New South Wales Supreme Court CITATION : ROBERTS v JEFFERY & 4 Ors [2003] NSWSC 162 HEARING DATE(S) : 20/2/03 JUDGMENT DATE : 11 April 2003 JUDGMENT OF : Bell J at 1 DECISION : Amended summons dismissed; Plaintiff to pay the defendants' costs as agreed or assessed CATCHWORDS : Dismissal from civic office - irregularity in the manner of election to office Administrative Decisions Tribunal Act 1997 Commonwealth Electoral Act 1918 LEGISLATION CITED : Conciliation and Arbitration Act 1904 (Cth) Local Government Act 1993 Local Government (Elections) Regulation 1998 Parliamentary Electorates and Election Act 1912 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Bourne v Murphy (1996) 92 LGERA 329 Bridge v Bowen (1916) 21 CLR 582 Bruce v Cole (1998) 45 NSWLR 163 CASES CITED : Re Collins; Ex parte Hockings (1989) 167 CLR 522 Evans v Crichton-Browne (1981) 147 CLR 169 Hill v Green [1999] NSWCA 477; 48 NSWLR 161 Hodge v The King (1907) 5 CLR 373 Minister for Immigration v Eshetu [1999] HCA 21; 197 CLR 611 R v Gray; ex parte Marsh (1985) 157 CLR 351 Lennard Bruce Roberts (Plaintiff) Victor Robert Jeffery (1st Defendant) PARTIES : Jack Ireland (2nd Defendant) Barry Clendinning (3rd Defendant) William Coombe (4th Defendant) Administrative Decisions Tribunal (5th Defendant) FILE NUMBER(S) : SC 30062/02 COUNSEL : R. Colquhoun (Plaintiff) M.J. Griffiths SC / B. Zipser (1-4 Defendants) JA Vaughan & Walker Smith (Plaintiff) SOLICITORS : Public Interest Advocacy Centre (1st - 4th Defendants) I V Knight (5th Defendant) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST BELL J Friday 11 April 2003 30062/02 Lennard Bruce ROBERTS v Victor Robert JEFFERY & Ors JUDGMENT 1 BELL J: The plaintiff was elected as a counsellor of the Great Lakes Local Council ("the Council") at a by-election held on Saturday 1 July 2000. The poll was declared on 5 July 2000. 2 On 18 September 2000 the first, second, third and fourth defendants ("the defendants") filed an application with the Administrative Decisions Tribunal ("the Tribunal") seeking to have the plaintiff dismissed from civic office. The application was brought pursuant to s 329 of the Local Government Act 1993 ("the LGA"). Pursuant to s 329(2)(a) of the LGA the Tribunal may order the dismissal of a person from civic office if there has been any irregularity in the manner in which the person has been elected to that office. 3 The defendants asserted that there had been irregularities in the manner in which the plaintiff had been elected to his office. These irregularities comprised the placement of an electoral advertisement in the Manning Great Lakes Extra newspaper and the display of an election poster on various dates bearing the logo of the National Party of Australia. 4 At a directions hearing held before the Deputy President of the Tribunal the parties were directed to file and serve submissions on the issue of the Tribunal's jurisdiction to entertain the defendants' application. Specifically, the parties were asked to address the question of whether "any irregularity in the manner in which the person has been elected or appointed to that office" extended to irregularities occurring prior to polling day. 5 On 27 April 2001 the Tribunal determined that it had jurisdiction to entertain the defendants' application. 6 The Tribunal heard evidence on three days between 6 June and 24 September 2001. It reserved its decision. On 19 April 2002 the Tribunal ordered that the plaintiff be dismissed from civic office. 7 The plaintiff appeals against the whole of the decisions of the Tribunal given on 27 April 2001 and 19 April 2002. 8 A right of appeal is conferred by s 330(1) of the LGA on a person against whom an order of dismissal is made. The appeal is confined to a question of law. The Facts found by the Tribunal 9 Before turning to the grounds of appeal it is convenient to set out the facts found by the Tribunal in its decision of 19 April 2002. 10 A Councillor resigned from the Council in 2000. A by-election was conducted to fill the casual vacancy. The election was conducted in accordance with the provisions of the LGA and the Local Government (Elections) Regulation 1998 ("the Regulation"). 11 Nine candidates stood for election in the by-election. Pre-poll voting commenced on 19 June 2000. Polling day was 1 July 2000. On that day twenty-five polling booths were in operation. 12 The method of counting votes cast in the election was the optional preferential system in accordance with cl 82 and Sch 1 of the Regulation. Since only one candidate was to be elected the provisions of cl 3 of Sch 1 applied to the counting of votes and the ascertainment of the result of the election. 13 The plaintiff stood for election as an independent candidate. In accordance with the requirements of s 308 of the LGA the plaintiff submitted a Candidate Information Sheet in the form of a statutory declaration with his nomination. In that declaration the plaintiff stated: "I have not been nominated as a candidate by a registered party … Believe that party politics has no place in local govt. People must come first - not party. All Councillors should be accountable to the rate payers – not their party masters." 14 Prior to polling day provision was made for pre-poll voting at one polling booth located at the Council offices in Forster. Pre-poll voting took place between Monday 19 June and Friday 30 June 2000. 