Insley v State Electoral Commissioner

[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…