Burnett Shire Council v Galley

[2000] QSC 490

SUPREME COURT OF QUEENSLAND

CITATION:

Burnett Shire Council & Ors v Galley [2000] QSC 490

PARTIES:

BURNETT SHIRE COUNCIL
GARY LEE RINEHART
IVAN ROY RASMUSSEN
(applicants)
v
HEATHER JEANETTE GALLEY
(respondent)

FILE NO:

S8197 of 2000

DIVISION:

Trial Division

DELIVERED ON:

21^st December 2000

DELIVERED AT:

Brisbane

HEARING DATE:

8^th December 2000

JUDGE:

Holmes J

ORDER:

Declaration that as at the 25^th day of March 2000 the respondent, Heather Jeanette Galley, was not qualified to become a councillor of the local government area for Burnett Shire.

CATCHWORDS:

DECLARATION – Residential Qualification of Councillor under s220(1) Local Government Act 1993 – meaning of the word “lives” - where a person has two places of residence

COUNSEL:

C.L Hughes for the Applicant

D.C. Rangiah for the Respondent

SOLICITORS:

Finemore Walters & Story for the Applicant
Reidy & Tonkin Solicitors for the Respondent

1. HOLMES J: Section 220(1) of the Local Government Act 1993 contains certain prescriptions for qualification to become a local government councillor. First among those requirements is the following:

“A person is qualified to become councillor of a local government if the person is an Australian citizen who … lives in the local government area.”

The respondent in this matter, Mrs Heather Galley, who is an Australian citizen, lodged a nomination as candidate for election to the Burnett Shire Council on 22 February 2000.  She was elected to the position of councillor on 25 March 2000.

The proceedings

1. The applicants are, respectively, the Burnett Shire Council, which is a body corporate pursuant to s 35 of the Local Government Act; Mr Rinehart, who is the chief executive officer of the Council and Mr Rasmussen, who is a councillor. They assert that Mrs Galley was not qualified to become a councillor of the Burnett Shire Council because she did not, as at the date of the election, live in the local government’s area, and has not done so since the election. Moreover, it is said that she has taken part in council meetings at which the issue of her eligibility was the subject of discussion and voting; and that having a “material personal interest” in that issue within the meaning of s 244(1) of the Local Government Act she was required to disclose her interest and to absent herself from such meetings.  The respondents seek declarations to the effect that Mrs Galley was not, as at 25 March 2000, qualified to become a councillor and has at no time since been so qualified; and a declaration that she has a material personal interest in those questions.

1. Section 16(1) of the Local Government Act enables the declaration by regulation of a local government area.  A map was tendered in evidence showing the area comprised by the Burnett Shire Council.  Immediately to the south of it is the Isis Shire.  The City of Bundaberg is physically within the Burnett Shire, but is under the control of the Bundaberg City Council. The town of Bargara is in the Burnett Shire, while the smaller town of Goodwood is in the Isis Shire.

Mrs Galley’s evidence as to where she lived

1. Mrs Galley gave evidence, by affidavit and orally, that she had business and social interests in the Burnett Shire.  From 1986, however, she had lived with her husband and father at a family farm at Goodwood.  As at 1998, she was undertaking the bookwork for her husband’s seafood business, which he ran from the farm. At the same time she was managing a family-owned real estate agency in Bundaberg, which necessitated a good deal of travel from the farm.  It was her practice to stay on week nights with her mother, Heather Jaques, at the latter’s unit at Bundaberg.  In 1998, however, that arrangement could no longer continue, because Mrs Jaques had a friend move in with her.  At the same time, the seafood business was winding down.  As a result, Mrs Galley said, she and her husband, Ronald Galley, decided to build a residence on land at Bargara, approximately 35 kilometres from Goodwood.  They lodged a development application in April 1998, but it was not approved until mid‑February 2000.

1. Mrs Galley said that in September 1998 she asked her cousin, Jill Patricia Frew, whether she could use her unit at 1/5 Newton Court, Bargara pending approval of the development application (which, at that time, she anticipated would only take a matter of weeks).  In the event, Mrs Galley said, she stayed at the unit infrequently, when she was too tired to drive to the farm after work.  She estimated that between late 1998 and November 1999, she stayed there between 16 and 22 times.  However, at the end of November 1999 she decided that she would move into the unit in contemplation of standing for election to the Burnett Shire Council.  Essentially, that was thereafter her place of living until September 2000, when she leased another unit in the same complex. Since November, her husband had been staying with her at the new unit, because they had found someone to feed the animals at the family farm, a necessity which had formerly obliged him to stay there.