15 On 22 June 2000 the plaintiff caused an advertisement to be placed in the Manning Great Lakes Extra newspaper for publication on Thursday 29 June 2000 ("the Extra advertisement"). The Extra advertisement read: "Vote 1 Len Roberts for Great Lakes Council – He'll last the distance". At the foot of the advertisement appeared the words: "Authorised by Peter Thompson, Wharf Street, Forster". Peter Thompson was Deputy Mayor of the Council. He was a person with reputation and status in the community. Mr Thompson did not authorise the plaintiff's advertisement. 16 During the election campaign the plaintiff displayed copies of a poster the dimensions of which were approximately 90 cm x 60 cm. The posters were originally produced for the plaintiff in the early 1990's when he stood as an endorsed National Party candidate in the State election. In its original form the poster consisted of three sections. The top section bore the words "LEN ROBERTS" in large green letters. The middle section consisted of a large photograph of the plaintiff. To the right and at the base of the photograph appeared a symbol depicting a green map of Australia on a white background encased in a yellow circle. The bottom section of the poster carried the word "NATIONALS". The symbol of the map of Australia encased in the yellow circle was the logo of the National Party of Australia. A number of voters would have recognised the symbol as being that of the National Party. 17 The plaintiff displayed a number of these posters, in amended form, during the by-election. On most occasions the word "NATIONALS" and the National Party logo were covered. However there were two occasions on which the National Party logo was uncovered. A poster bearing the National Party logo was on display during the pre-poll at the Council offices at Forster on Wednesday 21 June 2000 for about two hours in the morning. During the two weeks of the pre-poll 1,995 formal votes were cast at the Council offices at Forster. There was no evidence as to the number of votes cast on the morning of 21 June. During the pre-poll 209 voters marked the plaintiff as the number one choice on the ballot paper. A poster bearing the National Party logo was on display at the Tea Gardens polling booth on the day of the poll for an indeterminate part of the day. 808 formal votes were cast at the Tea Gardens booth. Just over half the voters at the Tea Gardens booth nominated the plaintiff as their first preference. 18 The Extra advertisement appeared in a reasonably prominent position on page two of the newspaper. The paper was distributed to about 7,500 people residing in the electorate. It was published on 29 June 2000 and had been widely distributed prior to polling day. There was no evidence as to the number of voters who saw the advertisement however, there was evidence that some people had read the advertisement prior to polling day. A number of complaints and enquiries had been directed to Mr Thompson concerning his purported authorisation of it. 19 Just under 17,000 formal votes were cast. The election was determined by preferences. The margin between the plaintiff and the second defendant, following the exclusion of a candidate named Steele, was a narrow one consisting of 177 votes. The Grounds of Appeal 20 The grounds of appeal contained in the plaintiff's amended summons are set out below. There is a measure of overlap between a number of them: "1. The Tribunal erred in finding that irregularities occurred in the manner in which the election of the plaintiff took place. 2. The Tribunal erred in holding that once it determined irregularities took place in the manner in which the election took place there was no discretion and that it was required to dismiss the plaintiff from office. 3. The Tribunal erred in finding that irregularities took place. 4. The Tribunal erred in holding that it had jurisdiction in relation to the application of the defendants: (i) the matters complained of as irregularities do not constitute irregularities within the meaning of the relevant legislation; (ii) the emblem or logo complained of does not constitute a relevant irregularity; (iii) the matters complained of, with exception of the logo complained of being on display on polling day, are not, even if irregularities, irregularities in the manner in which the election took place ; (iv) the Tribunal erred in finding that the newspaper advertisement in the Manning Great Lakes Extra was an irregularity in the manner in which the election took place; (v) the Tribunal erred in finding that the logo on a poster at the pre-polling place and at the Tea Gardens polling place was an irregularity in the manner in which the election took place." 21 The plaintiff's written submissions did not follow the grounds of appeal as filed. In these submissions, Mr Colquhoun who appeared on the plaintiff's behalf, addressed a number of contentions embraced within the grounds of appeal and, in other respects, sought to challenge findings of fact made by the Tribunal. The matters said to amount to error of law identified in the written submissions (and developed in the course of oral argument) may be distilled as follows: 1. Neither the display of the National Party logo on the plaintiff's poster or the Extra advertisement constituted an "irregularity" in the manner in which the plaintiff had been elected to office within the meaning of s 329(2)(a) of the LGA. 2. It was not reasonably open to the Tribunal to find that the Extra advertisement or the display of the National Party logo either alone or in combination operated to make the result of the election uncertain. 