Kwok v Mothersole [2019] NSWSC 1415

Supreme Court New South Wales

Medium Neutral Citation: Kwok v Mothersole [2019] NSWSC 1415 Hearing dates: 10 April 2019 Date of orders: 18 October 2019 Decision date: 18 October 2019 Jurisdiction: Common Law Before: Campbell J Decision: (1) The appeal is dismissed;

(2) To the extent to which Mr Mothersole may otherwise be entitled as a self-represented litigant, the plaintiff is to pay the defendant's legal costs. Catchwords: APPEALS – Appeals as of right – compulsory voting – Local Government Act – council election – decision of magistrate – sufficient reason Legislation Cited: Crimes (Appeal and Review) Act 2011 (NSW), s 56(1)(c) Electoral Act 2017 (NSW) Local Government Act 1993 (NSW), Chapter 10 Parliamentary Electorates and Elections Act 1912 (NSW) Category: Principal judgment Parties: Simon Kwok (Plaintiff) John Mothersole (Defendant) Representation: Counsel: Ms GE Lewer (Plaintiff ) John Mothersole in person (Defendant)

Solicitors: File Number(s): 2018/395765 Publication restriction: Nil Decision under appeal Court or tribunal: Local Court at Parramatta Jurisdiction: Criminal Citation: Unreported Date of Decision: 27 November 2018 Before: Magistrate Shields File Number(s): 2018/277133

Judgment 1. This appeal was heard with the appeal in Kwok v Maresch [2019] NSWSC 1151, the decision in which was handed down to day. Both appeals raise an identical issue and in deciding this appeal I will refer the law as discussed and determined in Kwok v Maresch. I will not repeat that reasoning in this judgment and the reader should have some familiarity with that decision. 2. The appeal was commenced by summons filed on 24 December 2018. The plaintiff, an official of the New South Wales Electoral Commission ("the Commission"), appeals on the Commission's behalf from the dismissal of a summary prosecution brought against the defendant, Mr John Mothersole, by his Honour Magistrate Shields in the Local Court at Parramatta on 27 November 2018. 3. By proceedings commenced by Court Attendance Notice issued out of the Parramatta Local Court, the Commission prosecuted the defendant for failing to vote in a contested election in the Dundas Ward for the City of Parramatta Council held on 9 September 2017, contrary to the provisions of s 312 Local Government Act 1993 ("LGA"). The defendant pleaded not guilty to the charge and after a contested hearing before the learned magistrate on 27 November 2018, his Honour found that the defendant's explanation was sufficient reason not to vote within the meaning of s 312 LGA and, as I have said, dismissed the matter. 4. The appeal is brought under s 56(1)(c) Crimes (Appeal and Review) Act 2011 (NSW). Such appeals lie as of right, "but only on a ground that involves a question of law alone": s 56. The sole of ground of appeal propounded in the summons is expressed as follows: It is contended that the magistrate erred in law by finding that the defendant's lack of knowledge of the election could constitute a sufficient reason for failing to vote.