SUPREME COURT OF NORFOLK ISLAND Sanders v Nobbs [1999] NFSC 3 ELECTORAL PETITION – whether member of the Norfolk Island Legislative Assembly "ordinarily resident" on Norfolk Island WORDS & PHRASES – "ordinarily resident" Norfolk Island Act 1979, s 38 Re Vassis, Ex parte: Lung (1986) 9 FCR 518, considered Re Taylor; Ex parte Natwest Australian Bank Limited, Federal Court of Australia, 24 June 1992, unreported, applied WILLIAM WINTON SANDERS v RONALD COANE NOBBS SC 3 OF 1999 JUDGE: BEAUMONT CJ. DATE" 9 SEPTEMBER 1999 IN THE SUPREME COURT ) ) SC 3 of 1999 NORFOLK ISLAND ) IN THE MATTER OF: SECTION 46 OF THE LEGISLATIVE ASSEMBLY ACT 1979 AND IN THE MATTER OF: WILLIAM WINTON SANDERS Petitioner AND IN THE MATTER OF: RONALD COANE NOBBS Respondent REASONS FOR JUDGMENT (No. 2) (on petition) BEAUMONT CJ: 9 September 1999 INTRODUCTION Some of the background to this matter appears in my reasons (No. 1), which should be read with these reasons. The relevant particulars alleged in the amended petition are as follows: "2. On or about 9 April 1997, Mr Nobbs was nominated for election to the Legislative Assembly of Norfolk Island, in respect of an election which was held on 30 April 1997. 3. At the time of his nomination Mr Nobbs did not hold the qualifications for election as a Member of the Legislative Assembly of Norfolk Island in that on the nomination day he did not hold the qualifications for election which were required by Section 38(d) of the Norfolk Island Act 1979 (Commonwealth), namely he had not been ordinarily resident within the Territory of Norfolk Island for a period of five (5) years immediately preceding the date of his nomination for election to the Legislative Assembly of Norfolk Island, as required by Section 38(d) of the Norfolk Island Act. (Emphasis added). 4. Mr Nobbs lived in Norfolk Island as a child and then attended boarding school in Sydney. After completing school he spent a few years in Norfolk Island and a few years working in Australia. In about 1963 he obtained employment with the Administration of Norfolk Island and lived and worked in Norfolk Island until early 1966 when he moved to the Northern Territory to take up employment. From 1966 until December 1993 he and his wife and children lived in the Northern Territory where he was employed by the Northern Territory Administration and, after the Northern Territory obtained self government, by the Northern Territory Government. Two of Mr Nobbs children were born in the Northern Territory, and his children were all educated in the Northern Territory. While in the Northern Territory Mr Nobbs was not enrolled to vote in Norfolk Island. He enrolled to vote in Norfolk Island in or about April 1995. While in the Northern Territory Mr Nobbs was enrolled to vote there and stood for election to political office in the Northern Territory. Mr Nobbs returned to Norfolk Island from time to time for his annual holidays, often each second year for about two months, coinciding with annual leave and provision of air fare benefits by his employer. Upon the death of his father in 1985 Mr Nobbs inherited Portion 78a at Longridge, Norfolk Island, subject to a life interest in favour of his mother. Mr Nobbs' mother passed away in or about 1988. Mr Nobbs retired from his employment in the Northern Territory in or about 16 December 1993, and moved to Norfolk Island from the Northern Territory on or about 16 December 1993. Subject to a number of normally short absences Mr Nobbs has lived in Norfolk Island since that time." The amended petition seeks declarations (1) that the respondent did not hold the required qualifications; (2) that the respondent's election on 30 April 1997 was void; and (3) that a by-election be held for the resulting vacant seat. THE REQUIREMENTS OF S 38 OF THE NORFOLK ISLAND ACT 1979 ("THE NI ACT") Relevantly, s 38(d) provides: "38. … a person is qualified to be a candidate for election as a member of the Legislative Assembly if, at the date of nomination: … (d) … he has been ordinarily resident within the Territory for a period of 5 years immediately preceding the date of nomination." (Emphasis added) The issue raised by the petitioner thus is whether, as at April 1992, the respondent was "ordinarily resident" within Norfolk Island. THE MEANING OF "ORDINARILY RESIDENT" IN S 38(d) OF THE NI ACT Although the meaning of these words in the specific context of s 38(d) has not previously been considered, their meaning has been considered in other, analogous, contexts. For present purposes, it will be sufficient to refer to the general discussion of the authorities in the general area in two Australian cases. In Re Vassis; Ex parte: Lung (1986) 9 FCR 518, Burchett J said (at 524-525): "The question where a person is ordinarily resident is a question of fact: Levenne v. Commissioners of Inland Revenue (1928) AC 217. It is obviously not to be answered, in respect of any particular time, by asking where that person was then resident. Otherwise, the word 'ordinarily' would have no meaning. But even the unqualified concept of residence is not tied to the accidents of a day; for, as Viscount Sumner said in Commissioners of Inland Revenue v. Lysaght (1928) AC 234 at 234: 'One thinks of a man's settled and usual place of abode as his residence'. At the same time, his Lordship pointed out that 'in many cases in ordinary speech one residence at a time is the underlying assumption and, though a man may be the occupier of two houses, he is thought of as only resident in the one he lives in at the time in question'. In s 43 of the Bankruptcy Act, the phrase is not 'resident in Australia', but 'ordinarily resident in Australia', and it expresses an alternative to 'personally present … in Australia'. In such a context, it must convey the former of the meanings which I have quoted from Viscount Sumner's speech rather than the latter. If a man's home is in Australia, a merely temporary absence will not prevent his being 'ordinarily resident in Australia'. It is a question of fact and degree at what point a temporary absence might, if sufficiently prolonged, prevent its being proper to continue to regard him as ordinarily resident in Australia. In Akbarali v. Brent London Borough Council (1983) 2 AC 309 at 344, Lord Scarman said: 'For if there be proved a regular, habitual mode of life in a particular place, the continuity of which has persisted despite temporary absences, ordinary residence is established provided only it is adopted voluntarily and for a settled purpose'." (Emphasis added). In Re Taylor; Ex parte Natwest Australia Bank Limited (Federal Court of Australia, 24 June 1992, unreported) Lockhart J said (at 9): "To say that a person is ordinarily resident in Australia must mean something more than that he is resident in Australia. The word 'ordinarily' connotes a comparison, a measure of degree. A person may have more than one residence, but he is not necessarily ordinarily resident in each of them. The question must be determined for the purposes of s.43 of the Act at a particular time. One must ask the question whether at that time the person was ordinarily resident in Australia. The concept of 'ordinary residence' for the purposes of the Act, in my opinion, connotes a place where in the ordinary course of a person's life he regularly or customarily lives. There must be some element of permanence, to be contrasted with a place where he stays only casually or intermittently. The expression 'ordinarily resident in' connotes some habit of life, and is to be contrasted with temporary or occasional residence: see Levene and Lysaght. As Lord Warrington said in Levene at 232: ' 'Ordinarily resident' means according to the way a man's life is actually ordered'. The concept of ordinarily resident cannot be stated in definite terms; each case must be determined on its facts and after taking into account all relevant matters: see the Canadian case of Thomson v. Minister of National Revenue (1946) SCR 209 per Estey J. at 231." (Emphasis added). I respectfully agree with both of these observations, which were approved on appeal in Taylor by a Full Federal Court (Wilcox, Burchett and Foster JJ, unreported, 16 October 1992). I turn now to the relevant facts and circumstances. THE RELEVANT FACTS AND CIRCUMSTANCES There is no real dispute about the primary facts. The central issue for determination is the proper inferences to be drawn from those facts. According to the respondent's affidavit sworn 6 August 1999, the following are the relevant facts. The respondent was born on the Island in 1938. His parents were married on the Island. The Nobbs family came to the Island from Pitcairn in 1856. The respondent attended boarding school in Australia and subsequently undertook studies at the Hawkesbury Agricultural College, returning to Norfolk Island in 1957, having completed his studies. He then commenced farming on the Island. He left the Island in 1960, obtaining employment on the land in New South Wales until September 1962, when he accepted a position as an agricultural officer with the Island Administration. In 1964, the respondent was elected to the Norfolk Island Advisory Council. The respondent was married on the Island in September 1964. In January 1966, the respondent accepted an agricultural position with the Northern Territory Administration. He and his wife and child moved to the Northern Territory, although he was in Norfolk Island from December 1966 to February 1967. Between February 1968 and June 1969, the respondent, on leave from his employment in the Northern Territory, lived in Armidale, NSW, undertaking further studies at the University of New England. From June to August 1969, the respondent and his family were on Norfolk Island, before returning to the Northern Territory, where he resumed his duties with the Primary Industries Department. The respondent remained in employment in the Northern Territory from this time until December 1993, although he and his family returned to Norfolk Island in this period once a year for several months over the Christmas holiday season. (As has been seen, the petitioner accepts that, from December 1993, the respondent was "ordinarily resident" in Norfolk Island, but of course, the issue here depends upon the situation as at April 1992.) During this period, the respondent inherited property on Norfolk Island. One property