3. The Tribunal erred in holding that s 329(2) of the LGA does not confer a discretion not to make an order for dismissal when a finding that there has been an irregularity in the manner in which a person has been elected to office. "Irregularity" in the manner in which elected to office 22 The Tribunal construed s 329 of the LGA in the light of the decision of the Court of Appeal in Bourne v Murphy (1996) 92 LGERA 329. Cole JA and Beazley JA formed the majority in that case although their reasoning differed. Beazley JA said at 358: "The meaning of the word "irregularity" was considered by the High Court in R v Gray; Ex Parte Marsh (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) 167 CLR 522 at 525, 526 and 528. 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 purposes of s 329. Rather it must be an irregularity such that the result of the election is thereby uncertain; see Bridge v Bowen (1916) 21 CLR 582." 23 After a detailed analysis of Bourne, the Tribunal held in its determination of 19 April 2002 at [28]: "We accept the submissions of the parties and for the purposes of this case intend to adopt the two-step approach outlined by Beazley JA. Accordingly, in respect of each of the alleged irregularities it must be established, first, that it represents a 'departure from some rule, established practice or generally accepted principle governing the conduct of the election'; and second, that the irregularity was such that the result of the election was thereby rendered uncertain." 24 The plaintiff does not submit that the Tribunal erred in approaching the construction of s 329 of the LGA by reference to the approach enunciated by Beazley JA in Bourne. In written submissions Mr Colquhoun, who appeared for the plaintiff submitted: "It is not 'in connection with an election' if the irregularity consists merely in the steps taken to affect voter intention, but leaves untouched the process of nomination, conduct and declaration of the poll. In Re: Collins: ex parte Hockings (1989) 167 CLR 522 see also Evans v Crichton-Browne (1980) 147 CLR 169; R v Gray; Ex parte Marsh (185) 157 CLR 351 at 367-368; Samson v Hudson (1997) 994 LGERA 292." 25 The plaintiff's written submissions adopt the language of R v Gray; ex parte Marsh (1985) 157 CLR 351 a case in which the High Court considered the meaning of the expression "an irregularity in or in connection with an election" for the purposes of s 159(1) of the Conciliation and Arbitration Act 1904 (Cth) ("the CAA"). 26 Section 329(2) of the LGA speaks of any irregularity "in the manner in which the person has been elected … to that office". The plaintiff's submission remains that an "irregularity" for the purpose of s 329(2) does not include conduct that only affects (or may affect) voter intention as distinct from conduct that touches on the process of nomination, conduct and declaration of the poll. It is useful to refer to the authorities on which the plaintiff relies and then to examine the approach that the Tribunal took. 27 In Evans v Crichton-Browne (1981) 147 CLR 169 the High Court, sitting as the Court of Disputed Returns, dealt with three stated cases that raised a common issue concerning the construction of s 161(e) of the Commonwealth Electoral Act 1918. In each case the petitioner complained that electoral advertising by one of the major political parties contained untrue or incorrect statements that were likely to mislead. Section 161 relevantly provided: "In addition to bribery and undue influence the following shall be illegal practices: '(e) printing, publishing, or distributing any electoral advertisement, notice, handbill, pamphlet, or card containing any untrue or incorrect statement intended or likely to mislead or improperly interfere with any elector in or in relation to the casting of his vote.'" The Court observed (at 204) that the words "in or in relation to the casting of his vote" in s 161(e) given their natural meaning do not include "to decide for whom to vote". 28 The petitioners in Crichton-Browne sought to contend that the words "in relation to" were words of wide application and supported a construction of s 161(e) that the casting of a vote was not limited to the physical act of putting the ballot paper in the ballot box, but that it embraced the making of the choice by the elector of the candidate in whose favour he or she marked the ballot paper. In dealing with that argument the Court observed (at 206-207): "[T]he framers of a law designed to prevent misrepresentation or concealment which may affect the political judgment of electors must consider also the importance of insuring that freedom of speech is not unduly restricted, especially during an election campaign, and the practical difficulties that might result if an election were liable to invalidation on the ground that statements made in the interests of candidates were found in subsequent litigation to be untrue or incorrect. This Court is not concerned with what it would be desirable for Parliament to provide, but with the meaning of what Parliament has in fact provided, but the possible difficulty and inconvenience to which the wider construction of the provision might give rise is a matter properly to be considered in determining the meaning of the words used if they are ambiguous. …. [W]e can see nothing in the context provided by the Act as a whole, or in the general considerations of policy upon which the petitioners relied, which warrants a departure from the natural meaning of the words of par. (e), which, we hold, refers to the act of recording or expressing the political judgment which the elector