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. Relevant legislation 18 Chapter 10 of the Act and Part 9 of the Regulations outline the voting procedures for local government elections. Regulation 76 and s308C of the Act set out the circumstances when a ballot paper will be informal and are central to a determination of this application. 19 Regulation 76 provides that: (1) A ballot-paper of an elector at an election is informal if: (a) the elector has failed to record a vote on it in the manner directed on it, or (b) it has not been initialled on the back by the returning officer or an electoral official, or (c) it contains a mark or writing which, in the returning officer's opinion, would enable the elector to be identified. (2) Despite subclause (1), a ballot-paper of an elector at an election in which only one candidate is to be elected is not informal merely because a tick or a cross has been placed in one square and the other square or squares have been left blank. In such a case the tick or the cross is to be treated as a first preference. (3) Despite subclause (1), a ballot-paper of an elector at an election is not informal merely because a preference (other than a first preference) has been repeated or omitted so long as the ballot-paper shows the minimum number of preferences required by the directions. (4) Despite subclause (1), a ballot-paper of an elector at an election is not informal merely because it has not been initialled on the back by the returning officer or an electoral official, so long as it bears the mark referred to in clause 38 (2). (5) Despite subclause (1), a ballot-paper of an elector at an election is not informal by virtue of the existence of an unnecessary mark on the ballot-paper if, in the opinion of the returning officer, the elector's intention is clearly indicated on the ballot-paper. (6) Nothing in subclause (2) authorises any person to encourage a voter to place a tick or a cross in a square on a ballot-paper. 20 Section 308C of the Act provides: (1) If a voter records a vote on a ballot-paper by placing a mark in a group voting ticket square but also indicates preferences for individual candidates, the following provisions apply: (a) if the indication of preferences for individual candidates would, if it stood alone, constitute a formal vote, that indication of preferences is taken to be the vote of the voter and the mark in the group voting ticket square is to be disregarded, (b) if the indication of preferences for individual candidates would not, if it stood alone, constitute a formal vote, it is to be disregarded and the vote of the voter is to be taken to have been expressed by the mark in the group voting ticket square. (2) A ballot-paper is not informal by reason only that the voter has recorded a vote by placing a cross or a tick in a group voting ticket square and not placing any mark or writing in any other group voting ticket square, but the ballot-paper is to be treated as if the cross or tick were the number "1". (3) A ballot-paper is not informal by reason only that the voter has recorded a vote by placing the number "1" or a tick in a group voting ticket square and placing a cross in (or a line through) all or some of the other group voting ticket squares on the ballot-paper, but the ballot-paper is to be treated as if the marks in those other squares did not appear on the ballot-paper and any such tick were the number "1". (4) A ballot-paper is not informal by reason only that the voter has recorded a vote by placing the number "1" in a group voting ticket square and placing other numbers in all or some of the other group voting ticket squares on the ballot-paper, but the ballot-paper is to be treated as if those other numbers did not appear on the ballot-paper. Approach to be taken by Tribunal in reviewing contested ballot papers 21 Counsel for the applicant, Mr Tudehope submits that the correct approach for the Tribunal to take in reviewing a disputed ballot paper is to step into the shoes of the returning officer and apply the relevant legislative provisions and the directions on the ballot paper to the ballot paper in question. However where the Regulations make express reference to the exercise of the returning officer's discretion, as is the case in sub-regulation 76(5), the Tribunal may only interfere with the decision of the returning officer where it is satisfied that the decision was manifestly unreasonable. 22 Mr Tudehope submits that in this case a number of votes were counted for the third respondent that should not have been, and the Tribunal may substitute its opinion concerning those votes for that of the returning officer. It was also submitted that the returning officer incorrectly declared a number of votes as informal when in fact they were formal votes for the applicant. 23 Counsel for the first and second respondents, Mr Stack, submits that on the authority of Bourne v Murphy, the Tribunal should not substitute its opinion for that of the returning officer unless, on the evidence, it was manifestly unreasonable for him to reach the opinion he did in relation to an individual ballot paper. This submission was supported by Mr Klinger, solicitor for the third respondent. 