was gifted to him under his father's will, subject to a life interest in his mother. She died in 1988. At that time, the respondent permitted a third party to agist stock on a ten hectare parcel of that land. Earlier, in 1978, the respondent had inherited a ten acre block from an aunt. This was also subject to an agistment arrangement, which was terminated by the respondent in 1991. On behalf of the petitioner, reliance is placed upon the following documentary evidence in this connection: · In January 1980, the respondent executed a power of attorney in favour of another person, stated to be "of Cascade Road, Norfolk Island". The respondent was stated to be "of 9 Bamboo Street, Nightcliff, Northern Territory". · In January 1985, the respondent executed another power of attorney in which he was stated to be "of Darwin, Northern Territory". · The conveyance to the respondent in February 1985 of the property inherited from his father described the respondent as "of 6/69 Aralia Street, Darwin, Northern Territory". · By letter dated 1 February 1991, the respondent applied for a position in the Norfolk Island Administration. In the letter, he said: "Having visited Norfolk Island virtually each calendar year since moving to the Northern Territory in 1966, I have maintained a close liaison with Norfolk Island. It has always been my intention to return. However, circumstances or opportunities have never seemed right." · By letter dated 15 January 1993, the respondent applied for a position in the Norfolk Island Administration. His application summary was as follows: "Application Summary: In support of this application I feel having been born and raised on the Island ensures I am conversant with the cultural and similar aspects which form the nucleus of the community. It should also be noted that I have worked previously on the Island in both private and government. Further, my period of employment off the Island for some 27 years has allowed me to gain wide experience in government. However, it should also be noted that I have spent varying periods in virtually each of those years back on the Island. My current position is one of management at a senior level involving management of staff, a high degree of liaison with private enterprise, including an understanding of business, longer term future planning related to the provision of facilities and services by the Conservation Commission, supervising current works programmes, the provision of advice to the Northern Territory Government executive and the financial management of a cross section of projects. Whilst my qualifications are accepted as Tertiary Qualification in Resource Management my subsequent training and experience provides a more than adequate understanding of legislation and commerce. It should be noted that should I be successful in obtaining this position I possess a residence on the Island. Further, I am currently on leave on Norfolk Island and I am due to return to the Northern Territory on February 13 next." · Several Norfolk Island arrival and departure forms completed by the respondent upon arriving or departing from the Island in the 1980s and up to December 1993, in which the respondent showed his "home address" as one in the Northern Territory. In the departure forms, he stated that he was departing "temporarily" and that his "length of absence" was periods of 8, 9 or 12 months. CONCLUSIONS ON THE QUESTION WHETHER THE RESPONDENT HAD BEEN "ORDINARILY RESIDENT" WITHIN NORFOLK ISLAND FOR A PERIOD OF FIVE YEARS IMMEDIATELY PRIOR TO APRIL 1997 As has been noted, the material primary facts, which indicate what the respondent did in the relevant period, are not in dispute; but there is an issue between the parties as to the proper inferences to be drawn from the primary facts. In truth, the question for the Court, one of fact, albeit secondary fact, is the proper characterisation of the respondent's conduct across the material period, that is, April 1992 to April 1997. The settled course of authority previously mentioned instructs that if a man's home is in a particular territory, a merely temporary absence will not prevent his being "ordinarily resident" in that territory; that it is a question of fact and degree at what point a temporary absence might, if sufficiently prolonged, prevent it being proper to continue to regard him as ordinarily resident there; and that if there be proved a regular, habitual mode of life in a particular place, the continuity of which has persisted despite temporary absences, ordinary residence is established, provided only that it is adopted voluntarily and for a settled purpose. In other words, as Lockhart J put it, "[t]here must be some element of permanence, to be contrasted with a place where he stays only casually or intermittently". An application of this test in the present circumstances leads, in my opinion, to the conclusion that in the period between 1968 and 1993, the respondent was not only resident in the Northern Territory, but that he was also "ordinarily resident" there, and by comparison, stayed only intermittently on Norfolk Island. It must follow, in my view, that he was not "ordinarily resident" on