Barron v Townsville City Council

[1996] QCA 372

IN THE COURT OF APPEAL	[1996] QCA 372
SUPREME COURT OF QUEENSLAND

Appeal No. 4114 of 1996

Brisbane

[Barron v. Council of the City of Townsville]

BETWEEN:

JAMES PATRICK MICHAEL BARRON

(Plaintiff) Appellant

AND:

COUNCIL OF THE CITY OF TOWNSVILLE

(Defendant)

Respondent

Macrossan CJ
Lee J

Fryberg J

Judgment delivered 08/10/1996.

Joint reasons for judgment of Macrossan CJ and Lee J, separate reasons for judgment of Fryberg J concurring in the result.

Appeal allowed, orders made below set aside. In lieu, declare that upon a true construction of Section 202(3) of the Local Government Act 1993, the Townsville City Council was required to fill the office of councillor vacated after the election of Mr Peter Lindsay to the House of Representatives by appointing a person who, being a qualified person within the meaning of Section 202(3)(a) was nominated by the Liberal Party of Australia (Queensland Division). Liberty reserved to apply within two days of delivery of judgment to vary the orders made, otherwise these orders to stand. The respondent is to pay to the appellant the costs of the appeal and of the proceedings below.

CATCHWORDS:	LOCAL GOVERNMENT - Composition of Council - filling of vacancy by appointment - whether Council required to appoint nominee of the Liberal Party - whether previous councillor was endorsed by the Liberal Party - Local Government Act 1993, ss 202(3), 247, 250.
Counsel:	Mr A.J.H. Morris QC and Mr P.A. Hastie for the appellant. Mr M. Cooke QC and Mr R. Jones for the respondent.
Solicitors:	Prentice Lawyers for the appellant. Mr A. Licciardello, Manager Legal Services, Townsville City Council for the respondent.
Hearing Date:	27September1996.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 4114 of 1996

Brisbane

Before Macrossan CJ
Lee J
Fryberg J

[Barron v. Council of the City of Townsville]

BETWEEN:

JAMES PATRICK MICHAEL BARRON

(Plaintiff)

Appellant

AND:

COUNCIL OF THE CITY OF TOWNSVILLE

(Defendant)

Respondent

JOINT REASONS FOR JUDGMENT - MACROSSAN CJ AND LEE J

Judgment delivered 08/10/1996.

This appeal challenges a decision made below dismissing the appellant's claim for a declaration concerning the correct method of filling a casual vacancy occurring in the office of councillor under the provisions of the Local Government Act 1993. The substantial declaration sought was in these terms:

" ... that upon a true construction of section 202(3) of the Local Government Act 1993 the Townsville City Council must fill the office of Councillor vacated after the election of Peter Lindsay to the House of Representatives by appointing a person who, being a qualified person within the meaning of s.203(3)(a), is nominated by the Liberal Party of Australia (Queensland division);

The vacancy in question occurred because the candidate who had been duly elected at the Council election last held, a Mr Lindsay, became automatically disqualified following his election as a member of Federal Parliament. That result followed from s.170(f) and s.200 of the Act. Mr Lindsay had stood as a candidate endorsed by the Liberal Party of Australia (Queensland Division) at the election for the Council of the City of Townsville last held before his election to Federal Parliament.

Mr Barron, the applicant in the proceedings below and now the present appellant, is the State Director of the Liberal Party of Australia (Queensland Division) and its registered officer under the Electoral Act. The contention he advanced, but which was rejected below, was that the vacancy which resulted from Mr Lindsay's disqualification had to be filled by appointing the nominee of the Liberal Party which had endorsed Mr Lindsay as a candidate at the last Council election.

The respondent Council, while accepting that the vacancy which had occurred was required to be filled by an appointment which had to be made by it, did not accept that in performing this function it was constrained in the way that Mr Barron contended.

The question arising for decision was whether Mr
Lindsay had been, within the meaning of s.202 of the Act,
"at the last filling of the office (of Councillor), a
candidate endorsed by ... a political party." Section 202
of the Act, in relevant respects, reads as follows:

"202.(1) This section applies if the office of a person (the `former councillor') as a local government councillor becomes vacant on or after the cut-off date.

(2)	The local government must fill the office by appointing a person (the `new councillor') to the office.
(3)	The new councillor must be -

(a) a qualified person; and

(b)  if the former councillor was, at the last filling of the office, a candidate endorsed by, or a nominee of, a political party - the political party's nominee."

The decision below seems to have resulted from the Judge's acceptance of the proposition that the word "endorsed" in subsection (3)(b) had a special meaning other than its general meaning or at least that its use raised a question, the answer to which was to be conclusively determined by reference to one particular source, namely the nomination form which Mr Lindsay had lodged when he nominated as candidate at the previous election. The Judge adopted this approach largely because of the effect he attributed to s.247 which reads as follows:

"247. A person whose candidature for election to a local government is endorsed by a political party must include that fact in the form of nomination."

