Pascale -v- Lucas (GD) [2000] NSWADTAP 29

Appeal Panel

CITATION: Pascale -v- Lucas (GD) [2000] NSWADTAP 29 APPELLANT Antonio Pascale PARTIES: RESPONDENT Gary John Lucas FILE NUMBER: 009012 HEARING DATES: SUBMISSIONS CLOSED: 08/01/2000 DATE OF DECISION: 12/21/2000

Suitors' Fund Act 1951 application DECISION UNDER APPEAL: BEFORE: O'Connor K - DCJ (President); Robinson MA - Judicial Member; Mapperson K - Member CATCHWORDS: jurisdiction MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 993283 DATE OF DECISION UNDER APPEAL: 12/21/2000 LEGISLATION CITED : Suitors' Fund Act 1951 Lucas v Pascale [2000] NSWADT 23 CASES CITED: Qidwai v Brown [1984] 1 NSWLR 100 Kingsford v Kavanagh, unreported, Court of Appeal, 21 November 1994 R v Pack, unreported, Court of Appeal, 14 October 1999 APPELLANT REPRESENTATION: P Huntington, barrister RESPONDENT B Levet, barrister ORDERS: Recommendation for payment from Fund pursuant to s 6C of Act.

Background 1 The matter giving rise to an appeal to the Appeal Panel commenced as an application under section 329 of the Local Government Act 1993 (the Act) in the General Division of the Tribunal. The applicant below, Gary John Lucas, sought dismissal from civic office of Councillor Antonio Pascale of the Liverpool City Council. The applicant was a defeated candidate for election to the Council in the ballot held on 11 September 1999, for which the poll was declared by the returning officer on 22 September 1999. The basis upon which the applicant objected to the respondent's election related to an irregularity in the address given by Pascale at the time of his nomination. The applicant alleged that Pascale had given an address inside the municipality when in fact he resided elsewhere, at Taren Point. 2 The application was lodged with the Tribunal on 20 December 1999. Directions were given to the parties by Deputy President Hennessy on 2 February 2000. 'Preliminary' issues were raised. It was agreed that these issues be disposed on the papers, without a hearing, after exchange and filing of written submissions. 3 The respondent had sought immediate dismissal of the application for review on the ground that the proceeding was commenced after expiry of the period of 3 months permitted by s 329(2) of the Act. It was agreed that this question turn on what date was the one on which Pascale was 'elected.' Pascale contended that it was 11 September 1999 (the date of the ballot), while the applicant contended that it was 22 September 1999 (the date of the declaration of the poll). There was another 'preliminary' issue: whether the Electoral Commissioner should be joined in the proceedings, and the prior question of whether the Tribunal had power to do that. 4 A decision was delivered by Deputy President Hennessy, with written reasons, on 13 March 2000: Lucas v Pascale [2000] NSWADT 23. The orders made were that the application was not out of time; and that the Electoral Commissioner not be joined as a party. 5 On 7 April 2000 the respondent, Mr Pascale, lodged an appeal against this decision. Directions were given and an Appeal Panel constituted. Mr Pascale is the appellant and Mr Lucas now the respondent to the appeal. 6 At the directions hearing on 16 May 2000 the President raised the question of whether the decisions were appealable to an Appeal Panel. The President noted that the jurisdiction exercised under the Act involved the making of an 'original' decision by the Tribunal. The Tribunal was not engaged in the 'review of a reviewable decision.' The President noted that accordingly s 112 (1)(a) needed to be satisfied in order to found the jurisdiction of the Appeal Panel. The original decisions of the Tribunal which are appealable are those 'made in proceedings for: (a) an original decision where the enactment under which the Tribunal has jurisdiction to make the decision expressly provides that the decision may be appealed to an Appeal Panel under this Part; …'. 7 The President invited the parties, both of whom were legally represented, to draw his attention to any jurisdiction that the Appeal Panel had to continue with the matter. Counsel for Mr Pascale submitted that the Appeal Panel did have jurisdiction. 8 The President, who was sitting alone to give directions, decided that the question needed to be addressed by a fully constituted Appeal Panel and referred to issue to the Panel to decide. The President made directions for the determination of this issue, and submissions were exchanged by the parties and filed. 9 When the appeal came on for hearing before the Appeal Panel on 19 June 2000 a further difficulty was identified. The Panel noted that the proceedings below had not been conducted by a panel constituted in accordance with the Administrative Decisions Tribunal Act 1997, Schedule 2, Part 4 (General Division), cl 5A which provides: 'Applications are to be determined by 3 Division members of the General Division of the Tribunal.'