CITATION: Lowe v Feeney [2009] NSWADT 124 DIVISION: General Division APPLICANT Ronald (Gordon) Lowe PARTIES: REPSONDENT Judy Anne Feeney FILE NUMBER: 083364 HEARING DATES: 15 May 2009 SUBMISSIONS CLOSED: 15 May 2009 DATE OF DECISION: 26 May 2009 BEFORE: Handley R - Deputy President; Fitzgerald K - Judicial Member; Antonios Z - Non-Judicial Member CATCHWORDS: Dismissal from civic office – Local Government Act LEGISLATION CITED : Local Government Act 1993 Local Government (General) Regulation 2005 Bourne v Murphy (1996) LGERA 329 CASES CITED: Tuffy v Chadban & Anor [2004] NSWADT 216 Borsak v Cheung [2006] NSWADT 5 APPLICANT G Briscoe-Howe, agent REPRESENTATION: RESPONDENT PM Sibtain, counsel ORDERS: The application is refused. REASONS FOR DECISION 1 Ronald (Gordon) Lowe has applied to the Tribunal under s 329 of the Local Government Act 1993 ('the Act') for an order that Judy Anne Feeney be dismissed from office as a Councillor with Rockdale City Council. Background 2 Mrs Feeney lives in Oyster Bay and practices as a solicitor from an office in Bay Street, Brighton Le Sands. 3 On 20 March 2008, Mrs Feeney completed a 'Nomination for Selection – Councillor' form for nomination as a candidate for the Liberal Party for the fourth ward of the Rockdale Local Government Area ('LGA'). On 18 June 2008, she completed a 'Claim for Inclusion in the Roll of Non-Residential Owners of Rateable Land or the Roll of Occupiers and Ratepaying Lessees', stating that she was a ratepaying lessee of rateable land situated in Bay Street, Brighton Le Sands. 4 On 2 August 2008, Mrs Feeney completed a 'Nomination of Candidate by Registered Political Party – Local Government' form ('the Form'). On p 3 of the Form, under the heading 'Candidate Details', where asked to specify her 'Place of Residence as Enrolled', Mrs Feeney specified her Brighton Le Sands address. On p 5 of the Form, under the heading 'Candidate Information Sheet', where asked to specify her 'Full Residential Address', Mrs Feeney again specified her Brighton Le Sands address. 5 In election material sent by Mrs Feeney to households in the fourth ward of the Rockdale LGA, she described her local connections, including running her practice as a solicitor in the City of Rockdale. 6 The Local Government elections were held on 13 September 2008 and, when the results were announced on or about 25 September 2008, Mrs Feeney was elected as a Councillor in the fourth ward of the Rockdale LGA. 7 On 12 December 2008, Mr Lowe applied to the Tribunal under s 329 of the Act for an order that Mrs Feeney should be dismissed from her position as a Councillor on the ground that she made a false declaration by not stating her full residential address under the heading 'Candidate Information Sheet' on p 5 of the Form. The Relevant Law 8 At the hearing, Mr Briscoe-Hough, for Mr Lowe, confirmed that Mr Lowe is neither challenging Mrs Feeney's qualification for civic office nor contending, as previously submitted, that she is disqualified from holding such office. Thus, the question for the Tribunal, pursuant to s 329(2)(a) of the Act, is (1) whether there has been an irregularity in the manner in which Mrs Feeney was elected to civic office, (2) whether because of the irregularity the result of the election is rendered uncertain, and (3) whether the Tribunal should exercise its discretion to order the dismissal of Mrs Feeney from civic office. 9 Section 329 provides relevantly: 329 Can the holder of a civic office be dismissed? (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. 10 What constitutes an 'irregularity' is not explained in the Act. In the NSW Court of Appeal decision in Bourne v Murphy (1996) LGERA 329 ('Bourne'), at 358, Beazley JA, discussing the meaning of 'irregularity' in s 329, stated: Meaning of " irregularity " The Macquarie Dictionary defines " irregular " to mean "not conforming to rule, or accepted principle, method, course, etc." "Irregularity" has a corresponding meaning. The Oxford English Dictionary defines " irregularity " to mean " want of conformity to rules, deviation from or violation of a rule, law or principle ". The meaning of the word " irregularity" was considered by the High Court in R v Gray; ex parte Marsh [1985] HCA 67; (1985) 157 CLR 351. Gibbs CJ stated at 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." It is also clear from R v Gray that an irregularity includes matters which affect the declaration of the poll. See also Re Collins; ex parte Hockings (1989) 87 ALR 656 at 657, 658 and 659. The construction of the word " irregularity " in R v Gray was in the context of the phrase "in or in connection with an election" . The phrase here is "any irregularity in the manner in which the person has been elected ". " Manner" is defined in the Macquarie Dictionary to mean " way of doing, being done, or happening; mode of action". The Oxford Dictionary definition is the " way a thing is done ". In my opinion, subject to one further consideration, the difference in wording between s 329 and that under consideration in R v Gray makes no difference to the meaning of the word " irregularity " in s 329. However, I am of the opinion that 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... 