It is undoubtedly correct that Mr Lindsay, in the form of nomination he had lodged for the previous election, had not included mention of the fact that he was endorsed as a candidate by a political party. The form merely showed that his nomination was supported by ten persons signing as electors of the relevant Division of the particular Local Government. The Judge considered the Chief Executive Officer of the Council on whom certain duties were cast by s.203 and s.204 of the Act in the event of a casual vacancy, was entitled to look exclusively to the nomination form as an indication whether Mr Lindsay had been the endorsed candidate of a political party whatever had been the true situation in respect of endorsement. The Judge apparently considered that this followed from the scheme of the Act which was, he thought, intended to provide a clear, easily accessible source of information on the matter.

Before turning to the question of construction, some general matters may be noted. The Act provides for triennial elections, (s.175(1)), which in each case result in the election of councillors continuing in office to the next triennial election except that if a vacancy occurs in the office of councillor, a new councillor is to be elected or appointed for the balance of the former councillor's term, (s.175(2)). Where a vacancy occurs before 1 March in the year prior to the next triennial election, the vacancy must be filled by election (s.201). Where a vacancy occurs on or after 1 March, (the "cut off date") in the year preceding the next triennial election, the vacancy is to be filled by appointment under the provisions of s.202 already noted. If, in the circumstances which arise, the vacancy is required to be filled by a nominee of a political party, then under s.203 the Chief Executive Officer is required to proceed with a certain dispatch. For example, he must, within fourteen days after the occurrence of the vacancy, give notice to the political party requesting its notification of a nominee to fill the vacancy (s.203(2)). Corresponding procedures are required to be followed in cases where a vacancy is to be filled by nomination although not by the nominee of a political party. In those cases, under s.204 the Chief Executive Officer of the local government once again must act within fourteen days by inviting nominations from persons qualified to fill the vacancy by publishing an appropriate notice in a newspaper circulating in the district and by giving notification to those persons who had been candidates at the last election.

In that case, however, the local government fills the vacancy by making an appointment of a person whose name appears amongst those that are put forward.

The Act makes general provision for the nomination of candidates at all elections which are to be held for the local authority. Section 250 provides alternative ways in which candidates might proceed. A candidate must either be nominated by the registered officer of a political party that has endorsed the person as a candidate, or must be nominated by at least six electors for the area or division for which the election is to be held (s.250(1)). The nomination must be in the approved form and must be given to the returning officer before noon on the nomination day (s.250(2)). It may be mentioned that, notwithstanding the provisions of s.247 quoted above, the form of nomination in fact in use did not make express provision on its face for a statement by a candidate concerning his endorsement by a political party applicable to the case where he might choose to follow the alternative permitted method of nomination, that is one by six or more electors.

Mr Lindsay had in fact, in the general sense of the word, undoubtedly been the "endorsed" candidate of the Liberal Party at the previous election. This fact was not disputed before us although, as already noted, the argument for the respondent was that the word "endorsed" in s.202 of the Act had to be given a particular restricted meaning regardless of the position in fact. What the Judge said in his reasons on this point was this:

"The material for the applicant shows that (Mr Lindsay) applied to the party for endorsement, was preselected by a preselection council, was endorsed by the party, acted as a member of the Liberal Party team for the election, and was included as one of the candidates on the Liberal `How to Vote' card as well as in general election publicity."

The judge thus accepted that in every general sense Mr Lindsay was endorsed by the party, noting that since the word "endorse" was not defined in the legislation, the expectation was that it should receive its ordinary meaning.

He referred to the Macquarie Dictionary definition of the word "endorse" as including "(of a branch of a political party) to select as a candidate for an election". Thus far there can be no objection to this approach. In the Australian political scene there would be general acceptance of the proposition that a political party's endorsed candidate is the one it has formally and in accordance with its rules of procedure, selected and adopted as the one it will publicly support as its own candidate. There will be some formal and objective element involved in this and endorsement would be understood as meaning more than give informal support to.

The manner in which a political party will proceed to select and endorse a candidate is a matter for its own internal constitutional procedures and the Act shows no concern with these, although in the present case there was evidence indicating the relevant formal steps which the party at the time had followed. While it can be expected that a party would not nominate a candidate if it had not endorsed that candidate, the Act, by s.250, in the contrary case leaves open the possibility that the endorsed candidate of a party may choose a mode of nomination (i.e. by at least six electors) that is made available as an alternative to nomination by a political party. One fact which cannot be gainsaid is that the Act is drafted in terms which give substantial recognition to the concept of endorsement and does not restrict its recognition of political parties by looking only to the matter of nomination. Section 250(1) specifically acknowledges the process of endorsement by a political party as distinct from the further process of nomination which it accepts can follow either of two modes.

