J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282(S)

Natural Floor Covering Centre Pty Ltd v Monamy (No 1) [2006] FCA 518

Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302

Rainbow Pty Ltd and Hawkins & Anor [2007] WASAT 216(S)

Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32

1 These proceedings arise in the Tribunal pursuant to an application made by the Shire of Halls Creek (applicant or Shire) under s 5.118(1) of the Local Government Act 1995 (WA) (LG Act) alleging that a Shire of Halls Creek Councillor, Mr Anthony Taylor (respondent) had failed to comply with orders made by the Local Government Standards Panel (Panel) on 7 April 2017 (the Panel's orders).

2 The Shire also seeks its costs of $7,828.40 incurred in bringing these proceedings in the Tribunal.

3 On 1 September, 15 September and 5 October 2017 direction hearings were held in the Tribunal. With the consent of the parties at the directions hearing on 5 October 2017 the Tribunal directed, pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) that these proceedings would be determined entirely on the basis of documents.

4 The documents which have been lodged with the Tribunal by the parties are as follows:

1. Application under s 5.118(1) of the LG Act received on 1 August 2017 attaching:
   1. Letter dated 7 April 2017 to the Shire's Chief Executive Officer from Manager Sector Governance, Department of Local Government and Communities;
   2. Panel's Findings and Reasons published 23 January 2017;
   3. Panel's Reasons for Decision published 7 April 2017; and
   4. Panel's orders for Public Apology published 7 April 2017; and
2. Applicant's submissions received on 14 September 2017;

1. Respondent's submissions received 22 September 2017; and

1. Applicant's further information and submissions in response to Tribunal's orders dated 16 October 2017 received on 25 October 2017.

5 On 14 November 2017 I held a further directions hearing which will be referred to later in these reasons.

6 On 23 February 2016 the Panel received a complaint of minor breach of the LG Act from the Shire's Corporate Services Manager, Mr Lloyd Barton alleging that the respondent had caused determinant to him and the Shire's Chief Executive Officer (CEO), Mr Rodger Kerr­Newell by disclosing the contents of an anonymous letter to two named people on separate occasions (Allegations 1 and 2) and unnamed people on unspecified dates (Allegation 3) together, (the complaint).

7 The complaint was supported by documentary evidence and witness statements. Despite being given the opportunity to do so the respondent did not respond to the complaint or engage in any way in the Panel's consideration and determination of the complaint made against him.

8 On 23 January 2017, the Panel found that the respondent had committed two minor breaches under the LG Act. After providing detailed reasoning, the Panel found as follows:

The Panel finds that Cr Taylor breached regulation 7(1)(b) twice, firstly when disclosing the information in the Letter to his employee (as in Allegation 1) and secondly on 20 August 2015 when giving a copy of the Letter to Mr Fitzgerald (as in Allegation 2).

The Panel does not have sufficient evidence to be satisfied that Cr Taylor disclosed the contents of the Letter to other members of the community or any of the Complainant's colleagues, so Allegation 3 is not made out.

9 On 7 April 2017, after providing further detailed reasoning as to penalty, the Panel determined that, whilst the respondent's conduct was serious, a public censure would be too severe and that a public apology was the appropriate penalty. The Panel made the following orders:

THE LOCAL GOVERNMENT STANDARDS PANEL ORDERS THAT:

1. Mr Anthony Taylor, Councillor of the Shire of Halls Creek, apologise publicly to Mr Lloyd Barton, the Shire's Corporate Services Manager, Mr Rodger Kerr­Newell, the Shire's Chief Executive Officer and his fellow councillors as specified in paragraph 2 or paragraph 3 below, as the case requires.
2. At the first Shire of Halls Creek Ordinary Council Meeting Cr Taylor attends after the expiration of 28 days from the date of service of this Order on him, Cr Taylor shall:

(a) Ask the presiding Council member for his or her permission to address the meeting to make a public apology to Mr Barton, Mr Rodger Kerr­Newell and other councillors;

(b) make the apology immediately after Public Question Time or during the Announcements part of the meeting or at any other time when the meeting is open to the public, as the presiding member thinks fit;

(c) address the Council as follows, without saying any introductory words before the address, and without making any comments or statement after the address:

(i) A complaint was made to the Local Government Standards Panel in which it was alleged that in August 2015 I breached a rule of conduct in the Local Government (Rules of Conduct) Regulations 2007 by inappropriately disclosing information about the Shire's Corporate Services Manager, Mr Lloyd Barton and the Shire's Chief Executive Officer, Mr Rodger Kerr-Newell.

