Jeffery & ors v Roberts - [2002] NSWADT 57

No judgment structure available for this case.

CITATION: Jeffery & ors -v- Roberts [2002] NSWADT 57

DIVISION: General Division

PARTIES: APPLICANTS
Victor Robert Jeffery
Jack Ireland
Barry Clendinning
William Coombe
RESPONDENT
Lennard Bruce Roberts

FILE NUMBER: 003306

HEARING DATES: 06/06/2001, 30/07/2001, 24/09/2001

SUBMISSIONS CLOSED: 09/24/2001

DATE OF DECISION:
04/19/2002

BEFORE: Britton A - Judicial Member; Lees M - Judicial Member; Mapperson K - Member

APPLICATION: Dismissal from civic office

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Evidence Act 1995
Interpretation Act 1987
Local Government Act 1993
Local Government (Elections) Regulation 1998
Parliamentary Electorates and Election Act 1912

CASES CITED: Jeffery v Roberts [2001] NSWADT 66
R v Gray; Ex Parte Marsh (1985) 157 CLR 351
Bourne v Murphy (1996) 92 LGERA 329 (NSW CA)
Sansom v Hudson (1997) 94 LGERA 293
Insley v State Electoral Commissioner [2000] NSWADT 90
Burston v Cosh [2000] NSWADT 163
Bridge v Bowen (1916) 21 CLR 582
Equity Access Pty Ltd v Westpac Banking Corporation (1990) ATPR 40-994
Evans v Crichton-Browne (1981) 147 CLR 169
Given v Pryor (1979) 24 ALR 442
Woodward v Sarsons (1875) LR 10 GP 733

REPRESENTATION: APPLICANTS
N Beaumont, barrister (06/06/ 2001)
B Zipser, barrister (30/07/2001, 24/09/2001)
RESPONDENT
In person
ATTORNEY GENERAL
R Lancaster, barrister

ORDERS: That Mr Roberts be dismissed from civic office.

1 This decision concerns an application brought under s 329 of the Local Government Act1993 (the Act) seeking an order that the respondent, Lennard Roberts, be dismissed from the civic office of Councillor of the Great Lakes Local Council (the Council).

2 On 27 April 2001 the Tribunal determined that it had jurisdiction to entertain this application: Jeffery v Roberts [2001] NSWADT 66.

Applicants’ case

3 The applicants filed an application with the Administrative Decisions Tribunal (the Tribunal) on 18 September 2000. In that application they asserted that certain conduct on the part of Mr Roberts amounted to irregularities in the manner in which he was elected to office. Finally three alleged irregularities were pressed. First, it was said that the respondent caused a misleading electoral advertisement to be placed in the Manning Great Lakes Extra newspaper, incorrectly stating that it was “Authorised by Peter Thompson”. The applicants contended that the respondent sought to gain electoral advantage from this purported endorsement by Mr Thompson, said to be a popular councillor widely known within the electorate.

4 Second, it was said that the advertisement did not as required by statute carry the name of the person on whose instructions the material was printed.

5 Finally, it was asserted that the respondent caused to be displayed an election poster which carried the logo of the National Party of Australia. This, asserted the applicants, was contrary to Mr Roberts’ Candidate Information Sheet, which stated he was standing as an independent candidate.

6 The applicants argue all three acts constitute potential breaches of relevant provisions of the Local Government (Elections) Regulation 1998 (the Election Regulations) and as such, either separately or in combination, constitute an irregularity for the purpose of s 329 of the Act. In the alternative, it is submitted that these acts constitute an irregularity as defined by Gibbs CJ in R v Gray; Ex Parte Marsh (1985) 157 CLR 351, namely a departure from a rule, established practice or generally accepted principle governing the conduct of an election.

Background

7 The applicants in this matter are Victor Jeffery, Jack Ireland, Barry Clendinning and William Coombe. Mr Jeffery is a Councillor of the Great Lakes Council, elected in 1999. Messrs Ireland and Clendinning were unsuccessful candidates in the Great Lakes Council by-election of 2000 (“the by-election”), which is the subject of these proceedings. Mr Coombe is a local resident of Forster and a voter in the by-election.

8 Following the resignation of a councillor of the Great Lakes Local Council in 2000 a by-election was conducted under the Act and the Election Regulations. The respondent, Lennard Roberts, was declared elected to the office of Councillor of the Great Lakes Council.

9 The Act and the Election Regulations prescribe in detail the manner in which local council elections are to be conducted. The Act provides that local government elections are to be conducted by the Electoral Commissioner: s 296(1). The Commissioner is required to appoint a returning officer to conduct the election on behalf of and under the direction of the Commissioner: s 296(2). In turn the returning officer is to appoint one or more electoral officers: s 296(3). Stan Day was appointed Returning Officer for the by-election.

10 Nine candidates stood in the by-election. Pre-poll voting commenced on 19 June. The polling day was 1 July 2000 and on that day 25 polling booths were in operation.

11 The method of counting votes cast in this election was the optional preferential system: clause 82 and Schedule 1 of the Election Regulations. As there was only a single candidate to be elected the votes were counted and the result of the election ascertained in accordance with the procedures set out in clause 3 of Schedule 1 of that Regulation.

12 Section 308 of the Act requires a nomination of a candidate for election in a local council election to be accompanied by a Candidate Information Sheet in the form of a statutory declaration made by the candidate. Mr Roberts’ Candidate Information Sheet stated: “I have not been nominated as a candidate by a registered party … Believe that party politics has no place in local govt. People must come first – not party. All Councillors should be accountable to the ratepayers – not their party masters.” Mr Roberts does not dispute that he was standing as an independent candidate in the election. (It is common ground that the National Party does not endorse candidates in local government elections.)

13 In the course of the election campaign Mr Roberts displayed copies of a poster (Exhibit 22), which are the subject of dispute in these proceedings. Approximately 90cm x 60cm in size, in its original form the poster consisted of three sections. In the top section the words “LEN ROBERTS” appear in large green letters (approx. 20cm high); beneath that section is a large photo of Mr Roberts (approx. 60cm high) and to the right and at the base of the photo appears a symbol consisting of a green map of Australia on a white background encased in a yellow circle, approximately 7cm in diameter (the logo). In the bottom section of the poster beneath the photo appears the word “NATIONALS”.

14 These posters were originally produced for Mr Roberts when he stood in a state election in the early 1990’s when he stood as an endorsed National Party candidate. It is common ground that Mr Roberts displayed a number of these posters, in amended form, during the by-election.

15 A local newspaper, the Manning Great Lakes Extra, immediately prior to polling day carried an electoral advertisement promoting Mr Roberts’ candidacy. At the foot of the advertisement appeared the words “Authorised by Peter Thompson, Wharf Street, Forster”. The fact Mr Thompson did not give Mr Roberts permission to use his name in this manner was not in dispute in this case.