1. As to her movements between November 1999 and March 2000, Mrs Galley said that during the month of November she was away in connection with conferences in Perth for about ten days, and at the Gold Coast for three to five days.  Towards the end of November she had a brief stay in Brisbane.  In December she carried out computer training in respect of a computer system which she marketed, for periods of one to three days at a time, once at Hervey Bay and once at Redcliffe.  In addition, she spent five days in Sydney.  At Christmas there was a family gathering at the farm for about a week.  In January she assisted with the set-up of another computer system at Hervey Bay.  In February she was on holiday for twelve days in Sri Lanka.  On her arrival home on the 24^th, she found that her father, who had been in respite care, was seriously ill, and it was necessary therefore for her to return to the farm to care for him until his death on 14^th March.  She remained at the farm until her father’s funeral on 17^th March, and thereafter until the election divided her time between the farm and the unit while his possessions were packed up.

Evidence as to Mrs Galley’s physical occupation of the unit

1. The issue of whether Mrs Galley lived, as she claimed, at the unit at 1/5 Newton Court in late 1999 and 2000 was the crux of the case. The applicants called two witnesses to speak as to Mrs Galley’s occupancy of the unit. Aubrey Ford lived at 4/5 Newton Court, diagonally opposite unit No 1. He said that he had not seen Mrs Galley at the units in February or March 2000. Thereafter, he had seen her only once or twice until about mid‑August, when he had seen her more frequently at unit No 5. It was not necessary, he conceded, for someone driving into the unit complex to pass his unit if they were parking either in the garage of unit 1or in the car park adjacent to it: however, he did expect if a car were arriving at night that he would see the headlights. He retired for the night at any time after 10.30 pm.

1. Wanda Roads had been invited by Mrs Frew to make use of the swimming pool at unit No 1.  In her affidavit, she said that between November 1999 and March 2000 she had used the pool during the afternoon, between three and five times per week.  Between November and January it appeared that no one was living there.  Between January and March it appeared that Mrs Frew was living at the unit again.  She had not seen Mrs Galley at the unit during her visits.  However, in cross‑examination, Mrs Roads conceded that Mrs Frew was living at the unit at some time between November 1999 and January 2000, notwithstanding her statement in her affidavit that there was no one there in that period.  Her attendances to swim at the pool had been between 4.00 and 4.30 in the afternoon on weekdays.

1. In response to the evidence of Mr Ford and Mrs Roads, Mrs Galley said that she must have been at work when Mrs Roads visited. She often returned late, at night, but had observed that Mr Ford’s lights went out between 8.30 pm and 9.00 pm. Accordingly, she said, Mr Ford was unlikely to have seen her coming and going.

1. Mrs Frew gave evidence for the respondent. She said that she had shared the unit with her cousin during the month of November 1999.  Towards the end of that month, Mrs Galley had moved her clothes and her personal belongings into the unit, having told Mrs Frew that she wanted both to use the pool to exercise an arm which she had recently fractured, and to be eligible for election to the council. During December 1999, Mrs Galley continued to live at the unit, visiting her husband at the farm on weekends.  On at least five occasions, family barbecues were held at the unit and Mrs Jaques, according to Mrs Frew, came to the unit on several occasions for dinner. 

1. In mid‑January 2000, Mrs Frew travelled to New Zealand and did not return until mid‑February. On her return she found Mrs Galley still resident at the unit, although in February, when her father became ill, Mrs Galley returned to the farm to care for him. He died on 14 March 2000, and for the balance of the month Mrs Galley spent her time between the unit and the family farm. Mrs Frew said that after Mrs Galley was elected to the council, she continued to live at the unit until she moved to unit No 5, with the exception of a few weeks during which unit No 1 was being refurbished. In cross‑examination, Mrs Frew agreed that Mrs Galley was either interstate or overseas for most of the period from mid‑February. She was aware also of her being interstate in the months of November, December and January.

