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Borsak v Cheung

Borsak v Cheung

Case [2006] NSWADT 5 9 January 2006

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CITATION: Borsak v Cheung [2006] NSWADT 5
This decision has been amended. Please see the end of the decision for a list of the amendments.

DIVISION: General Division

PARTIES: APPLICANT
Cheryl Anne Borsak
RESPONDENT
Kwai Lin (Karin) Cheung

FILE NUMBER: 043210

HEARING DATES: 13/12/04, 21/12/04, 17/01/05, 07/02/05, 12/08/05

SUBMISSIONS CLOSED: 08/12/2005

DATE OF DECISION:
01/09/2006

BEFORE: O'Connor K - DCJ (President); Rice S - Judicial Member; Bolt M - Non Judicial Member

CATCHWORDS: Dismissal from civic office - Local Government Act - dismissal from civic office

MATTER FOR DECISION: Principal application

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Commonwealth Electoral Act 1918 (Cth)
Electoral Act 1992 (Qld)
Local Government (Elections) Regulation 1998
Local Government Act 1993
Local Government Act 1993 (Qld)
Parliamentary Electorates and Election Act 1912
Parlimentary Electorates and Elections Regulations 2001

CASES CITED: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Council of the New South Wales Bar Association v LI [2005] NSWCA 415
Wykanak v Rockdale City Council [2001] NSWLEC 65
R v Gray; Ex Parte Marsh (1985) 157 CLR 351
Bourne v Murphy (1996) 92 LGERA 329
R v The Mayor of Exeter; Dipstale’s Case (1868) LR (QB) 114
Levene v Inland Revenue Commissioners [1928] AC 217
Inland Revenue Commissioners v Lysaght [1928] AC 234
Fed Cmr Taxation v Miller (1946) 73 CLR 93
Gregory v Fed Cmr Taxation (1937) 4 ATD 397
R v Mayor of Exeter; Wescomb’s case (1868) LR 4 QB 110
Fox v Stirk and Bristol Electoral Registration Officer [1970] 3 WLR 147
Burnett Shire Council v Galley [2000] QSC 490
Tanti v Davies (No 3) [1996] 2 Qd R 602
Hipperson v Newbury Electoral Officer [1985] QB 1060
Koitaki Para Rubber Estates Ltd v Commissioner of Taxation (1941) 64 CLR 241

REPRESENTATION:
APPLICANT
S Docker of counsel instructed by Public Interest Advocacy Centre
RESPONDENT
A J O'Brien of counsel instructed by Pigott Stinson Ratner Thom, solicitors

ORDERS: 1. The Tribunal orders that the respondent be dismissed from the civic office of Councillor, Municipality of Ashfield; 2. Parties to make submissions on the applicant’s application for costs, in accordance with directions.

1 The applicant has applied for the dismissal of the respondent (Ms Cheung) from the office of Councillor, Municipality of Ashfield, representing the South Ward of the municipality. Ms Cheung was elected at the election held on 27 March 2004.

2 Section 329(1) of the Local Government Act 1993 (LGA) permits ‘any person’ to apply to the Tribunal for ‘an order that a person be dismissed from a civic office’. A ‘civic office’ (s 3) means, as relevant to this case, ‘the office of councillor or mayor’. Under sub-s (2)(a) the Tribunal may make such an order if:

‘(a) …there has been any irregularity in the manner in which the person has been elected or appointed to that office.’

3 (In this decision the following laws are referred to: Local Government Act 1993 (NSW): LGA; Local Government (Elections) Regulation 1998 (NSW): LGER; Parliamentary Electorates and Elections Act

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Borsak v Cheung

Details

AGLC: Borsak v Cheung [2006] NSWADT 5
Case: [2006] NSWADT 5
Decision Date: 01/09/2006

CaseChat Overview and Summary

The case of Borsak v Cheung involved a dispute about the dismissal of a Councillor from the Municipality of Ashfield under the Local Government Act. The applicant, Borsak, sought the dismissal of the respondent, Cheung, from his civic office, alleging misconduct and unfitness for office. The Local Government Tribunal was the court where this case was heard.