Section 329: Dismissal from civic office

16 Section 329 of the Act is headed “Can the holder of a civic office be dismissed?” and provides:

17 Section 329 was considered in Bourne v Murphy (1996) 92 LGERA 329 (NSW CA); Sansom v Hudson (1997) 94 LGERA 293 at 295-297 (Grove J); Insley v State Electoral Commissioner [2000] NSWADT 90 at [121-[161]; and Burston v Cosh [2000] NSWADT 163 at [11]-14]. More recently the phrase “any irregularity in the manner in which the person has been elected or appointed” was considered by the Tribunal as presently constituted in the interlocutory decision in respect of the application now before us: Jeffery v Roberts [2001] NSWADT 66.

18 The leading authority on s 329 is the Court of Appeal decision of Bourne v Murphy. That decision concerned a local government election where the appellant, Miss Bourne, had been declared elected by a majority of three votes over the nearest candidate. The Court of Appeal held that if a truly formal vote is not so classified and counted, that constitutes an irregularity within the meaning of s 329 of the Act.

19 In a dissenting decision Priestley JA found a single ballot paper in that election had been incorrectly classified (as informal). However he was of the view that that error was not an irregularity in the manner in which the office holder was elected because the ballot paper “played no part” in the election of the office holder (and no part in the other candidates not being elected because it was informal and not counted towards any candidate) and, had it played a part, would have made no difference to the result (because there was a three vote margin): at 340-341.

20 Cole JA took a different view of the facts of the case and found that the returning officer had failed to count eleven valid votes. His Honour concluded that “if a person is appointed to office in consequence of the manner in which an election has been conducted, relevantly by omitting to count valid votes, that seems to me to be an irregularity”: at 343. On his Honour's approach to the legislation, there then arose a question of whether the Court should in the exercise of its discretion dismiss the person from office. Cole JA held that, because he could not be satisfied that “the poll as declared truly represents the view of the voters”, the person should be dismissed: (at 349-350).

21 Beazley JA found that at least eleven valid votes had been wrongly classified by the Returning Officer as informal. Her Honour adopted (at 358) the definition of “irregularity” set out in R v Gray; Ex Parte Marsh (1985) 157 CLR 351 at 368 (Gibbs CJ), which was also referred to by Cole JA at 343 but not expressly adopted by His Honour:

The notion of an irregularity, in relation to an election, involves the idea of some departure from some rule, established practice or generally accepted principle governing the conduct of the election.

22 Beazley JA (at 358) added the important qualification:

However I am of the opinion that it is not any irregularity, which suffices for the purpose of s 329. Rather it must be an irregularity such that the result of the election is thereby uncertain.

23 Beazley JA referred (at 358-359) to the judgement of Issacs J in Bridge v Bowen (1916) 21 CLR 582 at 623-624. That case concerned the election result in the 1915 City of Sydney Council elections. There, thirteen persons had impersonated enrolled electors, 12 of whom did not vote. It was not possible to determine from the ballot papers which candidates the impersonators had voted for. Having reviewed the relevant authorities Issacs J set out six principles. Three of them are pertinent in this matter. Paraphrasing Issacs J, the principles he enunciated are that, first, the election of an office holder may be attacked only for a defect which affects him or her. Second, where the defect complained of does not strike at the election as an entirety, but is confined to some breach of law in individual instances, then the office holder is not necessarily affected, and is not affected at all unless his or her majority is shown to be connected with the defect. Finally, if the law does not provide any means of so affecting him or her, he is not affected and his or her election cannot be regarded as having been won irregularly and must not be overturned.

24 The Attorney General intervened in these proceedings pursuant to s 69(1) of the Administrative Decisions Tribunal Act 1997. Counsel for the Attorney General, Mr Lancaster, restricted his submissions to the proper construction and application of s 329 of the Act. No submissions were made about what findings the Tribunal should make from the evidence before it.

25 Mr Lancaster submitted that the reasons for judgement of Beazley JA in Bourne v Murphy should be applied to the facts in this case. As a consequence of this approach, asserts Mr Lancaster, the fact that an applicant establishes a breach by an office holder of an applicable regulation concerning the conduct of an election will not of itself warrant the dismissal of that person from office. Similarly, he argues, the mere fact that the office holder has participated in some “irregularity” (generally defined) that has had, or is alleged to have had, an effect on the formation of voting intention by some of the electors will also not warrant that result. In each case an applicant must show some departure from an applicable rule or practice regulating the manner in which the person is elected and that as a consequence the result (the respondent's election) is uncertain.

26 Mr Lancaster referred the Tribunal to the judgement of Beazley JA (at 360) where Her Honour makes clear that where irregularities have been identified, for the Court to be satisfied that the result of an election is uncertain, evidentiary onuses need to be discharged. While acknowledging that difficult evidentiary questions might be raised in determining whether a particular election result was uncertain, Mr Lancaster urges the Tribunal to avoid an approach based on mere speculation or hypothesis. There must, argues Mr Lancaster, be sufficient evidence on which to base a finding that the outcome of the election is uncertain.

27 We understand Mr Zipser for the applicants and Mr Roberts to broadly concur with Mr Lancaster’s submission that the Tribunal should adopt the approach taken by Beazley JA to the construction of s 329.

Issues

28 We accept the submissions of the parties and for the purposes of this case intend to adopt the two-step approach outlined by Beazley JA. Accordingly, in respect of each of the alleged irregularities it must be established, first, that it represents a “departure from some rule, established practice or generally accepted principle governing the conduct of the election”; and second, that the irregularity was such that the result of the election was thereby rendered uncertain.

29 The issues for us to determine in respect of each irregularity asserted by the applicants are:

Bourne v Murphy,

30 On 22 June 2000, Mr Roberts caused an advertisement to be placed in the Manning Great Lakes Extra newspaper (“the Extra advertisement”) for its next publication date, Thursday 29 June 2000, two days prior to polling day. The advertisement read “Vote 1 Len Roberts for Great Lakes Council -He’ll last the distance.” At the foot of the advertisement, in small but legible print, appeared the words “Authorised by Peter Thompson, Wharf Street, Forster”.

31 The newspaper’s circulation is estimated to be 7500.

32 It is common ground that the advertisement was not authorised either expressly or impliedly by Mr Thompson and that Mr Roberts did not seek Mr Thompson’s permission to use his name on the Extra advertisement (or any other advertisement).

33 William Coombe gave evidence that he saw the Extra advertisement in the Manning Great Lakes Extra on the Thursday or Friday before polling day. He said he voted for Mr Roberts despite not knowing him because he knew and respected Peter Thompson, and he took Mr Thompson’s purported authorisation to be an endorsement of Mr Roberts.

