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)]

1. 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).

1. 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.

1. 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'.]

1. 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 at hearing by the parties (nothing hangs on this difference)).

1. The applicant alleges that the respondent's election was affected by an irregularity, the irregularity being that he did not meet the requirement that he be a resident of the municipality on the day that the rolls closed for the election, that day being 30 July 2012: see LGA, Chapter 10, esp ss 274, 298, 306. The applicant asserted that the address given by the respondent in his nomination was not his residence, and that the respondent's residence remained the Borenore property, in the municipality of Cabonne, as it had been for many years.

The Basic Principle: Candidate must be a resident at Time of Nomination

1. In Federal and State elections, it is not required that a candidate be a resident of the electoral area. The position is different in relation to local government elections.

1. The provisions relating to local government elections are complex, and were reviewed in detail in the case of Borsak v Cheung [2006] NSWADT 5, after submissions were heard from counsel for each party, and, by invitation, from the Electoral Commissioner.

1. The principal provisions governing the election of councillors are found in Chapter 10 (How are people elected to civic office?) of the LGA. The PEEA also contains relevant provisions. It is not in dispute that the respondent is generally qualified to vote in State and Commonwealth elections (he meets age and citizenship requirements and lives in the State): see generally PEEA s 20(1) to (5). As explained in Borsak v Cheung, eligibility to vote and eligibility to be a candidate are linked in the case of local government elections.

1. The Tribunal concluded at [51] [emphasis added]:

[T]hat the electoral law read as a whole requires that a person who votes in a council election be a current resident of the area, perhaps with the qualification that if they have moved out of the area within the last month (see PEEA) or within the last three months (see CEA) they may retain an entitlement. Moreover, in our view a clear implication can be drawn from the provisions that current residence at the time of nomination is the requirement in relation to a candidate for civic office.

1. The Tribunal said to similar effect at [70]:

[I]t is clear we think that the entitlement to stand must start with a valid enrolment under the PEEA, and in the case of a person standing for office, there is a necessary implication, as we see it, drawn from s 275(3) [of the LGA] and such provisions as those relating to nomination that the candidate be a current resident of the area.

1. The parties accepted these statements of the law as accurate.

1. On the question of what amounts to 'residence' (or 'place of living', as it is sometimes called) it is agreed that the answer is one of fact and degree.

1. The following passages from Borsak v Cheung are relevant to these points:

'Irregularity'

72 Gibbs CJ has stated that an 'irregularity' refers to conduct 'in the manner in which the person has been elected or appointed to office' that involves a departure from 'some rule, established practice, or generally accepted principle governing the conduct of the election' (R v Gray; Ex Parte Marsh (1985) 157 CLR 351 at 368). For the court to intervene by way of an order in relation to the irregularity the conduct must be 'such that the result of the election is thereby uncertain' (per Beazley JA in Bourne v Murphy (1996) 92 LGERA 329 at 358).

73 In our view, the failure of a candidate to demonstrate that they are a resident of the area at the time of nomination is a fundamental irregularity, breaching an established principle governing the conduct of the election, and rendering the outcome uncertain.

Nature of the Inquiry

74 We do not see a case such as this as one where the applicant bears any onus. 'Any person' is entitled under the LGA to challenge the credentials of a councillor. The councillor is then required, as we see it, to satisfy the Tribunal, on balance, that she or he has a place of living or residence within the area. (The councillor could move at an early stage for summary dismissal if the applicant produces no arguable evidence in support of an application, and the councillor has clear evidence to the contrary. This was not such a case.)

75 We will now refer briefly to the case law on place of living and residence, and then go on to examine the evidence.

'Place of Living' or 'Residence'

76 The issue of a person's residence, or place of living, involves questions of 'fact' and 'degree', as was noted long ago by Blackburn J in a case about the entitlement of an elector to vote at a municipal election, R v The Mayor of Exeter; Dipstale's Case (1868) LR (QB) 114 at 115. There are utterances to similar effect in tax law cases involving the same issue: for example, Levene v Inland Revenue Commissioners [1928] AC 217, Inland Revenue Commissioners v Lysaght [1928] AC 234 and Fed Cmr Taxation v Miller (1946) 73 CLR 93.

