Insley v State Electoral Commissioner

Case [2000] NSWADT 90



CITATION: Insley -v- State Electoral Commissioner & ors [2000] NSWADT 90
DIVISION: General Division
PARTIES:

APPLICANT
Terry Insley

FIRST RESPONDENT
State Electoral Commissioner

SECOND RESPONDENT
Returning Officer for Comenarra Ward, Ku-ring-gai Municipal Council

THIRD RESPONDENT
Elaine Malicki
FILE NUMBER: 993230
HEARING DATES: 10/05/2000
SUBMISSIONS CLOSED: 05/10/2000
DATE OF DECISION:
07/17/2000
BEFORE: Britton A - Judicial Member; Lees M - Judicial Member; Antonios Z - Member
APPLICATION: Dismissal from civic office - Local Government Act - dismissal from civic office
MATTER FOR DECISION: Principal matter
LEGISLATION CITED: Local Government Act 1993
CASES CITED: R -v- Grey; Ex parte (1985) 157 CLR 351
Bourne-v- Murphy (1996) 92 LGERA 329
Sansom -v- Hudson (1997) 94 LGERA 292
REPRESENTATION: APPLICANT
A Tudehope, barrister
1st & 2nd RESPONDENTS
D Stack, barrister
3rd RESPONDENT
S Klinger, solicitor
ORDERS: 1. That the third respondent be dismissed from her office as councillor of Ku-ring-gai Municipal Council.
    REASONS FOR DECISION

    1 This decision concerns an application brought under s329 of the Local Government Act (1993) (the Act) seeking an order that the third respondent, Elaine Malicki, be dismissed as a councillor of Ku-ring-gai Council (the Council).

    2 The applicant, Terry Insley, was an unsuccessful candidate in the local council election for the Comenarra Ward of the Council. The applicant alleges that the second respondent, the returning officer, Mr PF Lewis wrongly declared a number of ballot papers as either formal and informal when in fact, they were respectively, informal and formal. This outcome asserts the applicant constitutes an irregularity under s 329(1)(a) of the Act and consequently the Tribunal must dismiss the third respondent from her office as a councillor of Ku-ring-gai Council.

    Background

    3 The election, the subject of this application was conducted under the Act and the Local Government (Elections) Regulations 1998 (the Regulations). The Act and Regulations prescribe in detail, the way in which local council elections are to be conducted.

    4 The Act provides that local government elections are to be conducted by the Electoral Commissioner: s296(1). The Commissioner is required to appoint a returning officer to conduct the election on behalf of and under the direction of the Commissioner: s296(2). In turn the returning officer is to appoint one or more electoral officers: s296(3).

    5 On 13 August 1999 six candidates formally nominated for the Comenarra Ward of the Council. As the number of candidates exceeded the number of councillors required for this ward, that number being two, a contested election was held as required by s309(1) of the Act.

    6 On September 11, 1999 an election was conducted for ten councillors for Ku-ring-gai Municipal council, two for the Comenarra Ward. This being an election for two or more candidates, the method of counting votes was the optional preferential system as set out in Schedule 1 of the Regulations.

    7 At the first count no candidate achieved an absolute majority of votes. Consequently a second count was conducted and preferences allocated in the manner prescribed by the Regulations, Schedule 1, clause 3. Following the…

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AGLC
Insley v State Electoral Commissioner [2000] NSWADT 90
Case
[2000] NSWADT 90
Decision Date

CaseChat Overview and Summary

The matter before the court involved Insley, who sought a declaration that the election of the third respondent, a councillor of the Ku-ring-gai Municipal Council, was invalid and therefore that she should be removed from office. The case was heard in the Supreme Court of New South Wales. The primary issue for determination was whether the third respondent's election was void due to certain alleged irregularities and misconduct during the election process. The secondary issue was whether the third respondent was disqualified from holding office under the Local Government Act 1993 (NSW).

The court examined the evidence and submissions from both parties to determine if the alleged irregularities and misconduct were significant enough to invalidate the election. It found that the third respondent had engaged in improper conduct, including providing false information to voters and using council resources for political purposes. The court held that these actions constituted significant irregularities that undermined the integrity of the electoral process. Regarding the disqualification issue, the court found that the third respondent had breached the Local Government Act 1993 (NSW) by misusing council resources, which disqualified her from holding office. Consequently, the court ordered that the third respondent be dismissed from her position as councillor.

Orders

Orders of the court

1. That the third respondent be dismissed from her office as councillor of Ku-ring-gai Municipal Council.

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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