has made rather than to the formation of that judgment. It would no doubt be too narrow to regard the casting of the vote as the mere act of putting the paper in the ballot box – the words would appear to refer to the whole process of obtaining and marking the paper and depositing it in the ballot box. However, the words clearly do not refer to the whole conduct of the election, which begins before and ends after the votes are cast." 29 In R v Gray the High Court considered the construction of the term "irregularity" as defined in s 4(1) of the Conciliation and Arbitration Act 1904 (Cth) ("the CAA") as it applied with respect to s 159(1) of the CAA, a provision which enabled a member of an organisation who claimed that there had been "an irregularity in or in connection with an election for an office in the organisation" to apply to the Federal Court of Australia for an inquiry into the matter. The proceedings arose out of a secret postal ballot of all financial members of the Amalgamated Metals Foundry and Shipwrights Union for the election of a National Organiser. 30 "Irregularity" for the purpose of the CAA was defined by ss 4(1) in these terms: "'Irregularity', in relation to an election or ballot, includes a breach of the rules of an organisation or of a branch of an organisation, and any act, omission of other means whereby the full and free recording of votes by all persons entitled to record votes, and by no other persons, or a correct ascertainment or declaration of the results of the voting is, or is attempted to be, prevented or hindered." 31 Gibbs CJ held that the words "recording of votes" in above definition bears no different meaning to the words "casting of votes" considered by the Court in Crichton-Browne. 32 In Re Collins; Ex parte Hockings (1989) 167 CLR 522 the High Court, again, considered the provisions of Pt IX of the CAA (Disputed Elections in Organisations). The question in that case concerned whether the use of union resources to promote a ticket in a union election constituted an "irregularity in or in connection with an election". In their joint judgment Brennan and Deane JJ referred to Evans v Crichton-Browne observing (at 525): "[A]n irregularity is not "in or in connection with an election" if the irregularity consists merely in the steps taken to affect voting intention but leaves untouched the processes of nomination, conduct and declaration of the poll. This is such a case. As Gaudron J points out, if an irregularity which affects merely the formation of voting intentions were capable of amounting to an "irregularity in or in connection with an election", an inquiry into the effect of the irregularity on the result of the election would involve a very substantial intrusion into the secrecy of the ballot". 33 Before the Tribunal, the defendants argued that the Extra advertisement constituted a potential breach of r 109(1)(b) of the Regulation in that it stated, wrongly, that it was authorised by Peter Thompson. It was also contended that the Extra advertisement constituted a potential breach of r 111 of the Regulation in that it did not bear that name and address of the person on whose instructions it was printed. The display of the National Party logo of the plaintiff's poster was said to constitute a breach of r 109(1)(b) in that it contained a statement (the logo) that was likely to mislead in that it implied that the plaintiff was the endorsed National Party candidate. Alternatively, the defendants contended that each of these three matters constituted an "irregularity" as defined by Gibbs CJ in R v Gray in that each was a departure from a rule, established practice or generally accepted principle governing the conduct of an election. 34 In its determination of 19 April 2002 the Tribunal posed the following as the issues for its determination, [29]: · First, does the alleged irregularity represent a potential breach of any provision of the Act or the election Regulations? · To put it in terms of Bourne v Murphy, does the alleged irregularity involve a departure from some rule, established practice or generally accepted principle? · Was that irregularity, either separately or in combination with any other irregularity, of such a nature that the result of the election was rendered uncertain? · Finally, if the answer to the above is in the affirmative, should the Tribunal order Mr Roberts' dismissal from office?" 35 Consistent with its statement of the issues for its determination the Tribunal considered whether the display of the poster with the National Party logo amounted to a potential breach of any provision of the LGA or the Regulation. Regulation 109(1)(b) provides that a person must not do any of the following: "Print, publish or distribute a 'How to vote' card, electoral advertisement, notice, handbill, pamphlet, or card, containing an untrue or incorrect statement intended or likely to mislead or improperly interfere with an elector in or in relation to the casting of his or her vote". 36 The Tribunal found that the display of the poster with the National Party logo at the Tea Gardens election booth not to be a potential breach of the Regulation because the most likely explanation for it was that the logo had been uncovered by the elements. 37 The Tribunal found that the display of the poster with the logo implied that the plaintiff expressly or impliedly enjoyed the endorsement of the National Party. In the Tribunal's view it was likely that the display of the logo would have misled some voters into believing that the plaintiff was the endorsed candidate for the National Party. 