77 Mr O'Brien, for Ms Cheung, submitted that it was not unusual for persons to have more than one place of living, and this is the situation that applies to Ms Cheung. Mr Docker, for the applicant, acknowledged that the possibility of being a concurrent resident in two places has often be recognised in tax cases (where different tax consequences may apply depending on residence): see, for example, Gregory v Fed Cmr Taxation (1937) 4 ATD 397 (Dixon J).

78 We note that the same possibility (that a person may have more than one residence) has been recognised in English electoral cases such as Dipstale's case, another old case decided on the same day as Dipstale's case - R v Mayor of Exeter; Wescomb's case (1868) LR 4 QB 110 and Fox v Stirk and Bristol Electoral Registration Officer [1970] 3 WLR 147 at 153 per Lord Denning MR.

79 Mr Docker submitted that the provisions of the LGA, read as a whole, required that a person be resident for electoral and nomination purposes in only one place. In our view the LGA does not go so far as to specify that a person may only have one residence or place of living for enrolment purposes. What it does is restrict a person to one vote in such an instance, subject only to any entitlement he or she may have as a ratepayer in another municipality. The one vote principle is recognised in the following provisions. LGA s 266(1) also gives an entitlement to vote as electors for a ward to: a person who is 'not a resident of the ward but is the owner of rateable land in the ward' and a person who 'is an occupier, or ratepaying lessee, of rateable land in a ward' (s 269(1)(a) and (b)). Persons who qualify under more than one heading are only entitled to one vote in the same municipality: LGA s 268.

80 So while there are good arguments, we think, based on the theory of representative government, in our view the LGA does not expressly, or impliedly, go so far as to mandate that a person may only have one place of living or residence. The way the matter is addressed by local government law is to restrict residential enrolment to one address in the State; and then, if called upon, to require the elector to show that he or she has that place as a place of living at the relevant time.

81 Mr Docker noted that it is not possible for a person to be enrolled on a residential basis simultaneously as an elector at two different places. We agree that this emerges from PEEA s 33.

'Residence' - Relevant Factors

1. Further to the extract above, we consider that 'residence' as used in this area of the law refers to a place of living where the occupant carries on the gamut of activities associated with daily life, in particular those activities that have a personal or domestic character. In deciding whether a place can properly be characterised as a 'residence' the following matters might be considered:

• Where a person is claiming (as here) that they have recently changed residence, to what extent have they severed their connection with the previous residence? What was the extent of the movement of personal possessions, furniture and the like? Does the person speak of their new residence as their 'home'? To what extent has the person changed their address for general purposes such as receipt of bills, registration of vehicles, and the like?
• Does the person carry on at the new residence such aspects of daily life as preparing and eating meals, sleeping, socialising with friends, getting together with family members, providing for the needs of dependants such as children?
• What is the degree of the person's financial and physical involvement in the ownership, rental and general upkeep of the property?

The Hearing

1. The Tribunal sat at Orange and heard evidence on 7 May 2013 and 2 July 2013. The parties made closing submissions in Sydney on 23 October 2013.

1. The applicant filed written statements from the following: Colin Glanville Young, 2 April 2013; Ronald George Keith Matthews, 2 April 2013; Brian Thomas Wood, 2 April 2013 (two statements); the applicant, 2 April 2013; Cyril Smith, 2 April 2013. These deponents were not called for cross-examination. In the Tribunal's opinion, the statements had marginal or no relevance to the key issue in this case, whether in law the respondent was a resident of Orange as at the date of nomination. Most of this evidence referred to observations of the respondent's conduct at a later time.

1. The applicant filed a great deal of documentation, especially telephone records, utility notices, employment and financial records and the like obtained by summons. These searches were designed to support the applicant's case that the respondent had little or no practical connection with the Orange house, and his primary practical connections remained with the Borenore property.

1. The respondent filed written statements from the following: the respondent, 2 May 2013; his wife, Sandra Duffy, 2 May 2013; and his son, Robert Duffy, 2 May 2013. Each of them gave oral evidence, as did a neighbour of Robert, Ms Erin Jane McRae (called by the applicant).