34 Jack Ireland, an unsuccessful candidate in the by-election gave evidence that on his “how to vote” cards, handed to voters, he placed Mr Roberts third on his ticket. Mr Ireland’s evidence was that he had known Mr Roberts for some time and prior to learning about the inaccurate authorisation (for which he considered Mr Roberts to be responsible) he regarded Mr Roberts as an honourable person.

35 Mr Ireland did not see Mr Roberts’ advertisement in the Extra newspaper. He learned of it after the by-election. Mr Ireland could not remember who told him about the advertisement or any of the subsequent conversations he had on the matter. At no time did Mr Ireland approach and ask Mr Roberts for any explanation as to how the authorisation had come about.

36 Mr Ireland declared that had Mr Roberts in fact been responsible for the inaccurate authorisation he would not have recommended that voters place Mr Roberts third on their ballot papers.

Findings and Conclusions
(i) Does the purported authorisation represent a potential breach of any provision of the Act or Election Regulations?

37 The applicants contend that the publication of the advertisement constitutes a potential breach of r 111(1) and r 109(1)(b) of the Election Regulations. Further it is submitted that irrespective of whether the offending advertisement did not breach any statutory provision, it constitutes an irregularity in the more general sense as defined by Gibbs CJ in R v Gray; Ex Parte Marsh and followed in Bourne v Murphy. As such the publication of the advertisement carrying the purported authorisation of Mr Thompson (and the omission of the name of the person who in fact authorised the advertisement) falls within the first limb of the test of an irregularity for the purpose of s 329.

Regulation 111

38 Regulation 111 provides that:

39 Electoral matter is defined in the Parliamentary Electorates and Elections Act 1912 as:

Electoral matter

40 The newspaper advertisement contained Mr Roberts’ name and as such constitutes “Electoral matter” as defined in s 151B of the Parliamentary Electorates and Elections Act 1912. It is not in issue that the Extra advertisement did not include the name and address of the person on whose instructions the matter was printed.

41 Accordingly we find that the publication of the advertisement represents a potential breach of r 111(1) of the Election Regulations.

Regulation 109(1)(b)

42 Regulation 109(1)(b) of the Election Regulations makes it an offence for a person to print, publish or distribute a “how to vote'' card, electoral advertisement, notice, handbill, pamphlet, or card, containing an untrue or incorrect statement intended or likely to mislead or improperly interfere with an elector in or in relation to the casting of his or her vote.

43 To fall within the provisions of r 109(1)(b) it must be established, first, that the newspaper advertisement was a “how to vote” card, electoral advertisement, notice, handbill, pamphlet, or card; second, that it was published, printed or distributed by a person; third, that it contained an incorrect or untrue statement; fourth, that such statement was intended or likely to mislead or improperly interfere with an elector in or in relation to the casting of his or her vote.

44 The term “electoral advertisement” is not defined by the Act or the Election Regulations. In the absence of any definition the words “electoral” and “advertisement” are to be given their ordinary and natural meaning. The document was identified as an advertisement carrying the abbreviation “ADVT” at its head. It clearly promoted or advertised the candidacy of Mr Roberts in a local council election. In our view the newspaper advertisement constituted an “electoral advertisement “ for the purpose of r 109(1)(b).

45 The second element of r 109(1)(b) is that a person must print publish or distribute the relevant document or documents. Detailed evidence was given in these proceedings about how the words, “Authorised by Mr Thompson” came to appear in the advertisement. According to Mr Roberts he did not issue instructions that the advertisement carry Mr Thompson’s authorisation. This claim stands in sharp conflict with the evidence given by Mr Clarke, an employee of the Extra newspaper, who asserted that Mr Roberts specifically instructed him to include the Thompson authorisation.

46 Regardless of how the authorisation came to appear in the newspaper it is apparent that a person printed, published or distributed it or caused it to be printed, published or distributed. Accordingly the second element is made out.

47 The third element is easily satisfied: it is not in contest that the advertisement contained an untrue and incorrect statement, namely that Mr Thompson authorised the advertisement.

48 The critical issue for us to determine is whether this untrue and incorrect statement (the Thompson authorisation) was intended to or likely to mislead or improperly interfere with an elector. Importantly r 109(1)(b) requires not only that the offending statement was intended or likely to mislead or improperly interfere with an elector but also that it was intended or likely to mislead (or improperly interfere with) in or in relation to the casting of his or her vote.

49 The meaning of the phrase “likely to mislead” has been the subject of detailed judicial consideration in relation to Part V of the Trade Practices Act 1987 (Cth) and provides useful guidance as to the meaning of those words. Section 52(1) of the Trade Practices Act 1987 provides that a corporation shall not, in trade or commerce, engage in conduct that is misleading or deceptive, or is likely to mislead or deceive. A useful summary of the relevant principles is set out in Equity Access Pty Ltd v Westpac Banking Corporation (1990) ATPR 40-994 at 50,950:

50 The advertisement contains a direct and unequivocal representation: that Mr Thompson authorised the advertisement. In our view, it went further and identified Mr Roberts personally with Mr Thompson. We consider there was a real possibility that any voter who saw the advertisement would be misled into believing not only that Mr Thomson authorised the advertisement but that he endorsed or recommended Mr Roberts as a candidate. Indeed it is difficult to see how the statement in the context of an electoral advertisement could be otherwise read.

51 This view of the advertisement is supported by Mr Coombe’s evidence that after reading the advertisement he believed Mr Thompson supported Mr Roberts.

52 Given our finding that the authorisation statement was likely to mislead it is not necessary for us to determine whether Mr Roberts, or some other person, intended to mislead voters. We make no findings as to whether, as alleged, Mr Roberts instructed the newspaper to carry the incorrect authorisation.

53 The final and critical issue for us to determine is whether the untrue and incorrect statement was likely to mislead a voter “in or in relation to the casting of his or her vote”. The High Court in Evans v Crichton-Browne (1981) 147 CLR 169 considered the meaning of these words in the context of s161(e) of the Commonwealth Electoral Act 1918 (which is in virtually identical terms as sub-regulation 109(1)(b)). In a unanimous decision the High Court said (at 204):

The use of this phrase [“in or in relation to the casting of his vote”] suggests that the Parliament is concerned with misleading or incorrect statements intended or likely to affect an elector when he seeks to record and give effect to the judgment which he has formed as to the candidate for whom he intends to vote, rather than with statements which might affect the formation of that judgment.”

54 Can it be said that the purported authorisation was likely to mislead an elector in relation to the actual casting of their vote, as opposed to the formation of their judgement about who to vote for?

55 It is useful at this point to turn to the evidence of Mr Coombe the sole voter who claimed his vote was influenced by the purported endorsement. Mr Coombe claims he voted for Mr Roberts on the strength of Mr Thompson’s endorsement, despite the fact that he did not know Mr Roberts.