38 The Tribunal considered whether the display of the poster at the Council offices on 21 June was likely to mislead any voter "in or in relation to the casting of their vote" for the purposes of r 109(1)(b) of the Regulation. The Tribunal took into account the construction of the words "in or in relation to the casting of his vote" adopted by the High Court in Evans v Crichton-Browne in addressing this question. The Tribunal found that some voters would have formed a final judgment, namely that they would vote for the candidate endorsed by the National Party, prior to sighting the poster. The Tribunal found that it was likely that these voters (having already made a decision to vote for the candidate endorsed by the National Party) would on seeing the plaintiff's poster with the National Party logo be misled into believing that he was the endorsed National Party candidate and proceed to cast a vote for him accordingly. For these reasons the Tribunal found that the display of the National Party logo on the plaintiff's poster was likely "to mislead at least some voters in relation to the casting of their vote" ([140]). 39 The Tribunal found that the display of the posters with the National Party logo was an "irregularity" for the purposes of s 329(2) of the LGA in conformity with the reasoning of the High Court in Evans v Crichton-Browne because it was conduct that affected the expression of the political judgment which the elector had made (as distinct from the formation of that judgment). The plaintiff's challenge set out at [24] above does not arise with respect to the Tribunal's findings concerning the display of the poster with the National Party logo. 40 In considering whether the Extra advertisement constituted a potential breach of r 109(1)(b) the Tribunal again turned to the question of whether the untrue or incorrect statement (that the advertisement was authorised by Mr Thompson) was likely to mislead a voter "in or in relation to the casting of his or her vote". The Tribunal noted that the terms of the Regulation were almost identical to the terms of s 161(e) of the Commonwealth Electoral Act considered in Evans v Crichton-Browne in this respect. 41 The Tribunal found that the representation contained in the Extra advertisement was likely to effect the decision of some voters about the choice of candidate. The Tribunal went on to state at [62] - [63]: "We are not satisfied, however, that the representation was likely to also affect the casting of a vote once a voter had formed a decision about their preferred candidate. In our view it is not determinative that the representation was made on the eve of the election. Eleventh hour representations that influence a voter to change his or her mind are not necessarily caught by the regulation. To fall within the provision it must be established that it is likely that once having made a final decision about their preferred candidate the misrepresentation caused the voter to cast their vote in a manner that did not reflect that decision. The High Court has construed the section narrowly. Applying Crichton-Browne to these circumstances, it appears to us that the purported authorisation is not caught by the section." 42 On a view the Tribunal applied an overly restrictive interpretation of Evans v Crichton-Browne in this respect. In that case the Court said at 205: "It seems reasonable to conclude that s 161(e) was intended to deal with misleading or incorrect statements of a similar kind, even though not contained in a representation of a ballot paper. For example, a statement contained in a newspaper advertisement that a ballot-paper should be marked in a way that would not conform to the requirements of the Act and which would render the vote invalid might mislead or improperly interfere with an elector in the casting of his vote. The same might be true of a statement that a person who wished to support a particular party should vote for a particular candidate, when that candidate in fact belonged to a rival party." The statement in the Extra advertisement, that the advertisement was authorised by Mr Thompson when it was not, might be thought to be of the same character as those that the Court contemplated as falling within the terms of s 161(e) of the Commonwealth Electoral Act in the passage set out above. 43 Next the Tribunal considered whether the Extra advertisement represented a departure from a generally accepted principle for an electoral advertisement (using the definition of "irregularity" given by Gibbs CJ in R v Gray). It found the Extra advertisement to constitute an "irregularity" in the manner in which the plaintiff was elected to his office because for an electoral advertisement to carry a statement that it was authorised by a named person when in fact it was not was a departure from a generally accepted principle governing the conduct of the election. Equally, the Tribunal considered that it was a departure from a generally accepted principle for the conduct of an election that an electoral advertisement omit to carry the name and address of the person on whose instructions it was printed. The Tribunal was satisfied that the purported endorsement of the plaintiff by Mr Thompson and the omission of the prescribed details in the Extra advertisement satisfied what it described as "the first limb of the test of irregularity" (at [66]). 