Isaac v Nannelli

[2005] NSWADT 78

CITATION:	Isaac & anor v Nannelli [2005] NSWADT 78
DIVISION:	General Division
PARTIES:	FIRST APPLICANT Andrew Isaac SECOND APPLICANT Peter Downey RESPONDENT Owen Nannelli
FILE NUMBER:	043201
HEARING DATES:	9-10 February 2005
SUBMISSIONS CLOSED:	03/04/2005
DATE OF DECISION:	04/06/2005
BEFORE:	Hennessy N - Magistrate (Deputy President); Montgomery S - Judicial Member; Antonios Z - Non Judicial Member
APPLICATION:	Local Government Act - dismissal from civic office - Dismissal from civic office
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Commonwealth Electoral Act 1918 (Cth) Conciliation and Arbitration Act 1904 (Cth) Local Government (Elections) Regulation 1998 Local Government Act 1993
CASES CITED:	Bourne v Murphy, (1996) 2 LGERA 329 Evans v Crichton-Browne (1981) 147 CLR 169 R v Gray Re Collins; ex parte Hockings (1989) 87 ALR 656 R v Gray; ex parte Marsh (1985) 157 CLR 351 Roberts v Jeffrey & 4 Ors [2003] NSWSC 162
REPRESENTATION:	FIRST APPLICANT In person SECOND APPLICANT D Clark, solicitor RESPONDENT R Lancaster, barrister
ORDERS:	The application that the Tribunal dismiss Mr Nannelli from civic office is refused

Introduction

1 The election. On 27 March 2004 local government elections were held across New South Wales. The elections for the Hornsby Shire Council were for both Mayor and for three councillors from each ward. In ward C seven groups of three people competed for the three positions on Council. Owen Nannelli (Group F) was one of those elected for ward C. Andrew Isaac from Group A and Peter Downey, who was the third member of Mr Browne’s group, were not elected. The issue in this case is whether the Tribunal should dismiss Mr Nannelli from office because there has been an irregularity in the manner in which he was elected to that office: s 329(2)(a) of the Local Government Act 1993 (the Act).

2 The alleged irregularities. Four irregularities were identified by either Mr Isaac or Mr Downey. We have given these irregularities the following labels:

(a) the “second preference arrangements irregularity”;

(b) the “three how to vote cards irregularity”;

(c) the “registration irregularity”; and

(d) the “misleading voters irregularity”.

3 The “second preference arrangements irregularity” is an allegation that both Mr Isaac’s group and Mr Browne’s group had an exclusive agreement with Mr Nannelli’s group that they would exchange second preferences. Both groups say that Mr Nannelli did not honour that agreement. The “three how to vote cards irregularity” stems from the fact that on polling day Mr Nannelli’s workers handed out three different how to vote cards, one of which gave second preference to Mr Isaac’s group and two of which gave second preference to Mr Browne’s group. The “registration irregularity” is an allegation that one of the three “how to vote cards” handed out by Mr Nannelli’s team was not registered with the Electoral Commissioner as required by the Act. Finally, the “misleading voters irregularity” was an allegation by Mr Isaac that the “how to vote” cards distributed by Mr Nannelli included directions or statements which were likely to mislead…