24 Specific reference to the opinion of the returning officer is only made in sub-regulations 76(1)(c) and 76(5). In this case there is no complaint that certain votes have been incorrectly classified pursuant to 76(1)f(c). 25 In Bourne v Murphy (at 340) Priestley JA who was in the minority said: I do not think the conclusions reached by the returning officer in cases where his opinion as to the figures on a ballot-paper was within the bounds of reasonableness could be regarded as irregularities for [s.76(1)(a)] purposes, or that, taken all together, they could be aggregated into an error of law... [t]he fact that my opinion differs from that of the returning officer seems to be of no consequence, so long as it was reasonably open to him to form the opinion that he did. 26 This implies that Priestley JA took the view that where the statute (or regulation as the case may be) does not advert to an opinion being formed by the returning officer, as well as in those provisions where it does, the appellate court will apply the Wednesbury test. It implies that only where it is manifestly unreasonable, that is, the returning officer has made a mistake of law or has otherwise misapplied his or her powers, that the opinion of the appellate tribunal as to the facts in question (ie the validity or otherwise of the vote cast) will be substituted for that of the returning officer. This is supportive of the position taken by the respondents. 27 Cole JA (at 344) however took the view that: If a statute or regulation requires in a mandatory sense that voting be effected in a specific way, it will be a question of fact whether a particular vote complies with that obligatory provision. If it does, and the statute or regulation then provides that a ballot so complying is valid, the court is in an equally sound position as the returning officer to determine whether the ballot complies with the statute or regulation and is valid. 28 These dicta seem to support the applicant's position. His Honour continued: If , however, invalidity flowing from the absence of compliance with a mandatory requirement is, by the statute or regulation avoided provided in the opinion of the returning officer that ballot has certain characteristics, the courts must respect the exercise of the discretionary judgment of the returning officer. It will only be if it can be established that in exercising her or his discretion the returning officer acted with absence of good faith, or arbitrarily or capriciously, or misdirected herself or himself in law, or failed to consider relevant matters, or took into account irrelevant matters, or reached a decision which although none of the foregoing can be shown is so unreasonable that no reasonable authority could properly have arrived at it, that the court will disturb the discretionary determination of the returning officer. 29 Beazley JA (at 360) said: [T]he classification of a ballot paper under [r. 76(1)(a)] is a question of fact. Being a question of fact, it may be determined by the Court. If, as a matter of fact, a returning officer wrongly classifies a ballot paper to which [r.76(1)(a)] applies, there has been a "violation of a rule, law or principle" and therefore an "irregularity"... The question whether any ballot-paper which falls for classification under [r.76(5)] can ever amount to an irregularity... is more difficult, for the singular reason that the application of the sub-clause involves the formation of an opinion. If it was a matter of judicial review of the returning officer's decision, the matter would be determined upon the application of the relevant principles of judicial review, including mistake of law, failure to address the question formulated by the relevant statutory provision, the taking into account of extraneous considerations and Wednesbury unreasonableness... The fact that a decision under [r.76(5)] may be judicially reviewed for error does not necessarily mean that there has been an "irregularity"... However, it seems to me that if a ballot-paper is classified upon a wrong construction of the relevant statutory provision, there must be an irregularity... in the sense that there has been a "deviation from or violation of a rule, law or principle." I am of the opinion that the same principle operates in the case of Wednesbury unreasonableness. An officer, who acts unreasonably in the Wednesbury sense, fails to act in accordance with an established rule, law or principle. It follows that, in the case of a ballot-paper which falls to be classified under [r.76(5)], the Court's role is confined to determining whether, in forming his or her opinion, the returning officer made a mistake of law, or has failed to address the relevant question raised by the statutory formula, or has formed an opinion which is manifestly unreasonable in the Wednesbury sense. 30 The majority in Bourne v Murphy took the view that the appellate court stands in the shoes of the returning officer when dealing with ballot papers which fall within the ambit of sub-regulation 76 (1)(a)and (b)and sub-regulations 76(2) (3) and (4), but that when dealing with papers which are affected by a decision made pursuant to sub-regulation 76 (5), it will simply apply the general principles of judicial review to the exercise of the discretion. 