1. Ronald Galley, Mrs Galley’s husband, said that his wife was not living at the farm from late November 1999 through to December, although she visited at weekends.  He recalled attending barbecues at the Bargara unit “on several occasions” in that period.  In the New Year, he said, Mrs Galley continued to live at the unit but visited the farm regularly because of her father’s illness.  He confirmed their absence overseas in February, and Mrs Galley’s return to the farm during the final illness of her father.  After the election, Mr Galley said, his wife spent more time at Bargara.  In June, when Mrs Frew decided to renovate her unit, he and his wife began looking for another unit to rent, and Mrs Galley ultimately moved into the new unit in September.  In cross‑examination, Mr Galley agreed that his wife had spent a lot of time travelling between November 1999 and March 2000.  In response to the question, “There can’t have been too many nights when she slept at the unit in Bargara if she had the weekends at the farm?”  he replied, “Well, you can’t be there and somewhere else, can you?”

1. Mrs Heather Jaques, Mrs Galley’s mother, also gave evidence.  She said that her daughter had told her of leasing the unit from her cousin late in 1988.  In October or November 1999, Mrs Galley had informed her that she had moved her belongings to her cousin’s unit.  In November and December of 1999, she had visited the unit on at least five or six occasions for dinner and, in addition, had attended family barbecues around the pool.  At that time, Mrs Galley was mainly travelling to the family farm on weekends.  Mrs Jaques swore that her daughter lived at the unit from late November until the council elections, other than for a short time before the death of Mrs Galley’s father.  She agreed that in that period Mrs Galley’s work took her away from home quite often, but maintained (without expanding on the source of her knowledge) that when Mrs Galley was at home she would spend most of the weekdays at the unit.  In that period, she had accompanied her daughter away on the trip to Sri Lanka, and had also gone to Melbourne for a week with her.

1. Mrs Karen Tulk, who was elected to the council in the March election on the same team as Mrs Galley gave evidence that on at least one occasion in February or March prior to the election she had visited Mrs Galley at 1/5 Newton Court.  Her visit had taken place during the day.

Documentary evidence as to Mrs Galley’s place of residence

1. The applicants relied on various forms of documentation in relation to Mrs Galley’s address.  The real estate agency managed by her, McColm’s First National, was run by a family company, of which she was director.  An Australian Securities and Investment Commission search carried out on 30 March 2000 showed that she was a director of the company, and gave her address as Woodgate Road, Goodwood (the address of the family farm).  A real estate magazine produced in August 1999 carrying advertisements for the family real estate agency gave two alternative phone numbers for Mrs Galley, one being a mobile phone number and the other a Goodwood number, which also appeared against her name with the address Woodgate Road, Goodwood in the Telstra 2000‑2001 telephone directory.  By contrast, Mrs Frew was shown in the same directory as having the telephone number for the Newton Court unit.

1. A business names extract for Harvey World Travel, a travel agency in Bundaberg, was tendered.  That search had been undertaken in October 2000, and showed Mrs Galley as one of the proprietors of the business, with her address at 60 Woodgate Road, Goodwood.  Two copies of statement of renewal of registration of a business name bearing the dates 15/5/99 and 17/4/00 signed by Mrs Galley as partner in that business were also tendered.  They similarly gave her address as Woodgate Road, Goodwood.  Mr Hurwood, a solicitor acting for the applicants, also swore that he had made enquiries at the Department of Justice and established that Mrs Galley was registered as a Justice of the Peace with her address in the Department’s records being shown as Goodwood.

1. In response to those documents, Mrs Galley said that she had seen no reason to change her Goodwood address on business documents. The telephone number shown in the real estate magazine was a business number; part of a Telstra account was tendered to demonstrate that was the case. (However, Mrs Galley did not assert that, business or private, the line was not operated from the farm at Goodwood.) While living at the unit, she contributed to the payment of Mrs Frew’s Telstra account, and made use of her own mobile phone.

1. Evidence was tendered for the respondent to show that she had changed her enrolment on the Electoral Roll for the State of Queensland to the Bargara address from 4 January 2000; while at some stage after the election she had changed the address on her driver’s licence to the address of the unit.  Mrs Galley conceded in cross‑examination that she had made that change some two or three months after Mr Rinehart had asked her for her driver’s licence.  (Mr Rinehart had advised her on 28 March 2000 that he was investigating her eligibility for election as councillor.)

1. Mrs Galley said that most of her mail went to her post office box in Bundaberg. However, she exhibited to her affidavit a number of documents which showed her address at 1/5 Newton Court.  They included a hire purchase agreement for a vehicle, dated 19 April 2000, an account from the Bundaberg Newspaper Company dated 18 April 2000, and an insurer’s letter and accompanying certificates of insurance also bearing April 2000 dates. 

