Supreme Court New South Wales Medium Neutral Citation: NSW Electoral Commissioner v Kempsey Shire Council (No 1) [2022] NSWSC 164 Hearing dates: 18 February 2022 Date of orders: 18 February 2022 Decision date: 18 February 2022 Jurisdiction: Common Law Before: Beech-Jones CJ at CL Decision: (1) Pursuant to s 50 of the Evidence Act 1995, the plaintiff may adduce evidence of the documents and records identified in the affidavit of Christopher Frommer ("CF") affirmed 28 January 2022 at [4] in the form of the summaries contained in the affidavit of Simon Kwok affirmed 10 January 2022 at: (a) paragraph [12] and annexure B, being summaries produced from the electronic records identified at CF[4](a)-(c); (b) paragraph [20], being a summary produced from the electronic records identified at CF[4](a), (b), (d) and (e); (c) paragraphs [21]-[25] and pages 14 and 17-30 of Annexure E (pages 58 and 61‑74 of the affidavit), being summaries produced from the electronic records identified at CF[4](a)-(f); and (d) paragraph [26] and annexures F, G and H, being summaries produced from the electronic records identified at CF[4](a)-(f). Catchwords: EVIDENCE – summary taken from electronic records – active database – Evidence Act s 50 Legislation Cited: Evidence Act 1995 Local Government Act 1993 Local Government (General) Regulation 2021 Cases Cited: In the matter of Idylic Solutions Pty Ltd and Others – Australian Securities and Investment Commission v Hobbs [2012] NSWSC 568 Category: Procedural rulings Parties: NSW Electoral Commissioner (Plaintiff) Kempsey Shire Council (First Defendant) Joshua Freeman (Second Defendant) Kerri Riddington (Third Defendant) Anthony Patterson (Fourth Defendant) Alexandra Wyatt (Fifth Defendant) Ian Bain (Sixth Defendant) Vijay Craigie (Seventh Defendant) Simon Fergusson (Eighth Defendant) Elizabeth Campbell (Ninth Defendant) Shellharbour City Council (Tenth Defendant) Maree Edwards (Eleventh Defendant) Kellie Marsh (Twelfth Defendant) Singleton Council (Thirteenth Defendant) Susan George (Fourteenth Defendant) Anthony McNamara (Fifteenth Defendant) Valerie Scott (Sixteenth Defendant) Hollee Jenkins (Seventeenth Defendant) Belinda Charlton (Eighteenth Defendant) Godfrey Adamthwaite (Nineteenth Defendant) Daniel Thompson (Twentieth Defendant) Malinda McLachlan (Twenty-first Defendant) Anthony Jarrett (Twenty-second Defendant) Representation: Counsel: Mr J Emmett SC; Ms C Roberts (Plaintiff) Ms A Wyatt, in person (Fifth Defendant) Mr I Bain, in person (Sixth Defendant) Ms N Simmons (Tenth Defendant) Ms M Edwards, in person (Eleventh Defendant) RMB Lawyers (Twelfth Defendant) Ms S George, in person (Fourteenth Defendant) Solicitors: Crown Solicitor's Office (Plaintiff) Local Government Legal (First and Thirteenth Defendants) Cooney Harvey Doney (Second to Fifth Defendants) Mr I Bain, in person (Sixth Defendant) Cooney Harvey Doney (Seventh to Ninth Defendants) Sparke Helmore Lawyers (Tenth Defendant) Ms M Edwards, in person (Eleventh Defendant) Mr G Ward (Twelfth Defendant) Ms S George, in person (Fourteenth Defendant) No Appearance (Fifteenth to Seventeenth Defendants) PJ Donnellan & Co (Eighteenth Defendant) Mr G Adamthwaite, in person (Nineteenth Defendant) No Appearance (Twentieth to Twenty-second Defendants) File Number(s): 2022/8416 EX TEMPORE Judgment (Revised from transcript) 1. Listed for hearing on Tuesday 22 February 2022 and following is a summons filed by the Electoral Commissioner for New South Wales seeking declarations to the effect that three particular local government elections that occurred in 2021 were void for the purposes of s 318 of the Local Government Act 1993. One of those elections was the election of all nine councillors to Kempsey Shire Council; another one was the election of two councillors to Ward A for the city of Shellharbour, and the third election was that of eight councillors to Singleton Council. All three councils, and all of the elected councillors, are defendants to the proceedings. 2. The basis of the Electoral Commissioner's summons is its own conduct in relation to the so called "iVote" system and the assertion that that system operated in such a way that a certain number of voters who were effectively entitled to vote under cl 333E of the Local Government (General) Regulation 2021 were not able to do so and that had a material effect on the election of at least some and perhaps all of the councillors in each impugned election. 3. The proceedings have been listed with some urgency because of the potentially destabilising effect of the relief sought, and because if that relief or something like it is granted and further elections are required, the forthcoming election timetable will be affected by various contingencies, including the possibility of a federal election. 