Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Briscoe-Hough v Tegg [2018] NSWCATOD 203 Hearing dates: 23 April 2018 Date of orders: 25 May 2018 Decision date: 25 May 2018 Jurisdiction: Occupational Division Before: R C Titterton, Principal Member Decision: 1. The application against the NSW Electoral Commissioner is dismissed. 2. The applicant is to pay the costs of the second and third respondent, as agreed or as assessed, save for the costs of appearances at the hearing on 15 February 2018, but including the costs of preparation for that hearing. 3. The applicant is to pay the costs of the NSW Electoral Commissioner, save for the costs of appearances at the hearing on 15 February 2018, but including the costs of preparation for that hearing. Catchwords: Local Government – election of councillors –irregularities in nomination forms – need to prove factual basis to find an irregularity- held no relief under s 329 of Local Government Act because failure to prove that result of the election was thereby uncertain – application dismissed as misconceived Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Electoral Act 2017 (NSW) Local Government Act 1993 (NSW) Cases Cited: Attorney-General v Wentworth (1998) 14 NSWLR 4 BDK v Department of Education and Communities [2015] NSWCATAP 129 Briscoe-Hough v Tegg [2018] NSWCATOD 23 CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 eMovePty Ltd v Naomi Dickinson [2015] NSWCATAP 94 Military History Tours Australia Pty Ltd v Samuels [2015] NSWCATAP 229 Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 Category: Principal judgment Parties: Gregory Briscoe-Hough, Applicant Warren Tegg, First respondent Constantine Hindi, Second respondent Lupco Konjarski, Third respondent NSW Electoral Commissioner, Intervenor Representation: Applicant: self-represented Solicitors: First respondent: self-represented Second respondent: Colin Biggers & Paisley Third respondent: Redmond Hale Simpson NSW Electoral Commissioner: Crown Solicitor of NSW File Number(s): 2017/00277192 REASONS FOR DECISION Summary 1. This application concerns an election held on 9 September 2017 for the Mortdale Ward of the Georges River Council. By application dated 12 September 2017, the applicant Mr Briscoe-Hough sought relief pursuant to s 329 of the Local Government Act 1993 (NSW) in respect of five respondents. The first, second and third respondents, respectively Mr Warren Tegg, Mr Constantine Hindi and Mr Lupco Konjarski, are all councillors who were elected at that election. The fourth respondent was Mr Gavin Tennant, described by Mr Briscoe-Hough as the Returning Officer for the Council. The fifth respondent was Mr Greg Copson, described by Mr Briscoe-Hough as the Election Manager of the NSW Electoral Commission. 2. As the application appeared to involve claims against the NSW Electoral Commissioner (the Commissioner) and his staff, the Commissioner was joined as a party/intervenor to the proceedings. 3. In November 2017, the claims against Mr Tennant and Mr Copson were dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), that is, on the grounds that those claims were frivolous or vexatious or otherwise misconceived or lacking in substance. 4. Then, on 20 April 2018, because Mr Briscoe-Hough withdrew his claims against each of Mr Tegg, Mr Hindi and Mr Konjarski, by consent, I dismissed those claims pursuant to s 55(1)(a) of the NCAT Act. 5. The effect of this was to leave Mr Briscoe-Hough's claims against the Commissioner as the only remaining claims. 6. These reasons concern three matters. The first is the costs of Mr Hindi and Mr Konjarski to 20 April 2018. (I note that Mr Tegg did not seek any order as to costs). I have decided that, pursuant to s 60(3) of the NCAT Act, Mr Briscoe-Hough should pay the costs sought, save for the costs of appearances at the hearing on 15 February 2018, but including the costs of preparation for that hearing. 7. The second matter is the application of the Commissioner that the claim against him be dismissed pursuant to s 55(1)(b) of the NCAT Act. The Commissioner says that Mr Briscoe-Hough's claim against him is misconceived, lacking in evidence and "doomed to fail". I agree. For the reasons set out below, I have decided to dismiss this claim pursuant to s 55(1)(b). 8. The third issue is the Commissioner's costs. Mr Briscoe-Hough must pay the Commissioner's costs, save for the costs of appearances at the hearing on 15 February 2018, but including the costs of preparation for that hearing. Procedural history 1. At a directions hearing on 17 October 2017, Mr Briscoe-Hough was ordered to file and serve particulars of his application. On 24 October 2017, Mr Briscoe-Hough filed a document entitled "NCAT Submission". 2. At a directions hearing on 31 October 2017, all of the respondents took the position that the further material provided by Mr Briscoe-Hough did not adequately particularise his claim. The Tribunal ordered Mr Briscoe-Hough to amend his application to further particularise his allegations against each respondent. 