Briscoe-Hough v Filipopoulos

[2004] NSWADT 217

CITATION:	Briscoe-Hough v. Filipopoulos [2004] NSWADT 217
DIVISION:	General Division
PARTIES:	APPLICANT Gregory James Briscoe-Hough RESPONDENT Helen Filipopoulos
FILE NUMBER:	043142
HEARING DATES:	17 September 2004
SUBMISSIONS CLOSED:	09/17/2004
DATE OF DECISION:	10/05/2004
BEFORE:	Leal S - Judicial Member; O'Neill A - Non Judicial Member; Blake C - Non Judicial Member
APPLICATION:	Dismissal of application - frivolous vexatious misconceived or lacking in substance
MATTER FOR DECISION:	Preliminary Matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Local Government (Elections) Regulation 1998 Local Government Act 1993
CASES CITED:	General Steel Industries Inc v Commissioner for Railways (NSW) 1964 112 CLR 125 Tannock v State of New South Wales (1999) NSWADT 31 (11 May 1999) Langley v Niland (1981) 2 NSWLR 104 at 107 Reyes-Gonzales v Sydney Institute of Technology (1998) NSW EOT (6 March 1998). Prakash v Bobb Borg Enterprises Pty Ltd at 13-14; Ravel v Plastral Fidence Pty Ltd [1999] NSWADT 18 Wickstead v Browne (1992) 30 NSWLR 1 Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 R -v- Grey ; Ex parte Marsh (1985) 157 CLR 351 Bourne -v- Murphy (1996) 92 LGERA 329 Jeffery v Roberts [2001] NSWADT 66
REPRESENTATION:	APPLICANT In person RESPONDENT D Perrignon
ORDERS:	The respondent’s application for the dismissal of the applicant’s application under s329 of the Local Government Act 1993 is dismissed;; Applicant’s statements to be filed by 18 October 2004;; Respondent’s statements to be filed by 8 November 2004;; Matter set down for hearing on 13 December 2004 and 14 December 2004

REASONS FOR DECISION

Introduction


1 The applicant, Mr Briscoe-Hough, and the respondent, Ms Filipopoulos, were both candidates for an election to the Hurstville City Council. Ms Filipopoulos was elected to Hurstville City Council whereas Mr Briscoe-Hough was not.
2 On 12 May 2004, Mr Briscoe-Hough applied to the Tribunal under s329 of the Local Government Act 1993 for orders that Ms Filipopoulos be dismissed as a civic officer from Hurstville City Council because of an alleged irregularity in the manner in which she was elected.
3 On 18 August 2004, Ms Filipopoulos asked the Tribunal to dismiss Mr Briscoe-Hough’s application pursuant to s73(5)(h) of the Administrative Decisions Tribunal Act 1997.
4 On 31 August 2004, Mr Briscoe-Hough filed written submissions in the Tribunal as to why the respondent’s application should not be granted. Mr Briscoe-Hough also made the following applications:

a. that the Electoral Commissioner be joined to the proceedings;


b. that the Tribunal order the Electoral Commissioner not to destroy relevant electoral documents;


c. that the Tribunal order the Electoral Commissioner to produce documents relevant to the proceedings; and


d. that the Tribunal order persons nominated by the applicant to appear at hearing.



5 On 13 September 2004, Mr Perrignon, on behalf of Ms Filipopoulos, filed written submissions in support of her application under s73(5)(h) of the Administrative Decisions Tribunal Act 1997. On 15 September 2004, Mr Briscoe-Hough filed submissions in reply.
Relevant legislation


6 Section 73(5)(h) of the Administrative Decisions Tribunal Act states that:

The Tribunal may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance.


7 Section 329 of the Local Government Act 1993 states that:
(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.



(3) Proceedings based on the ground that there has been an irregularity in the manner in which a person has been elected or appointed to civic office may not be commenced more than 3 months after the date of the person’s election or appointment to that office.