31 The statement of principle in Bourne v Murphy is relatively simple, and the law as laid down by the Court of Appeal in that case is apparently straightforward. The simplicity of the principles, however, conceals a practical difficulty. While it is true that the question whether a vote has been recorded by an elector in the manner directed is an issue of fact, to determine that issue the returning officer will have to apply his or her mind to that issue where the data available may, at times, be ambiguous. It may, for example, be difficult to distinguish between a "5" and an "8" scrawled on a ballot paper. It follows that a returning officer necessarily has to form an opinion as to the state of the facts in such cases to determine whether or not a valid vote has been cast. 32 What approach ought the Tribunal take? The majority in Bourne v Murphy took the view that the Court should examine the papers and form its own view except where the disputed ballot paper was to be considered under 76(5). But does this mean that it should not advert to the returning officer's opinion at all except where the regulation made express reference to the exercise of the returning officers discretion? 33 Counsel for the first and second respondents submit, in effect, that the returning officer's opinion ought not be disturbed but for good cause. By implication they adopt the Priestley analysis. But to adopt this course would be, in effect, to give evidentiary weight to the opinion. Giving weight to the returning officer's opinion would be to adopt his or her opinion about a fact (the formality or otherwise of a vote) as a sort of expert opinion without the necessary foundation and qualification in a field where no expertise is necessary. Opinion evidence is generally inadmissible: s.76 Evidence Act 1995. The opinion of the returning officer does not, in our view, fall within the exceptions to the opinion rule. We think that the majority's approach, which is binding on us, is that the opinion of the returning officer is irrelevant to the consideration. The proper approach for us to take is to examine the votes and come to our own view without reference to the opinion of the returning officer except insofar as it is necessary to do so to identify the votes in question. 34 In relation to the exercise of the discretion under sub-regulation 76(5), however, we will not disturb the decision of the returning officer unless satisfied there has been an error of law of the type or types outlined in Bourne v Murphy. Operation of sub-regulation 76(1) 35 The effect of sub-regulation 76(1) vis a vis sub-regulation 76(2), 76(3), 76(4) and 76(5) was considered by the Court of Appeal in Bourne v Murphy. 36 Priestly and Beazley JJA suggest that sub-regulations 76(2), 76(3), 76(4) and 76(5) do not come into effect unless the ballot paper complies with the mandatory requirements set out in sub- regulation 76(1). (The directions on the ballot paper considered by the Court of Appeal in Bourne v Murphy required the voter to vote for at least four candidates by placing the numbers one, two, three and four opposite the names of candidates in order of preference.) 37 Priestly JA at (333) said [i]n the circumstances of the present case, that [r76] and the directions, read together, made it essential, for a ballot-paper to avoid informality, and notwithstanding the provisions of sub-clause (2), (3) and (4), that the elector who marked his or her vote on it placed at least the numbers 1, 2, 3 and 4 in separate squares opposite the names of candidates. This is because if all four numbers did not appear on a ballot-paper, sub-clause (2), (3) and (4) could have no application to it. 38 On this point Cole J was in the minority, interpreting these provisions to mean that a ballot paper that is otherwise informal because of failure to comply with 76(1), may be 'saved' by the provisions of sub-regulation 76(2), 76(3), 76(4) and 76(5), if applicable: It is to be observed that regulation 73 proceeds upon a presumption that a ballot-paper is formal unless it be informal in consequence of regulation 73(1). Even if it thus becomes informal, that informality may be removed if the provisions of any of sub-regulations (2), (3) or (4) apply. Those sub-regulations apply only to ballot-papers initially struck down as informal because of regulation 73(1). This follows from the use of the words "despite subclause (1)" in introducing the three subclauses, coupled with the words "is not informal merely because" or "is not informal by virtue of. 39 We are obliged to follow the approach taken by the majority on this point, namely that a ballot paper rendered informal by the provisions of 76(1) cannot be saved by the provisions of 76(2)-(5). The Tribunal notes that in this inquiry a consideration of sub-regulation 76(2) does not arise as the election in question is for more than one candidate. Nor is it necessary for us to consider sub-regulations 76(3) and 76(4) as none of the contested ballot papers fall within these provisions. 