The Oral Evidence

1. Ms McRae gave evidence in relation to the extent to which she had seen the respondent in and around the Orange house particularly in the period April to July 2012. Her evidence was vague, and it said little one way or the other as to whether the respondent had taken up residence, in the sense understood by electoral law. We have given it no weight.

1. The respondent gave extensive evidence as to his ancestors' and present family's long connection with the Borenore area, its history of ownership of the Borenore property, his work history, his interest in local government, his involvement in Cabonne Council, his desire to join the Orange Council, his taking up work as a bus driver with Orange Bus Lines and the nature of his living arrangements at his son's home.

1. Robert and Sandra gave evidence in relation to the discussion that led the respondent to move into Robert's home, and the nature of his living and work arrangements since that time.

Assessment

1. In line with indications given by the Tribunal as to the period it regarded as material, the hearing concentrated on the time from 29 April 2012 to 8 August 2012 (the date of closing of the rolls). The Tribunal indicated that it would be inclined to give little weight to evidence in relation to the respondent's conduct after 8 August 2012, unless it could reasonably be regarded as throwing light on his conduct prior to that date.

1. In his written statement the respondent said that he 'had made a decision to run for election as a Councillor for Orange Council. Around Anzac Day, Sandra, Robert and I had a discussion about my moving in with Robert into [Robert's place].' At the time of the discussion he had been a councillor at Cabonne for several years (during which he had served for a time as Mayor), and his term was coming to an end.

1. In his written statement, the respondent referred to the Borenore property as 'home'. At hearing he spoke of the emotional connection all members of the wider family had to the property, which had been in the family for 148 years, though now the holding had reduced to 73 acres as compared to 400 acres at one time.

1. At hearing, he stated that he was motivated to shift to Orange because of the likelihood that eventually there would be an amalgamation of Cabonne and Orange councils. He saw his Cabonne experience as helpful in appreciating the particular needs of a rural community, while involvement in Orange Council would given him a better understanding of 'city' government.

1. He was asked about what he said to his family at the meeting for moving to Orange (transcript, day 1, 50):

A. I wanted to move to Orange.

Q. Did you give them a reason.

A. Yes.

Q. What did you say?

A. I wanted to run for Orange City Council.

Q. And that was the sole reason that you were moving to Orange?

A. To commence with yes.

1. In his evidence he stated that he took the following 'personal effects' with him to his son's place - 'my clothing, personal items such as deodorant and toothpaste, my laptop, books, photos'. He moved into a spare room there, which had a single bed.

1. In our view, there is little to indicate at this point that he was changing his place of residence. He took no more with him at this point than was necessary to the basic comforts of day-to-day existence. These items represent little more than what a business person might take on a business trip involving a few days. As the cross-examination demonstrated, he left most of his personal possessions at the Borenore property.

1. As at 29 April 2012 he had made no more than a strategic decision to take up a room in Orange to obtain an address that could be given in the nomination form. Had the respondent failed to win a seat, it would have been uncomplicated for him to move back to the Borenore property.

1. There was much attention given in the case to the respondent's assertion that he had paid a type of rent. He referred in this regard to the fact that he had agreed to have three of Robert's horses agisted at the Borenore property (which he valued at around $75 a week). In our view the agisting of the three horses involved no more than an arrangement of a social kind made between family members. We give this arrangement little weight.

1. In support of his claim that he had taken up residence at his son's home, he referred to the fact that he had taken a job as a bus driver with Orange Bus Lines during April 2012. He said that it was from that time convenient for him to live in Orange given the shift nature of that work, with early morning starts, and late night finishes.

1. We accept that it would have been convenient on split shift days to have a place to stay overnight in Orange rather than commute from the Borenore property. On the other hand, we have difficulty with accepting that this was a matter of great importance, given the proximity of the Borenore property to Orange. In country driving terms, it was not far from Orange, perhaps 20-25 minutes out of town. Further, there was still some commute time involved in getting from his son's place to work. In our view, the Borenore property was not so distant from Orange as to make it obvious that it was best for him to live in Orange in order to be available for early shifts or to enable rest after later shifts.

