NSW Electoral Commissioner v Kempsey Shire Council (No 2) [2022] NSWSC 282

Supreme Court New South Wales

Medium Neutral Citation: NSW Electoral Commissioner v Kempsey Shire Council (No 2) [2022] NSWSC 282 Hearing dates: 22 & 23 February 2022 Date of orders: 17 March 2022 Decision date: 17 March 2022 Jurisdiction: Common Law Before: Beech-Jones CJ at CL Decision: (1) The proceedings stand over to 5 April 2022 at 9.30am. (2) On or before 5.00pm on 25 March 2022 the Plaintiff and the First, Tenth and Thirteenth Defendants are to confer in relation to the orders necessary to give effect to the judgment. (3) On or before 5.00pm on 29 March 2022 the Plaintiff and the First, Tenth and Thirteenth Defendants are to file and serve proposed orders and any submissions in support which are not to exceed 5 pages. (4) On or before 5.00pm on 1 April 2022 any other party may file and serve proposed orders, and any submissions in support, which are not to exceed 5 pages. (5) Grant the parties liberty to apply on 1 day's notice. Catchwords: JUDICIAL REVIEW – challenge to three Local Government elections – failure of technology assisted voting on election day – small number of voters disenfranchised – disproportionate effect on election due to use of proportional system of voting – standing of Electoral Commissioner to make application – whether breach of Local Government Act in conduct of election – test of materiality of breach to outcome – approach to determining materiality to outcome – whether materiality assessed by attempting to model disenfranchised voters' likely voting intentions by reference to voting patterns of other voters – whether materiality assessed by comparison between number of disenfranchised voters and margins between elected and non‑elected candidates and margins between excluded and non‑excluded candidates – relief – whether elections should be declared wholly void or only void in respect of the election of particular councillors – election of at least one candidate in each contest was directly affected – interrelationship between election of candidates under proportional representation – inappropriate to impose on electorate Councillors elected under two different electoral systems – relief – discretion – whether discretion to declare elections void should not be exercised on account of cost and dislocation of new election to the affected Councils – whether discretion to declare elections void should not be exercised on account of effect on candidates – discretion to declare void will be exercised – making of declaration deferred to allow for contingencies affecting conduct of elections – Electoral Commissioner to advise Court of any proposal to address wasted costs of successful and unsuccessful candidates Legislation Cited: Commonwealth Electoral Act 1918 Electoral Act 2017 Interpretation Act 1987 Local Government Act 1993 Local Government (General) Regulation 2021 Supreme Court Act 1970 Constitution Cases Cited: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 Australian Conservation Foundation Inc v Commonwealth (1980) 146 CLR 493; [1980] HCA 53 Australian Electoral Commission v Johnston & Ors (2014) 251 CLR 463; [2014] HCA 5 Bourne v Murphy (1996) 92 LGERA 329; [1996] NSWCA 59 Bridge v Bowen (1916) 21 CLR 582; [1916] HCA 38 Carroll v Electoral Commissioner of Qld (No 1) (2001) 1 Qd R 117; [1998] QSC 190 Chanter v Blackwood (1904) 1 CLR 39; [1904] HCA 2 CNY17 v Minister for Immigration and Border Protection (2019) 94 ALJR 140; [2019] HCA 50 Hansen v Electoral Commissioner (2004) 132 LGERA 296; [2004] NSWSC 348 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 In re Parliamentary Election for Bristol South East (1964) 2 QB 257 Liston v Davies (1937) 57 CLR 424; [1937] HCA 22 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326; [2015] HCA 40 MZAPC v Minister for Immigration and Border Protection & Anor (2021) 95 ALJR 441; [2021] HCA 17 Peek v NSW Egg Corporation (1986) 6 NSWLR 1 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Re Wood (1988) 167 CLR 145; [1998] HCA 22 Roberts v Jeffery & 4 Ors [2003] NSWSC 162 Tanti v Davies (No 3) [1996] 2 Qd R 602 Category: Principal judgment 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; Mr S Puttick (Plaintiff) Mr M Seymour; Mr C Koikas (First and Thirteenth Defendants) Ms A Wyatt, in person (Fifth Defendant) Mr I Bain, in person (Sixth Defendant) Ms E Campbell, in person (Ninth Defendant) Ms S Palaniappan (Tenth Defendant) Ms M Edwards, in person (Eleventh Defendant) Mr G Ward (Twelfth Defendant) Ms S George, in person (Fourteenth Defendant) Ms P Wright (Eighteenth Defendant) Mr G Adamthwaite (Nineteenth Defendant)