Insley -v- State Electoral Commissioner & ors [2000] NSWADT 90

CITATION: Insley -v- State Electoral Commissioner & ors [2000] NSWADT 90 DIVISION: General Division APPLICANT Terry Insley

FIRST RESPONDENT State Electoral Commissioner PARTIES: SECOND RESPONDENT Returning Officer for Comenarra Ward, Ku-ring-gai Municipal Council

THIRD RESPONDENT Elaine Malicki FILE NUMBER: 993230 HEARING DATES: 10/05/2000 SUBMISSIONS CLOSED: 05/10/2000 DATE OF DECISION: 07/17/2000

BEFORE: Britton A - Judicial Member; Lees M - Judicial Member; Antonios Z - Member APPLICATION: Dismissal from civic office - Local Government Act - dismissal from civic office MATTER FOR DECISION: Principal matter LEGISLATION CITED : Local Government Act 1993 R -v- Grey; Ex parte (1985) 157 CLR 351 CASES CITED: Bourne-v- Murphy (1996) 92 LGERA 329 Sansom -v- Hudson (1997) 94 LGERA 292 APPLICANT A Tudehope, barrister REPRESENTATION: 1st & 2nd RESPONDENTS D Stack, barrister 3rd RESPONDENT S Klinger, solicitor ORDERS: 1. That the third respondent be dismissed from her office as councillor of Ku-ring-gai Municipal Council.

REASONS FOR DECISION 1 This decision concerns an application brought under s329 of the Local Government Act (1993) (the Act) seeking an order that the third respondent, Elaine Malicki, be dismissed as a councillor of Ku-ring-gai Council (the Council). 2 The applicant, Terry Insley, was an unsuccessful candidate in the local council election for the Comenarra Ward of the Council. The applicant alleges that the second respondent, the returning officer, Mr PF Lewis wrongly declared a number of ballot papers as either formal and informal when in fact, they were respectively, informal and formal. This outcome asserts the applicant constitutes an irregularity under s 329(1)(a) of the Act and consequently the Tribunal must dismiss the third respondent from her office as a councillor of Ku-ring-gai Council. Background 3 The election, the subject of this application was conducted under the Act and the Local Government (Elections) Regulations 1998 (the Regulations). The Act and Regulations prescribe in detail, the way in which local council elections are to be conducted. 4 The Act provides that local government elections are to be conducted by the Electoral Commissioner: s296(1). The Commissioner is required to appoint a returning officer to conduct the election on behalf of and under the direction of the Commissioner: s296(2). In turn the returning officer is to appoint one or more electoral officers: s296(3). 5 On 13 August 1999 six candidates formally nominated for the Comenarra Ward of the Council. As the number of candidates exceeded the number of councillors required for this ward, that number being two, a contested election was held as required by s309(1) of the Act. 6 On September 11, 1999 an election was conducted for ten councillors for Ku-ring-gai Municipal council, two for the Comenarra Ward. This being an election for two or more candidates, the method of counting votes was the optional preferential system as set out in Schedule 1 of the Regulations. 7 At the first count no candidate achieved an absolute majority of votes. Consequently a second count was conducted and preferences allocated in the manner prescribed by the Regulations, Schedule 1, clause 3. Following the distribution of preferences, 5,046 total votes were recorded for candidate, Ian deVulder. Having received an absolute majority of votes Mr deVulder was declared elected: Schedule 1, sub-clause 3(g). 8 In accordance with Schedule 1, sub-clause 4(b) all formal ballot papers recording Mr deVulder as the first preference were allocated to the candidate nominated as the next preference on that ballot paper. These votes, together with any first preference votes of the remaining candidates were then counted. This count recorded the total of formal votes for Ms Malicki and Mr Insley as 4,889 and 4,885 respectively. 9 Given the closeness of this result, the returning officer directed in accordance with Regulation 84 that a recount of all ballots in respect to the second count be conducted. This recount, conducted on 13 September 1999, recorded 4,888 votes for both Mr Insley and Ms Malicki. Schedule 1(7)(1)(a) of the Regulations provides that where two candidates have an equal number of votes, the candidate who had the fewest number of votes at the previous count is excluded. Mr Insley was thus excluded, as on the previous count he achieved, 4,885 votes to Ms Malicki's 4889. 10 On September 16 the second respondent declared Ian de Vulder and the third respondent, Elaine Malicki, elected as councillors for the Comenarra ward of the Council. Issues 11 The issues for the Tribunal to determine in this inquiry are: · What is the meaning of the word 'irregularity' in sub-section 329(1)(a) of the Act? · Is the Tribunal entitled to review the returning officer's decision to classify some votes as formal and others as informal ? · If so, what approach is to be taken by the Tribunal in conducting such review? · If the review reveals an irregularity in the manner in which Ms Malicki has been elected, is the Tribunal obliged to dismiss her or does s329(2) of the Act provide the Tribunal with a discretion? · If the latter is the case, what factors should the Tribunal take into account in exercising this discretion? Meaning of 'Irregularity' 12 Subsections 329(1) and (2) of the Act provide: (1) Any person may apply to the Administrative Decisions 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 (b) if the person is disqualified from holding civic office. 13 While not defined in the Act, the word 'irregularity' has been the subject of considerable judicial attention. In R v Grey ; Ex parte Marsh (1985) 157 CLR 351 Gibbs CJ in discussing the meaning of 'irregularity'' said (at 367-368): The notion of an irregularity, in relation to an election , involves the idea of some departure from some rule, established practice or generally accepted principle governing the conduct of the election. 14 This approach has been adopted by Cole and Beazley JJA in the Court of Appeal decision of Bourne v Murphy (1996) 92 LGERA 329 and in the more recent decision of the Supreme Court of NSW in Sansom v Hudson (1997) 94 LGERA 292 per Grove J at 292 to 295. 15 In Bourne v Murphy Cole JA said at page 343: In my opinion it is such an irregularity not to count formal votes. That follows as a matter of common sense. An election is only "regularly" conducted if all formal votes are counted..... [i]f a person is appointed to office in consequence of the manner in which an election has been conducted, relevantly by omitting to count valid ballots, that seems to me to be an irregularity. The irregularity flows from not counting valid votes. The question whether a vote is formal or informal is a different issue and does not turn upon any question of "regularity" or irregularity. 16 Beazley JA at (358) makes clear that to amount to an irregularity within the meaning of s329 of the Act the irregularity must effect the outcome of the election: However I am of the opinion that it is not any irregularity which suffices for the purpose of s329. Rather it must be an irregularity such that the result of the election is thereby uncertain. Is the Tribunal entitled to review ballot papers? 17 The authorities make clear that in determining whether there is an irregularity which may give rise to an action under s329 of the Act, the Tribunal is entitled to review the disputed ballot papers. In Bourne v Murphy it was held that in dealing with an application under s329 of the Act the court may review the decision of a returning officer concerning the formality of votes.