Cheung v Administrative Decisions Tribunal

[2000] NSWSC 1062

Reported Decision: [2000] 111 LGERA 353

New South Wales

Supreme Court

CITATION:	Cheung v The Administrative Decisions Tribunal of New South Wales [2000] NSWSC 1062
CURRENT JURISDICTION:	Common Law Division Administrative Law List
FILE NUMBER(S):	SC 30039/00
HEARING DATE(S):	16 November 2000
JUDGMENT DATE:	16 November 2000
PARTIES :	Kwai Lin (Karin) Cheung (Plaintiff) The Administrative Decisions Tribunal of New South Wales (1st Defendant) Emma Dorothy Brooks Maher (2nd Defendant)
JUDGMENT OF:	Dunford J

LOWER COURT JURISDICTION :	The Administrative Decisions Tribunal of New South Wales
LOWER COURT FILE NUMBER(S) :	993289
LOWER COURT JUDICIAL OFFICER :	N Hennessy, A Britton, K Mapperson

COUNSEL :	Mr C Birch SC (Plaintiff) Mr C Johnstone (Solicitor) (2nd Defendant)
SOLICITORS:	Pigott Stinson Ratner Thom (Plaintiff) IV Knight, Crown Solicitor (Submitting) (1st Defendant) Public Interest Advocay Centre (2nd Defendant)
CATCHWORDS:	ADMINISTRATIVE LAW - certiorari or declaration sought re order of Administrative Decisions Tribunal of New South Wales
LEGISLATION CITED:	Local Government Act 1993, s 329 Administrative Decisions Tribunal Act 1997, ss 40, 42, 44.
DECISION:	See para 17

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST
DUNFORD J
Thursday, 16 NOVEMBER 2000
30039/00 - KWAI LIN (KARIN) CHEUNG v ADMINISTRATIVE DECISIONS TRIBUNAL OF NEW SOUTH WALES & ANOR
JUDGMENT

1 HIS HONOUR: The plaintiff seeks an order in the nature of certiorari or a declaration in relation to an order of the Administrative Decisions Tribunal ("the Tribunal") extending the time for lodgment by the second defendant of an application under s 329 of the Local Government Act 1993 ("the LG Act") against the plaintiff's election as a councillor of the Ashfield Municipal Council. The relevant election was held on 11 September 1999 and the poll declared on 17 September 1999. It is agreed that the latter is the relevant date. 2 The application was lodged with the Tribunal on 24 December 1999, more than 3 months after the date of the poll, and the Tribunal extended the time for lodgment of the application until that date. 3 The issue depends entirely on the construction of 4 statutory provisions which in logical, rather than numerical, order are s 329 of the LG Act and ss 42, 44 and 40 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act"). 4 Section 329 of the LG Act provides for an application to the Tribunal for an order that a person be dismissed 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 office. 5    Subsection (3) is as follows:-

"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 more than 3 months after the date of the person's election or appointment to that office."

There is no provision in the section for an extension of time for making the application.

6 Section 42 of the ADT Act requires that an application to the Tribunal must be made in the manner and within the time prescribed by the Rules of the Tribunal (or prescribed by or under the enactment under which the application is made). Rule 14(3) provides for the application to be lodged within 28 days, but s 44 provides that, despite s 42 the Tribunal may extend the time for making a "late application", which is defined by subs (3) to mean an application not made within the time prescribed by the Rules of the Tribunal (or prescribed by or under the enactment under which the application is made). 7 Pausing there, the argument for the second defendant (and this argument was accepted by the Tribunal) is a comparatively simple one. Section 329 of the LG Act prescribes a time of 3 months, which is therefore the time "prescribed by or under the enactment under which the application is made", and so, that is the time fixed by s 42. But the same wording, i.e. "prescribed by or under the enactment under which the application is made", is used to define what is meant by a "late application" in s 44(3), and therefore the time fixed by the enactment under which the application is made, i.e. under s 329 of the LG Act, may be extended pursuant to s 44(1). 8 The plaintiff however places considerable reliance on s 40 which is as follows:

"(1) The provisions of this Act have effect subject to any contrary provision being made in a relevant enactment (whether expressly or impliedly).
(2) However, a provision of a relevant enactment is not to be interpreted as amending or repealing, or otherwise altering or affecting the effect or operation of, any of the provisions of this Chapter unless the provision of the relevant enactment provides expressly for it to have effect despite a specified provision, or despite any provision, of this Chapter.
(3) This section applies to a provision of a relevant enactment whether enacted before or after the commencement of this section.
(4) In this section:
relevant enactment means an enactment under which the Tribunal has jurisdiction:
(a) to make an original decision, or
(b) to review a reviewable decision,
or that otherwise deals with the jurisdiction of the Tribunal."

9    "Enactment" is defined in s 5, and as s 329 confers jurisdiction on the Tribunal, the LG Act is a "relevant enactment" within the terms of s 40. Whether the two Acts, that is the ADT Act and the LGA Act, contain contrary provisions must depend on their operation rather than on the precise wording that is used, and this is made abundantly clear by the reference in s 40(1) to the "contrary provision" being made either expressly or impliedly. 10 Whereas the ADT Act provides in s 44 for an extension of time for the making of applications, s 329 of the LG Act does not; and this is consistent with the form that s 329 took prior to the current section being substituted by the Administrative Decisions Tribunal Legislation Amendment Act 1998 (No. 48) Schedule 2.10. 11    The previous s 329 provided that this Court, the District Court or a Local Court could order the dismissal of a person from civic office in the same circumstances as the current section and required proceedings for such an order to be commenced within 3 months. There was no provision in the LG Act for any extension of time. 12    It is also consistent with what appears to be the general rule relating to applications to upset election results, namely that the time for the commencement of proceedings cannot be extended: see Nile v Wood (1988) 167 CLR 133, Robertson v Australian Electoral Commission (1993) 116 ALR 407, and cases therein referred to. 13 For these reasons I am satisfied that the 2 provisions are inconsistent and accordingly make contrary provision. It follows that ss 44(2) and 44(1) of the ADT Act must be read subject to s 329(3) of the LG Act. 14 I was concerned that this construction may not be correct because it could deprive the words in brackets in s 44(3) of any operation but, on reflection, I am satisfied that there is scope for such words to have an effective operation, namely, in the case where the other enactment itself contains a provision for an extension of time. In such cases where the application is made outside the time fixed by the "other enactment" there would need to be reliance on s 44 to obtain an extension and the words in brackets in s 44(3) would ensure that such application could be made to the Tribunal as a "late application". 15 It follows that in the present case the time for making the application being fixed by s 329 of the LG Act and that section containing no provision for an extension of time, there is no power to extend such time pursuant to s 44 of the ADT Act. 16 I am by no means sure that this is the effect that Parliament intended. Whilst there may be good reason for having a provision such as s 40 in Chapter 3 relating to the jurisdiction of the Tribunal, it might seem surprising that it was intended to override procedural provisions relating to the Tribunal such as ss 42 and 44, but it seems to me the meaning of the words is clear. Section 40(1) refers to the provisions of the Act, not to the provisions of Chapter 3, and indeed s 40(2) makes special provision in relation to Chapter 3, thereby suggesting that the other provisions of s 40 are to apply to all the chapters of the Act, including Chapter 4 where ss 40 to 42 are contained. 17 I therefore make order 1 as in the Summons. I order the second defendant to pay the plaintiff's costs of the proceedings, and I grant to the second defendant a certificate under the Suitors' Fund Act.

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Last Modified: 11/28/2000