4. The present motion is brought by the Electoral Commissioner seeking an advance ruling under s 192A of the Evidence Act 1995; specifically, a direction under s 50 of the Evidence Act allowing it to adduce evidence of the contents of various documents and records in the form of summaries. All bar two of the defendants have no objection to the adducing of that evidence in that way. However, the eleventh defendant and the fifth defendant have raised an objection. To address their objection, it is necessary to describe the relevant evidence. 5. At the hearing of the proceedings, the Electoral Commissioner will seek to read an affidavit of Simon Kwok sworn 10 January 2022. Mr Kwok is the executive director of elections within the Electoral Commission. Amongst other matters, his affidavit is directed to the possibilities and probabilities of whether the elections of the various councillors were materially affected by the difficulties with the iVote system. 6. In his affidavit he states that he supervised a process by which electronic records of the Electoral Commission concerning both the iVote system and the council elections generally were analysed to determine the possibility that the addition of the extra votes could have affected the outcome, specifically their possible effect on each voting round, that is, the point when quotas are ascertained, and preferences are distributed. 7. By a combination of his affidavit and an affidavit of Christopher Frommer sworn 28 January 2022, the Commissioner seeks to read certain parts of Mr Kwok's affidavit as a summary of various source material in electronic form, identified in Mr Frommer's affidavit. The first such document is a document which sets out the copies of the candidate results for the council elections for the City of Shellharbour Council Ward A, Singleton Council and Kempsey Shire Council. The document was obtained from the Commission website and is Annexure B to Mr Kwok's affidavit. This is said to be a summary of material produced from the electronic records identified in subparagraphs 4(a) to (c) of Mr Frommer's affidavit being the electronic records of the preference data recorded on paper ballot papers; an electronic record of preference data generated from votes which were successfully cast using the iVote system; and electronic records of the authorised electoral rolls including scanned copies of the paper authorised rolls for the three elections. As indicated during argument, this document appears to be admissible as a business record, being government records that do not appear to have been generated specifically for the purpose of this litigation (Evidence Act, s 69). 8. The second summary sought to be admitted by the Electoral Commissioner is paragraph 20 of Mr Kwok's affidavit which reads as follows: "Following election day, I examined the Electoral Commission's iVote records, which showed that the percentage of electors who were approved to vote using technology assisting voting but were not provided with an iVote number permitting them to do so was between 0.11% to 1.69% of the total number of electors who cast a vote in each contest." 1. This is said to be a summary produced from the electronic records of the kind I just referred to as well as an electronic record of applications to use technologically assisted voting made and approved under cl 333C of the Local Government (General) Regulation 2021, as well as electronic records showing which of those electors were approved to use a technology assisted voting and were provided with an iVote number prior to 6pm on 4 December 2021 but who were not provided with that number. 2. The next summary contained in or annexed to Mr Kwok's affidavits is that set out in paragraphs 21 to 25 and on pages 14 and 17 to 30 of Annexure E of that affidavit. In particular, page 14 of Annexure E is a document entitled "Results" which relates to the three council elections that I referred to as well as an election of a councillor for Hay Council, a councillor for Kiama Council and a councillor for Parramatta Rose Hill, and which sets out data concerning the elections such as the number of electors, the number of formal ballot papers and the number of iVote papers, the results of what is described as a "high‑level analysis", which was an analysis of the potential for the missing iVotes to affect the outcome and the results of a simulation using the "Monte Carlo" method to model possible outcomes of an election with the missing votes. This simulation analysis is said, for example in relation to an election for Kempsey councillor, to produce two distinct election outcomes and a frequency of the alternative outcome of 61%. This table is said to summarise the electronic data that records the results of conducting those simulations. The material in paragraphs 17 to 30 of Annexure B is a more expansive record of the type I have just noted addressing many, if not all, local council elections across New South Wales. These summaries were said to have been produced from the source data that I referred to earlier as well as the computer code which was used to carry out the two types of analysis. 