1. Mrs Galley also exhibited to her affidavit a copy of a document headed “General Tenancy Agreement”.  It is signed by her as tenant on a date which is said in the document to be 10 September 1998, with the signature of Mrs Frew as lessor bearing the date 9 September 1998.  The document was witnessed by Mr Kenneth Coleman, the office manager at the family real estate agency.  In her affidavit Mrs Galley swore as follows:

“As I needed some place to stay, Jill agreed to lease the unit to me for as long as it took to build our house at Bargara.  Exhibit HG5 is a true copy of the lease which I signed on 10 September 1998.”

Mrs Frew similarly exhibited the tenancy agreement to her affidavit, and swore to having signed it on 9 September 1998.  Mr Coleman also provided an affidavit exhibiting the tenancy agreement and swearing to having witnessed the signatures on it on 9 and 10 September 1998 respectively.

1. The applicants adduced evidence from Mr John Veall of the Real Estate Institute of Queensland to the effect that the form of the tenancy agreement (a standard REIQ form) was not available prior to 27 November 1998.  It followed, of course, that the dates on which the agreement was said to have been signed could not be correct.  Mr Coleman, Mrs Frew and Mrs Galley all gave evidence that the statements in their affidavits as to the dates of execution of the agreement were, inadvertently, incorrect.  Mrs Galley explained that she had signed her affidavit in its final form in great haste.  In its previous draft, which she had amended, the relevant paragraph did not include a reference to her signing the lease in September 1998.  Rather it read as follows:

“Jill agreed to lease the unit to me for as long as it took to build our house at Bargara.  Exhibit HG4 is a true copy of the lease dated September 1998.”

1. Mr Hardie, Mrs Galley’s solicitor, agreed that he had made the alteration to her affidavit on the assumption (naïve, perhaps, but understandable) that the tenancy agreement was signed on the dates that it bore.  Similarly he had prepared Mr Coleman’s and Mr Frew’s affidavits without specific instructions as to the date of execution.

1. Each of the three witnesses involved in the execution of the agreement said that they had received the affidavits in circumstances of some urgency; the documents had arrived by plane at Bundaberg airport at 4.20pm on 28 November 2000 and were required to be placed in the express post for return to Brisbane by 5 o’clock that afternoon.  There was not, therefore, time to give detailed consideration to their content.

1. Mrs Frew and Mrs Galley explained that the true situation was that the tenancy agreement was signed by them respectively on 9 and 10 February 1999. Mrs Frew said that she had not intended to have any written agreement, but her sisters had expressed a desire to move into the unit.  There were further problems with them in that regard during a holiday in New Zealand, so on her return in February 1999, in order to convince them that the unit was committed, she had asked Mrs Galley to have the document prepared and backdated.  Mrs Galley’s evidence was slightly different. She said that she was aware in late 1998 that Mrs Frew’s sisters had raised an issue about wanting to move into the unit; but early in the New Year Mrs Frew’s concerns were in relation to her daughter‑in‑law and son wanting to occupy the unit. She added that the agreement gave her “the right to use the unit….a legal reason to be there”.

1. Mrs Frew could not remember whether she had spoken to Mrs Galley about the issue of the date of signature of the lease before giving her evidence.  She had not mentioned the correct date of signature of the lease to Mr Hardie, and had not detected the error in the affidavit at the time of signing it.  However, she had thought about the matter some three or four days after making her affidavit and recalled that it was, in fact, backdated.  She did not take any steps to correct the matter because she did not think it relevant.  In fact none of the three witnesses provided any correction to their affidavits until giving evidence, and Mr Hardie’s affidavit was filed by leave at the hearing on 8^th December. It seems reasonable to infer that the filing of Mr Veall’s affidavit on 6^th December prompted a late flurry of activity.

1. Mr Coleman said that he recalled the tenancy agreement had, in fact, been signed in the New Year of 1999.  Only a few days had elapsed between his being asked if he would swear an affidavit about the matter and his seeing the final document, and it had not occurred to him that there was any issue in relation to the backdating; he had simply relied on the date borne by the document.  The backdating of the dates of signature had not, at the time he witnessed the document, concerned him.  It was something he had done on other occasions.

1. The tenancy agreement itself is a curious document.  The term of the agreement is said to be “periodic”, commencing on 20 September 1998, with no end date specified. It contains no requirement for payment of rent or any bond or other charge.  The approved occupants are said to be Mrs Galley and her husband, Mr Galley.  The inclusion of Ronald Galley is odd, given that he at no time resided there and there appears to have been no intention that he would ever do so.  The purpose of his inclusion does not seem explicable either by reference to the need to deceive Mrs Frew’s relatives (an agreement with Mrs Galley alone would, presumably, have sufficed) or in terms of there being any need to give him a “legal reason” to be there.