56 We understand Mr Roberts to argue that Mr Coombe’s evidence cannot be accepted at face value. He asserts first, that Mr Coombe, as an applicant in these proceedings, can hardly be seen as an unbiased or independent witness; second, his vote was cast in a secret ballot and therefore his claim cannot be substantiated; third, it is simply implausible that Mr Coombe voted for a candidate unknown to him at the relevant time on the strength of a single authorisation that appeared in an electoral advertisement.

57 While we have given careful consideration to Mr Roberts’ arguments we are satisfied that Mr Coombe is a witness of truth and accept his evidence.

58 Mr Zipser asserts that the evidence of Mr Coombe establishes that he was in fact misled when he sought to cast his vote. Mr Zipser asserts that Mr Coombe (and others) had formed the opinion prior to the election that they would vote for any candidate/s supported by Mr Thompson. On seeing the advertisement, argues Mr Zipser, Mr Coombe acted on that judgement and took steps to record and give effect to it, by casting a vote for Mr Roberts.

59 We do not accept this characterisation of the evidence. Mr Coombe did not claim in evidence that in advance of polling day he decided to vote for any candidate supported by Mr Thompson. His evidence was simply that after seeing the advertisement he decided to vote for Mr Roberts. There is nothing before us about what, if any, decision Mr Coombe had made about the election prior to seeing the advertisement. For all we know, prior to the publication of the advertisement Mr Coombe had not turned his mind to the election or the method he would use to select his preferred candidate. While the evidence shows that Mr Coombe was a strong supporter of Mr Thompson, we do not accept that it may be inferred from this fact that prior to sighting the advertisement he had formed a view he would vote for any candidate supported by Mr Thompson. Accordingly on the evidence before us it would appear that the purported authorisation affected the formation of Mr Coombe’s judgement as to the merits of the candidate but not the actual casting of his vote.

60 The absence of evidence that a voter was actually misled is not fatal to the applicants’ case. It is enough to find that it is likely that any voter would have been relevantly misled.

61 The misrepresentation that the advertisement was authorised by Mr Thompson was not a broad policy statement. It could not be said to represent an attempt deliberate or otherwise to persuade voters that Mr Roberts possessed superior credentials as a candidate for political office. It offered electors no inducement to vote for Mr Roberts. Rather, it purported to identify Mr Roberts with Mr Thompson. The likely effect of this representation was that Mr Roberts was associated in the minds of some voters with the reputation and status Mr Thompson enjoyed in the community. It may be, as we understand Mr Roberts to argue, that some voters who did not support Mr Thompson would have looked less favourably on his candidacy after sighting the advertisement. Whether the misrepresentation caused voters to vote for Mr Roberts or not, in our view the representation was likely to affect the decision of some voters about their choice of candidate.

62 We are not satisfied, however, that the representation was likely to also affect the actual casting of a vote once a voter had formed a decision about their preferred candidate. In our view it is not determinative that the representation was made on the eve of the election. Eleventh hour representations that influence a voter to change his or her mind are not necessarily caught by the regulation. To fall within the provision it must be established that it is likely that once having made a final decision about their preferred candidate the misrepresentation caused the voter to cast their vote in a manner that did not reflect that decision.

63 The High Court has construed the section narrowly. Applying Crichton-Browne to these circumstances, it appears to us that the purported authorisation is not caught by the provision.

(ii) Does the Extra Advertisement represent a departure from some rule, established practice or generally accepted principle?

64 Regardless of whether the purported endorsement, or the omission of the name and relevant details of the person who placed the advertisement, constitutes a potential breach of r 109(1)(b) or r 111(1), they may satisfy the first limb of the test of an “irregularity” if it is established that they represent a “departure from some rule, established practice or generally accepted principle governing the conduct of the election”.

65 We are satisfied that it does represent a departure from a generally accepted principle for an electoral advertisement to carry a statement that the advertisement was authorised by a particular person when in fact it was not. We also find that it represents a departure from a generally accepted principle for an electoral advertisement to omit to carry the name and address of the person on whose instructions the advertisement was printed.

66 Accordingly we find that the purported endorsement and the omission of prescribed details satisfy the first limb of the test of irregularity.

The National Party Logo
Evidence
Forster Council Offices
(i) Mr Day

67 Returning Officer Day gave evidence that on the morning of the third day of the pre-poll, Wednesday 21, he received a complaint from Mrs McWilliams that Mr Roberts’ election poster (“the poster”), displayed at the Forster Council offices bore a National Party logo, which she considered to be contrary to his claim set out in the Candidate Information Sheet, that he was not nominated by any political party.

68 According to Mr Day sometime between 10am to 10.30 am that day he inspected the poster the subject of the complaint and concluded that it did bear the National Party logo. He advised Mrs Roberts who was in attendance at the Forster Council offices that the logo indicated that her husband was “standing on behalf of the National Party” when in fact, according to his Candidate Information Sheet he was “standing as an independent candidate” and was therefore unacceptable. Mr Day personally covered the logo with paper and tape.

69 Mr Day recalled that the colours of the poster, green and yellow, as also being the colours of the National Party but did not think this was objectionable. At the time he did not consider it objectionable for Mr Roberts’ supporters to correctly state to voters that Mr Roberts was a member of the National Party.

70 Mr Day was uncertain whether voting at the pre-poll opened at 9.30am or 10am.

(ii) Mrs McWilliams

71 Mrs McWilliams, a Councillor on the Great Lakes Shire Council, gave evidence that she attended the pre-polling at Forster Council offices in the two weeks immediately prior to polling day to assist several candidates standing in the by-election. At various times she handed out electoral material for and generally assisted candidates Hutcheson, Ireland and Bakes. Her evidence was that she attended the Council offices nine days out of the possible ten in the fortnight prior to polling day from 6.30am to 5.30pm.

72 Mrs McWilliams’ evidence was that not all candidates had people attending on their behalf throughout the pre-poll period. The candidates who were represented nearly all the time were Ms Hutcheson, Mr Roberts and Ms Foster.

73 Mrs McWilliams’ evidence was that Mr Roberts’ campaign poster, when first displayed at the Forster pre-poll, included the National Party logo and that she had lodged a complaint about it (together with another unrelated complaint). She believed Mr Roberts’ poster was the one he had previously used in a State government election campaign. Mrs McWilliams had noted that Mr Roberts had explicitly denounced any political party role in local government in his Candidate Information Sheet which was on public display. She believed the display of the logo was illegal. She did not complain about the poster earlier than she did (on its third day in her view) because she did not want to be “nasty”.