Norfolk Island in the period between April 1992 and December 1993. In my opinion, as a matter of legal principle, a person cannot be "ordinarily resident" in two places at the one time. Hence, the comparison and measure of degree mentioned by Lockhart J. In making this evaluation for present purposes, the Court must choose between the two possibilities – the Northern Territory or Norfolk Island. In my view, the primary facts here lead inevitably to the conclusion, one of characterisation of conduct, rather than feelings or attachment, that between 1968 and 1993, the respondent's permanent home was the Northern Territory, notwithstanding his temporary (and regular) absences in Norfolk Island for several months over the Christmas holiday period. The facts that the respondent owned property on the Island and conducted a grazing operation there, cannot, in my opinion, affect this conclusion. It further follows, in my view, that the qualifications required by s 38(d) of the NI Act were not satisfied here. RELIEF By s 46(5)(a) of the Legislative Assembly Act, the Court may declare that a candidate who was declared to have been elected was not duly elected by reason (inter alia) that he was not a person qualified to be a candidate for election. The Court can make no other order in that regard (s 46A(1)(b)). Prima facie, at least, such a declaration should be made here. However, on behalf of the respondent it is submitted that for public interest discretionary reasons, the petition should be dismissed. I will come to this argument shortly. Section 46A(5) provides: "5. Where under section 46 the Court declares that a candidate who was, or at or about the same time declares that candidates who were, declared to have been elected was or were not duly elected by reason only that he or each of them was not a person qualified to be a candidate for election – (a) the declaration under section 44 of the result of the election ceases to have effect so far as that person is or those persons are concerned but remains fully effective so far as the election of other persons as members is conerned; and (b) the vacancy in the place of a member or the vacancies in the places of members caused by the declaration of the Court under section 46 shall be filled in accordance with the provisions of this [Act] for the filling of a casual vacancy or casual vacancies." The Legislative Assembly Act deals with elections to fill casual vacancies in s 10(1), providing that in the case of an election under s 37 of the NI Act, the Administrator shall determine the date of the election. Section 37 of the NI Act provides: "Filling of casual vacancy 37. Where a casual vacancy occurs in the office of a member of the Legislative Assembly less than 2 years and 9 months after the first meeting of that Assembly following the last preceding general election, an election shall be held for the purpose of filling the vacant office for the remainder of the term of office of the member who last held that office." By s 35 of the NI Act it is provided: "Dates of elections 35. (1) A general election of members of the Legislative Assembly shall be held on a date determined by the Administrator. (2) The period from the first meeting of the Legislative Assembly after a general election of members of that Assembly to the date of the next succeeding general election shall not be more than 3 years." The first meeting of the Assembly after the last general election was held on 5 May 1997. It follows that a general election must be held by May 2000. It also follows that the period of two years nine months specified in s 37 has not yet expired. As has been mentioned, it is argued on behalf of the respondent that the petition should be dismissed for public policy discretionary reasons, essentially because of the period of time that has elapsed since his election and, related to this, the relative imminence of the next general election. I have difficulty accepting the respondent's argument. In my view, it seeks to contradict the legislative intention evinced by s 37 of the NI Act. That provision explicitly contemplates that a by-election will be held to fill a casual vacancy up to, but not beyond, the expiration of the two year and nine month period there stipulated. It is significant, in this regard, that the NI Act contains no other time bar of the kind found in comparable legislation considered in the authorities mentioned in my reasons (No. 1). Apart from this lapse of time point, there is no other discretionary reason to refuse to make a declaration pursuant to s 46(5)(a) of the Legislative Assembly Act. ORDERS Accordingly, I propose to make the following orders: 1. Declare that the respondent was not duly elected to the Legislative Assembly at the election held on 30 April 1997 by reason that he was not then a person qualified to be a candidate for election. 2. Costs reserved. I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of his Honour Chief Justice Beaumont. Associate: Date: 9 September 1999 Appearing for the applicant: Appearing for the respondent: Date of Hearing: 6 September 1999 Date of Orders: 6 September 1999 Date Judgment delivered: 9 September 1999