1. Also in respect of the purported agreement between Mrs Galley and Mrs Frew, the applicants tendered an affidavit sworn by Mrs Galley in proposed proceedings by the Mayor of Burnett Shire Council and a Mr Sharples against the Council.  That affidavit contains the following paragraph:

“At the time of my nomination and since my election as a Councillor of the Burnett Shire, my principal place of residence was and is 1/5 Newton Court Bargara, and for the purposes of the Electoral Act this is the address at which I live.  Now produced and exhibited is a copy of the lease agreement I hold on that property dated 9 September 1998 marked ‘HG3’.”

That affidavit was sworn on 10 September 2000. 

1. An undated letter from Mrs Galley to Mr Rinehart, which, Mrs Galley said, would have been written in April 2000, was also tendered.  It contained the following statement:

“With regard to my Bargara residential address, I entered into a tenancy agreement more than two years ago.”

Alleged admissions by Mrs Galley

1. Mr Frederick Spencer, an unsuccessful candidate for election to the council, had complained to the council in respect of what he alleged was Mrs Galley’s failure to meet the eligibility requirements of the Local Government Act.  On 12 April 2000 Mrs Galley telephoned him at his home. Mr Spencer said that he had made a note of the conversation the following day.  That note is in the following terms:

“Mrs Galley stated off the record to another person, and then directly to me ‘We were preparing to move to Bargara and fully intended to do so.  When my father fell ill and subsequently died our plans had to [sic] put on hold.  We still intend to move to Bargara.’ “

1. In cross‑examination Mr Spencer said that the first part of the note referred to a conversation had by him some days later with another person who had given him information similar to the content of his conversation with Mrs Galley.  It was put to him that if that conversation were days later, the note could not have been made on the day after his conversation with Mrs Galley.  He maintained, however, that it was.  He rejected the suggestion that what Mrs Galley had actually said was that there was an intention to build a home at Bargara rather than to move there. 

1. In response to Mr Spencer’s evidence Mrs Galley, in her affidavit said that she had not said the words attributed to her. Instead she had said words to the effect “It was our intention to build a home at Bargara and we still intend to build at Bargara.” In cross‑examination, she said that she could not recall exactly the words said to Mr Spencer, but had always maintained that she and her husband intended to build at Bargara, but were prevented from doing so by her father’s illness.

1. Ms Belinda Seeney, a journalist with the Bundaberg News Mail newspaper, said that she had contacted Mrs Galley on 7 April 2000 for comment on allegations that she had not been living in the Burnett Shire at the time of her election.  She spoke to Mrs Galley on the latter’s mobile phone.  She had put it to Mrs Galley that there were two addresses Mrs Galley was “listed at”, the Goodwood address and the Bargara address.  She had taken note of Mrs Galley’s actual words: “I am looking after my cousin’s house.”  Mrs Galley had informed her that the mail went to her cousin’s house.  Ms Seeney had then recorded the following statement as a direct quote:

“I’m going back to the farm because I can’t move.  I have no alternative, my father died.  I have to be at the farm daily.”

There was an additional direct quote:

“I can’t do anything.  I cannot move away and leave animals unfed.”

She had also noted Mrs Galley as having said that her registered mail went to a post office box in Bundaberg.

1. Mrs Galley said that at the time of her conversation with Ms Seeney she was in Melbourne, shortly after her father’s death.  She was under some stress because of that event and because of the questions raised as to her eligibility to be sworn in as a councillor. She did not accept that she had given the answers attributed to her.

Mrs Galley’s attendance and voting at a Council meeting

1. It was not disputed that Mrs Galley had attended a council meeting on 8 September 2000 at which a motion was put for the instruction of solicitors to brief counsel in relation to the present application, with the present applicants indemnified in respect of their costs and outlays. Mrs Galley, with two other councillors, had voted against the motion, which was carried by a majority. Mrs Galley said that she felt entitled to vote, because she was concerned the council policy in relation to the provision of legal services was not being followed, and she did not consider that she had a “material personal interest” as defined by s 6 of the Local Government Act.