74 Her memory of the location, size and colour of the logo was confident: it was “about [the size of] a dinner plate” or “a bit smaller” or an “A4 sheet of paper” in size and the map of Australia was yellow. She thought the map had a green background and was within a circle. Mrs McWilliams believed the words “Vote 1 Len Roberts” appeared on the poster. She stated the photograph of Mr Roberts was small on the “bottom left hand side”. At one point in her evidence Mrs McWilliams stated the logo was located “a quarter to a third of the way down” the poster and later stated it was “near the top of the poster”. On being shown one of the posters used by Mr Roberts, Mrs McWilliams’ evidence was that it was not the same as the poster she had seen. On describing the poster she saw again, Mrs McWilliams referred to: the words “Vote 1” being used on the left hand side at the top in black print on white; Mr Roberts’ photo being “down the bottom left hand corner”; the map of Australia being yellow inside a green circle about the size of a small dinner plate located “a quarter to a third” and “about a third to half” way down the poster on the right hand side.

(iii) Ms Starkey

75 Ms Starkey stated that she saw the National Party logo displayed on Mr Roberts’ poster from the first day of the pre-poll until covered up by Mr Day.

76 Ms Starkey’s recollection of the poster was that the words “Vote 1” and “National Party” definitely appeared on the poster together with a National Party symbol and a photograph of Mr Roberts. Her memory was that the National Party logo she saw measured about “six or seven inches” (about 16 cm) in diameter. She recalled the Returning Officer covering the symbol up with paper. She did not recall him covering the words “National Party” or how and when those words came to be covered. She did not recall seeing the words “For Great Lakes Council” on the poster. At times in her evidence Ms Starkey said that a poster like Exhibit 22 was the poster on display at Forster pre-poll and at other times she claimed to have seen a different type of poster altogether.

77 Throughout her evidence Ms Starkey referred to attending the pre-poll every day “for the two weeks of the pre-poll”, “for the full week of the pre-poll”, “a full week prior” and for a period of five days.

(iv) Mr Roberts

78 According to Mr Roberts on the morning of Wednesday 21 June he dropped his wife off with the election poster to the Forster Council offices. It was her first day of attendance there.

79 After he learnt from his wife at the end of that day that Mr Day had considered and decided that the uncovered symbol on Mr Roberts’ poster was a National Party logo and should be covered, Mr Roberts ensured all the same symbols on the other posters to be used were covered up as well.

(v) Mrs Roberts

80 Mrs Roberts’ evidence was that on her first day at the pre-poll at the Forster Council offices on Wednesday 21 June 2001 she arrived at about 9.00am, having been dropped off by her husband, together with one of his posters, some “how to votes” cards and a small table. Attached to the poster at its base was a piece of paper on which the words, “For Great Lakes Council” was printed. She claimed she attached the poster to the front of the card table. According to her, this was the only large poster promoting her husband on display on that day.

81 At about 10.30am Mr Day advised her there had been a complaint about the symbol on Mr Roberts’ poster and he proposed and proceeded to cover up part of the poster. Mrs Roberts asked if she could say to voters that her husband was a member of the National Party, to which Mr Day replied he did not think that would be a problem.

82 At the end of the day Mrs Roberts told her husband what had happened. Mrs Roberts’ evidence was that she believed all of her husband’s posters, in his possession, then had the logos covered up before being distributed for polling day. She herself covered some with paper and masking tape. She said she did not know what happened to the posters and the attached bits of paper after they left the Roberts’ home.

(vi) Ms Slater

83 Ms Slater gave evidence that she had attended the Forster Council offices for Mr Roberts for parts of Monday 19, Tuesday 20 and Friday 23 June and for the whole day on Friday 30 June. She “set up” for Mr Roberts on Monday 19 June. On a chair and box she displayed Mr Roberts’ A4-sized campaign flyers. She claimed she did not include in that display any large poster featuring Mr Roberts. None of the electoral material used by her on that day featured the logo (or symbol) of the National Party.

84 According to Ms Slater she had not originally intended to attend the Forster Council offices on Tuesday 20 June but on driving by and observing Mr Jeffery’s absence, who she had understood was to assist Mr Roberts on that day, she attended the Council offices that afternoon. According to Ms Slater there were no large posters of Mr Roberts at the council chambers on display on 19 and 20 June.

85 Ms Slater gave evidence that she did not know whether Mr Roberts had given out any posters to other campaign helpers prior to Monday 19 June. She was given four or five of the larger posters by Mr Roberts at some time during the pre-poll period for setting up at polling booths in the Forster/Tuncurry area for polling day. She believed only she or Mr Roberts would have had or used the larger posters in the Forster/Tuncurry area.

86 In relation to the larger posters she did have, her evidence was that she did not like the way the logo had been covered by tape on the posters so she removed the tape and instead attached some round stickers she had, blank side up, to cover the symbol.

87 In relation to the symbol found next to Mr Roberts’ photo on the large poster, Ms Slater believed that by itself it did not represent the National Party. By itself, in her view, it could represent any number of things or organisations. Ms Slater was of the view that National Party members might recognise the symbol as relating to the National Party but that members of the general public would not make that connection.

Tea Gardens - Polling Day
(i) Mr Greenham

88 Mr Greenham campaigned for Mr Roberts at the 2000 by-election and “manned” the booth for Mr Roberts at both the pre-poll and on polling day at Stroud.

89 According to Mr Greenham he had at least two of Mr Roberts’ posters prior to the 19 June 2000. He said that, after being advised of the “National Party logo” complaint, he covered the necessary part of the posters himself. One of the posters was used at the Stroud booth and the other at Booral.

90 Mr Greenham agreed that the symbol that he covered up on the posters is associated with the National Party but believes the symbol is also used by other organisations. He did not consider that the symbol displayed on its own represented endorsement or support by the National Party. Mr Greenham did not consider that such endorsement or support could be assumed unless the word “Nationals” was displayed as well. He agreed that some people would recognise the symbol as “an emblem of the National Party” and that they might assume that the candidate was a member of the National Party but did not consider that such people might form the view the candidate is supported by the National Party. In his view membership of a party “works both ways”, for you and against you.

(ii) Mr Bromhead

91 Mr Bromhead gave evidence that he “manned” the booth on polling day for Len Roberts at the Tuncurry Primary School and displayed a number of Mr Roberts’ posters in prominent positions. He described the posters as those Mr Roberts had previously used in a State election when standing as a National Party candidate but claimed that the National Party logo was not visible on any of the posters displayed, the logos having been “obliterated or covered”.

(iii) Mr Mason

92 Mr Mason gave evidence that he had attended the polling booth at Tea Gardens on election day to hand out “how to vote” cards for Mr Ireland. He was there all day except for his lunch period. During the day he had observed Mr Roberts’ campaign poster and that it had continuously displayed the National Party logo, which he described as a “distinctive caricature of Australia”.

93 Mr Mason said that he had been approached by a friend of his, Councillor Bob Stewart, who advised that Mr Ireland was going to be short of staff to hand out “how to vote” pamphlets on election day at the Tea Gardens station and asked if Mr Mason would do it. Mr Mason agreed to do it and was paid for the day’s work by Mr Ireland via Councillor Stewart.