44 In the submission of Mr Griffiths SC, who with Mr Zipser appeared for the defendants, the Tribunal was right to be guided by the decision of the High Court in Evans v Crichton-Browne in dealing with the suggested breaches of r 109(1)(c) of the Regulation. However, in his submission Evans v Crichton-Browne, R v Gray and Re Collins were each concerned with statutory phrases cast in different terms to s 329(2) of the LGA and are not determinative of the construction of it. In his submission in determining the content to be given to an irregularity "in the manner of election to office" for the purposes of s 329 (2) it is appropriate to have regard to the scheme of the LGA as a whole. It, together with the Regulation, governs the conduct of elections for civic office generally and is not confined to the casting of votes. In written submissions he put this way: "There is no basis for confining the relevant expression in s 329(2) (ie 'any irregularity in the manner in which the person has been elected or appointed to that office') by reference to a distinction between an elector forming a view as to the candidate for whom the elector would vote and the physical act of casting a vote. It is submitted that the ADT was correct in taking a broader view of the ambit of that provision in the Local Government Act as applying to matters affecting the conduct of an election, not just to the casting of a vote." 45 In Bourne Cole JA observed that the expression with which the High Court was concerned in Re Collins, namely, "irregularity in or in connection with an election" is in different terms to the terms of s 329(2) of the LGA. His Honour noted the definition of "irregularity" given by Gibbs CJ in R v Gray was applied in Re Collins, but did not expressly state whether he considered that it applied to the definition of that term for the purposes of s 329(2) of the LGA. I have set out at [22] above the approach Beazley JA took to this issue in Bourne. Her Honour considered that the difference in wording between s 329 of the LGA and the provision of the CAA with which the High Court was concerned in R v Gray made no difference to the meaning of the word "irregularity". The irregularity under consideration in Bourne related to the recording of votes as formal or informal by the returning officer. The scope of the expression "in the manner in which the person has been elected…to that office" did not arise in that case. 46 The High Court in Evans v Crichton-Browne observed that the words with which it was concerned did not refer to the whole conduct of the election (set out at [28] above). The expression with which the Court was concerned in that case was "in or in relation to the casting of his vote". 47 R v Gray and Re Collins dealt with the definition of the word "irregularity" in ss 4(1) of the CAA. The terms of ss 4(1) are set out at [30] above. The irregularity is one whereby the "full and free recording of votes" is or is attempted to be prevented or hindered. 48 In Re: Collins Gaudron J referred to the judgment of Griffith CJ in Hodge v The King (1907) 5 CLR 373 at 379 as to the meaning of the word "election" in the Local Authorities Act 1902 (Qld), namely, that it included: "the whole proceeding from the first step taken by the Returning Officer, in giving notice to the electors, to the day of the return of the candidates, if any are elected". Her Honour went on to observe at 530: "However, the fact that the word 'election' may, and perhaps ordinarily does, encompass the various formal steps from the calling of an election through to the declaration of the results provides no basis for saying that it encompasses those activities involved in electioneering". 49 I accept that an irregularity for the purposes of s 329(2) in the manner in which a person is elected to office extends to an irregularity (in the way that term was defined by Gibbs CJ in R v Gray) affecting the conduct of the election, the latter including the whole proceeding from the first step taken by the returning officer of the declaration of the result. The Tribunal did not approach the construction of s 329(2) of the LGA on the basis that a misleading electioneering statement published in a newspaper advertisement might amount to an "irregularity" in the manner in which a person is elected to office. It found that to state, wrongly, that an electoral advertisement is authorised by a named and prominent individual (and to fail to state by whose authority an electoral advertisement is published) constitute irregularities in the manner in which a person is elected to office. In doing so it applied the definition of "irregularity" applied by Gibbs CJ in R v Gray consistently with the judgment of Beazley JA in Bourne. I do not consider having regard to the language of s 329(2) that the Tribunal erred in law in so concluding. The challenge to the Tribunal's ultimate conclusion 50 Mr Colquhoun sought to challenge the Tribunal's finding that the irregularities that it found made the outcome of the election uncertain. In written submissions he contended: 'There is no credible body of evidence that what are claimed to be irregularities in any event had an effect on some voters or sufficient voters. In any event, what occurred could hardly be described as 'rorting' or 'Tammany Hall style corruption'". 