Further, section 271(2)(f) appears quite clearly to accept the possibility that a candidate endorsed by a political party may or may not be nominated by the party while going on to provide that when the additional fact of nomination by the party is present, then the name of the party is to be stated in the way in which it will have to appear against the candidate's name in the ballot papers.

The scheme of the Act obviously recognises that if a vacancy should occur within a specified proximity of a forthcoming election, it can be too great a burden to require that a separate election should be held, but it would also be unsatisfactory to allow the vacancy to go unfilled so that in those cases a procedure of nomination by the local government itself is provided. The scheme of the Act also gives recognition to the wish of the electorate expressed at the election last held and accepts the electorate's preference for the candidate of a political party then exhibited. The basis on which the Act gives a right of nomination to the political party whose candidate was successful on the last occasion is easy to understand. It must, in this context, be noticed that the words of s.202(3)(b) do not restrict the right of appointment conferred on a political party only to the case where it has nominated the previously successful candidate but confer it also where it has endorsed that candidate. It is not possible to read the subsection as though it conferred on a political party the right to have its candidate appointed only where it had nominated that candidate and read the subsection as though the words "endorsed by, or" did not there appear. The subsection is in a form which allows a political party to retain the conferred advantage where it has endorsed a candidate whether or not it has nominated that candidate. The scheme of the legislation should then be understood as securing for the party the advantage in question in respect of its endorsement of a candidate while leaving candidates free to arrange for the formal matter of their nomination either through the party or through the support of the specified number of electors.

The second reading speech of the Minister in November 1993 when the Bill was introduced and the earlier report and recommendations of EARC on the Local Authority Electoral System in September 1990 were referred to by the judge below but they are no more than generally helpful. However, the Minister's speech seems to regard endorsement by a party as the significant matter and neither says anything which would discourage the adoption of the meaning for which the appellant contends.

Then, in argument, it was suggested that there might be some convenience for the Executive Officer of the Local Authority if he had to do no more than look to the nomination form as an easy source from which to obtain information about the relevant political affiliation of the candidate previously elected, but the form of s.247 should not be regarded as sufficient to indicate that the nomination form is to be the exclusive source of such information. The situation may be contrasted with that which applies under s.252(3) where it is specifically provided that in the instances there referred to, the returning officer may regard certain sources of information as sufficient for his purposes. The reality is that the question whether or not a particular person is the endorsed candidate of a party is likely to be a well known matter, not in any way obscure or difficult to ascertain.

There is nothing in s.247 that indicates that any non- observance by a candidate of its requirements, whether they are regarded as directory or mandatory, is intended to have the effect that the political party which endorsed the candidate should lose its right to nominate to a vacancy subsequently occurring if the candidate after election should vacate his office.

One further matter mentioned in argument was that the reference to "nominee of" as well as to "endorsed by" in s.202(3)(b) should be understood as intended to cater for the case where the office had, on the immediately previous occasion, been filled on the nomination of a political party rather than by an election, but this does not explain why the Act should, in s.202(3)(b) and a number of other places, give prominence and apparent intended effect to the fact of endorsement. The consequence provided in s.202(3)(b) for the fact of endorsement should be given its full effect and not read out or read down. Since Mr Lindsay had been the endorsed candidate of the Liberal Party at the previous election, that party has the right to have its nominee appointed to the vacancy which has occurred.

Recognition of this right will be sufficiently achieved by making a declaration in the terms of paragraph 3(e) of the Notice of Appeal without further elaboration. If it is contended that there should be additional declarations or orders made, application should be filed within two days of delivery of judgment.

The result is that the appeal should be allowed and the

orders made below set aside. In lieu it should be declared

in terms of paragraph 3(e) of the Notice of Appeal.
Liberty reserved to apply within two days of delivery of
judgment to vary the orders made otherwise these orders to
stand. The respondent to pay to the appellant the costs of
the appeal and of the proceedings below.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 4114 of 1996
Brisbane
Before Macrossan C.J.

Lee J.

Fryberg J.

[Barron v Council of the City of Townsville]

BETWEEN:

JAMES PATRICK MICHAEL BARRON

(Plaintiff) Appellant

AND:

COUNCIL OF THE CITY OF TOWNSVILLE

(Defendant) Respondent

REASONS FOR JUDGMENT - FRYBERG J.

Delivered the 8th day of October, 1996

I agree with the order proposed in the joint reasons of the Chief Justice and Lee J., and I agree generally with their reasons for that order, which I have had the benefit of reading in draft.

I would add only that to my mind, the reference in s.202(3)(b) of the Local Government Act 1993 to a former councillor who was "a nominee of a political party" is clearly a reference to a person who was previously appointed a councillor on the nomination of a political party under that same section. It is not a reference to a person who was elected as a councillor having been nominated by a registered officer under s.250(1)(a) of the Act.

To my mind that interpretation enhances the argument for the appellant.