Common Law

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Courts and Tribunals interpret laws that are open to interpretation. Decisions of courts are called the “common law” and are often referred to as judge-made law.

Courts

AYTON -v- CITY OF ARMADALE [2020] WASCA 39 here

A member of the public was seriously injured by a vehicle at City of Armadale (City) Waste Facility (Site), while dropping off green waste – as directed by the staff. The City plead guilty to failing to maintain a safe work environment at the Site. Court of Appeal increased fine against City to $110,000.

Under the Local Government Act section 5.41(g), CEO at the time, Ray Tame was responsible for, … the employment, management, supervision, direction and dismissal of employees.

Surprisingly, no mention was made in the judgement about CEO’s statutory role in respect of the management of Site managers.

The Court found that in relation to the Site:

  • There had been a number of WorkSafe incidents leading to directives/orders/reports
  • Most of the staff working at the Site in 2014 were unaware of the WorkSafe directives
  • The Site manager
    • was an extremely poor manager 
    • had little or no regard for the safety of the working areas 
    • was an exceedingly difficult employee to manage 
    • suffered deficiencies must have been obvious for some time before accident 
    • needed to be supervised and monitored closely 
    • was primarily responsible for the incident 
  • The Site manager’s immediate supervisor was also at fault 
  • The City to failed to ‘effectively enforce’ the WorkSafe directive 
  • The City is ultimately responsible because… it is at the top of the employment hierarchy. 
  • The City knew of steps it … should take to avoid the risk 
  • The City admitted…to an ongoing and serious failure of supervision 
  • The City did not enforce its own procedures at the Site 
  • The City failed to address any inadequacies in the manager’s compliance 
  • The City’s ongoing failure meant an increased risk of serious injury or death at the Site 
  • There was no evidence … which showed that the respondent’s managers systematically monitored compliance with the 2005 directive, the 2008 JSA or the recommendations made after the 2006 and 2012 incidents at the Site
  • The City … was required to ensure not only that it had systems in place which, as far as practicable, were designed to ensure the health and safety of persons who attended the Site, but so far as reasonably practicable, to ensure that those systems were being implemented and maintained in its daily operations.

DAIN PTY LTD v SHIRE OF PEPPERMINT GROVE [2019] WASC 264 (View/Download here)
WA Supreme Court “apprehension of bias” – “limits of a decision-maker’s functions and powers” – “bias, definition” – “apprehended bias” – “standard of impartiality” – “conflict of interest” – “not improper for a councillor to have formed opinions, and expressed them, before voting”

WHOOLEY v SHIRE OF DENMARK [2019] WASCA 28 (View/Download here)
WA Court of Appeal “Summary termination” – “CEO power to dismiss senior employee”

ORD IRRIGATION COOPERATIVE LTD v DEPARTMENT OF WATER [2018] WASCA 83 at [124]-[125] (View/Download here)
WA Court of Appeal “no party bears an onus, legal or practical, in review proceedings in the Tribunal”

RE v LOCAL GOVERNMENT STANDARDS PANEL [2015] WASC 51(View/Download here)
WA Supreme Court “jurisdiction to find a local government council member had committed a minor breach” – “the Panel did not have power to ‘re-characterise’ the complaint” –“Panel’s functions and powers”

YATES v LOCAL GOVERNMENT STANDARDS PANEL [2013] WASCA 8 (View/download here)
“Town of Bassendean” – “ordinary meaning of a word or its non-legal technical meaning is a question of fact” – “meaning or interpretation of word is a question of law“ – “meaning of dishonest” – “Meaning of statement” – “appeal to Supreme court can only be brought on a question of law“

HARGREAVES v TIGGEMANN [2012] WASCA 92 (View/download here)
“procedural unfairness” – “denial of natural justice”

NATURAL FLOOR COVERINGS CENTRE PTY LTD v MONAMY (No 1) [2006] FCA 518 (View/download here)
Federal Court “inferred a reasonable timeframe to comply with orders”

JUSTELIUS v PITTWATER COUNCIL & ORS [2002] NSWSC 348 (View/download here)
NB: In context of NSW LG Act “Defamatory imputations” – “a Councillor is not in law… a servant or agent of Council”

LANGE v AUSTRALIAN BROADCASTING CORPORATION [1997] HCA 25; (1997) 189 CLR 520 at 559 ­ 560 and 571 ­ 572 (View/download here)
High Court

GREENE v GOLD COAST CITY COUNCIL [2008] QSC 25 (View/download here)
Queensland Supreme Court Applicable to both cases above: “Political free speech is an underpinning value in local government.”

BALLINA SHIRE COUNCIL v RINGLAND (1994) 33 NSWLR 680 (View/download here)
NB: In context of NSW LG Act “Defamation and Injurious Falsehood have two different objectives” – “Injurious Falsehood [has] four elements, Falsity; Publication of the false statement to a third party; Malice; and Actual damage”- “in defamation, malice is not necessary for a claim to be made”

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