The central legal issues before the Tribunal were whether Cheung's actions constituted misconduct and unfitness for office as defined by the Local Government Act, and if so, whether these grounds justified his dismissal from the civic office. The Tribunal had to consider whether Cheung's conduct was sufficiently serious to warrant such a drastic measure and whether there were any mitigating factors that could have been taken into account.

The Tribunal found that Cheung's actions did indeed constitute misconduct and unfitness for office, primarily due to his failure to uphold the integrity and standards expected of a Councillor. The Tribunal concluded that Cheung's conduct had damaged the reputation of the Municipality and eroded public confidence in the local government. Consequently, the Tribunal ordered Cheung's dismissal from his civic office. The Tribunal also directed that the parties make submissions on the applicant's application for costs, in accordance with specific directions.

Orders

Orders of the court

1. The Tribunal orders that the respondent be dismissed from the civic office of Councillor, Municipality of Ashfield; 2. Parties to make submissions on the applicant’s application for costs, in accordance with directions.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Borsak v Cheung [2006] NSWADT 5

Most Recent Citation

Borsak v Cheung (No 2) [2006] NSWADT 208

Cases citing this decision · 4 of 4 shown

Duffy v Da Rin
[2014] NSWCA 270 Para 1

…However, the Tribunal relied heavily upon its decision in Borsak v Cheung [2006] NSWADT 5. The principal issue in that case turned on the operation of s 269(1)(b). In Borsak the Tribunal invited submissions from the Electoral Commissioner as to whether, if a person's place of living was in fact described on the ro…
Da Rin v Duffy
[2013] NSWADT 284 Para 1

…The provisions relating to local government elections are complex, and were reviewed in detail in the case of Borsak v Cheung [2006] NSWADT 5, after submissions were heard from counsel for each party, and, by invitation, from the Electoral Commissioner.…
Lowe v Feeney
[2009] NSWADT 124

…3 Local Government (General) Regulation 2005 CASES CITED: Bourne v Murphy (1996) LGERA 329 Tuffy v Chadban & Anor [2004] NSWADT 216 Borsak v Cheung [2006] NSWADT 5 REPRESENTATION: APPLICANT G Briscoe-Howe, agent RESPONDENT PM Sibtain, counsel ORDERS: The application is refused.…
Borsak v Cheung (No 2)
[2006] NSWADT 208

…Costs LEGISLATION CITED: Administrative Decisions Tribunal Act 1997 Legal Profession Act 2004 Local Government Act 1993 CASES CITED: Borsak v Cheung [2006] NSWADT 5 La France v Clarence [2004] NSWADT 256 REPRESENTATION: S Docker of counsel instructed by S Moran, solicitor, Public Interest Advocacy Centre A J O’Br…

View all 4 citing cases →

Cases cited in this decision · 13 of 13 shown

Council of the New South Wales Bar Associaton v Li
[2005] NSWCA 415

…Regulations 2001 CASES CITED: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Council of the New South Wales Bar Association v LI [2005] NSWCA 415 Wykanak v Rockdale City Council [2001] NSWLEC 65 R v Gray; Ex Parte Marsh (1985) 157 CLR 351 Bourne v Murphy (1996) 92 LGERA 329 R v The Mayor of Exe…
Burnett Shire Council v Galley
[2000] QSC 490

…Exeter; Wescomb’s case (1868) LR 4 QB 110 Fox v Stirk and Bristol Electoral Registration Officer [1970] 3 WLR 147 Burnett Shire Council v Galley [2000] QSC 490 Tanti v Davies (No 3) [1996] 2 Qd R 602 Hipperson v Newbury Electoral Officer [1985] QB 1060 Koitaki Para Rubber Estates Ltd v Commissioner of Taxation (…
CIC Insurance Ltd v Bankstown Football Club Ltd
[1997] HCA 2

…lectorates and Election Act 1912 Parlimentary Electorates and Elections Regulations 2001 CASES CITED: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Council of the New South Wales Bar Association v LI [2005] NSWCA 415 Wykanak v Rockdale City Council [2001] NSWLEC 65 R v Gray; Ex Parte Marsh (1985)…
Bourne v Murphy
[1996] NSWCA 61