3. On 10 November 2017, Mr Briscoe-Hough filed and served a document entitled "Secondary Submission". That document included allegations about the conduct of Mr Tennant, Mr Copson and the Commissioner. 4. On 24 November 2017, Mr Tennant and Mr Copson filed submissions as to the ongoing lack of clarity of Mr Briscoe-Hough's claim. It was also submitted that Mr Briscoe-Hough's claim, insofar as it related to his own nomination and withdrawal of that nomination, was outside jurisdiction as it did not relate to an irregularity in the election of a holder of civic office. The application in this respect appeared to seek judicial review of the actions of staff of the Commission. An application was also made to join the Commissioner as a party due to allegations made by Mr Briscoe-Hough against the Commissioner. 5. On 28 November 2017, the Tribunal heard argument about its jurisdiction to determine the allegations made by Mr Briscoe-Hough against Mr Tennant and Mr Copson respondents and the Commissioner. Mr Briscoe-Hough withdrew these claims. The Tribunal made orders dismissing the claims respondents pursuant to s 55(1)(b) of the NCAT Act. (I note that Mr Briscoe-Hough did not oppose the proceedings being dismissed. However, he did not agree that they should be dismissed pursuant to s 55(1)(b), that is because they were frivolous or vexatious or otherwise misconceived or lacking in substance. Notwithstanding Mr Briscoe-Hough's disagreement, that was the order I made). 6. The Tribunal ordered Mr Briscoe-Hough to file and serve an amended application on or before 1 December 2017, setting out the precise relief sought against each respondent and the grounds for that relief. Other directions were made and the matter set down for hearing on 15th February 2018. 7. In the course of corresponding with Mr Briscoe-Hough about the availability of Mr Tennant and Mr Copson to attend the hearing on 15 February 2018 as witnesses, it became clear that Mr Briscoe-Hough maintained his allegations against the Commissioner and his staff. Accordingly, the Commissioner made an application to be joined to the proceedings. The affidavit of Ms Helen Sims, affirmed 8 February 2018, set out the basis for the joinder application in more detail. The application to be joined as a party (or intervenor) was granted at commencement of the final hearing on 15 February 2018. 8. That hearing was conducted by Principal Member Marks and Senior Member Lucy on 15 February 2018. They published reasons for decision on 22 Febraury 2018: Briscoe-Hough v Tegg [2018] NSWCATOD 23. Mr BrIscoe-Hough's primary argument was described at [6] and [11] in the following terms: 6. The applicant, in the course of the presentation of his case, focused attention on what he characterised as his primary submission. This related to the fact that he had nominated for the same election in the same Ward as the three named respondents, and that his nomination had been inappropriately processed. It was this which he said constituted an irregularity for the purpose of section 329 of the Act and upon which his case for dismissal of the three respondents and the consequential holding of fresh elections was based. . . . 11. The applicant's primary argument is thus based on an allegation that he may have been inappropriately excluded as a candidate for the election in circumstances where he had admittedly sought to withdraw as a candidate. There is no specific allegation that his withdrawal was directly caused either by the rejection of his nomination form or by some undue pressure placed on him related to his wife's employment. His vague references to these matters lack specificity and appear to rely on same vague inferential bases. No "irregularity" has been identified. 1. The Tribunal observed at [13] that, in the context of Mr Briscoe-Hough's primary argument, it was correct that there were cases which suggested that where the totality of an election process is flawed, then the election of all successful candidates may be called into question: Bourne v Murphy [1996] NSWCA 59. The Tribunal stated that, if it could be said that by some defect the entirety of the election for Mortdale Ward of the Georges River Council was called into question, then arguably none of Mr Tegg, Mr Hindi or Mr Konjharski may have been validly elected and would therefore be susceptible to dismissal under s 329. However, the Tribunal then stated at [14] and [15]: 14. … as will become clear, we can only deal with a specified claimed irregularity, and this is not the case that the applicant has sought to make out. As we have stressed, the facts surrounding his nomination and its withdrawal are imprecise, and the manner in which any defect occurred has not been stated with any relevant or appropriate specificity. 