“Lives in the local government’s area”

1. The phrase “lives in the local government’s area” is not defined in the Local Government Act, nor is there any authority as to the meaning of the phrase.  The New Shorter Oxford English Dictionary defines the intransitive verb “live” relevantly for present purposes as follows:

“Make one’s home; dwell, reside”

1. Mr Rangiah, for the respondent, contended that the word “lives” as used in s 220(1)(a) should be regarded as synonymous with “resides”. The conclusion of Lord Denning MR in Fox v Stirk and Bristol Electoral Registration Officer (1970) 3 WLR 147 at p 153, that it was possible to reside at the same time in two places, was thus equally applicable here. Alternatively, he submitted, “lives” should be construed as imposing a less stringent requirement than “resides”. For this proposition he relied on statements by Ambrose J in Tanti v Davies (No 3) (1996) 2 Qd R 602 (at pp 637, 639) to the effect that “place of residence” connoted a greater degree of permanence than “place of living”.

1. Mr Hughes, for the applicants, contended that authorities on legislation which used different expressions were of limited assistance; and that, taken in context, the word “live” in s 220(1) ought to be regarded as contemplating only one place of living.

1. Both Mr Rangiah and Mr Hughes relied, in support of their arguments as to the construction of the word “lives”, on the requirement, contained in both s 220(1)(b) and s 220(2), that a councillor be under the Electoral Act 1992 “an elector for an electoral district, or a part of an electoral district, included in the local government’s area”. Mr Rangiah submitted that this demonstrated a contemplation by the Act that a prospective councillor could live at the same time in two places, one being within the local government’s area and the other outside the local government’s area, but within the relevant electoral district. There would not otherwise, he argued, have been any reason to include the requirement contained in s 220(1)(b) (and, by inference, s 220(2)). Mr Hughes, on the other hand, argued that since an elector could only have one vote, what the Act contemplated was that there was a single place of living within the local government area at which the prospective councillor was also registered to vote.

1. I do not find either argument convincing.  Although it is initially difficult to discern how one might be regarded as “an elector for … part of an electoral district”, it seems clear enough that the provision is designed to encompass the situation where an electorate does not in its entirety fall in the local government area.  In that instance, the requirement is that there is at least some overlap between the electorate in which the prospective councillor is enrolled and the local government area.  I do not think that the provision lends itself either to the construction that the section must have contemplated places of living both within and without the local government area; nor, on the other hand, do I think that it necessarily flows from the provision that there can only be a single place of living and registration to vote, both of which must be in the local government area.

Conclusions

1. While I accept that the word “lives” may not connote the same degree of permanence as “resides”, I consider that there must be some element of continuity in a person’s occupation of premises for the purposes of eating, sleeping, bathing and carrying on the other activities of everyday life to warrant a conclusion that he or she lives there.  It is a question of degree whether a use of premises short of daily occupation is of sufficient proportions to amount to living there.

1. It is conceivable, in my view, although I do not find it necessary to decide the point that a person might “live” in two different locations and yet meet the requirements of s 220(1)(a). I do not, therefore, proceed on the basis that living for part of the time at the farm at Goodwood would of itself preclude Mrs Galley from living at Bargara. For present purposes, the real task is to determine whether Mrs Galley as at March 2000 was living at unit 1/5 Newton Court, Bargara.

1. In considering that question, it is clear from Mrs Galley’s own account that the relevant period commences in late 1999. Prior to that, she made occasional, infrequent use of the premises at Bargara when she felt too tired to drive back to Goodwood. It is not suggested by her that the sixteen to twenty-two times she stayed at the unit over the course of a year would amount to living there.

1. During the course of the hearing the applicants’ counsel, not without reason, gave considerable attention to the issue of the tenancy agreement.  Mrs Galley, Mrs Frew and Mr Coleman had all sworn on affidavit that it was executed in September 1998.  In evidence, each abjured that account and maintained that the document had in fact been signed in February 1999.  In all the circumstances and particularly in light of Mr Hardie’s evidence, I do not consider I could find, applying a Briginshaw standard, that the misstatement in the affidavits was deliberate, or that the document was false in the sense of having been produced purely for the purposes of bolstering the respondent’s case.  I proceed, accordingly, on the basis that the document was signed, not on the dates that it bears, but in February 1999. 

