Da Rin v Duffy - [2013] NSWADT 284

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Da Rin v Duffy [2013] NSWADT 284
Hearing dates: 7 May, 2 July, 23 October 2013
Decision date: 09 December 2013
Jurisdiction: General Division
Before: Judge K P O'Connor, President
P Molony, Judicial Member
J Schwager, Non-judicial Member
Decision:
1. The Tribunal orders that the respondent be dismissed from the civic office of Councillor, Orange City Council.
2. Parties to make submissions on the applicant's application for costs, in accordance with the directions.

Catchwords: CIVIC OFFICE - Application for dismissal of elected councillor - alleged irregularity in the manner of election - whether councillor a resident of the area at the time of nomination - application upheld - order for dismissal: Local Government Act 1993, s 329
Legislation Cited: Administrative Decisions Tribunal Act 1997
Commonwealth Electoral Act 1918 (Cth)
Local Government (Elections) Regulation 1998
Local Government Act 1993
Parliamentary Electorates and Elections Act 1912
Cases Cited: Borsak v Cheung [2006] NSWADT 5
Category: Principal judgment
Parties: John Da Rin (Applicant)
Kevin Michael Duffy (Respondent)
Representation: Counsel
D Brakell, days 2 and 3 (Applicant)
D Johnston, agent, by leave, day 1 (Applicant)
T H Bray, days 2 and 3 (Applicant)
G Butterfield, Marsdens Law Group (Respondent)

File Number(s): 123349

REASONS FOR DECISION

[In the following reasons these laws are referred to: Local Government Act 1993 (NSW): LGA; Parliamentary Electorates and Elections Act 1912 (NSW): PEEA; Commonwealth Electoral Act 1918 (Cth): CEA; Administrative Decisions Tribunal Act 1997 (NSW): ADT Act)]

Section 329(1) of the LGA permits 'any person' to apply to the Tribunal for 'an order that a person be dismissed from a civic office'. 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' (s 329(2)). A 'civic office' includes 'the office of councillor or mayor' (s 3). The proceedings must be brought within three months of the date of election: s 329(3).

The applicant applied to the Tribunal on 7 December 2012 for the dismissal of the respondent, Mr Kevin Duffy, from the office of Councillor, Orange City Council.

On 17 July 2012 the respondent gave notice of change of address within the Federal Division of Calare and the State District of Orange from a property at Borenore to a property in Orange which was his son's home. [We have not set out the street details in conformity with identity theft policy. We will refer to these places as the 'Borenore property' and 'the Orange house'.]

The old address fell within the local government area of Cabonne, while the new address fell within the local government area of Orange City. The roll for the local government elections closed on 30 July 2012. The respondent nominated as a candidate for election on 8 August 2012. The poll was held on 8 September 2012. He was declared elected on 15 September 2012 (see Electoral Commission website - not 20 September 2012 as agreed…

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 Da Rin v Duffy

Details

AGLC: Da Rin v Duffy [2013] NSWADT 284
Case: [2013] NSWADT 284
Decision Date: 09 December 2013

CaseChat Overview and Summary

The case of Da Rin v Duffy involved a dispute concerning the validity of an election held for a position on the Orange City Council. The applicant, Da Rin, sought the dismissal of the respondent, Duffy, from the civic office of Councillor on the basis that Duffy was not a resident of the area at the time of his nomination, which is a requirement under the Local Government Act 1993. The Local Government Act, specifically section 329, provides that a councillor may be removed from office if they fail to meet the residency requirements. The case was heard by the Local Government Tribunal of New South Wales, which was tasked with determining whether the respondent's nomination and subsequent election were conducted in accordance with the legislative requirements.

The central legal issue before the Tribunal was whether Duffy satisfied the residency requirement at the time of his nomination, as stipulated by the Local Government Act. The Tribunal had to examine the evidence regarding Duffy's residency status and determine whether there was any irregularity in the election process that warranted his dismissal. The applicant argued that Duffy did not meet the residency criteria, and thus his election should be deemed invalid. The respondent, Duffy, would have needed to demonstrate that he was a resident of the area in question at the time of his nomination to successfully defend against the application.

In reaching its decision, the Tribunal thoroughly reviewed the evidence presented on the matter of Duffy's residency. It found that Duffy did not reside in the area at the time of his nomination, which was a critical requirement for eligibility to stand for the position. Consequently, the Tribunal concluded that the respondent's election was irregular and invalid. As a result, the Tribunal upheld the applicant's application for the dismissal of Duffy from the civic office of Councillor, in accordance with section 329 of the Local Government Act 1993. The Tribunal also directed the parties to submit on the question of costs in line with its procedural guidelines.

Orders

Orders of the court

1. The Tribunal orders that the respondent be dismissed from the civic office of Councillor, Orange City Council.

2. Parties to make submissions on the applicant's application for costs, in accordance with the directions.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Da Rin v Duffy [2013] NSWADT 284
Hearing dates:	7 May, 2 July, 23 October 2013
Decision date:	09 December 2013
Jurisdiction:	General Division
Before:	Judge K P O'Connor, President P Molony, Judicial Member J Schwager, Non-judicial Member
Decision:	1. The Tribunal orders that the respondent be dismissed from the civic office of Councillor, Orange City Council. 2. Parties to make submissions on the applicant's application for costs, in accordance with the directions.
Catchwords:	CIVIC OFFICE - Application for dismissal of elected councillor - alleged irregularity in the manner of election - whether councillor a resident of the area at the time of nomination - application upheld - order for dismissal: Local Government Act 1993, s 329
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Commonwealth Electoral Act 1918 (Cth) Local Government (Elections) Regulation 1998 Local Government Act 1993 Parliamentary Electorates and Elections Act 1912
Cases Cited:	Borsak v Cheung [2006] NSWADT 5
Category:	Principal judgment
Parties:	John Da Rin (Applicant) Kevin Michael Duffy (Respondent)
Representation:	Counsel D Brakell, days 2 and 3 (Applicant) D Johnston, agent, by leave, day 1 (Applicant) T H Bray, days 2 and 3 (Applicant) G Butterfield, Marsdens Law Group (Respondent)
File Number(s):	123349