Dismissal Pursuant to Section 73 (5)(h) of the Administrative Decisions Tribunal Act


8 Mr Perrignon for Ms Filipopoulos submitted that Mr Briscoe-Hough’s application should be dismissed under s329 of the Local Government Act 1993 on the basis that it is “vexatious, misconceived and lacking in substance”. Mr Perrignon submitted that Mr Briscoe-Hough had

adduced no evidence whatsoever which could possibly substantiate any of the grounds on which he relies.


9 Before considering the merits of Ms Filipopoulos’ submission, we note that a Tribunal should exercise its discretion to dismiss a complaint summarily with exceptional caution and only if the circumstances clearly warrant such action (see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Tannock v State of New South Wales (1999) NSWADT 31 (11 May 1999)). The need for caution is even more apparent in cases where such an application is made prior to the adducing of the applicant's evidence at the substantive hearing, as is the situation of the case before us.
10 An application is appropriately described as being "misconceived" or "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations, or that the allegations lack merit. This is consistent with the approach adopted in Langley v Niland (1981) 2 NSWLR 104 at 107 and Reyes-Gonzales v Sydney Institute of Technology (1998) NSW EOT (6 March 1998).
11 In the circumstances of the present case, in order to ascertain whether the complaint is "misconceived" or "lacking in substance", we propose to take Mr Briscoe-Hough’s foreshadowed evidence at its highest, so as to enable us to determine whether he could possibly substantiate a complaint under the Act: see Prakash v Bobb Borg Enterprises Pty Ltd at 13-14 [1999] NSWADT 73
12 In relation to the availability of evidence, the Tribunal notes that if factual issues are likely to be affected by evidence in the possession of the respondent, that matter alone may make it inappropriate to dismiss the matter. Material in summonsed documents or answers on cross-examination may lead to the proof of factual matters about which the plaintiff has no direct evidence (Wickstead v Browne (1992) 30 NSWLR 1)
13 The Tribunal agrees with the conclusions in Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 that the evidence available to a Tribunal when assessing whether to dismiss a complaint before the completion of an inquiry is not all that a Tribunal must take into account when “taking a case at its highest”.
14 There is no satisfactory way to determine that an application should be dismissed at a preliminary stage, unless it can be demonstrated, either from the material by which the complainant has instituted the claim or by reference to facts that would undoubtedly deny the complainant relief that the complaint is so hopeless, it should be summarily brought to an end: State Electricity of Victoria v Rabel [1998] 1 VR 102
15 In summary, if we are of the view that the conduct complained of by the applicant could not possibly amount to a contravention of the relevant provisions of the Act, we are bound to find the complaint is either "misconceived" or "lacking in substance". On the other hand, if we believe that the conduct in question could possibly amount to a contravention of the relevant provisions of the Act, we are bound to dismiss the respondent’s application.
Applicant’s allegations under s329 Local Government Act 1993


16 In the context of those principles determining how to consider a dismissal application under s73(5)(h) of the Administrative Decisions Tribunal Act 1997 , we will now consider each of the issues raised by the applicant in support of his application under s329 of the Local Government Act 1993.
17 Under s329 of the Local Government Act 1993, 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 or appointed to that office, or if the person is disqualified from holding civic office.
Meaning of 'Irregularity'


18 While not defined in the Act, the word 'irregularity' has been the subject of considerable judicial attention. In R -v- Grey; Ex parte Marsh (1985) 157 CLR 351 Gibbs CJ, in discussing the meaning of 'irregularity' in relation to an election for officer bearers for a union said at 367-368:

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.



19 This approach has been adopted by Cole and Beazley JJA in the Court of Appeal decision of Bourne v Murphy (1996) 92 LGERA 329, in which Beazley JA makes it clear that to amount to an irregularity within the meaning of s329 of the Act the irregularity must affect the outcome of the election.