1. However, it seems to me that the respondent’s annexing of the agreement to her affidavit was disingenuous at best.  At its highest, the agreement was a sham designed to deceive Mrs Frew’s relatives.  I do not accept Mrs Galley’s alternative explanation that the document gave her “a legal reason” to be on the premises, in a context in which there was not the slightest suggestion that Mrs Frew would ever contend otherwise, it could have no binding effect, and she was (as at February 1999) staying at the unit very infrequently.  For it to be produced as it was by Mrs Galley, both in this court and for the purposes of other proceedings between the Mayor of Burnett Shire Council and the Council, without explanation of its true nature, or the time at which it had actually come into being, was simply misleading.  It created a false impression of a formal lease of the unit to Mr and Mrs Galley by Mrs Frew, when in truth all that existed prior to November 1999 was a loose arrangement by which Mrs Galley spent the night at the unit on occasions, and Mrs Frew remained its occupier. Mrs Galley’s letter to Mr Rinehart referring to a tenancy agreement entered “more than two years ago” was similarly, misleading. Her use of the agreement in my view reflects adversely on her credit.

1. Similarly, I consider that Mrs Frew’s conduct in exhibiting the agreement to her affidavit when she knew its worthlessness speaks poorly for her credit as a witness, as does her failure to take any steps to correct her affidavit when she realised within days of signing it that it was wrong as to the date of execution of the agreement.  Accordingly, I proceed with considerable caution in my assessment of the evidence of both witnesses.

1. I attach some weight to Mr Ford’s account, which was not challenged as to its accuracy, of not seeing Mrs Galley at the unit at all in February or March 2000, although he observed her to be regularly at 5/5 Newton Court from about August onwards.  Clearly, his evidence could not be conclusive, since the possibility exists that by happenstance Mrs Galley was never coming or going or visible round the units while he was in a position to observe it; but I think it is of some significance.  I do not think that Mrs Roads’ evidence is of much moment.  She conceded that she was in error in saying that no one appeared to have occupied the unit between the months of November and January; and it is possible that in her attendances there on weekday afternoons she would not have encountered Mrs Galley if the latter were working.  Conversely, I do not think that Mrs Tulk’s evidence of seeing Mrs Galley once during the day at the unit advances matters to any extent.

1. Mrs Jaques’ evidence as to going to the unit on five or six occasions for dinner in November and December of 1999 and in addition attending family barbecues around the pool is perhaps overstated when one considers Mrs Galley’s own account of her movements in those months.  It is possible, of course, that Mrs Jaques came to dinner every time her daughter was at home. Similarly, I consider Mr Galley’s account of having attended barbecues at the Bargara unit “on several occasions” in late November 1999 and December somewhat questionable in light of her admitted absences.  However, once again, I do not think that evidence greatly advances matters.

1. Both Mrs Jaques and Mr Galley made broad statements as to Mrs Galley living at the unit. Mr Galley said that she continued to live there in the new year of 2000, while Mrs Jaques made the more sweeping claim that her daughter lived at the unit from late November until the council elections.  In neither case was any detail or explanation given of the respective assertions, and I afford them little weight.

1. I prefer Mr Spencer’s account of his conversation with Mrs Galley to that of Mrs Galley herself.  Apart from what I have already had to say about Mrs Galley’s credit, it seems to me that Mr Spencer’s version is inherently more probable.  It is difficult to see how the illness and death of Mrs Galley’s father could have had a significant delaying effect on the Galleys’ plans to build when at the time of his death only a month had elapsed since their receipt of advice that the development application had been approved.  On the other hand, the proposition that Mrs Galley felt unable to move to Bargara because of the need to care for her father at Goodwood makes eminent good sense.  I note also that in neither version, that is Mrs Galley’s or Mr Spencer’s, is there any suggestion that Mrs Galley asserted she had been residing at her cousin’s unit.

1. I accept also Ms Seeney’s evidence as to her conversation with Mrs Galley.  I conclude from it that after the death of her father, the preponderance of Mrs Galley’s time was spent at the farm.

1. I do not regard as of much significance the failure by Mrs Galley to change from Goodwood the addresses at which she was registered as proprietor of the travel agency business, nor her failure to change her address on ASIC records.   Like the fact that Mrs Galley remained registered as a Justice of the Peace with an address shown as Goodwood, these may be signs of nothing more than inertia.

1. The fact that Mrs Galley’s telephone number in a real estate magazine as at August 1999 may have been a Goodwood telephone number is not of great moment, given that on any view Mrs Galley had not made a decision to live at unit 1/5 Newton Court until late November that year.  Of somewhat more weight is the fact that Mrs Galley’s telephone number in the Telstra 2000‑2001 directory is the same number, and that the Goodwood address is shown.  One might have expected given her many business commitments and her role as councillor that she would have taken steps to ensure that the number was changed as soon as she made the decision to live at the unit in late November 1999.  Mrs Galley does not suggest, for example, that she endeavoured to change the number or address but was too late to do so in time for the printing of the 2000/2001 directory.