(ii) The Local Government Standards Panel found that I breached regulation 7(1)(b) of those Regulations twice by inappropriately disclosing the information to a member of the community and a Council consultant, thereby causing detriment to Mr Barton and Mr Kerr­Newell.

(iii) I accept that I should not have disclosed the information to these people and I apologise to Mr Barton, Mr Kerr­Newell and my fellow Councillors for having done so."

1. If Cr Taylor fails or is unable to comply with the requirements of paragraph 2 above he shall cause the following notice of public apology to be published in no less than 10 point print, as a one­column or two­column display advertisement in the first 10 pages of The Kimberley Echo newspaper.

10 The public apology required to be published in the newspaper Kimberley Echo by order 3 of the Panel's orders was to be in the same terms as that required orally by order 2(c) of the Panel's orders. The Tribunal notes, in circumstances where the oral public apology is not made as required under order 2, that order 3 does not specify a time frame.

11 Between May and 1 August 2017, the Shire held three Ordinary Council Meetings on 18 May, 15 June and 20 July 2017. The Kimberley Echo publishes its newspaper on a weekly basis.

12 On 1 August 2017 the applicant, as required pursuant to s 5.118(1) of the LG Act, commenced proceedings in the Tribunal referring the respondent's failure to comply with the Panel's orders.

13 On 17 August 2017, some three months later than ordered and after these proceedings were commenced in the Tribunal, the respondent made a public apology at an Ordinary Council Meeting in the oral form required by order 2 of the Panel's orders.

14 On 26 October 2017 the respondent also made a public apology in the alternative written form published in the Kimberley Echo arguably as required by order 3 of the Panel's orders.

15 The LG Act delineates minor and serious breaches of the LG Act.

16 The Panel found that the conduct of the respondent was a minor breach of the LG Act and penalised him under s 5.110(6)(ii) which deals with minor breaches of the LG Act.

17 Where a matter is referred to the Tribunal under s 5.118(1) of the LG Act for non­compliance with Panel's orders, the Tribunal's enforcement powers under s 5.119 provide as follows:

(1) If, under section 5.118, the CEO of a local government or the Departmental CEO refers to the State Administrative Tribunal a failure of a person to comply with an order of a standards panel or the State Administrative Tribunal, the State Administrative Tribunal may, if satisfied that the person failed to comply with the order, make an order described in section 5.117(1)(a)(iv) or (v).

(2) Section 5.117(2) extends to an order made under subsection (1).

18 Section 5.117 relates to the Tribunal's powers to penalise a serious breach of the LG Act. Section 5.119 limits the Tribunal's penalty options for non-compliance with the Panel's orders under s 5.117(1)(iv) or (v) and s 5.117(2) which in effect means that penalty options are suspension, disqualification or a suspended order of suspension or disqualification on a specified condition.

19 The issue for the Tribunal to determine in these proceedings is, if the Tribunal is satisfied that the respondent has failed to comply with the Panel's orders, in the exercise of the Tribunal's discretion under s 5.119 of the LG Act what is the appropriate penalty in the circumstances of this case?

1. the respondent did not comply with the Panel's orders, in that no apology was forthcoming in any form during the time required;
2. the respondent's apology was only given after the deadlines in the Panel's orders and only after being served with the present proceedings in the Tribunal;

1. the respondent's belated apology after the institution of these proceedings does not remedy or excuse the breach of the Panel's orders;

1. the respondent made no attempt to publicly apologise until it was apparent that he would be unable to avoid the consequences of non­compliance; and
2. the respondent has displayed a dismissive attitude toward the Panel's orders.

21 At the directions hearing on 14 November 2017 the Tribunal raised an issue with the parties as to whether the respondent could be said to have now complied with the Panel's orders in circumstances where order 3 of the Panel's orders omitted to impose a time limit. The applicant submitted that the Tribunal should infer a reasonable timeframe into order 3 and relied on a decision of the Federal Court in Natural Floor Covering Centre Pty Ltd v Monamy (No 1) [2006] FCA 518 (Monamy).

