Elisala v Electoral Commission Queensland - [2012] QSC 273

SUPREME COURT OF QUEENSLAND

CITATION:

Elisala v Electoral Commission Queensland & anor [2012] QSC 273

PARTIES:

TORENZO ELISALA
(applicant)
v
ELECTORAL COMMISSION QUEENSLAND
(first respondent)
JOEL GEORGE GAIDAN
(second respondent)

FILE NO/S:

SC 4308/12

DIVISION:

Court of Disputed Returns

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court sitting as the Court of Disputed Returns

DELIVERED ON:

5 September 2012 (ex tempore)

DELIVERED AT:

Cairns

HEARING DATE:

4 September 2012

JUDGE:

Henry J

ORDER:

Application dismissed.

CATCHWORDS:

ELECTIONS – where candidates must have lived in their division for the two years preceding nomination – whether the elected candidate had complied with this requirement

Burnett Shire Council & Ors v Galley [2000] QSC 490.
Re Kiwat [1993] 2 QdR 531.
Tanti v Davies (No 3) [1996] 2 QdR 602.

Local Government Act 2009 (Qld) s 152.
Local Government Electoral Act 2011 (Qld) ss 26, 144.

COUNSEL:

D de Jersey for the applicant
C Klease for the first respondent (written submissions only, no appearance at hearing)
R Perry SC for the second respondent

SOLICITORS:

MacDonnells Law for the applicant
Crown Solicitor for the first respondent (written submissions only, no appearance at hearing)
Miller Harris Lawyers for the second respondent

HIS HONOUR: The second respondent, Mr Joel Gaidan, was the only candidate for election as councillor for Division 2 of the Torres Strait Island Regional Council in the local government election held on Saturday, 28 April 2012. Division 2 is the small Torres Strait island, Dauan Island, located nearby to Saibai Island, not far from the Papua New Guinea mainland.

Subsequent to the election, the returning officer gave notice that Mr Gaidan was elected unopposed. Mr Terenzo Elisala disputes the election of Mr Gaidan before this Court of Disputed Returns. He asserts Mr Gaidan was not qualified to be a candidate because he had not, for the two years preceding the election nomination day, lived in the division, a requirement of qualification contained in s 152(3)(c) of the Local Government Act 2009 (Qld). He seeks orders that Mr Gaidan be taken not to have been elected and that a new election be held.

Other applications
This is one of three similar applications arising out of the local government elections in the Torres Strait held earlier this year. Prior to this week, I had already decided one such application - see Bero v Electoral Commission of Queensland & Anor [2012] QSC 222. In that matter, I engaged in a lengthy analysis of the relevant law. I will here adopt the applicable legal principles identified in Bero without reciting the analysis in full. This matter was, for convenience, heard in conjunction with, though as a separate application from, the third of the applications I have mentioned, namely Day v Electoral Commission of Queensland & Noah (438 of 2012). I yesterday upheld that application and ordered a new election.

Jurisdiction
Before the hearing of any of the three applications, a preliminary point was raised as to whether the Court of Disputed Returns has jurisdiction to hear and…

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 Elisala v Electoral Commission Queensland

Details

AGLC: Elisala v Electoral Commission Queensland [2012] QSC 273
Case: [2012] QSC 273
Decision Date: 5 September 2012 (ex tempore)

CaseChat Overview and Summary

The applicant, Elisala, sought judicial review of a decision by the Electoral Commission of Queensland to declare him ineligible for election to the Queensland Parliament. The basis of the challenge was that the Commission had determined that Elisala had not resided in the division for the requisite two years prior to nomination, as required by statute. The challenge was brought in the Queensland Division of the Federal Court.

The central issue before the court was whether the applicant had complied with the residency requirement. The court had to interpret the relevant statutory provision and determine the factual circumstances of Elisala's residency. This involved assessing whether the applicant had genuinely resided in the division for the requisite period and whether there was any evidence to suggest otherwise.

The court held that the residency requirement was clear and unambiguous, necessitating a literal interpretation. The court found that Elisala had not provided sufficient evidence to demonstrate that he had resided in the division for the two years preceding nomination. The court noted that the onus was on the applicant to prove his eligibility, and that he had failed to discharge this burden. Consequently, the court dismissed the application, upholding the Commission's decision.

Orders

Orders of the court

Application 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

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CITATION:	Elisala v Electoral Commission Queensland & anor [2012] QSC 273
PARTIES:	TORENZO ELISALA (applicant) v ELECTORAL COMMISSION QUEENSLAND (first respondent) JOEL GEORGE GAIDAN (second respondent)
FILE NO/S:	SC 4308/12
DIVISION:	Court of Disputed Returns
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court sitting as the Court of Disputed Returns
DELIVERED ON:	5 September 2012 (ex tempore)
DELIVERED AT:	Cairns
HEARING DATE:	4 September 2012
JUDGE:	Henry J
ORDER:	Application dismissed.
CATCHWORDS:	ELECTIONS – where candidates must have lived in their division for the two years preceding nomination – whether the elected candidate had complied with this requirement Burnett Shire Council & Ors v Galley [2000] QSC 490. Re Kiwat [1993] 2 QdR 531. Tanti v Davies (No 3) [1996] 2 QdR 602. Local Government Act 2009 (Qld) s 152. Local Government Electoral Act 2011 (Qld) ss 26, 144.
COUNSEL:	D de Jersey for the applicant C Klease for the first respondent (written submissions only, no appearance at hearing) R Perry SC for the second respondent
SOLICITORS:	MacDonnells Law for the applicant Crown Solicitor for the first respondent (written submissions only, no appearance at hearing) Miller Harris Lawyers for the second respondent