40 We note that s308C of the Act was not considered by the Court of Appeal in Bourne v Murphy. It is clear from a reading of s308C that this section operates as an exception to 76(1)(a) and operates in nominated circumstances to render a vote formal notwithstanding that the elector had failed to record a vote in the manner directed on the ballot paper. Evidence 41 The parties provided to the Tribunal a document headed Agreed Schedule of Challenged Ballot Papers (the Agreed Schedule). This schedule sets out fifteen ballot papers challenged by the applicant and 44 by the third respondent; the returning officer's classification of these ballots papers as either formal or informal; and the respective response of the applicant and the third respondent. In the course of the hearing the parties withdrew their objections to a number of previously contested ballot papers. 42 In determining whether a ballot paper is formal or not, the Tribunal, must first in accordance with sub-regulation 76(1)(a), make an assessment as to whether the elector has failed to record a vote on the ballot paper in the manner directed. Directions for the manner of recording a vote were set out on the ballot paper, as reproduced below. BALLOT PAPER KU-RING-GAI MUNICIPAL COUNCIL Election of 2 Councillors for COMENARRA Ward held on 11 September 1999 YOU MAY VOTE IN ONE OF TWO WAYS EITHER Place the number 'l' in one and only one of these squares to indicate the voting ticket you wish to adopt as your vote. GROUP A GROUP B Ticket or Ticket ONLY NUMBER ONE SQUARE ABOVE, THE LINE YOU MUST NUMBER AT LEAST 2 SQUARES BELOW THE LINE OR Place the numbers 1 and 2 in the squares opposite the names of 2 of the candidates in order of your preference for them. If you wish to vote for additional candidates, lace consecutive numbers beginning with the number 3 in the squares opposite the names of those additional candidates in order of your preference for them. GROUP A GROUP B MALICKI, Elaine de VULDER, Ian KALMAN, Ron Independent Independent Independent MORRISON, Caron INSLEY, Terry BUTLAND, Jan Independent ONLY USE NUMBERS Directions for Voting Ordinary Voting - After marking the ballet paper according to the directions on the ballot paper, you must fold it so that the vote cannot he seen, show the folded ballot paper to an electoral official and then place it in the ballot box. Pre-Poll Voting, Voting when name omitted from Roll or marked through on Roll - After marking the ballot paper according to the directions on the ballot paper, you must fold it so that the vote cannot be seen and return it to the Returning Officer or Electoral Official for placement in the envelope bearing the declaration. ELECTORS PLEASE NOTE: YOU MUST NOT TAKE A BALLOT PAPER OUT OF THE POLLING PLACE. 43. In short, the ballot paper offers the elector two options : record an above the line vote for a group voting ticket; or record a below the line vote for individual candidates. If the former option is selected the ballot paper directs the voter to place the number '1' in one and only one of the voting squares for Group A or B. If the later option is selected, the ballot paper directs the voter to place the number '1' and '2' in the squares opposite the names of two candidates in order of preference; the voter may also record a vote for other candidates by placing consecutive numbers beginning with the number three opposite the squares of these candidates in order of preference. 44 Where a vote does not comply with the provisions of sub-regulation 76(1) the Tribunal must proceed to examine whether it can be saved by any of the provisions of s308C of the Act. Findings 45 Having assessed the challenged ballot papers in light of the directions on the ballot paper and the relevant provisions of regulation 76 of the Regulations and 308C of the Act, the Tribunal makes the following findings. SUMMARY OF TRIBUNAL'S FINDINGS IN RESPECT OF CHALLENGED BALLOT PAPERS Ballot PaperReturning Officer's DecisionComment Tribunal's Finding BALLOT PAPERS CHALLENGED BY APPLICANT A2 Informal Three voting squares (squares) were scribbled out by the voter, one above the line in the Group B square, the remainder in the respective squares for de Vulder and Insley. The directions on the ballot paper have not been followed therefore the vote is informal: r76(1)(a). We must now assess whether this ballot can be saved by any of the provisions of s308C. As the voter has placed a mark in a group square and also indicated a preference for an individual candidate, the Tribunal must first determine whether the markings for individual candidates (the below the line vote) constitute a formal vote: 308C(1)(a) They do not. The Tribunal must now determine whether the markings in the group voting ticket square (above the line) render the vote formal: 308C(1)(b). The absence of a tick, cross or the number '1' in any above the line group ticket square means this ballot paper cannot be saved by any of the provisions of 308C(2)-(4). The Tribunal rejects the applicant's submission that a tick appears in the Group B square. Informal A6 Informal A stylised '1' appears in the above the line square opposite Group B. Ballot complies with directions on ballot paper, and is therefore formal. Formal Group B A7 Informal A '3' appears in the square opposite Insley; the markings in the squares for deVulder, and Kalman are indecipherable. Ballot does not comply with directions therefore informal under 76(1). Informal A12 Informal The marking in the square opposite deVulder is indecipherable. We are unable to determine if the figure in the square opposite Insley is a '2' or a '3'. Ballot does not comply with 76(1)(a). Informal C67 Group A A tick appears in the above the line square opposite