3. The fourth summary that is sought to be tendered by Mr Kwok's affidavit is set out in paragraph 26 which in turn refers to Annexures F, G and H of the affidavit. They describe the outcome of what Mr Kwok describes as a sensitivity analysis of the various simulations. These documents contain tables similar to the tables that I have just described although, as I understand it, they record the outcome of using different permutations of hypothetical iVotes for the missing iVotes that were not cast. Again, this material is said to be a summary of the electronic records that I have already described. 4. Section 50 of the Evidence Act is in the following form: 50 Proof of voluminous or complex documents (1) The court may, on the application of a party, direct that the party may adduce evidence of the contents of 2 or more documents in question in the form of a summary if the court is satisfied that it would not otherwise be possible conveniently to examine the evidence because of the volume or complexity of the documents in question. (2) The court may only make such a direction if the party seeking to adduce the evidence in the form of a summary has: (a) served on each other party a copy of the summary that discloses the name and address of the person who prepared the summary; and (b) given each other party a reasonable opportunity to examine or copy the documents in question. (3) The opinion rule does not apply to evidence adduced in accordance with a direction under this section. 1. In the matter of Idylic Solutions Pty Ltd and Others – Australian Securities and Investment Commission v Hobbs [2012] NSWSC 568, Ward J, as her Honour then was, set out the following statement about the application of s 50 (at [63]): "There are three matters to be determined for the purposes of the s 50 application: whether the relevant spreadsheets and tables are summaries of information contained in the underlying documents for the purposes of s 50 (rather than, for example, comprising conclusions or statements of opinion); whether the volume and/or complexity of the underlying documents is such that it would not otherwise be possible to conveniently examine the evidence; and whether a reasonable opportunity has been given to any other party to the litigation to examine or copy the documents in question, (and in that regard, the fact there might between now and the trial be a reasonable opportunity to examine or copy the documents is strictly not to the point)." 1. In addressing these requirements, it is not to the point whether or not the underlying data is itself accurate or not. It is also not to the point whether the conclusions that are sought to be drawn from the underlying data are valid or otherwise. The relevant issue being identified by her Honour was whether the particular summary in question is a summary of that underlying data, be it data of high quality or low quality. 2. So far as whether a reasonable opportunity has been given to the other parties to examine or copy the documents in question, this has been addressed on behalf of the Electoral Commission in an affidavit of Mr Frommer sworn on 17 February 2022. 3. On 4 February 2022, Garling J ordered the Electoral Commissioner to make available to the defendants the documents in electronic form which are the foundation for the summaries contained in the affidavits of Mr Kwok which the plaintiff seeks to adduce in evidence on the proceedings. In his affidavit of 17 February 2022, Mr Frommer outlines how that data was provided in an electronic format to the defendants. He then sets out an explanation about how that material was obtained. He describes the extraction of the electronic material and its export into a Microsoft Excel spreadsheet. As is often the case, the process of extracting data and placing it in an Excel data spreadsheet can have its difficulties; in this case there was some differences in the type of data files that were exported. Mr Frommer explained as follows: "When the .txt file data was imported into Microsoft Excel, the Excel program attempted to convert some of the data, which it recognised as dates, to Excel date formats. That occurred with respect to some of the columns contained in item 6. However, errors sometimes occur in the process, particularly with very large files. When item 6 was created, some of the dates included in the data were not correctly converted to Excel date formats but remained in text format. That does not give rise to any doubt about the accuracy of the substance of what is shown in each cell, despite its format. These dates displaying in text have not occurred because of any changes to that data made by officers of the NSW Electoral Commission during the extraction process." 