15. During the course of his oral submissions we engaged with the applicant concerning this primary argument which he advanced. He endeavoured to demonstrate the impact of his exclusion from the ballot by reference to the number of votes which he had secured in another election four years previously, in which he had also been unsuccessful. He asserted, however, that there were a significant number of votes cast in his favour which at the same level would have provided him with an opportunity of being successful in the election held in September 2017. 1. Mr Briscoe-Hough's claims against the first to third respondents were then dealt with separately. In respect of each respondent, Mr Briscoe-Hough was restricted to making allegations related to any irregularities in the election of the first to third respondents only. He was not permitted to advance allegations about his own nomination and subsequent withdrawal. The Tribunal considered it did not have jurisdiction to review matters that were not relevant to whether the first to third respondents' election was subject to an irregularity or ineligibility. Further, the Tribunal found there was no evidence to support Mr Briscoe-Hough's hypothesis that if he had been included in the ballot the result of the election might be different. 2. Mr Briscoe-Hough's applications against each of Mr Tegg, Mr Hindi and Mr Konjarski were dismissed. Relevantly, the Tribunal found that Mr Briscoe-Hough's claims: 1. were unclear and rhetorical in nature and the asserted breaches of law were unspecified (at [14]-[16]); 2. claims that the result of the election was rendered uncertain by his omission from the ballot was wholly unsupported by evidence (at [17]); and 3. were "futile" (at [17]) and "must fail" (at [18]). 1. On 26 February 2018, Mr Briscoe-Hough wrote to the Tribunal raising an issue as to the constitution of the Tribunal at the hearing on 15 February 2018. The issue, correctly identified, was that the Tribunal should have been constituted by three members in accordance with Sch 5, cl 6(1) of the NCAT Act, not two members. 2. At a hearing on 9 March 2018, it was agreed between the parties that the Tribunal had been improperly constituted when it heard and determined the matter on 15 February 2018. As a result, the orders made by the Tribunal on 22 February 2018 were set aside. As one of the orders set aside was the joinder of the Commissioner, it was necessary to rejoin the Commissioner as a party/intervenor. It was contemplated that the Tribunal, properly constituted with three Members, would re-determine Mr Briscoe-Hough's application. He was given until 23 March 2018 to file any further materials, including evidence, on which he wished to rely in support of his application. 3. On 23 March 2018, Mr Briscoe-Hough filed a document titled "Gregory J Briscoe Hough ats NSW Electoral Commissioner". Further reference will be made to this document below. At a directions hearing on 20 April 2018, Mr Briscoe-Hough indicated that this document constituted his claim for relief, the grounds for seeking that relief and his evidence. In that document (which I will refer to as the amended application), Mr Briscoe-Hough abandoned all claims against the each of Mr Tegg, Mr Hindi and Mr Konjarski. Accordingly, on 20 April 2018, by consent, I dismissed those claims pursuant to s 55(1)(a) of the NCAT ACT. 4. Accordingly, the only claim left for determination by the Tribunal is Mr Briscoe-Hough's claim against the Commissioner. 5. Against that background, I now turn to the determination of the first of the three matters identified above, namely, whether to award Mr Hindi and Mr Konjarski their costs of the withdrawn proceedings. The costs issue – the relevant principle 1. The relevant costs rule appears in s 60 of the NCAT Act. That section provides: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. (3) In determining whether there are special circumstances warranting an award of costs, the Tribunal may have regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) whether the proceedings were frivolous or vexatious or otherwise misconceived or lacking in substance, (f) whether a party has refused or failed to comply with the duty imposed by section 36 (3), (g) any other matter that the Tribunal considers relevant. 1. The authorities establish that: 1. "special circumstances" are circumstances that are out of the ordinary, they do not have to be extraordinary or exceptional: CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [23]- [31]; 2. the Tribunal must weigh up whether or not the special circumstances involved in the particular case warrant a departure from the usual rule that each party bear their own costs: Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 at [81]. 3. the discretion to award costs must be exercised judicially, having regard to the principle that parties should ordinarily bear their own costs: eMovePty Ltd v Naomi Dickinson [2015] NSWCATAP 94 at [48]. 