YATES -v- LOCAL GOVERNMENT STANDARDS PANEL [2013] WASCA 8

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASCA 8
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:21/2012	Heard:	5 DECEMBER 2012
Coram:	PULLIN JA BUSS JA NEWNES JA	Delivered:	16/01/13
No of pages:	12	Judgment Part:	1 of 1
Result:	Leave to appeal refused
Category:	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

HEARD : 5 DECEMBER 2012 DELIVERED : 16 JANUARY 2013 FILE NO/S : CACV 21 of 2012 BETWEEN : DONALD YATES

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

(Page 3)

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;

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: [2013] WASCA 8
Decision Date

CaseChat Overview and Summary

The appeal in Yates v Local Government Standards Panel concerns the interpretation and application of the Local Government (Rules of Conduct) Regulations 2007 (WA) in relation to statements made by a council member at a council meeting. The appellant, Donald Yates, a former council member, made statements during a council meeting implying that a local government employee, Mr Ian McDowell, had deliberately exaggerated costs in a report to prevent the council from approving a project. The Local Government Standards Panel found that the appellant's statements implied that Mr McDowell was dishonest, which was a breach of the Conduct Regulations. The appellant sought a review of this decision by the State Administrative Tribunal, which affirmed the Panel's decision. The appellant then sought leave to appeal to the Court of Appeal of Western Australia. The court considered the grounds of appeal, which essentially argued that the Panel's interpretation of the term 'statement' in the Conduct Regulations was incorrect, as it believed a statement implying dishonesty must be expressly made. The court rejected this argument, holding that the term 'statement' in the regulation could include implied statements, and that the Tribunal's interpretation was consistent with the purpose of the regulation to prevent public criticism of local government employees. The court also found that the appellant's argument that his statements did not imply dishonesty was a question of fact, not law, and thus not a valid ground for appeal. Consequently, the court refused leave to appeal, concluding that the Tribunal's decision was correct and that the appeal had no reasonable prospect of success.

Orders