22 The respondent's case in relation to breach of the Panel's orders in substance relies on what may be considered to be mitigating factors of his illness, his oral public apology on 17 August 2017 made after the commencement of these proceedings and the written public apology that he published in the Kimberley Echo on 26 October 2017.

23 The respondent's written submissions can be summarised as follows:

1. The respondent submits that he was of ill health from April through to July 2017 and as a result he did not attend the Council meeting on 18 May 2017;
2. The respondent does not dispute that he should have made an apology as ordered by the Panel and he regrets his actions for not complying with the clear order to make a public apology;

1. The respondent sought to remedy his breach of the Panel's orders as soon as possible following the Tribunal proceedings being commenced by providing an oral public apology on 17 August 2017 and publishing a public apology in the Kimberley Echo on 26 October 2017; and

1. The respondent accepts that the Shire was required to commence these proceedings under s 5.118 of the LG Act and thereby incurred costs but disputes the amount of costs sought by the applicant.

24 Following the ordinary principles of statutory interpretation, it is clear from examining the LG Act and the specific provisions referred to above that Parliament considers it is a serious breach of the LG Act not to comply with orders of the Panel.

25 The respondent did not provide the Tribunal with any evidence of his ill health from April to July 2017 and how such ill health may have directly impacted on his ability to make a public apology in either of the forms required by orders 2 and 3 of the Panel's orders.

26 In his written submissions received on 22 September 2017, the respondent stated that he should have read the Panel's orders more carefully and he certainly did not intend any disrespect to the Panel's orders or the Panel's decision. In contrast to the displayed remorse and contrition in his written submission, the Tribunal finds that the respondent was somewhat recalcitrant in his demeanour on the telephone at the directions hearing on 14 November 2017. The respondent's demeanour on 14 November 2017 left the Tribunal with the impression that the respondent's remorseful written submissions were a trifle disingenuous. The Tribunal was also left with the impression that the respondent had little to no insight into the need for local government councillors to comply with orders made by the Panel in a timely fashion and that a failure to do so may have serious consequences under the LG Act.

27 In relation to the issue that order 3 of the Panel's orders did not include a time frame, the Tribunal adopts the reasoning of the Federal Court in Monamy. In circumstances where the Kimberley Echo publishes weekly, the Tribunal finds that 19 May to 26 October 2017 (approximately 20 publications) was not a reasonable timeframe for the respondent to delay publication of his written public apology in circumstances where he had not complied with order 2 for the oral public apology at the Ordinary Council Meeting on 18 May 2017.

28 Whilst it could also be argued that the respondent's belated attempts at over compliance (with two apologies) after the commencement of the proceedings in the Tribunal is substantial compliance and the Tribunal should exercise its discretion to impose no penalty on the respondent, the Tribunal finds that the belated two apologies diminished the desired effect of a timely apology.

29 The Tribunal also notes that these proceedings are principally related to the alleged non-compliance with the Panel's orders, not the original minor breach as found by the Panel. There is a clear public interest in compliance with the Panel's orders as shown by the serious provisions in the LG Act as to the substantial penalty regime for such non­compliance.

30 Therefore, the Tribunal finds under s 5.119 that the respondent failed to comply with the Panel's orders and that it is appropriate in the exercise of the Tribunal's discretion to impose a penalty under s 5.117(1)(a)(iv) or (v) or suspend such an order under s 5.117(2) of the LG Act.

31 In the exercise of the Tribunal's discretion as to the appropriate penalty for the breach by the respondent of the Panel's orders, taking into account all of the circumstances of this case, the Tribunal finds that the respondent should be suspended from being a councillor for one month (in effect one Ordinary Council Meeting), but that this suspension should be suspended for 12 months on the condition that the respondent does not commit any further breaches of the LG Act in that time period.

32 This is in effect a suspension for one month, with such penalty suspended for 12 months on the condition of good behaviour by the respondent as expected of councillors pursuant to their duties and obligations under the LG Act. This suspension for one month will only take effect if, over the next 12 months the respondent is found to have committed any further breaches of the LG Act, and the Tribunal considers that it is appropriate to direct under s 5.117(7) of the LG Act that the one month suspension is to take effect.

33 The Shire seeks a costs order in its favour for the costs incurred by the applicant arising from these proceedings in the Tribunal. The applicant seeks its legal and disbursement costs of these proceedings itemised at $7,828.40 as at 25 October 2017.