Group A; a 'B', possibly the number '13', but in any event an indecipherable marking appears in the square opposite Group B. Ballot does not comply with r76(1)(a). As a tick appears in the above the line square for Group A the vote could have been saved by 308C(2) had it not been for the marking in the Group B square. Informal C69 Group A An irregular diagonal line which the Tribunal finds to be a tick, appears in the above the line square opposite Group A. The line extends outside the square. Notwithstanding that the directions on ballot paper have not been followed, this vote is saved by s308C(2), there being no mark or writing in any other group voting square. Formal Group A C74 Group A Marking in Group A square is a cross; vote does not comply with directions on ballot paper but is saved by s308C(2). Formal Group A C75 Group A The only marking on ballot paper appears in the Group A square. We find that marking to be a tick with some extraneous markings within the square. Despite non compliance with directions, vote could be saved by s308C(2) there being no other marking in any other group voting ticket square. Formal Group A C79 Group A A tick appears in the square opposite deVulder and a small line appears outside the above the line, Group A square. Ballot does not comply with directions. As the markings below the line do not constitute a formal vote s308C(1)(b) requires the Tribunal to look at the markings in the above the line section on the ballot paper. A marking which appears to be a line appears outside the Group A square. s308C(2) only saves a vote where a line has been used inside the square. Accordingly, vote informal. Informal C87 Group A A tick appears outside the Group A square. Does not comply with directions on ballot paper and therefore informal: r76(1) (a); the tick being outside the square the vote cannot be saved by s308C(2). Informal BALLOT PAPERS CHALLENGED BY THIRD RESPONDENT A5 Informal A '1' appears in the square for Kalman and an indecipherable number appears in the square opposite Malicki. Ballot does not comply with directions as the numbers '1' and '2' have not been used and therefore informal under 76(1)(a). Informal A10 Informal Markings in the squares in the respective squares opposite Kalman and Insley indecipherable. Appears original numbers have been scribbled out or other numbers written over them, in any case the numbers are indecipherable. A '1' appears in the square opposite Malicki. The Tribunal does not accept third respondent's submission that a '1' in the square opposite Kalman has been crossed out. Ballot does not comply with directions as a '1' and '2' have not been entered in the square opposite the names of two candidates and is therefore informal: r76(1)(a). None of the provisions of 308C apply. Informal A15 Informal A '1' appears in the respective squares opposite Malicki and Insley. The Tribunal rejects the third respondent's submission that the marking in the square for Morrison is a '2'; it is our view that this is a stylised '1' Ballot does not comply with directions and therefore informal: r 76(1)(a). None of the provisions of 308C apply. Informal C24 Group B A '1' appears outside and to left of the Group B square; a cross appears within that square. Ballot does not comply with directions and therefore informal under 76(1) but is saved by 308C(2). Formal Group B C25 Group B Marking in Group B square indecipherable, it is not a '1', a cross or a tick. Ballot does not comply with directions and therefore informal under 76(1). Cannot be saved by 308C. Informal C32 Group B Marking in Group B square is a tick. Ballot does not comply with directions and therefore informal under 76 but is saved by 308C(2). Formal Group B C33 Group B Marking in Group B square is a '1'. Ballot complies with directions on the ballot paper and therefore formal. Formal Group B C35 Group B Marking in Group B square is a cross. Ballot does not comply with directions and therefore informal under 76 but is saved by 308C(2). Formal Group B C36 Group B Marking in Group B square is clearly a '1'. Ballot complies with directions on the ballot paper and is therefore formal. Formal Group B C44 Group B Marking in Group B square is a tick and ballot is therefore saved by 308C(2). Formal Group B C45 Group B Crosses appear in the Group B square and all below the line squares. Ballot does not comply with directions and therefore informal under 76(1) (a). As the vote recorded for individual candidates is informal, the Tribunal must assess the above the line vote: 308C(1)(b). A vote is recorded above the line with a cross, albeit oversized, in the Group B square. Vote therefore saved by 308C(2). Formal Group B C46 Group B The marking in the Group B square is a '1'. Ballot complies with directions on the ballot paper and therefore formal. Formal Group B C 48 Group BA '1' appears in the Group B square. Ballot complies with directions on the ballot paper and is therefore formal. Formal Group B C49 Group B All squares were marked with individual letters which together spell HI HOW FUN. The third respondent submits that the marking in the Group B square was not a '1' but the letter 'I', rendering the vote informal. The Tribunal agrees. The ballot does not comply with directions on the ballot paper and is therefore informal under 76(1)(a). As the