1. Mr Hindi and Mr Konjarski seeks their costs in circumstances where: 1. the claims against them have been withdrawn (or abandoned); and 2. the claims against them were misconceived and lacking in substance. 1. The withdrawal of an application does not necessarily lead to an award of costs. As I commented myself in Military History Tours Australia Pty Ltd v Samuels [2015] NSWCATAP 229 at [16], the effect of a notice of withdrawal may be to avoid further expenditure or wasted resources of either party. However, given the lack of strength of Mr Briscoe-Hough's claims, and the fact that after were seven hearings or directions hearings in this matter where the issue of substance or nature of the claims against Mr Hindi and Mr Konjarski was regularly raised, and the application itself took a number of forms, I consider that these are special circumstances warranting an award of costs. 2. Save for one matter, Mr Briscoe-Hough is to pay the costs of Mr Hindi and Mr Konjarski. The one matter is the costs of the hearing on 15 February 2018, the decision in respect of which was set aside. There is some substance in the argument that Mr Briscoe-Hough should not responsible for the costs of that hearing, the wasted costs being caused outside factors he could control. However, even if that view be accepted, I do not consider that the costs of preparation for that hearing were wasted, as the preparation would have been required for the final hearing in any event. Exercising my discretion, I consider that the appropriate order is that Mr Briscoe-Hough pay the costs of Mr Hindi and Mr Konjarski. Those costs do not include the costs of appearances at the hearing on 15 February 2018, but do include the costs of preparing for that hearing. The summary dismissal application of the NSW Electoral Commissioner 1. I now turn to the Commissioner's application that the claim against him, as articulated in the amended application, be dismissed pursuant to s 55(1)(b) of the NCAT Act. Section 55(1)(b) provides that: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances: . . . (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, . . . 1. This meaning of this section has been considered in various decisions. In BDK v Department of Education and Communities [2015] NSWCATAP 129 the Appeal Panel stated at [66]: In our view a reasonably broad connotation should be given to the meaning of the four categories of conduct identified by s 55(1)(b). The intent of the provision, as we see it, is to seek to give the Tribunal a broad power to deal with abuses of its processes, and for them to be interpreted and applied in a power which captures any kind of abuse of process, that can reasonably be seen to fall within their compass. While 'misconceived' and 'lacking in substance' may be seen as relatively specific terms, we think a flexible, purposive interpretation can be adopted in determining whether proceedings are 'frivolous' or 'vexatious', conscious always of the gravity for an applicant or plaintiff of summary dismissal of proceedings. 1. Mr Briscoe-Hough's amended application is 22 pages in length. It commences with the following passage: This matter, effectively a fresh application on the validity of the 9 September 2017 election held for the Mortdale Ward of Georges River Council, has been set down for a directions hearing to determine if the matter can proceed on the papers or requires a hearing. The applicant seeks the voiding of the 'election' held on 9 September 2017 for the Mortdale Ward of the Georges River Council due to electoral irregularities perpetrated by the Electoral Commission being of a nature that these defects strike at the entire election. The only respondent in this renewed proceeding is the NSW Electoral Commission. 1. Mr Briscoe-Hough states that the "legislative context of his application "rests under" of the Local Government Act, "with the election 'in dispute'" carried out under ss 296 and 296B of that Act. He then states that the basis for the application is to be found in s 329 of the Local Government Act. 2. Section 329 relevantly provides: 329 Can the holder of a civic office be dismissed? (1) Any person may apply to the Civil and Administrative Tribunal for an order that a person be dismissed from civic office. (2) On any such application, the Tribunal may order the dismissal of a person from civic office: (a) if there has been any irregularity in the manner in which the person has been elected or appointed to that office, or . . . 1. Pages 2 to 8 of the amended application are headed "Caselaw: Misinterpretations and 'Actions of Statutory Officials'". This commences with Mr Briscoe-Hough quoting from Article 21 of the Universal Declaration of Human Rights, 1948, namely: Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. … The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. 