1. We accept that he mostly slept at his son's home during this period. However he continued to make regular day visits to the Borenore property and sometimes stayed overnight. He said that he spent 5 'or so' nights there, and attended the property on 30 occasions. He said that he would go to the Borenore property in the break between shifts and spend 3-5 hours there.

1. He referred to the fact that his wife had a job with a bank branch in Orange, and that living in Orange enabled him to have contact with her during the day. Again we think this is a marginal consideration on the question of residence.

1. In giving evidence, he was vague as to such matters as to the extent to which he engaged in domestic activities at the Orange house. He was vague as to the extent he was involved in preparing and eating meals there; the extent of his involvement with the care of his son's children; the extent to which he contributed to any of the utility expenses of his son's household (gas, electricity, rates, etc); and the extent to which he contributed to food purchases. His evidence was that he had relatively infrequent day to day contact with his son. As he and Robert both explained, Robert worked a 7 day on / 7 day off roster at the Cadia Mine.

1. On the other hand, he continued to accept responsibility for bills incurred on his behalf at the Borenore property. He passed them on to his wife for payment, in keeping with their practice over the years. She managed the family finances. He continued to socialise with her regularly, during the day in Orange, and he frequently visited the Borenore property, especially on weekends. He said that family gatherings took place at either the Borenore property or the Orange house, as convenient. He took personal responsibility for the maintenance of the Borenore property. Sandra and he said that she had sometimes stayed overnight at the Orange house.

1. The respondent took no steps to change his address for the receipt of correspondence to his son's address. We accept that there may have been no immediate need for him to do that in relation to most items of correspondence, as mail that went to the Borenore property would find its way to him. He did change his licence and vehicle registration address. But his inactivity in relation to changing address tends to support the view that he still regarded the Borenore property as his residence.

1. There was nothing in the evidence to suggest that anything had changed in these respects in the period since August 2012 to the date of the hearing. We accept in this regard that after he was elected to council he has continued to use the son's room as a place of retreat and rest, and has continued to sleep there on a regular basis. Clearly this is helpful to his work on the council, especially when meetings or constituent demands require him to be in town at night. We also accept that he has maintained his job with Orange Bus Lines, and again it is of some assistance that he can bed down at his son's as compared to commuting back and forth from the Borenore property. But, as previously noted, in our view the period of relevance is the period between 29 April 2012 and 8 August 2012.

1. Robert and Sandra's evidence as to the family discussion that led to the respondent moving to the Orange house was consistent with the respondent's. It was also consistent on other matters such as to the extent of his use of the room at Robert's and his continuing connection to the Borenore property.

1. There was considerable attention given by the applicant in the preparation of the case to other forms of evidence that might assist in demonstrating that the respondent did not sever his connection with the Borenore property such as telephone records. The applicant sought to draw on an element of the case in Borsak v Cheung where telephone records were the subject of evidence and relied upon by the Tribunal in its reasons for decision. In this case we did not find this material helpful. The location data was inexact, and the material for the most part inconclusive. Further, the applicant placed no reliance on this evidence in final submissions.

1. While the case has occupied three hearing days, two for evidence, one for submissions, in our opinion the answer is clear-cut.

1. We are not satisfied that the address given by the respondent in his nomination recorded a place of residence, in the way that term is interpreted and applied in electoral law, either at the date it was given, the date of nomination or on the date the rolls closed. Accordingly the respondent's election was affected by an irregularity. It was a significant one, and he must be dismissed from civic office.

1. The Tribunal may order costs. Section 329(6) of the LGA provides:

(6) The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings commenced by an application made under this Part.

1. The applicant foreshadowed such an application. We make the following directions:

(1) Applicant to file and serve any submissions in support within 14 days of the date of this decision;

(2) Respondent to file and serve any submissions in reply within 28 days (we have allowed a longer period to allow for the holiday break).

Unless one or other of the parties objects to this course (in which case the presiding member will hear them on the objection), the presiding member will deal with the application on the papers (as to which, see ss 24A and 76 of the ADT Act).

Order

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.

Decision last updated: 09 December 2013