Fidge v Municipal Electoral Tribunal - [2019] VSC 639

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2018 02328

JULIAN FIDGE	Applicant
v
MUNICIPAL ELECTORAL TRIBUNAL	First Respondent
ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	Second Respondent

S ECI 2018 02372

JULIAN FIDGE	Applicant
v
MUNICIPAL ELECTORAL TRIBUNAL	First Respondent
ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	Second Respondent

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 May 2019
DATE OF JUDGMENT:	20 September 2019
CASE MAY BE CITED AS:	Fidge v Municipal Electoral Tribunal
MEDIUM NEUTRAL CITATION:	[2019] VSC 639

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ADMINISTRATIVE LAW — Victorian Civil and Administrative Tribunal — Local government — Council elections — Filling of extraordinary vacancy — Countback procedures — Requirement of democratic election — Applications to refer questions to Supreme Court concerning human right to take part in public life and whether countback procedures were contrary to other legislation or the implied right of political communication — Statutory discretion of VCAT — Application for leave to appeal from VCAT’s decision not to refer questions — Constitution Act 1975 ss 74A, 74B; Local Government Act 1989 ss 1, 1A, 3B, 68; Schedule 3A, cls 11 and 12; Victorian Civil and Administrative Tribunal Act 1998 s 96.

HUMAN RIGHTS — Charter of Human Rights and Responsibilities — Right to take part in public life — Whether countback provisions to fill local council extraordinary vacancy infringed that right — VCAT proceedings — Application to refer Charter question to Supreme Court to seek declaration of inconsistent interpretation — Application for leave to appeal VCAT’s refusal to refer question — Charter of Human Rights and Responsibilities Act 2008 ss 18, 32, 33 and 36.

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APPEARANCES:

Counsel

Solicitors

For the Applicant (in S ECI 2018 02328)
For the Applicant (in S ECI 2018 02372)

Ms M Isobel

In person

W J Gilbert & Co

For the Second Respondent in both proceedings

Ms S Gory

Victorian Government Solicitor

HIS HONOUR:

In October 2016, the applicant, Dr Julian Fidge, stood for election in the City of Wangaratta general council election (‘the election’). Four Councillors were elected but Dr Fidge was not. Although he received the third highest number of first preference votes, after preferences were counted, he came in fifth place with 1734 votes and did not reach the quota of 1971 votes required to be elected.

One of the candidates elected as a Councillor, Ms Ruth Amery, died a year after the election creating an extraordinary vacancy in the office under s 69(1)(b) of the Local Government Act 1989 (‘the LG Act’).

The vacancy was filled in accordance with Part 2 of Schedule 3A of the LG Act, which regulates countback procedures for filling extraordinary vacancies. Ms Ashlee Fitzpatrick, who in the October 2016 election received 1296 votes, was the successful candidate. Dr Fidge was unsuccessful.

The ballot papers counted in the countback were those relating to Ms Amery, the person who had vacated the office of Councillor. As was required by the countback procedures in…

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.

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Details

Case: [2019] VSC 639
Decision Date: 20 September 2019

CaseChat Overview and Summary

Fidge, an applicant for a position on a local council, challenged the procedures used to fill an extraordinary vacancy, claiming they contravened his human rights. The Municipal Electoral Tribunal, established under the Local Government Act, was the forum for this dispute. The tribunal had declined to refer questions about the alleged human rights infringement and the legality of the countback procedures to the Supreme Court, leading to Fidge's application for leave to appeal this decision. The key issues before the court were whether the countback procedures, used to fill the vacancy, infringed upon Fidge's right to take part in public life under the Charter of Human Rights and Responsibilities and whether the tribunal had the statutory discretion to decline the referral to the Supreme Court.

The court assessed whether the tribunal had the authority to determine if the countback procedures violated the Charter. It found that while the tribunal could consider the Charter, it did not have the jurisdiction to refer questions of Charter interpretation to the Supreme Court. This conclusion was based on the tribunal's statutory mandate and the separation of powers doctrine. Furthermore, the court held that the tribunal's decision not to refer the questions to the Supreme Court was within its discretion, as the referral was not a necessary step to resolve the dispute. Consequently, the court dismissed the application for leave to appeal, upholding the tribunal's decision.

In its reasoning, the court emphasised the importance of adhering to the statutory framework governing the tribunal's functions and the need to maintain the separation of powers. It concluded that the tribunal's role was to apply the law as it stood, without the need to seek Supreme Court interpretation of the Charter in this context. The court also noted that the tribunal had considered the relevant legal principles in its decision and found no error in its exercise of discretion. The final orders of the court were that Fidge's application for leave to appeal be dismissed, with no orders as to costs.

Orders