20 The Tribunal agrees with the approach taken in Jeffery v Roberts [2001] NSWADT 66 that it is not any irregularity which suffices for the purpose of s329; rather it must be an irregularity such that the result of the election is thereby uncertain.
Irregularities as submitted by the applicant


21 Mr Briscoe-Hough submitted that there were four irregularities that affected the outcome of the election, namely:


fraudulent enrolment and false statements on official documents by applicants and witnesses ;


false and misleading statements on electoral material;


the improper display of posters on election day; and


non-compliance with regulations regarding election material



Fraudulent enrolment and false statements on official documents by applicants and witnesses


22 Mr Briscoe-Hough alleges that, as a resident of Rockdale City Council local government area, Ms Filipopoulos changed her electoral details to an address that would facilitate her running in elections for Hurstville City Council. Mr Briscoe-Hough further submits that

without ever meeting the residency requirements of the electoral laws, her stated address was changed to that of the sister of a former councillor and her subsequent employer.


23 Mr Briscoe-Hough submits that this was in breach of regulations 11, 21, 22, 90 and 97 of the Local Government (Elections) Regulations 1998 and that the breach of these regulations constitutes an irregularity in accordance with s329 of the Local Government Act 1993.
24 In response to Mr Perrignon’s submission that Mr Briscoe-Hough has produced no evidence of his allegations, Mr Briscoe-Hough told the Tribunal that he would be able to provide the requisite evidence from material held by the Electoral Commissioner and from witnesses to be called at hearing. Mr Briscoe-Hough told the Tribunal that a summons would have to be issued to the Electoral Commissioner for the required information as the Commissioner has refused to provide the material without such an order.
False and misleading statements on electoral material


25 Mr Briscoe-Hough submitted that

the respondent published material on the basis that she was a “local” just like other residents and lived in the “area” all her life. Terminology like this has a specific meaning in local government politics and invokes a level of support that would not be given if a candidate were from another local government area. As such, any change of address for the convenience of electoral purposes, when known, would affect the way people vote.


26 According to Mr Briscoe-Hough, this was in contravention of regulation 109 Local Government (Elections) Regulation 1998 that prohibits the printing of false information. Mr Briscoe-Hough submitted that by referring to herself as a “local” in her electoral flyers, Ms Filipopoulos was distributing false information.
27 Mr Perrignon submitted that Mr Briscoe-Hough had provided no evidence in support of his allegation that any statement made on any electoral material was false. In particular, Mr Perrignon submitted that Mr Briscoe-Hough had provided no evidence that the respondent was not local.
The improper display of posters on election day


28 Mr Briscoe-Hough submitted that:

on the Election day, posters were displayed in ways that were a clear departure from accepted practice and rules. Specifically, a number were displayed on public property (the fence of a major sporting facility on a major road ) and some were arranged in such a way as to infringe size limitations.


29 According to Mr Briscoe-Hough, this display was in contravention of regulation 110 of Local Government (Elections) Regulation 1998 and so was an irregularity for the purposes of s329 of the Local Government Act 1993.
30 In response to Mr Perrignon’s submission that there was no evidence of the size and display details of the posters, Mr Briscoe-Hough advised that the requisite evidence would be forthcoming at hearing by way of oral evidence by witnesses to be called or summonsed by Mr Briscoe-Hough.
Non-compliance with regulations regarding election material


