Jamieson v Wotton

[2019] SADC 10

District Court of South Australia

(Civil: Disputed Facts Hearing)

JAMIESON v WOTTON & ORS

[2019] SADC 10

Judgment of His Honour Judge Stretton (ex tempore)

22 January 2019

LOCAL GOVERNMENT - REGULATION AND ADMINISTRATION - ELECTIONS - DISPUTED ELECTIONS AND OUSTER - PARTICULAR IRREGULARITIES

Subsequent to a local government election held on 10 November 2018 due to an administrative error votes were incorrectly tallied for the Outer Harbor Ward of the City of Port Adelaide.  Prior to the detection of the error, declarations were made.

It is now common ground that Mr Peter Jamieson should have been elected in place of Mr Adrian Wotton.

Held: Pursuant to Section 71(1)(f)(I) of the Local Government (Elections) Act 1999 the court declares that Adrian Wotton was not duly elected, and that Adrian Jamieson was duly elected as a councilor for the Outer Harbor Ward of the City of Port Adelaide Enfield.

Local Government (Elections) Act 1999 ss 5, 10, 51, 71, referred to.

JAMIESON v WOTTON & ORS
[2019] SADC 10

1. This is an application by Peter Jamieson, a petitioner in the South Australian Court of Disputed Returns.  In support of his application a number of affidavits both of service and as to the substantive matters in dispute have been provided.  The petition is not disputed by any party to it and the only parties who have attended, that is, the petitioner and the fourth respondent, the Electoral Commissioner, support the making of the order.

2. In short, in accordance with s.5 of the Local Government (Elections) Act 1999 (the Act), an election to fill two vacancies for the Outer Harbor ward of the third respondent, the City of Port Adelaide Enfield, was held on 10 November 2018. The petitioner, Mr Peter Jamieson, the first respondent, Mr Adrian Wotton, the second respondent, Ms Vanessa McCluskey, Mr Bruce Johansen, and Ms Patricia Waria-Read nominated as candidates for the election. The election was conducted by the fourth respondent, the Electoral Commissioner, as the returning officer in accordance with s.10 of the Act.

3. The electoral Commissioner, as the returning officer, appointed Belinda Jane Elsegood as the deputy returning officer for the election including the election to fill two vacancies for the Outer Harbor ward.  That returning officer engaged six electoral officers to assist in the conduct of the election.

4. Following the close of voting the Commissioner and/or electoral officers manually counted first preference votes cast during the election, which were accurately recorded by hand.  Ms McCluskey received 1,562 votes; Mr Jamieson received 702 votes; Mr Wotton received 447 votes; and 423 votes were recorded for Mr Johansen and 152 for Ms Waria-Read.  In accordance with those results, were they to determine the election, Ms McCluskey and Mr Jamieson would have been clearly elected for the two vacancies in the Outer Harbor ward.

5. The relevant electoral officer entered the results of the count into the electronic system, but unfortunately by way of administrative error 1,147 first preference votes were wrongly entered for Mr Wotton.  It is important to emphasise that no fault is alleged to attach to Mr Wotton for this, rather, the process for the reasons set out in some detail in the Electoral Commissioner’s reply, miscarried.  Inadvertently an excessive number of votes were entered for Mr Wotton.

6. Before the error was detected, on Sunday 11 November pursuant to s.48 of the Act, provisional declarations were made by the Commissioner that Ms McCluskey and Mr Wotton had been elected.

7. On Monday 19 November 2018, the Commissioner confirmed the provisional declarations and certified the election of Messrs McCluskey and Wotton to the two vacancies.

8. However in the course of preparing the return required by s.51(1) of the Local Government (Elections) Act 1999, or on around 7 December 2018 the returning officer identified the error.

9. On identification of the error the original ballot papers were retrieved from storage and recounted by senior electoral staff.  Upon that recount and the correct designation of the votes concerned, the accurate outcome of the election reflected the election of Ms McCluskey and Mr Jamieson as the successful candidates.

10. I note that Mr Wotton has been served, as have the other relevant parties to the petition.  Mr Wotton was personally served with the application on 17 December 2018 by Ms Olivia Jay.  This matter was set for hearing in recent days and I note the affidavit of Madeleine Henry, a solicitor with the firm of Minter Ellison which deposes that on 18 January a notice of today’s hearing was sent by express post to Mr Wotton.  Yesterday Ms Henry rang Mr Wotton to confirm he had received the copy of the application.

11. Ms Henry gave evidence that she spoke with Mr Wotton on the phone and he indicated that he had been served and that he was aware of the hearing today.  He enquired with her as to if he did not propose to oppose the application, did he have to attend.  Ms Henry replied ‘no’ and indeed, Mr Wotton has not attended today.  I draw from that, that Mr Wotton has no intention of contesting the petition.

12. As a result of the above I am satisfied that the petitioner is entitled to the relief he seeks. Accordingly, pursuant to s.71(1)(f)(i) of the Local Government (Elections) Act 1999 the court declares that Adrian Wotton was not duly elected as a councillor for the Outer Harbor ward of the City of Port Adelaide Enfield. The court further declares that Peter Jamieson was duly elected as a councillor for the Outer Harbor ward of the City of Port Adelaide Enfield.