11 This meaning was applied by the Tribunal in Tuffy v Chadban & Anor [2004] NSWADT 216 ('Tuffy') and Borsak v Cheung [2006] NSWADT 5 ('Borsak'). Evidence 12 The evidence before the Tribunal comprised a statement from Mrs Feeney, with attachments, dated 4 March 2009, and the election results for the fourth ward included in Mr Briscoe-Hough's submissions. Mrs Feeney also gave oral evidence at the hearing. 13 Mrs Feeney said she was admitted as a solicitor in 1999 and practices under the name 'Feeney Lawyers' at an office at Bay Street, Brighton Le Sands. She lives in Oyster Bay. When she approached the Rockdale Liberal Party in November 2007, the only available vacancy in the Liberal team for the 2008 Rockdale LGA elections was in the fourth ward, and she decided to accept that position. On 20 March 2008, she completed her nomination for selection as a Councillor for the Rockdale LGA and, on 18 June 2008, completed a claim for inclusion in the roll of occupiers and ratepaying lessees, relying on her lease of office premises at Bay Street, Brighton Le Sands. She subsequently understood this to be her enrolled address. 14 Mrs Feeney said that on about 2 August 2008, she completed the Form. On p 3, under the heading 'Candidate Details', where asked to specify her 'Place of Residence as Enrolled', Mrs Feeney specified her Brighton Le Sands address. She stated that the Brighton Le Sands address is the only address in the Rockdale LGA on which her eligibility to stand for civic office relies. On p 5 of the Form, under the heading 'Candidate Information Sheet', where asked to specify her 'Full Residential Address', Mrs Feeney again specified her Brighton Le Sands address. Mrs Feeney said, at the time, she understood 'Full Residential Address' to mean the address at which she was enrolled, stated earlier in the Form, and thought she needed to be consistent in using the same address. She did not obtain any assistance in completing the Form, and nobody from the Liberal Party, the Council or elsewhere spoke with her about how she had completed it. Mrs Feeney stated that she acted in good faith and not to mislead the voters of the fourth ward. 15 Mrs Feeney confirmed that she had previously served a term as a Councillor on Kogarah Council – about eight years ago. However, she could not remember how she completed the equivalent form at that time and did not consult her records when completing the Form in August 2008. 16 Mrs Feeney stated that in the election material she sent to households in the fourth ward, she made it clear that she was a Liberal candidate running in Group B and specifically stated that she has a business in Rockdale. (The material, an attachment to her statement, refers to Mrs Feeney working "as a solicitor in my own practice in the City of Rockdale", to her being educated locally at Bexley Public School and to her having attended St George High School, to her prior service on Kogarah Council, to her objectives in seeking election and to the local Liberal Party platform.) Mr Lowe's Submissions 17 Mr Briscoe-Hough submitted there is a prima facie case that Mrs Feeney erroneously completed the 'Candidate Information Sheet' on p 5 of the Form. He contended that it is inconceivable that Mrs Feeney, a solicitor, who is a former Councillor and active member of the body politic, should complete the Form in such a way. She is either incompetent or seeking to mislead the electors. He said there is a public expectation that a candidate should be resident in the area in which he or she stands. Being 'local' is a significant issue. The 'Candidate Information Sheet' is the only independent publicly available means for serious voters to establish the local credentials of a candidate. While the law allows the ratepayer to be enfranchised, for candidates at local elections, it is not only their enrolled address but also their residential address that is important for local electors. 