1. Mr Briscoe-Hough submits that this statement should be "no surprise", and that in most countries, it is possible to discover a rich history of electoral abuse, including "gerrymandering, ballot stuffing, fraud, and voter intimidation". He submits that such abuses show that the integrity of democracy is not an inevitable outcome of elections and that the integrity must be vigorously and continuously protected by each country's citizens. He says that incompetency and malfeasance in public office are no lesser of concern than blatant acts of intimidation. 2. Mr Briscoe-Hough then makes two references to s 329 of the Local Government Act. The first is that "there has been no determination of the nexus between s 329 where electoral officials had been guilty of any fault (or several) in the conduct of the election and creating a situation for the voiding of an election". The second is that, while "irregularity" is not defined in the Local Government Act, assistance is given to its meaning by the decision of the Court of Appeal in Bourne v Murphy [1996] NSWCA 59, which in turn relies on Bridge v Bowen [1916] HCA 38. Submissions on these cases are set over pp 3 to 8 of the amended application. 3. From pp 8 to 10 Mr Briscoe-Hough sets out what he describes as "The Facts of the Irregularities". In summary, he says that on 7 August 2017, he decided to "run" as a candidate for the Mortdale Ward of the Georges River Council. He then says that: On Tuesday 8th August 2017, the applicant contacted the general enquiry line of NSW Elections and advised them of his proposed course of action and the officer taking the call sought advice and advised the applicant that if he were to nominate, his wife would be dismissed from her position irrespective of whether she met her reporting obligations. On Wednesday 9th August 2017, the applicant spoke directly to the Election Manager, Mr Copson, and suggested his course of action, unilaterally dismissing the applicant's wife, even if she met the self-reporting obligation, was inappropriate and unnecessary and that 285 there were procedures that any rational administrator could take to remove any risk, actual or perceived, in respect to the duties of the applicant's wife. The applicant asked what action his wife could undertake that may threaten the neutrality or integrity of the election and Mr Copson suggested his wife "could stuff ballot papers in her clothing." The applicant then suggested that "surely you have measures to prevent that possibility' to which Mr Copson sheepishly replied "of course we do." The applicant suggested that his wife not have anything to do with Mortdale Ward, or, even Georges River, however, Mr Copson said that was "too difficult." The applicant suggested that Mr Copson did not have any statutory power to make or enforce such a threatened decision, and asked him to provide this authority prior to my nomination. The applicant also questioned Mr Copson on the legality of the Electoral Commissioners Press Release of the same day giving public notice of the potential (if not actual) breach of the Act by non-compliance with regulations 295 and 302 and 3561 (1)(c). Mr Copson (erroneously) paraphrased S296B(6)(c) of the LG Act saying he had powers to run the election as he saw fit. The applicant suggested Mr Copson re-read the section and then asked him to confirm this decision making process in writing and Mr Copson refused unless he received the same request in writing. The applicant sent him an email at 11:27am to that effect. The applicant then proceeded to the Returning Office for the Georges River Council in Belgrave Street Kogarah and arrived at 11:34am. He was 'greeted' by the Returning Officer (RO) with an ill toned "What do you want?" The applicant informed the RO that he wanted to 310 lodge a nomination form if there were no candidates worthy of his support. He replied that the applicant had 'left things a bit late" however, it was said to him this was necessary to see who else was running before the applicant committed himself to the process and the RO was asked did he have a list of candidates for the Mortdale Ward. He replied that he did not, and it was said to him 'it appears that the required website list was not up to date" however, he did not seem concerned nor was prepared to produce a list of nominations he had received. The applicant was then assisted by the Deputy RO who took the deposit and nomination form and receipted same. The applicant then advised both the RO and DRO that he was awaiting advice from the Election Manager and that he may have to withdraw his application and asked if they had a copy of the required form. Initially reluctant, the DRO was instructed to download one from the website and provided a copy. For the next 15 minutes the applicant was constantly reminding the RO that he was awaiting advice and may have to withdraw to the point that he was directed by the RO to leave his office and wait in the adjoining hallway. It was clear that no assessment of the nomination form was either in