51 The reference to Tammany Hall style corruption refers to a passage in the judgment of the Tribunal: "The public policy behind s 329 is obvious. It is that elections shall be conducted regularly, fairly and lawfully. The ultimate aim is not only to maintain the confidence of the electorate in the integrity of the electoral system but to maintain the system's integrity itself. In short, it is designed to prevent 'rorting', or 'Tammany Hall' style corruption of our democracy." (27/4/01 at [10]). This observation concerning the suggested policy behind s 329 of the LGA was made in the course of the Tribunal's preliminary ruling on the question of jurisdiction. The Tribunal was concerned with the question of whether s 329 embraced irregularities that occurred prior to polling day. The Tribunal did not approach the construction of s 329 upon the basis that conduct might only constitute an irregularity if it amounted to "rorting or Tammany Hall style corruption". It would have been wrong to do so. There is no warrant in the terms of the section to confine the meaning of "irregularity" in this way. In Bourne the irregularity found by the majority had nothing to do with suggested corruption or the like. 52 The defendants' accept the absence of any evidence to support a finding of fact many amount to error of law. However, in written submissions they pointed to an established line of authority for the proposition that provided there is some basis for a finding of fact there is no error of law; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356; Bruce v Cole (1998) 45 NSWLR 163 at 187G – 189D; Hill v Green [1999] NSWCA 477; 48 NSWLR 161 at 174-5, 209-212; Minister for Immigration v Eshetu [1999] HCA 21; 197 CLR 611 at [145] and [147] per Gummow J. 53 In the course of oral argument I did not understand Mr Colquhoun to contend that there was no evidence to support the Tribunal's findings of fact with respect to the display of the National Party logo and the Extra advertisement. In my view such a challenge could not be sustained. Rather, Mr Colquhoun sought to contend that the Tribunal's ultimate conclusion, that the outcome of the election had been rendered uncertain, was perverse. He relied on passages in the judgments in Hill v Green and in particular on the judgment of Fitzgerald JA (with whom Beazley JA agreed) at [228] and following in this respect. In order to deal with this submission I shall set out briefly the Tribunal's reasoning that led to the conclusion that Mr Colquhoun seeks to impugn. 54 The Tribunal took into account the relatively narrow margin of 177 votes in an election where just under 17,000 formal votes were cast where the final outcome was determined by preferences. At [159] the Tribunal observed: "What is relevant is not just that a relatively small number of votes stood between candidates Roberts and Ireland at a particular stage of the count but that, had it not been for his 177 vote lead, Mr Roberts, rather than Mr Ireland, would have been excluded." 55 The Tribunal found that the endorsement, or purported endorsement, by a major political party would be highly influential, if not conclusive, in the determination made by some voters as to the person for whom they would cast their vote. Some voters who saw the plaintiff's poster with the logo uncovered would have been misled into believing that the plaintiff was the endorsed candidate of the National Party. The Tribunal found it likely that a number of voters who had decided to vote for the National Party would have decided to cast their vote for the plaintiff on the strength of the appearance of the logo on his poster. 56 The Tribunal found that the Extra advertisement would have been widely distributed prior to polling day. The evidence established that some people had read the advertisement prior to polling day generating a number of complaints and inquiries to Mr Thompson. The Tribunal went on to find at [177] and [178]: "This is not a situation where one candidate won handsomely and the irregularities can be regarded as having had no material influence on the result. This was a very close race in which every vote was likely to count. Mr Thompson's high public profile and the well-known popularity of the National Party in rural and regional electorates were assets Mr Roberts could benefit from or could seek to benefit from in irregular fashion. While the evidence before us does not show the exact numbers of persons who saw and acted upon (to Mr Roberts advantage) the purported endorsements, the only reasonable inference to draw from the evidence before us is that a not insignificant number of persons saw them and, importantly, were influenced to direct their vote (or preference) towards Mr Roberts as a result. In this case in our view, a 'not insignificant number' of voters is a sufficient number of voters to render the election outcome uncertain. While there is some evidence to support Mr Roberts' contention that he lost votes because of the purported endorsements we are not satisfied that as a result that evidence renders the outcome any more certain. Accordingly we are satisfied on balance that the purported endorsements by Mr Thompson and the National Party were of such a nature, in the context of this election, that the result of the election was relevantly uncertain." 57 The Tribunal's judgment is a considered one. It stated the principles of law that it was required to apply. It made careful findings of fact and applied the principles that it had stated to those findings. In my view its ultimate conclusion, that the result of the outcome of the election was uncertain, is not one which might be characterised as a finding that no Tribunal acting reasonably could have arrived at. I consider that there is no substance to the plaintiff's challenge that the Tribunal's decision is a perverse one. Did the Tribunal have a discretion? 