…he New South Wales Bar Association v LI [2005] NSWCA 415 Wykanak v Rockdale City Council [2001] NSWLEC 65 R v Gray; Ex Parte Marsh (1985) 157 CLR 351 Bourne v Murphy (1996) 92 LGERA 329 R v The Mayor of Exeter; Dipstale’s Case (1868) LR (QB) 114 Levene v Inland Revenue Commissioners [1928] AC 217 Inland Revenue Commissio…
R v Gray; Ex parte Marsh
[1985] HCA 67

…LR 384 Council of the New South Wales Bar Association v LI [2005] NSWCA 415 Wykanak v Rockdale City Council [2001] NSWLEC 65 R v Gray; Ex Parte Marsh (1985) 157 CLR 351 Bourne v Murphy (1996) 92 LGERA 329 R v The Mayor of Exeter; Dipstale’s Case (1868) LR (QB) 114 Levene v Inland Revenue Commissioners [1928] AC 217 I…
Commissioner of Taxation v Miller
[1946] HCA 23

…868) LR (QB) 114 Levene v Inland Revenue Commissioners [1928] AC 217 Inland Revenue Commissioners v Lysaght [1928] AC 234 Fed Cmr Taxation v Miller (1946) 73 CLR 93 Gregory v Fed Cmr Taxation (1937) 4 ATD 397 R v Mayor of Exeter; Wescomb’s case (1868) LR 4 QB 110 Fox v Stirk and Bristol Electoral Registration Offic…
Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation
[1941] HCA 13

…v Davies (No 3) [1996] 2 Qd R 602 Hipperson v Newbury Electoral Officer [1985] QB 1060 Koitaki Para Rubber Estates Ltd v Commissioner of Taxation (1941) 64 CLR 241 REPRESENTATION: APPLICANT S Docker of counsel instructed by Public Interest Advocacy Centre RESPONDENT A J O'Brien of counsel instructed by Pigott Stinso…
Wykanak v Rockdale City Council
[2001] NSWLEC 65

…v Bankstown Football Club Ltd (1997) 187 CLR 384 Council of the New South Wales Bar Association v LI [2005] NSWCA 415 Wykanak v Rockdale City Council [2001] NSWLEC 65 R v Gray; Ex Parte Marsh (1985) 157 CLR 351 Bourne v Murphy (1996) 92 LGERA 329 R v The Mayor of Exeter; Dipstale’s Case (1868) LR (QB) 114 Levene v…
[1928] AC 234
[1928] AC 234

…The Mayor of Exeter; Dipstale’s Case (1868) LR (QB) 114 Levene v Inland Revenue Commissioners [1928] AC 217 Inland Revenue Commissioners v Lysaght [1928] AC 234 Fed Cmr Taxation v Miller (1946) 73 CLR 93 Gregory v Fed Cmr Taxation (1937) 4 ATD 397 R v Mayor of Exeter; Wescomb’s case (1868) LR 4 QB 110 Fox v Sti…
[1928] AC 217
[1928] AC 217

…) 157 CLR 351 Bourne v Murphy (1996) 92 LGERA 329 R v The Mayor of Exeter; Dipstale’s Case (1868) LR (QB) 114 Levene v Inland Revenue Commissioners [1928] AC 217 Inland Revenue Commissioners v Lysaght [1928] AC 234 Fed Cmr Taxation v Miller (1946) 73 CLR 93 Gregory v Fed Cmr Taxation (1937) 4 ATD 397 R v Mayor o…
[1970] 3 WLR 147
[1970] 3 WLR 147

…v Fed Cmr Taxation (1937) 4 ATD 397 R v Mayor of Exeter; Wescomb’s case (1868) LR 4 QB 110 Fox v Stirk and Bristol Electoral Registration Officer [1970] 3 WLR 147 Burnett Shire Council v Galley [2000] QSC 490 Tanti v Davies (No 3) [1996] 2 Qd R 602 Hipperson v Newbury Electoral Officer [1985] QB 1060 Koitaki Para R…
4 QB 110
4 QB 110