94 Shortly after the election, he said that Councillor Stewart had contacted him and asked him if he had seen the National Party logo displayed on Mr Roberts’ campaign poster at the Tea Gardens polling station, to which Mr Mason replied that he had. His evidence was that he had inferred Mr Roberts had an affiliation of some kind with the National Party.

95 On election day Mr Mason saw election staff outside the polling station where most of the candidates’ election material was displayed. He was sure they would have seen Mr Roberts’ poster. Mr Mason did not complain or report the logo to any of the election staff or anyone else on polling day or afterwards. Mr Mason did not complain to electoral officers about the display of the logo because he “didn’t believe it was significant or relevant.”

(iv) Mr Thatcher

96 Mr Thatcher gave evidence that he had assisted Mr Roberts in his 1991 state election campaign. He also assisted Mr Roberts at the 2000 by-election by handing out how-to-vote brochures at the Tea Gardens booth on polling day. In relation to the campaign poster used at the Tea Gardens booth for both pre-polling and on election day, Mr Thatcher recalled there being white paper across the bottom of the poster and his expressly asking Mr Roberts what was the point of covering up (“blocking off”) the National Party reference at the base of the poster, given Mr Roberts’ membership of that party. He recalled that Mr Roberts’ reply was to the effect that the National Party does not “support or endorse candidates in local government”.

97 Mr Thatcher stated that to the best of his knowledge there were no words or logos on the poster relating to the National Party. He said that he could not be “certain” but that he did not remember there being any logo visible. He did recall the election officer having a look at the posters set up for the different candidates and the officer getting a copy of the brochures being handed out and that no comment or complaint was made to Mr Thatcher at all in relation to Mr Roberts’ material that day. He recalled that polling day was wet and windy and that the poster was blown down a couple of times. He considered that such may have impacted on the poster and its coverings.

98 Mr Thatcher also gave evidence that a local voter spoke to him after the election and said something to the effect that had Mr Thatcher told them Mr Roberts was in the National Party, they would have voted for him. There was no evidence as to whether or not the person saw Mr Roberts’ poster.

(v) Mr Day

99 Mr Day gave evidence that on 29 June, he held a seminar for polling booth officials and had advised them that there had been complaints about electoral material and that they should be aware of that when carrying out their duties.

100 According to Mr Day, on polling day he visited booths located at Tuncurry, Forster High and Forster Primary schools and did not observe any problem with any candidate’s electoral material nor did he receive any complaints from any individuals or polling booth officers. Specifically, Mr Day claimed he did not receive any complaints about any election material on display at the Tea Gardens booth.

Findings of fact

101 The critical factual issue in dispute is where and for what period the so-called National Party logo was on display during the by-election period.

102 The applicants contend that the evidence establishes that the symbol appeared on a copy of the poster displayed at the Forster Council offices from the commencement of the pre-poll on Monday 19 June until covered by Returning Officer Day on Wednesday 21 June. Mr Roberts concedes that the offending logo had been on display at the Forster Council offices on Wednesday 21 June until Mr Day’s intervention, but denies that the poster with or without the offending symbol was displayed at the Forster Council offices (or any other location) prior to that day. According to Mr Roberts none of his election posters had been delivered to the Forster Council offices before June 21.

103 The applicants claim that the symbol appeared uncovered on a copy of Mr Roberts’ election poster displayed at the Tea Garden polling booth on polling day itself. Mr Roberts denies this.

Forster Council offices

104 Both Mrs McWilliams and Ms Starkey claimed to have seen Mr Roberts’ poster with the symbol uncovered over a two and half day period i.e. June 19 to June 21. In contrast the evidence of Mr Roberts, Mrs Roberts and Ms Slater was that the offending poster was not on display in the council chamber on Monday 19 June and Tuesday 20 June.

105 Prior to Mr Day’s intervention the only amendment or alteration made to the poster, by Mr Roberts or on his instructions, was the covering of the word “NATIONALS” with the words, “For Great Lakes COUNCIL”. It is apparent that until Mrs Roberts advised her husband of Mr Day’s intervention, Mr Roberts had not taken any steps to cover the symbol.

106 The evidence of the respondent is that Ms Slater was the sole person who attended the pre-poll at the Council offices prior to June 21 on his behalf to distribute or display election material. Mr Roberts claims Ms Slater had not been provided with copies of the poster (in any form) until sometime after June 21. According to Mr and Mrs Roberts it had been their intention to attend the Forster Council offices prior to June 21 but were prevented from doing so because of other commitments.

107 The only direct evidence of what, if any, of Mr Roberts’ electoral material was on display at the Council offices on the first two days of the pre-poll was that given by Mrs McWilliams, Ms Starkey and Ms Slater. It is apparent from Mrs Starkey’s evidence that her recollection of the times she attended the pre-poll was somewhat confused and inconsistent. Given the significant passage of time this is not surprising.

108 There is nothing of relevance in respect of the respondent’s evidence about the persons who attended the Forster Council offices on the first two days of the pre-poll that was challenged by the applicants. Three of the respondent’s witnesses gave evidence that they had understood that Mr Jeffery was to attend the Forster booth on behalf of Mr Roberts on Tuesday 20 June, as neither Mr Roberts nor his wife could be there, but did not in fact attend. According to Mr and Mrs Roberts, Mr Jeffery had notified them by telephone on the Tuesday morning and explained he could not help after all, because of business commitments. We accept the evidence of Mrs Roberts and Ms Slater, supported by the respondent, about the dates of their respective attendance at the pre-poll.

109 We note that Mrs McWilliams’ and Ms Starkey’s respective recollections about various details relating to the poster were inaccurate in numerous ways, particularly in relation to the size, colour and location of the logo. Given the considerable inaccuracy of their evidence in relation to the poster’s appearance, their capacity for accuracy in relation to the dates the offending poster was on display is rendered doubtful.

110 In relation to the length of time the poster was on display before the symbol was covered, the Tribunal prefers the evidence of Mrs Roberts, Ms Slater and Mr Roberts, particularly that of Ms Slater and finds that the poster bearing the symbol was only on display at the Forster Council offices on the morning of June 21 until about 10.30 am.

Tea Gardens - Polling Day

111 We accept the evidence of Mr and Mrs Roberts that after Returning Officer Day’s intervention on June 21, Mr Roberts took steps to cover the offending symbol on those posters in his possession and requested others, who already had posters, to do the same. This conclusion is supported by the evidence of Mr Greenham, Ms Slater, Mr Bromhead and Mr Thatcher.

