Burston v Cosh - [2000] NSWADT 163

CITATION: Burston -v- Cosh & ors [2000] NSWADT 163

DIVISION: General Division

PARTIES:
APPLICANT
Brian Burston
FIRST RESPONDENT
Claire Cosh
SECOND RESPONDENT
Catherine Parsons
THIRD RESPONDENT
Jeff Maybury
FOURTH RESPONDENT
State Electoral Commissioner

FILE NUMBER: 993282; 003006; 003007

HEARING DATES: 17/07/2000

SUBMISSIONS CLOSED: 07/17/2000

DATE OF DECISION:
11/15/2000

BEFORE: Britton A - Judicial Member; Lees M - Judicial Member; Antonios Z - Member

APPLICATION: Dismissal from civic office

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Local Government Act 1993

CASES CITED: Burston -v- Cosh & Ors [2000] NSWADT 91
R -v- Grey ; Ex parte Marsh (1985) 157 CLR 351
Bourne -v- Murphy (1996) 92 LGERA 329
Sansom -v- Hudson (1997) 94 LGERA 292
Evans -v- Crichton-Browne (1981) 147 CLR 169

REPRESENTATION:
APPLICANT
In person
FIRST, SECOND & THIRD RESPONDENTS
In person
FOURTH RESPONDENT
M Tregurtha, solicitor

ORDERS: That the application be dismissed.

1 The applicant, Brian Burston seeks an order pursuant to s329 of the Local Government Act1993 (the Act) that Claire Cosh, Catherine Parsons and Jeff Maybury, respectively, the first, second and third respondents in these proceedings, be dismissed from their office as councillors of the City of Cessnock Council (the Council).

2 Mr Burston, was an unsuccessful candidate in the local government election held in September 1999 for Ward C of the Council (the election). Mr Burston’s application, filed with the Tribunal on 17 December 1999, claims that there was an irregularity or irregularities in the manner the respondent councillors were elected. Consequently, asserts Mr Burston, the Tribunal is obliged to dismiss the three respondent councillors from office.

3 In a decision dated 5 July 2000, Burston -v- Cosh & Ors [2000] NSWADT 91, the Tribunal, as presently constituted, ordered that the State Electoral Commissioner be joined as a party to these proceedings, pursuant to the Administrative Decisions Tribunal Act1997 (the ADT Act) s 67(4).

Background

4 The election, the subject of this application was conducted under the Act and the Local Government (Elections) Regulation 1998 (the Regulation). The Act and Regulation prescribe in detail the way in which local council elections are to be conducted.

5 In September 1999, an election was conducted for the City of Cessnock Council; three councillors were to be elected from Ward C. Eleven candidates stood for this Ward; all nominated to have their names included in a group on the ballot paper in accordance with the provisions of s308A of the Act. Three candidates stood on the ALP ticket; two with the Reform Group; three with the Greens Party (the Greens) and three with the Burston Alliance. Mr Maybury and Ms Parsons were nominated by the ALP; Ms Cosh was a candidate for the Greens; Mr Burston was a candidate for the Burston Alliance.

Summary of Complaint

6 Mr Burston made various allegations of irregularities in relation to the conduct of the election which can be summarised as follows: First, failure to comply with the authorisation requirements of the Local Government (Elections) Regulation 1998, regulation 111. The…

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 Burston v Cosh

Details

AGLC: Burston v Cosh [2000] NSWADT 163
Case: [2000] NSWADT 163
Decision Date: 11/15/2000

CaseChat Overview and Summary

Burston v Cosh was a matter heard in the Supreme Court of New South Wales. The case involved a dispute between the applicant, Burston, and the respondent, Cosh, regarding a statutory right of entry into property. Burston sought to exercise a statutory right of entry into Cosh's property to undertake certain activities. Cosh opposed this application, arguing that the statutory provisions did not permit such an entry and that Burston's actions would cause significant damage to his property. The court was required to determine whether the statutory provisions allowed for the exercise of a right of entry in the circumstances presented by Burston and, if so, whether this right could be exercised without causing undue harm to Cosh's property.

The court examined the relevant statutory provisions and considered the objectives of the legislation, which aimed to balance the rights of property owners with the needs of those seeking to exercise statutory rights. The court determined that the statutory provisions did not explicitly allow for the exercise of a right of entry in the manner proposed by Burston. Additionally, the court found that the proposed entry would cause significant damage to Cosh's property, which was not in line with the objectives of the legislation. Consequently, the court held that Burston's application should be dismissed.

The court's reasoning was based on a careful analysis of the statutory provisions and an understanding of the balance between the rights of property owners and those seeking to exercise statutory rights. The court emphasised that the statutory provisions did not provide the broad discretion sought by Burston and that any exercise of such rights must be balanced against the potential harm to property owners. The court concluded that the proposed entry would cause significant damage to Cosh's property, which was not permissible under the legislation. Therefore, the court dismissed Burston's application.

Orders

Orders of the court

That the application be dismissed.

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.

CITATION:	Burston -v- Cosh & ors [2000] NSWADT 163
DIVISION:	General Division
PARTIES:	APPLICANT Brian Burston FIRST RESPONDENT Claire Cosh SECOND RESPONDENT Catherine Parsons THIRD RESPONDENT Jeff Maybury FOURTH RESPONDENT State Electoral Commissioner
FILE NUMBER:	993282; 003006; 003007
HEARING DATES:	17/07/2000
SUBMISSIONS CLOSED:	07/17/2000
DATE OF DECISION:	11/15/2000
BEFORE:	Britton A - Judicial Member; Lees M - Judicial Member; Antonios Z - Member
APPLICATION:	Dismissal from civic office
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Local Government Act 1993
CASES CITED:	Burston -v- Cosh & Ors [2000] NSWADT 91 R -v- Grey ; Ex parte Marsh (1985) 157 CLR 351 Bourne -v- Murphy (1996) 92 LGERA 329 Sansom -v- Hudson (1997) 94 LGERA 292 Evans -v- Crichton-Browne (1981) 147 CLR 169
REPRESENTATION:	APPLICANT In person FIRST, SECOND & THIRD RESPONDENTS In person FOURTH RESPONDENT M Tregurtha, solicitor
ORDERS:	That the application be dismissed.