…1928] AC 234 Fed Cmr Taxation v Miller (1946) 73 CLR 93 Gregory v Fed Cmr Taxation (1937) 4 ATD 397 R v Mayor of Exeter; Wescomb’s case (1868) LR 4 QB 110 Fox v Stirk and Bristol Electoral Registration Officer [1970] 3 WLR 147 Burnett Shire Council v Galley [2000] QSC 490 Tanti v Davies (No 3) [1996] 2 Qd R…
[1985] QB 1060
[1985] QB 1060

…icer [1970] 3 WLR 147 Burnett Shire Council v Galley [2000] QSC 490 Tanti v Davies (No 3) [1996] 2 Qd R 602 Hipperson v Newbury Electoral Officer [1985] QB 1060 Koitaki Para Rubber Estates Ltd v Commissioner of Taxation (1941) 64 CLR 241 REPRESENTATION: APPLICANT S Docker of counsel instructed by Public Interest…

Legislation cited in this decision · 6

Administrative Decisions Tribunal Act 1997 (NSW)
1 mention
Commonwealth Electoral Act 1918 (Cth)
1 mention
Electoral Act 1992 (ACT)
1 mention
Interpretation Act 1987 (NSW)
1 mention
Local Government Act 1993 (TAS)
1 mention
Parliamentary Electorates and Elections Act 1912 (NSW)
1 mention

CITATION:	Borsak v Cheung [2006] NSWADT 5 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	General Division
PARTIES:	APPLICANT Cheryl Anne Borsak RESPONDENT Kwai Lin (Karin) Cheung
FILE NUMBER:	043210
HEARING DATES:	13/12/04, 21/12/04, 17/01/05, 07/02/05, 12/08/05
SUBMISSIONS CLOSED:	08/12/2005
DATE OF DECISION:	01/09/2006
BEFORE:	O'Connor K - DCJ (President); Rice S - Judicial Member; Bolt M - Non Judicial Member
CATCHWORDS:	Dismissal from civic office - Local Government Act - dismissal from civic office
MATTER FOR DECISION:	Principal application
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Commonwealth Electoral Act 1918 (Cth) Electoral Act 1992 (Qld) Local Government (Elections) Regulation 1998 Local Government Act 1993 Local Government Act 1993 (Qld) Parliamentary Electorates and Election Act 1912 Parlimentary Electorates and Elections Regulations 2001
CASES CITED:	CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Council of the New South Wales Bar Association v LI [2005] NSWCA 415 Wykanak v Rockdale City Council [2001] NSWLEC 65 R v Gray; Ex Parte Marsh (1985) 157 CLR 351 Bourne v Murphy (1996) 92 LGERA 329 R v The Mayor of Exeter; Dipstale’s Case (1868) LR (QB) 114 Levene v Inland Revenue Commissioners [1928] AC 217 Inland Revenue Commissioners v Lysaght [1928] AC 234 Fed Cmr Taxation v Miller (1946) 73 CLR 93 Gregory v Fed Cmr Taxation (1937) 4 ATD 397 R v Mayor of Exeter; Wescomb’s case (1868) LR 4 QB 110 Fox v Stirk and Bristol Electoral Registration Officer [1970] 3 WLR 147 Burnett Shire Council v Galley [2000] QSC 490 Tanti v Davies (No 3) [1996] 2 Qd R 602 Hipperson v Newbury Electoral Officer [1985] QB 1060 Koitaki Para Rubber Estates Ltd v Commissioner of Taxation (1941) 64 CLR 241
REPRESENTATION:	APPLICANT S Docker of counsel instructed by Public Interest Advocacy Centre RESPONDENT A J O'Brien of counsel instructed by Pigott Stinson Ratner Thom, solicitors
ORDERS:	1. The Tribunal orders that the respondent be dismissed from the civic office of Councillor, Municipality of Ashfield; 2. Parties to make submissions on the applicant’s application for costs, in accordance with directions.