1. I do not consider the documents tendered by Mrs Galley - the hire purchase agreement, the Bundaberg Newspaper account and the insurance documents – assist, since they date from a period after the issue of her correct address was raised. Similarly, the driver’s licence does not advance matters. The change of Mrs Galley’s electoral roll address to Bargara in January suggests more an attempt at apparent compliance with s 220(1) for the purposes of her election than necessarily indicating any real change of abode.

1. I consider it highly dubious on Mrs Galley’s own account of her periods of absence from unit 1/5 Newton Court between between late November 1999 and the election in late March 2000 - spent at the farm, elsewhere in the State, interstate, and overseas - that she could be said to be living at the unit in any real sense.  Having regard to her concessions about the amount of time spent away from Bargara, her statements to Mr Spencer and Ms Seeney, Mr Ford’s observations and the failure to make any attempt to change her telephone number, I conclude as a matter of fact that the basis of Mrs Galley’s use of the unit had not in any real sense changed after late November 1999 from her irregular use of it previously.  If indeed she had formed an intention at that time to live at the unit, it was not carried into effect. It is probable that there were occasions when she spent the night there and at least one instance when she made use of it during the day time to meet another candidate, Mrs Tulk; but I do not consider that such use as she made of it amounted to living there in the period from late November 1999 to the date of the election in March 2000.  I conclude, therefore that she was not qualified to become a councillor as at the date of her election.

1. In his written submissions, Mr Rangiah contended that the applicants had no standing to obtain the declarations they sought, since this was not a proceeding “to secure compliance with an Act”. Section 1111(1) of the Local Government Act  enables the chief executive officer of a local government to give instructions and sign documents in a legal proceeding.  Section 1111(3) is in the following terms:

“If the Attorney‑General could take a proceeding on the relation of a local government to secure compliance with an Act, the local government is taken to sufficiently represent the public interest and may take the proceeding in its own name.”

1. In my view, there is a strong argument that the present proceeding was one to secure compliance with an Act; but in any event I do not think that s 1111(3) is designed to be exhaustive of a local government’s power to bring proceedings.  I do not think it can be doubted that of the applicants, the Council at least had a proper interest such as to give it standing in this application.

1. Nor do I accept the submission that the court should decline to grant the declaration because it would produce no foreseeable consequence. Counsel referred to the fact that the applicants might instead have sought a practical remedy under s 223 of the Local Government Act in the form of review of the lawfulness of Mrs Galley’s election.  While there appears to be no reason that the applicants could not have proceeded under the Judicial Review Act, seeking in the process relief under s 42 to prevent Mrs Galley from continuing to act as councillor[1], the existence of an alternative form of relief will not necessarily preclude the granting of a declaration: Forster v Jododex (1972) 127 CLR 421 at 438. Nor does it follow that the declaration would have not any consequence. As with any declaration in respect of which ancillary relief is neither sought nor given, it would not have coercive effect. It was not suggested by Mr Rangiah, however, that his client would not act in accordance with any declaration of the court. There is, in my view, considerable utility in the making of a declaration as to Mrs Galley’s qualification to become a councillor as at the date of the election. I do not, however, consider that the evidence would support a declaration in the terms of the second declaration sought, that is, that at no time since 25 March 2000 has she been so qualified. I do not, in any event, see any practical reason for making such a further declaration.

   [1] See for a discussion of the operation of the Judicial Review Act provisions in relation to the Local Government Act 1993 Lyness v Fennell and Hefferan 1998 QSC 38 (27 March 1998).

1. Nor is there any obvious utility in considering the making of a declaration in the terms of the third declaration sought. In the first instance, I consider that the terms of the declaration as sought “that the respondent has a ‘material interest’ in the issues the subject of this Originating Application, within the meaning of that term where it appears in Section 244(1) of the said Act” are so imprecise that it could not be appropriate to make it. Secondly, the events in question (that is the attendance by Mrs Galley and her voting at the meeting of 8 September 2000) are past and there is no basis to assume their repetition. I am not prepared, therefore, to make the declaration sought.

1. For the reasons given, I declare that as at the 25th day of March 2000 the respondent, Heather Jeanette Galley, was not qualified to become a councillor of the local government area for Burnett Shire.  I will hear the parties as to costs.