process by the RO, or whether the Election Manager's office and website were being maintained. The applicant was constantly refreshing/updating that webpage on his mobile device. The only modification to the Mortdale page prior to noon was the inclusion of the Liberal ticket that had been lodged late the evening before. On closing of the nominations, the applicant then deliberately submitted a withdrawal form (in the knowledge that it would have no effect) to the RO, who wrote on it, and then threw it into a tray. 1. Mr Briscoe-Hough says that "at issue, in terms of (any one or all) official actions that may affect the normal and lawful election procedures as specified in statute", are the following matters (which I summarise as follows): 1. did the Returning Officer fail to assess and process the nomination forms as required, and by noon; 2. whether the Returning Officer failed to meet the requirements of s 308(3) of the Act; 3. did the Returning Officer process an invalid withdrawal form, either by virtue of it being lodged after the close of nominations (and it ; 4. did the Election Manager unlawfully assume responsibility for functions reserved to the Returning Officer; 5. did the Election Manager fail in his duty to have the website in order; and 6. by his ultra vires actions, did the Election Manager commit an act of unlawful intimidation that would render any withdrawal as involuntary; 7. did the Electoral Commissioner and Returning Officer accept nomination forms that they both could, and should, have known were deficient and rectifiable and/or false? 1. At pp 11 to 18, Mr Briscoe-Hough then sets out other sections of the Local Government Act (namely s 694) and Local Government (General) Regulation 2005 (namely regs 289, 290, 291, 292, 294, 356B, 356I, 358, 359, 371 and 391) which he submits have been breached. 2. Finally, at pp 18 to 22, Mr Briscoe-Hough attaches email correspondence between himself and the former fifth respondent, Mr Copson, in August 2017. Consideration 1. I note that, in this amended application, at no stage does Mr Briscoe-Hough clearly articulate what relief he was seeking, save for his statement that he seeks "the voiding" of the 9 September 2017 election "due to electoral irregularities perpetrated by the Electoral Commission being of a nature that these defects strike at the entire election". This submission is amplified in post-hearing submissions received dated 4 May 2018. Mr Briscoe-Hough submits (footnotes omitted): A – The primary contention and central issue This application for the exercising of the dismissal of 'elected' councillors has not been formally determined as the primary contention – the impact of the actions/inactions of the Electoral Commissioner /or his agents – was not properly considered. In fact, should the matter be dismissed, then the Tribunal is effectively sanctioning the 'Electoral Commissioner and his staff to: Breach the Act and Regulations; Make determinations ultra vires of applicable laws and intimidate potential candidates; Recklessly administer elections. The central question is whether the illegal deprivation of candidature is an irregularity of such quantum that all three 'elected' councillors should be dismissed as there was no real election. Whilst other avenues could (and may) be pursued to address the breaches of the relevant acts or other remedies, none would address the central issue of the primary contention and see a new election. (Emphasis added) 1. I have been assisted by detailed submissions of the Commissioner. In summary, the Commissioner submits that: 1. the amended application is misconceived as to the nature and scope of the Tribunal's jurisdiction under s 329 of the Local Government Act; 2. the Tribunal has no power to declare an entire election void. 1. In particular, the Commissioner submits: 1. the Tribunal only has such jurisdiction as is provided for in enabling legislation, in this case s 329 of the Local Government Act (see s 28 of the NCAT Act). Although the common law may be of assistance in interpreting and determining matters before the Tribunal, it is not a basis for its jurisdiction; 2. Mr Briscoe-Hough's submission that the "common law of Parliament" is a basis for the Tribunal being able to determine that the election is "void" is misconceived; 3. Mr Briscoe-Hough appears to be confused with the jurisdiction of the Supreme Court sitting as the Court of Disputed Returns under s 224 of the Electoral Act 2017. Under s 225 of the Electoral Act, the Supreme Court may exercise a number of powers under when it sits as the Court of Disputed Returns, including declaring that any person who was returned as elected was not duly elected and declaring an election to be absolutely void; 4. the Tribunal only has jurisdiction to consider the removal of an elected or appointed official from civic office under s 329, which is confined to two circumstances. The Tribunal does not have jurisdiction under s 329, or any other provision of the Local Government Act, to review the general conduct of elections, or whether certain decisions and functions were performed lawfully; 5. the Tribunal also does not have jurisdiction to determine if statutory functions were not performed correctly or reasonably, nor does it have declaratory powers of the superior courts - these are matters for judicial review by the Supreme Court; 6. the Tribunal have a general power to declare an election "void". 