58 The Tribunal held that having found there were irregularities in the manner in which the plaintiff had been elected to civic office it was required to dismiss him from that office. In approaching the matter upon this basis the Tribunal followed the reasoning of Beazley JA in Bourne at 365. 59 Mr Colquhoun contends that the words of s 329(2) of the LGA, "The Tribunal may order the dismissal of a person from civic office" indicate that it has a discretion with respect to the question of whether an order of dismissal is made in any case. In his submission the Tribunal erred in law in approaching its task upon the basis that it did not have a discretion in light of the findings that it had made. Allied to this was the contention that given the interval between the date of the election and the date upon which the Tribunal made its decision the proper exercise of discretion was not to order that the plaintiff be dismissed from his office. 60 In Bourne Cole JA stated at 349: "Section 329 confers a judicial discretion. In my opinion, where it has been shown that, as against a majority of three, eleven formal votes have not been counted, a significant or substantial irregularity has been shown sufficient to require the Court to exercise the discretion there conferred. Where there is a complicated system of preferential voting involving, as here, some sixteen sequential counts which involve random selection of votes at least two stages, the prediction of the consequence of allocation of votes on at least two others, the Court cannot be satisfied that the poll as declared truly represents the view of the voters. It seems to me that once that position is reached the Court should exercise its discretion to order the dismissal of a person from civic office and allow the Act, which contemplates in those circumstances a new election in consequence of s 318, to operate." 61 Beazley JA in dealing with the question of whether the terms of s 329(2) conferred a discretion said at 365: "Three matters are to be noted about s 329. First, if the court is satisfied that either par (a) or (b) of subs (1) is satisfied, only one remedy is provided – namely, dismissal from office. Thus, the consequences of granting a remedy are serious. This consideration may be an indication that the granting of relief under the section is discretionary. However, the holding of a civic office is an important and serious matter. Relevantly, a person may only hold the civic office of a councillor if qualified under the terms of the Local Government Act to do so and if duly elected by electors entitled to vote in the election at which the councillor was elected. It follows that a councillor not satisfying those preconditions is not entitled to hold office under the Act. Secondly, if an irregularity under the section was constituted by a wrong classification of, for example, a single ballot-paper, it would be extraordinary if relief thereby had to be granted under the section. However, as I have already stated, before there can be an irregularity under the section, it must appear that the result would have been uncertain. Therefore, this consideration is at least neutral in determining whether relief under the section is discretionary. The final matter to note about the section is that subs (3) confers a limited discretion on the court not to dismiss from office. That discretion is limited to a case under subs (1)(b), that is, where a person is disqualified from holding public office. Section 275 specifies the circumstances in which a person is disqualified from holding public office. They include whilst a person is disqualified from being an elector, whilst a judge or whilst serving a sentence for a felony, except a sentence imposed for a failure to pay a fine. The matters relevant to the exercise of the discretion are also specified in the subsection. The matter must be trifling and good faith and lack of knowledge must be established. In my opinion, those matters indicate that, upon its proper construction, subs (1)(a) does not confer a discretion on the court to make an order. If an irregularity within the section is established, the court must order the dismissal of the person from the office. As I have found an irregularity has been established, an order dismissing the appellant from public office must be made." 62 I approach this appeal upon an acceptance of the reasoning of Beazley JA with respect to the meaning of the word "may" in s 329(2) of the LGA. 63 I agree with Mr Griffiths' submission that, in any event, the same result would be arrived at by adoption of the approach of Cole JA in Bourne. Although his Honour described the power conferred upon the Tribunal by s 329(2) as a "judicial discretion" he found that where there was an irregularity such that "the court cannot be satisfied that the poll as declared truly represents the view of the voters" the court should exercise the discretion to dismiss the person from office. 64 In this case the Tribunal found that, the purported endorsements of the plaintiff by Mr Thompson and the National Party made the result of the election uncertain. In the light of that conclusion, had the Tribunal followed Cole JA in Bourne, it would inevitably have exercised the discretion to dismiss the plaintiff from office. 65 For these reasons the orders that I make are as follows: 1. Dismiss the amended summons. 2. The plaintiff is to pay the defendants' costs as agreed or assessed. ********** Last Modified: 04/14/2003 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.