marking is neither a tick, cross or a '1' none of the savings provisions in s308C are triggered .Informal C 50 Group B This ballot paper did not appear on the agreed schedule but was challenged by the applicant on the day of hearing. The marking in the Group B square is a tick. In addition, a '1' appears adjacent to the Group B square. The voter has complied with the directions in the ballot paper and the vote therefore complies with 76(1)(a). It was not manifestly unreasonable for the returning officer to conclude pursuant to 76(5) that the voter's intention was clear notwithstanding the markings outside the square. Formal vote. Formal Group B C51 Group B The marking within the square for Group B is a '1'. Ballot complies with directions on the ballot paper and is therefore formal. Formal Group B C56 Group B The marking within the square for Group B is a '1'. Ballot complies with directions on the ballot paper and is therefore formal. Formal Group B Summary of Findings 46. The Tribunal's findings differ from those of the returning officer in respect of six ballot papers, four challenged by the applicant: A6, C67, C79 and C87 and two by the third respondent: C25 and C49. In summary, three votes counted as formal by the returning officer for the Group A ticket are classified by the Tribunal as informal and thus should have been excluded from the count: C87, C79 and C67; one vote excluded by the returning officer as informal should have been counted as a formal vote for Group B: A6; and two votes counted as formal for Group B should have been classified as informal and therefore excluded: C25 and C49. Conclusions 47 It is impossible to say with certainty what the precise outcome of the election would have been had the returning officer reached the same conclusion as the Tribunal in respect of the six successfully challenged votes. This is because first, there is no evidence before the Tribunal as to, at what stage in the counting process ballot paper A6 was excluded from the count; and second, no evidence was presented on the reason for the discrepancy between the second count and the recount of same. However, had the Tribunal's findings prevailed it is apparent that candidates standing on the Group A ticket namely Ms Malicki and Ms Morrison would have received three less votes at all stages of the count. The number of votes recorded for the Group B ticket would have been reduced by one. This reduction in votes would not have materially effected the result of the first count, which saw Mr deVulder elected by a significant margin of total votes; indeed his lead over Ms Malicki, the candidate with the second highest number of total votes at the conclusion of the first count, would have increased. However given the closeness of the result in the second count namely a margin of four votes in favour of Ms Malicki and the subsequent result of a tie in the recount, it is clear that had the Tribunal findings applied, the outcome of the election would have been different. It is apparent therefore, that an irregularity in this election has occurred, even on the application of the stricter test as enunciated by Beazley JA in Bourne v Murphy (at 358) : ' it must be an irregularity such that the result of the election is therefore uncertain.' 48 Having identified an irregularity the final issue for the Tribunal to determine is whether relief under s329(2) is discretionary. 49 Sub-section 329(2)(a) of the Act provides that the Tribunal may order the dismissal of a person from civic office if there has been an irregularity in the manner in which the person has been elected or appointed to that office. The word 'may' is defined in the Interpretation Act,1987 as follows : In any Act or instrument the word 'may', if used to confer a power, indicates that the power may be exercised or not, at discretion. 50 The question of whether sub-section 329(2) of the Act confers a judicial discretion where, as in this case, an irregularity has been identified, was discussed by Cole JA and Beazley JA in Bourne v Murphy . 51 Beazley JA (at 365) was of the view that section 329 of the Act did not confer a discretion on the appellate court to make an order of dismissal once an irregularity has been identified. 52 In contrast, Cole JA (at349) took the view that section 329 conferred a discretion and relief should only be exercised where 'the Court cannot be satisfied that the poll as declared truly represents the view of the voters.' 53 In this case it is unnecessary for the Tribunal to determine which of these apparently conflicting approaches should prevail as it is apparent based on our findings, that the Tribunal cannot be satisfied that the poll declared by the returning officer on September 16 ' truly represents the view of the voters'. Orders 54 On the construction of section 329 of the Act, it is clear that where the Tribunal is satisfied there has been an irregularity in the manner in which a person is elected to civic office, the only relief the Tribunal may grant is dismissal. The Tribunal does not have the power to substitute one candidate for another, in this case the applicant for the third respondent. 55 Accordingly we order that Ms Malicki be dismissed from her office as councillor of Ku-ring-gai Municipal Council. 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.