NSW Electoral Commissioner v Kempsey Shire Council (No 3) [2022] NSWSC 409

Supreme Court New South Wales

Medium Neutral Citation: NSW Electoral Commissioner v Kempsey Shire Council (No 3) [2022] NSWSC 409 Hearing dates: 5 April 2022 Date of orders: 5 April 2022 Decision date: 05 April 2022 Jurisdiction: Common Law Before: Beech-Jones CJ at CL Decision: 1. The Court declares void the following elections of councillors held on 4 December 2021: a. the election of each of the second to ninth defendants as councillors of Kempsey Shire Council; b. the election of each of the eleventh and twelfth defendants as councillors of the City of Shellharbour Council (Ward A); and c. the election of each of the fourteenth to twenty-second defendants as councillors of Singleton Council. 2. The Court declares that the effect of the declaration in [1.] is that the returning officer is to hold another election as if a casual vacancy had occurred in the civic office of each of the councillors the subject of [1.], and candidates purporting to have been elected at the void elections continue to hold office as if duly elected until that other election is held. 3. The plaintiff is to pay the costs of these proceedings of the second to ninth, eleventh, twelfth, and fourteenth to twenty-second defendants on an ordinary basis. 4. The plaintiff is to pay the costs of these proceedings of the first, tenth and thirteenth defendants on an indemnity basis. 5. Pursuant to Uniform Civil Procedure Rule 36.4(1)(b) and 36.4(3), Orders 1 and 2 are not to take effect until Tuesday, 3 May 2022. 6. The proceedings are stood over for mention at 9.30am on Thursday, 5 May 2022. Catchwords: RELIEF – challenge to Local Government elections – timing of declaration that elections void – costs Legislation Cited: Government Sector Finance Act 2018 Local Government Act 1993 Uniform Civil Procedure Rules 2005 Cases Cited: Electoral Commissioner v Kempsey Shire Council (No 2) [2022] NSWSC 282 Category: Consequential orders 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) Ms K Marsh, in person (Twelfth Defendant) Ms S George, in person (Fourteenth Defendant) Ms P Wright (Eighteenth Defendant) Mr G Adamthwaite (Nineteenth Defendant)