31 Mr Briscoe-Hough alleged that Ms Filipopoulos failed to supply all details in relation to the printer and authorising person on her electoral material thereby contravening regulation 111 of the Local Government (Elections) Regulations 1998. In support of this submission, the applicant filed pamphlets and fliers by the respondent to demonstrate this breach that he submits is an irregularity for the purposes of s329 of the Local Government Act 1993.
32 Mr Perrignon told the Tribunal that even if this alleged breach were made out, it would not constitute an irregularity for the purposes of s329 of the Local Government Act 1993 unless it could be shown to have affected the outcome of the election. Mr Perrignon submitted that as there was no evidence as to the extent to which the regulations might have been breached or how many pamphlets failed to strictly comply with the regulations. Hence, there was no evidence available for the Tribunal to conclude that such breaches as may have occurred affected the outcome of the election.
33 Mr Briscoe-Hough conceded that evidence of the consequences of this breach would be difficult to procure. Given, however, the close outcome of the election which he lost by 0.6% of votes, Mr Briscoe-Hough submitted that if he could obtain evidence from a small number of voters that they would have voted differently but for the omissions on Ms Filipopoulos’ electoral material, such evidence could show that this breach made the outcome of the election uncertain and so constitutes an irregularity for the purpose of s329 of the Local Government Act 1993.
34 Mr Briscoe-Hough provided the Tribunal with a list of witnesses he wished to call at hearing to give evidence in relation to the consequences of Ms Filipopoulos’ alleged breach of regulation 111 of the Local Government (Elections) Regulation 1998
Conclusion


35 We accept Mr Perrignon’s submissions that Mr Briscoe-Hough has presented little evidence in support of his application under s329 of the Local Government Act 1993.
36 Nevertheless, we also accept that Mr Briscoe-Hough has sought documentary evidence from the Electoral Commissioner in support of this application but that the Commissioner has refused to provide the material without an order or summons to do so. We also note that Mr Briscoe-Hough has drafted a list of witnesses to give evidence at hearing and was able to describe to us the type of evidence he expected the witnesses to be able to provide. Some of the witnesses will not attend the Tribunal without a summons and others may be called as part of Ms Filipopoulos’ case and may therefore be available to Mr Briscoe-Hough for cross-examination.
37 On the evidence before us, it is clear from the electoral material provided by Mr Briscoe-Hough that Ms Filipopoulos’ apparent failure to include details of the printer and authorising person as required under regulation 111 of the Local Government (Elections) Regulation 1998 may constitute an irregularity for the purposes of s329 of the Local Government Act 1993. Whether this omission affected the outcome of the election is a question to be determined by the Tribunal after hearing further evidence including possible cross-examination of witnesses and the production of summonsed material, including polling details, as foreshadowed by Mr Briscoe-Hough. At this stage, it cannot be said that there exists no factual basis for this particular allegation.
38 In relation to the other allegations, although there is little by way of evidence currently before the Tribunal, this is not determinative in an application under s73(5)(h) of the Administrative Decisions Tribunal Act 1997. In such an application as this, an applicant’s case must be taken at its highest. In doing so, it is not only the evidence currently available before the Tribunal that we must take into account. In this case, allegations raised by the Mr Briscoe-Hough may be able to be substantiated by witness accounts on hearing.
39 At this stage of proceedings, Mr Briscoe-Hough has some evidence in relation to his allegation that Ms Filipopoulos’ omissions on election material appear to be in breach of regulations. Further evidence as to the effect of these breaches, which may be obtained from the Electoral Commission and from oral evidence by witnesses, may be sufficient to constitute an irregularity under s329 of the Local Government Act 1993. Whether this would be sufficient to warrant dismissal from office is a matter to be considered at full hearing.
40 When considering the applicant’s allegations together, while we agree that there is a paucity of evidence in relation to several of the allegations, we are unable to find that the conduct complained of could not possibly amount to a contravention of s329 of Local Government Act 1993. Accordingly, the respondent’s application under s73 (5)(h) to dismiss the application is refused.
Further matters


41 Although Mr Briscoe-Hough has originally sought to have the Electoral Commissioner joined as a party to proceedings, he agreed that a more appropriate course would be to draft a summons for the production of documents he requires for the preparation of his application.
Directions


42 The following further directions are made:

i. that Mr Briscoe-Hough file any statements by 18 October 2004;


ii. that Ms Filipopoulos file any statements by 8 November 2004; and


iii. that the matter be set down for hearing on 13 and 14 December 2004