1. Mr Frommer also explained that one aspect of the extraction process needed to protect the privacy of electors, specifically their electoral choices and personal data. The reference to item 6 in this extract is an electronic file which contains records of applications to use iVote. 2. The eleventh defendant, Ms Marie Edwards, who was one of the councillors elected in Ward A to Shellharbour Council, has objected to the tender of these summaries. Ms Edwards has provided written submissions. In those, Ms Edwards notes that she received the data in the electronic format to which I have referred. She says that the document, when opened, included a single spreadsheet with 740,506 rows. Ms Edwards noted the entire election results were provided rather than just the three councils in contention. However, that was required because the summaries that sought to be tendered concern the entire election results and not just the three councils in contention. 3. Ms Edwards submitted that the document provided is not source data from the three separate systems but rather it is some manual amalgamation of those systems. As I understand Ms Ward's contention, it relates to the difficulties that arise when source data is taken out from the iVote electronic system and placed in a spreadsheet such as in Excel. Nevertheless, the process of extraction of electronic data from a database and placement in an Excel spreadsheet, nevertheless answers the description of providing a party an opportunity to examine or copy the documents in question for the purpose of s 52(b) of the Evidence Act. Were it otherwise, it would be almost impossible to ever tender a summary of electronic data contained on an active and operational spreadsheet or database. 4. Ms Edwards also submitted the text file data demonstrates time gaps of hours. She submitted that this raises an issue about the integrity of the underlying data. In her oral submissions to the Court, Ms Edwards repeated that concern. As I have already indicated, at the point of determining admissibility the issue is not the reliability of the underlying data but simply whether what has been tendered is a summary of the underlying data, whether it be of good quality or bad quality. Ms Edwards also indicated it was difficult to extract the Shellharbour data from the material that was provided; that is, as I said, understandable, but it does not detract from whether the conditions of s 50 have been satisfied. 5. The fifth defendant, Ms Wyatt was elected to the Kempsey Shire Council. She raised concerns about the process of extraction that was described by Mr Frommer that I referred to earlier, specifically the date format in Excel. The above portion of Mr Frommer's affidavit indicates that data is still to be found in the spreadsheet but in text format rather than Excel date format. Ms Wyatt also raised a concern that Mr Frommer's affidavit indicated that the data in the system, that is the iVote system, includes some unspecified other data. Mr Frommer does say that in his affidavit but that is not the issue before me now. Instead, the present issue is whether a summary has been produced of the relevant electronic data. 6. In the end result, I am satisfied that the four summaries that I have referred to earlier should be admitted under s 50. In particular I am satisfied that the evidence in the form of that summary, namely Mr Kwok's affidavit and the annexures, have been served on each other party and it discloses the name and address of the person who prepared the summary, namely Mr Kwok, and in the circumstances each other party has had a reasonable opportunity to examine or copy the documents in question. Further, the first of the documents, being that referred to in [12] of Mr Kwok's affidavit, is also admissible as a business record. 7. Accordingly, I make the following rulings: (1) Pursuant to s 50 of the Evidence Act 1995, the plaintiff may adduce evidence of the documents and records identified in the affidavit of Christopher Frommer ("CF") affirmed 28 January 2022 at [4] in the form of the summaries contained in the affidavit of Simon Kwok affirmed 10 January 2022 at: (a) paragraph [12] and annexure B, being summaries produced from the electronic records identified at CF[4](a)-(c); (b) paragraph [20], being a summary produced from the electronic records identified at CF[4](a), (b), (d) and (e); (c) paragraphs [21]-[25] and pages 14 and 17-30 of Annexure E (pages 58 and 61‑74 of the affidavit), being summaries produced from the electronic records identified at CF[4](a)-(f); and (d) paragraph [26] and annexures F, G and H, being summaries produced from the electronic records identified at CF[4](a)-(f). ********** Amendments 11 April 2022 - Coversheet and [7] - references to "Commission" amended to read "Commissioner" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 April 2022