
29 On 18 April 2012, Newnes JA ordered that the application for an extension of time and the application for leave to appeal be referred to the hearing of the appeal.
The legal principles governing an application to extend time to appeal
30 In general, there are four principal factors to be considered in determining whether to grant an application for an extension of time to appeal. First, the length of the delay. Secondly, the reasons for the delay. Thirdly, whether there is an arguable case. Fourthly, the extent of any prejudice to the respondent. No doubt, in a particular case, there may be additional factors. See Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, 198 (Kennedy J), citing the Court of Appeal in Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942, 946; City of Canning v Avon Capital Estates (Australia) Ltd [2009] WASCA 120; (2009) 169 LGERA 15 [30] - [33] (Buss JA).
The legal principles governing an application for leave to appeal under s 105(1) of the SAT Act
31 Section 105(1) of the SAT Act provides that a party to a proceeding may appeal from the decision of the Tribunal in the proceeding, but only if the court to which the appeal lies gives leave to appeal.
32 By s 105(2), an appeal from a decision of the Tribunal can only be brought 'on a question of law'.
33 The power to grant leave is conferred in general terms. It is not restricted or qualified. Leave should be granted if, in all the circumstances, it is in the interests of justice that there be a grant of leave. See Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [14] - [18] (Buss JA, Wheeler & Pullin JJA agreeing).
The merits of the appellant's application to extend time
34 It is logical to consider the merits of the appellant's application for an extension of time before considering his application for leave to appeal. The grant of an extension of time is an essential precondition to the appellant's right to pursue his application for leave to appeal. If the
(Page 11)
- application to extend time fails then the application for leave to appeal will be nugatory.
35 I agree with Pullin JA (with whom Newnes JA has expressed his agreement), generally for the reasons he gives, that the proposed grounds of appeal are without merit.
36 Further, I am of the opinion that the appellant's oral submission to this court, at the hearing, to the effect that he did not believe that Mr McDowell was dishonest, that Mr McDowell was merely following a usual practice of 'padding' figures and that, therefore, the words the appellant spoke at the Council meeting did not carry the meaning that Mr McDowell was dishonest, is without merit.
37 As I have mentioned, by s 105(2) of the SAT Act, an appeal from a decision of the Tribunal can only be brought 'on a question of law'. Generally, see Paridis [53].
38 In Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280, a Full Court of the Federal Court (Neaves, French & Cooper JJ) enunciated five general propositions in relation to the distinction between questions of fact and questions of law. The second general proposition was that the ordinary meaning of a word or its non-legal technical meaning is a question of fact (287). The fourth general proposition was that the effect or construction of a term whose meaning or interpretation is established is a question of law (289).
39 In Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389, Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ referred to the second and fourth general propositions stated by the Full Court in Pozzolanic, and the judgment of Isaacs J in Life Insurance Co of Australia Ltd v Phillips [1925] HCA 18; (1925) 36 CLR 60, 78. Their Honours then said:
The meaning attributed to individual words in a phrase ultimately dictates the effect or construction that one gives to the phrase when taken as a whole and the approach that one adopts in determining the meaning of the individual words of that phrase is bound up in the syntactical construction of the phrase in question. In R v Brown ([1996] 1 AC 543 at 561), a recent House of Lords decision, Lord Hoffmann said:
The fallacy in the Crown's argument is, I think, one common among lawyers, namely to treat the words of an English sentence as building blocks whose meaning cannot be affected by the rest of the sentence … This is not the way language works. The unit of
- communication by means of language is the sentence and not the parts of which it is composed. The significance of individual words is affected by other words and the syntax of the whole.
- If the notions of meaning and construction are interdependent, as we think they are, then it is difficult to see how meaning is a question of fact while construction is a question of law without insisting on some qualification concerning construction that is currently absent from the law (396 - 397).
40 In the present case, it is unnecessary to decide whether the appellant's oral submission raised a contention 'on a question of law', within s 105(2) of the SAT Act. I am of the opinion that, in any event, the Tribunal's decision as to the meaning conveyed by the words spoken by the appellant at the Council meeting was correct, generally for the reasons it gave.
Conclusion
41 The proposed grounds of appeal, and the appellant's oral submission to this court at the hearing, are not reasonably arguable. They have no reasonable prospect of success. The Tribunal did not make any material error. These conclusions are sufficient to require that an extension of time be refused.
42 This court should order that the application for an extension of time to appeal be dismissed.
43 NEWNES JA: I agree with Pullin JA.
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