34 Relevant to these proceedings s 87(1) of the SAT Act provides that, unless specified elsewhere in the SAT Act or the LG Act, each party bear their own costs unless the Tribunal orders otherwise.

35 However, pursuant to s 87(2) of the SAT Act, the Tribunal may exercise its discretion and make an order for the payment by a party of all or any of the costs of another party. In the recent decision of the Court of Appeal in Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32, Murphy JA (Martin CJ and Corboy J agreeing) found at [51]:

Section 87(2) is to be construed in the context that the legal rationale for an order for costs is not to punish the person against whom the order is made, but to compensate or reimburse the person in whose favour it is made. That rationale is evident in s 87(3) of the SAT Act. Accordingly, even in a statutory context where the presumptive position is that no costs will be ordered, generally speaking, the question is whether, in the particular circumstances of the case, it is fair and reasonable that a party should be reimbursed for the costs it incurred. The onus is on the party seeking an order in its favour.

36 The power to make a costs order includes the power under s 87(3) of the SAT Act to make an order for the payment of an amount to compensate a party for any expenses, loss, inconvenience or embarrassment resulting from the proceeding. The effect of s 87(3) is that the expenses that may be recovered are not limited to the traditional notion of legal costs, but can include other expenses and loss in connection with the proceedings before the Tribunal.

37 Pursuant to s 89 of the SAT Act, where the Tribunal makes a costs order it may fix the amount of costs.

38 The procedures of the Tribunal are designed to achieve the objectives prescribed by s 9 of the SAT Act. In the unusual event that an order for costs is made by the Tribunal, the Tribunal's obligation to minimise the costs to parties will be reflected in the costs assessed by the Tribunal as recoverable. That approach reflects an expectation that parties will approach proceedings in a way that minimises costs. If parties choose to approach proceedings in a way which substantially increases costs for them, it will be a rare case in the Tribunal where that increase in costs will be recoverable: J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282(S) at [38].

39 An award of costs is not intended to be a full indemnity for the actual expenses incurred by a party. Generally speaking, an order for an amount of costs should be approached in a broad fashion and should not have to descend into any inquiry into small items of expenditure: Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302 at [67].

40 The Tribunal will give consideration to 'the nature of the matter, its complexity, its importance, urgency, and the amount of time and effort required to properly prepare and present the case': Rainbow Pty Ltd and Hawkins & Anor [2007] WASAT 216(S).

41 Costs orders necessarily involve the exercise of discretion as whether to award costs in the circumstances of the particular proceedings. In relation to these proceedings in the context of an application for costs, the Tribunal notes in particular the fact that, when these proceedings were commenced by application on 1 August 2017, the respondent had not complied with the Panel's orders and in those circumstances the applicant had an obligation to bring these proceedings under s 5.118(1) of the LG Act.

42 The Shire has clearly been inconvenienced and incurred expenses as a result of these proceedings that would not have been incurred if the respondent had simply complied with the Panel's orders in a timely fashion.

43 The Tribunal has considered the itemised costs provided by the Shire and considers that the amount of preparation for directions hearing to be excessive and that there appears to be unnecessary duplication of work by a senior and restricted practitioner. The Tribunal also notes, however, that the preparation time and attendance at the directions hearing on 14 November 2017 is not included in the itemised costs provided on 25 October 2017.

44 In the exercise of the Tribunal's discretion in the circumstances of these proceedings, the Tribunal considers it is appropriate that the Shire should be substantially compensated for the cost and inconvenience of having to bring these proceedings in the Tribunal, but not all of the Shire's costs. Therefore, the Tribunal considers it appropriate that the respondent make a substantial contribution to the Shire's costs in the amount of $5,000.

In accordance with these reasons, the Tribunal orders as follows:

1. Subject to order 2, pursuant to s 5.117(1)(a)(iv) of the Local Government Act 1995 (WA) the respondent is suspended for one month from his office of councillor on the council of the Shire of Halls Creek.
2. Pursuant to s 5.117(2) of the Local Government Act 1995 (WA), the suspension referred to in order 1 above is suspended for a period of 12 months from the date of this order on condition that the respondent does not commit any further breaches of the LG Act within the 12 month suspended period.
3. Within 14 days of the date of this order, pursuant to s 87(2) and (3) of the State Administrative Tribunal Act 2004 (WA), the respondent is to pay to the Shire of Halls Creek the amount of $5,000.

I certify that this and the preceding [44] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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