18 Mr Briscoe-Hough referred to the decision in Tuffy where, at [31], the Tribunal identified the first question to be asked in respect of any alleged irregularity as whether it represents a potential breach on any provision of the Act or election regulations (referring to the Local Government (Elections) Regulation 1998). Mr Briscoe-Hough submitted that the deliberate or inadvertent use of a non-residential address on the 'Candidate Information Sheet' is an offence under s 665(1) of the Act, which states that a person who, "in or in connection with an application under this Act, makes any statement that the person knows to be false or misleading in a material particular is guilty of an offence". Clause 290 of the Local Government (General) Regulation 2005 states: 290 Candidate Information Sheets (1) The matters prescribed for the purposes of section 308(2) of the Act that are to be included in a candidate information sheet are the proposed candidate's full name and full residential address. 19 Clause 359 states: 359 False statements in forms (1) A person must not make a statement that the person knows is false in a paper relating to an election or poll under the Act, or in information supplied to the electoral Commission or a general manager for the purposes of the preparation, maintenance, or revision of an electoral roll under the Act. 20 Mr Briscoe-Hough submitted that the provision of an incorrect residential address represents a potential breach of the Act and election regulations and satisfies the 'irregularity' test. Moreover, he said it is not credible for Mrs Feeney, who is a solicitor and former Councillor, to argue that she acted unknowingly. 21 With regard to whether the irregularity rendered the election result uncertain, Mr Briscoe-Hough provided the results for the election for the fourth ward of Rockdale LGA. He noted that Mrs Feeney was elected by a margin of 391 votes – 4.8% of the formal votes. He submitted that the votes cast for a local independent candidate indicated that being local was a significant issue for voters. Moreover, Mrs Feeney's completion of the 'Candidate Information Sheet' raised questions about her competence and integrity that, if known, could have affected how electors voted. Mr Lowe contends that as a voter, he would not have cast his vote for such a candidate and that a sufficient number of others would have been of the same mind so as to make the election result uncertain. Mrs Feeney's Submissions 22 Ms Sibtain submitted that Mrs Feeney's completion of the 'Candidate Information Sheet' was not demonstrably erroneous. If there was an error, it was because of confusion generated by the documents. Mrs Feeney has explained why she completed the Form as she did and her explanation is entirely understandable, even if others would have done differently. Any irregularity was not material because Mrs Feeney worked, leased land and paid Council rates in the Rockdale LGA. She did not attempt to mislead in the election material sent to electors in the fourth ward: she did not state she was a resident in the area – rather, she sought to establish her other local connections. Ms Sibtain said that, in any event, there is no evidence that any elector saw the 'Candidate Information Sheet'. 23 Ms Sibtain said if there was an irregularity by reason of Mrs Feeney's statement in the 'Candidate Information Sheet' about her address, the Applicant bears the onus of proving that the election result was thereby rendered uncertain. Such a finding cannot be based on mere speculation or conjecture. There is no evidence that Mrs Feeney's statement about her residential address had any effect on any voter except Mr Lowe and, even in his case, there is no evidence that he would have voted any differently. 24 With regard to the election results provided by Mr Briscoe-Hough, Ms Sibtain noted that Mrs Feeney had the benefit of 1953 votes cast for the Liberal Party group of candidates, allocated to her automatically as the number one candidate on the ticket, and 88 personal votes ('below the line'), giving her a total of 2,041 votes and a margin of 391 votes over the next candidate. The automatic allocation of the 1953 votes meant that Mrs Feeney could not be outvoted, and would still have been elected even if all 88 electors who voted for her personally voted for another candidate as a result of the alleged irregularity. Thus, Ms Sibtain submitted, there is no evidence that there might have been enough changed votes to render the outcome of the election uncertain. This is not a case where the Tribunal should remove a democratically elected