112 Mr Day observed no problems with any electoral material on the day of the poll, nor were any reported to him.

113 Both Mr Mason and Mr Thatcher had no hesitation in stating that the election officers inspected all the campaign posters on display. No comment or complaint was made to Mr Thatcher about Mr Roberts’ poster. This suggests the poster displayed at the Tea Gardens booth more probably than not complied with Mr Day’s instruction and that the symbol was covered at least at the start, or for part, of the day.

114 However we accept Mr Mason’s evidence that he saw the logo on Mr Roberts’ poster at the Tea Gardens poll. Mr Thatcher’s evidence was that election day at Tea Gardens was rainy and windy and that Mr Roberts’ poster was “blown down” a couple of times. He considered that this may have impacted on the poster and its coverings. Mr Thatcher’s evidence was that he did not remember seeing the symbol on the poster on the day but he could not be certain. Although Mr Mason believed the logo was evident all day, we consider it more likely that it was evident for only part of the day.

115 We find on balance that Mr Roberts’ election poster displayed at Tea Gardens on the day of the poll did display the National Party logo for an indeterminate part of that day.

116 In summary we find that the logo was on display on a single copy of Mr Roberts’ election poster for an indeterminate part of election day at the Tea Gardens’ booth and for about two hours on the morning of June 21 at the Forster Council offices.

Does the display of the poster constitute a potential breach of r 109(1)(b)?

117 The applicants’ case originally proceeded on the basis that the poster featuring the so-called National Party logo constituted a potential breach of r 109(1)(c). In final submissions it was contended that the relevant regulation was r 109(1)(b). Accordingly for the purpose of this decision we have confined ourselves to a consideration of r 109(1)(b).

118 The amended poster contained the words “LEN ROBERTS…For Great Lakes COUNCIL”. It was a publicly displayed electoral notice promoting Len Roberts as the candidate for Great Lakes Council. In our view it could also be considered to be an electoral advertisement. Accordingly we find that the amended poster falls within the class of material covered by r 109(1)(b).

119 To fall within the provision it is not enough to establish that Mr Roberts or some other person caused the poster in its original or amended form to be printed, published or distributed. It must also be established that the version of the poster contained an untrue or incorrect statement (namely the symbol) and that it was printed …by a person.

120 It is not in issue that Mr Roberts caused the version of the poster displayed at the Forster Council pre-poll on the morning of June 21 to be printed, published or distributed. However we are not satisfied on balance that Mr Roberts or indeed any other person was responsible for the printing, publishing or distributing of the version of the poster containing the symbol displayed at Tea Gardens, as we think that the most likely explanation for the display of the symbol there was that its cover, placed on the poster by, or on the instructions of, Mr Roberts, had been removed by the elements.

121 The regulation makes the doing of certain things by a person to be an offence and as such must be strictly construed. Accordingly in our view, the version of the poster with the logo uncovered that was displayed at Tea Gardens, is not caught by the regulation. It is, therefore, unnecessary to consider the other elements of the regulation in relation to the Tea Gardens matter.

122 The third element to be determined is whether a logo or symbol can be said to constitute a statement within the meaning of r 109(1)(b)? Mr Zipser submits that a logo on a poster may constitute a “statement” and referred the Tribunal to the Federal Court decision in Given v Pryor (1979) 24 ALR 442. In that decision the Federal Court considered 53A(1)(b) of the Trade Practices Act 1974 (Cth) which provides that a corporation shall not in certain circumstances “make a false or misleading statement”. In that case (at 445) Franki J said:

Looking at the question in a broad way it is difficult to see why pictorial material should not form part of a statement. It seems to me a statement may be in any language, including one made by signs that are known and understood by those deaf and dumb people who use them, and one written in shorthand. In the same way I cannot see why pictorial or diagrammatic material should not be included in a statement ... I consider that in s 53A(1)(b) the word "statement", at least in an appropriate case, may embrace not only words but also pictures associated therewith.”

123 Franki J. also noted that various evidence statutes broadly defined the word “statement”. For example, the Evidence Act 1905 (Cth) defined “statement” as including “any representation of fact, whether made in words or otherwise” and the Evidence Act 1898 (NSW) contained a similar definition.

124 Mr Zipser submits that while these two statutes have now been repealed and the term “statement” is not used, or defined, in the Evidence Act 1995 (Cth) or the Evidence Act 1995 (NSW) that this does not detract from his analogy. (The uniform Evidence Acts do, however, define the broader term “representations”.) Mr Zipser also referred to the Evidence Act 1958 (Vic) which provides that the term “statement” includes “any representation of fact whether made in words or otherwise”.

125 We accept this submission and proceed on the basis that the word “statement” in r 109(1)(b) is to be broadly construed and may embrace pictorial representations including logos (or symbols).

126 The fourth element to be determined is whether the statement was intended to or likely to mislead or improperly interfere with any voter.

127 Mr Roberts argues that it cannot be said that the “logo” was intended to or was likely to mislead any voter. He asserts that, absent the word “Nationals”, it cannot be said that the symbol was the logo of the National Party or indeed was in any way associated with that party. We understand Mr Roberts to submit that the logo used by the National Party was or is the stylised map of Australia (which he concedes was displayed on his poster) accompanied by the word “Nationals”. According to Mr Roberts the word “Nationals” and the symbol are inextricably linked. Without the accompanying word “Nationals” the so-called logo represents nothing more that a pictorial representation of Australia. In support of this argument Mr Roberts tendered the logo used by the retailer Office National which he contends bears an uncanny resemblance to the offending logo. According to Mr Roberts, it would not be apparent to the average voter that the symbol, standing alone, had any association with the National Party.

128 The symbol, however, did not appear in a vacuum. It appeared on a campaign poster in a contested local government election. The evidence shows that in this non-metropolitan electorate the National Party had over the past decade (at least) fielded candidates in both state and federal elections. The poster in its original form had been designed for and used by Mr Roberts when he stood as the official and endorsed candidate of the National Party in the early 1990s and subsequent elections. It carried at its foot (in small print) the words “Authorised by … National Party…” It is self-evident that one of the reasons the logo was included on the original poster was to clearly and unequivocally brand in the minds of voters that Mr Roberts was a National Party candidate.

129 Various assertions were made in the course of the proceedings as to what constituted the official logo of the National Party or indeed whether the Party had an official logo. In our view it matters not that the symbol with or without the word Nationals is in fact the official logo of that organisation. It may be that, in some circumstances, the so-called logo, in the absence of any express reference to the National Party, may carry no particular meaning or association. In our view, however, on an election poster it would be recognised by some voters as being the symbol traditionally identified with that Party.

130 Can it be said that the symbol was intended (or likely) to mislead given as the evidence shows that Mr Roberts was in fact a member of the National Party and enjoyed a long association with that organisation? In our view, if the logo conveyed nothing more than a representation that Mr Roberts was a member (or associated with) the National Party it could not be said that the logo was intended to or likely to mislead. (Such representation, however, may bring into question the veracity of certain statements made by Mr Roberts in his Candidate Information Sheet, notably his representation of himself as a staunch independent).