1. The Commissioner submits that the amended application is an abuse of process, unsupported by evidence and "doomed to failure". To the extent that the Commissioner submits that the proceedings are vexatious, and relies on the following well-known passage of Roden J in Attorney-General v Wentworth (1998) 14 NSWLR 481 at 491: "Proceedings are ... properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless." 1. Mr Briscoe-Hough provided written submissions to the Tribunal. I have set out his "primary contention and central issue' above. The submissions do not address the Commissioner's submissions in any meaningful way. Consideration 1. I accept, as submitted by the Commissioner, that a relevant "irregularity" for the purposes of s 329 of the Local Government Act 1993 may arise at any point during the electoral process and that it may relate to the performance of a statutory function or power by the Commissioner or a returning officer: see Bourne v Murphy [1996] NSWCA 59, in which the alleged irregularity was the decision of the returning officer to declare certain votes to be invalid and therefore not count them. 2. However, the Commissioner submits, and I accept, that a review of these authorities establishes that there must be a nexus between the alleged irregularity and the election of the official in relation to whom the Tribunal has received an application for removal under s 329. The Commissioner submits, correctly in my view, that the need for this nexus is clear from the words of s 329(2)(a), which provide that the Tribunal may order the dismissal of a person from civic office "if there has been any irregularity in the manner in which the person has been elected or appointed to that office". As Beazley JA stated in Bourne v Murphy at [358]: "... it is not any irregularity which suffices for the purpose of s 329. Rather, it must be an irregularity such that the result of the election is thereby uncertain: see Bridge v Bowen [1916] HCA 38; (1916) 21 CLR 582 (my emphasis)." 1. I accept the Commission's submission the result of an election is the appointment of an individual to civic office. Accordingly, the alleged irregularity must "strike" at this result. Insofar as Mr Briscoe-Hough persists in raising issues connected to his own withdrawal of candidature and his wife's employment, these allegations lack the necessary nexus with the result of the election. 2. I consider that the amended application should be dismissed pursuant to s 55(1)(b). It is clear that the claim against the Commissioner is misconceived. This Tribunal has no power to declare an election void for the reasons agitated by Mr Briscoe-Hough. The Commissioner's costs 1. The final issue is the Commissioner's costs. Mr Briscoe-Hough's written submissions submits that: . . . all applications for costs be refused based on the absence (and removal)of any reference to the payment of costs in the enabling legislation and, additionally, there being no provisions in the applicable Divisional Schedule or associated practice notes, and, further noting that no extraordinary circumstances attributable to the applicant undermines the primary consideration of s 60 of the NCAT Act that each party meet their own costs. 1. The Commissioner has been successful in having the claim against it dismissed on the basis that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance. This matter is specifically referred to in ss 60(3)(c) and (e). In my view, these factors, when combined with the history of this matter, establish special circumstances warranting an award of costs. 2. Accordingly, Mr Briscoe-Hough must pay the Commissioner's costs. However, as with the costs order in respect of Mr Hindi and Mr Konjarski, those costs are to not to include the cost of appearances at the hearing on 15 February 2018, but are to include the costs of preparing for that hearing. Orders 1. The application against the NSW Electoral Commissioner is dismissed. 2. The applicant is to pay the costs of the second and third respondent, as agreed or as assessed, save for the costs of appearances at the hearing on 15 February 2018, but including the costs of preparation for that hearing. 3. The applicant is to pay the costs of the NSW Electoral Commissioner, save for the costs of appearances at the hearing on 15 February 2018, but including the costs of preparation for that hearing. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 20 March 2023