Councillor. Consideration 25 As stated above, the first issue for the Tribunal is whether there was an irregularity in the manner in which Mrs Feeney was elected to office. Mrs Feeney explained her completion of the Form and, in particular, her specifying her Brighton Le Sands office address as her 'Full Residential Address' on the 'Candidate Information Sheet' on p 5 of the Form, by reason of what she thought was required of her and, in particular, of her need to be consistent with the address specified earlier in the Form, at p 3, as her 'Place of Residence as Enrolled'. The Tribunal notes that Mrs Feeney is a solicitor of approximately 10 years standing and former Councillor. In our view, one would expect such a person to be aware of the clear ordinary meaning of 'Full Residential Address', being the address of the place where the person lives (see, for example, Borsak at [61]). This meaning does not differ according to the context in which the phrase is used, and is one which is different from that of the phrase 'Place of Residence as Enrolled' - the place where the person is enrolled as an elector. 26 The Tribunal therefore finds there was an 'irregularity' in the way Mrs Feeney completed the Form, in that she departed from the ordinary meaning of the phrase 'Full Residential Address' by specifying her office address as her 'Full Residential Address' instead of the address of the place where she lives. Thus, in the Tribunal's view, there was an irregularity in the manner in which she was elected to civic office. 27 It is not the role of the Tribunal to determine whether any offence may have been committed under the Act or regulations. Mrs Feeney's evidence was that she had no intention of misleading potential voters: she was merely trying to be consistent in the way in which she completed the Form. Moreover, there was no attempt to mislead in the election material she sent to electors in the fourth ward: although she sought to establish her local connections, she did not state she was a resident in the area. 28 For the purposes of this matter, it is sufficient for the Tribunal to find that there was an irregularity. This then leads to the second issue, whether because of the irregularity the result of the election is rendered uncertain. This is a matter of evidence. 29 The Tribunal recognises, as a matter of common knowledge, that a candidate's local connections can potentially be a significant factor in elections. In the Tribunal's view, such local connections include not only whether the candidate lives in the area, but also, for example, whether they work in the area, whether they have any family connections in the area, whether they were educated in the area or whether their children go to school there, and whether they have particular interests in the local area in terms of the environment, business etc. However, at issue in this case is whether there is any evidence that the irregularity in Mrs Feeney's completion of the 'Candidate Information Sheet' had any effect on the result of the Council election so as to render the result of the election uncertain. 30 There is very little relevant evidence before the Tribunal. The evidence of the election results for the fourth ward of the Rockdale LGA provided by Mr Briscoe-Hough shows that Mrs Feeney was elected by a margin of 391 votes over the next candidate. Thus, a change in the distribution of the 88 votes cast for Mrs Feeney personally (as opposed to the 1953 votes cast for the Liberal Party group of candidates as a whole), may not have had any effect on the outcome. Apart from Mr Lowe's having stated that he would not have voted for Mrs Feeney in the light of the demonstrated irregularity, there is no evidence that any other elector would have voted differently. There is also no evidence that, in this particular election, and bearing in mind Mrs Feeney's other local connections to the area, if the fact that she does not live in the area had become known to electors as a result of her correctly stating her 'Full Residential Address' on p 5 of the 'Candidate Information Sheet', this would have had an effect on the outcome. Indeed, there is no evidence that any elector examined the 'Candidate Information Sheet' prior to the election. 31 In conclusion, the Tribunal is not satisfied that because of the irregularity the result of the election was rendered uncertain. Thus, there is no basis on which the Tribunal could order the dismissal of Mrs Feeney from civic office and Mr Lowe's application is therefore refused. 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.