BOURNE v MURPHY and ORS [1996] NSWCA 59

BOURNE v MURPHY

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, COLE and BEAZLEY JJA 6 June 1996, 4 November 1996 [1996] NSWCA 59

LOCAL GOVERNMENT — Election of councillors — irregularity in manner in which person elected or appointed to civic office — classification of ballot papers as formal or informal by returning officer — whether subject to judicial review — whether relief under s329 Local Government Act 1993 discretionary.

Local Government Act 1993 (NSW) s329; Local Government (Elections) Regulations 1993, reg73(1); reg73(4);

Appeal from McInerney J;

The first respondent, an unsuccessful candidate in the local government elections for Leichhardt Council in September 1995, challenged the appellant's election under s329(1) Local Government Act. The election was conducted on the basis of the proportional representation system of counting.

The appellant was the fourth, and final councillor to be elected to the Glebe/Annandale Ward, with a margin of 17 votes over the first respondent. The first respondent sought, and obtained a recount of the votes, but the appellant remained ahead of the first respondent, albeit by a much reduced margin of 3 votes. The first respondent then commenced proceedings under s329(1) on the basis that certain ballot papers were wrongly ruled as informal by the fourth respondent, the returning officer, and that this constituted an irregularity in the manner in which a person has been elected or appointed to civic office.

The trial judge found, on the basis of the erroneous classification of certain contested ballot papers, that the appellant had not been duly elected to the office of councillor. This constituted an irregularity within the meaning of s329(1)(a). However, on the basis that relief under s329 was discretionary, his Honour declined to order that the appellant be dismissed from office, or to declare the election void. Instead, the trial judge ordered a recount of the votes pursuant to s65 Supreme Court Act 1970.