131 However, in the context in which the logo appeared, it is apparent that it represented something more than the fact that Mr Roberts was a National Party member. It implied that the logo appeared with the permission, and therefore that Mr Roberts expressly or impliedly enjoyed the endorsement, of that Party.

132 To trigger the operation of the regulation it is enough that it be established that the logo is likely to mislead. It is not necessary to establish that any person was in fact relevantly misled although this would provide powerful argument that the representation was likely to mislead. The tendency of the representation to mislead is the issue.

133 Mr Day appears to have held the view that the logo suggested that Mr Roberts was endorsed by the National Party. The original complainant, Mrs McWilliams, shared Mr Day’s view. Indeed this was the very reason she made her complaint. Her evidence, which we accept, is that a number of people, having seen the poster, asked her whether Mr Roberts was a National Party candidate. Mr Mason inferred from having seen the offending logo that Mr Roberts was in some way affiliated with the National Party.

134 In our view, it is likely that the logo would have misled some voters into believing that Mr Roberts was the endorsed candidate of the National Party.

135 Did Mr Roberts intend to mislead voters that he was endorsed by the National Party? The evidence shows that prior to the display of the poster on June 21 Mr Roberts had reviewed the posters in their original form and took steps to update the poster by covering the words “NATIONALS” with the words “For Great Lakes COUNCIL”. He made a conscious decision not to cover the logo and did not do so until instructed by Mr Day. Mr Roberts’ evidence was that he had not covered the logo originally simply because of the visual impact such covering would have. He thought it was “nice and neat” without the logo covered. Although the Tribunal can understand this approach given the layout of the poster, it is not persuaded that Mr Roberts’ original omission was quite so innocently motivated. It is not inconceivable that Mr Roberts intended to use for his own advantage the reputation and status in the community held by the National Party. To draw a commercial analogy, he attempted for his own advantage to draw on the National Party brand without the permission of the party. The only reasonable inference to be drawn in the circumstances is that he did so hoping to mislead voters into believing he was endorsed by the National Party.

136 The final issue for determination is whether the poster containing the offending symbol was intended to or was likely to mislead any voter in or in relation to the casting of their vote.

137 As noted by us the High Court has given a narrow meaning to the words “in or in relation to the casting of his vote”. The test enunciated in Evans v Crighton-Browne distinguishes between two types of statements. The first concerns statements intended to or likely to affect the formation of a judgement about the candidate for whom the elector intends to vote and the second relates to statements intended to or likely to affect the formal expressions of that judgement. The former are not caught by r 109(1)(b), the latter are.

138 While the principle set down in Evans v Crighton-Browne is apparently straightforward it conceals a practical difficulty. It rests on the identification of the point at which an elector has formed a final judgement about his or her preferred candidate.

139 The representation that Mr Roberts was endorsed by the National Party was clearly capable of influencing voters in their respective decisions, final or otherwise, concerning the choice of candidate. However the representation did not stop there. In our view, we are entitled to take judicial notice of the fact that for some voters, party endorsement will sometimes be critical if not determinative in their choice of candidate. In the by-election no doubt a number of electors would have decided, prior to casting their vote, to vote for the candidate/s, if any, endorsed by their preferred political party. Of this number, some would have made their decisions to vote for the candidate endorsed by the National Party. To use the language of Evans v Crighton-Browne such voters “would have formed their final judgements about who they would vote for”, ie the candidate endorsed by the National Party prior to sighting the poster. It is likely that these voters, having already made their decisions to vote for the candidate/s endorsed by the National Party, would on seeing the logo on Mr Roberts’ poster, be misled into believing that Mr Roberts was so endorsed, and proceed to cast their votes accordingly. The misrepresentation could not be said to mislead these voters in relation to the formation of their judgement about choice of candidate, that decision had already been made prior to their arrival to cast their votes. Rather, the misrepresentation went further in that it was likely to mislead them in relation to the recording or expression of that decision or judgement.

140 We note that the relevant misrepresentation was not a broad policy statement about the merits or otherwise of Mr Roberts’ candidature or indeed the National Party. It simply held Mr Roberts out to be endorsed by that Party. Relevantly the misrepresentation was on display directly outside the place where votes were to be cast and would have been seen by some voters immediately before casting their vote. This is not to say that election material displayed outside polling booths or handed to voters on their way in to vote could not be not capable of influencing voters about their choice of candidate. However in this case taking into account all relevant factors we are satisfied that it is likely that the purported endorsement was likely to mislead at least some voters in relation to the casting of their vote.

141 Accordingly we find that the display of the poster at the Forster Council offices on the morning of June 21 constitutes a potential breach of r 109(1)(b).

142 We are, in any event, satisfied that the unauthorised use or display by a candidate of an identifying symbol of a political party represents a “departure from a generally accepted principle governing the conduct of the election.” It matters not that the candidate or indeed any person caused the identifying symbol to be printed, displayed or distributed. Accordingly the display of the offending poster at both the Forster Council offices and Tea Gardens booth falls within the first limb of the test of an irregularity (generally defined) for the purposes of s 329 of the Act.

Is the nature of the irregularities such that the result of the by-election is rendered uncertain?

143 For the Tribunal to be satisfied that the result of the election was uncertain because of identified irregularities, the applicants must discharge an evidentiary onus. It is insufficient, cautions Mr Lancaster, for the Tribunal to base a finding that the outcome of the election was uncertain on mere speculation or conjecture. Mr Lancaster (supported by Mr Zipser) submits that it is not strictly necessary that the Tribunal be satisfied that the election result would have been different, (that is a candidate other than Mr Roberts would have been elected) had it not been for the irregularities, but rather, that the result was uncertain.

144 Mr Lancaster referred the Tribunal to the discussion by Cole JA in Bourne v Murphy. His Honour concluded (at 349) in that case that as “the outcome of the election on any recalculated basis [counting formal votes] is at best uncertain the principles enunciated in Woodward v Sarsons (1875) LR 10 GP 733 apply. In Woodward, Lord Colleridge said (at 744,745):

may have been

145 Mr Zipser contends that there is sufficient evidence before the Tribunal to be satisfied that the proven irregularities were such that the election was uncertain. Mr Roberts submits that the Tribunal must have regard to the fact that there are numerous and diverse factors which influence voter behaviour. The applicants, argues Mr Roberts, have not established that the poster or the newspaper advertisement played any role in influencing voters. Even if voters were influenced, it is not possible to establish with any reliability how their votes were influenced.

Findings and Conclusions

146 The issue for us to determine is whether the poster and newspaper advertisement, either separately or in combination, were seen and acted upon by a sufficient number of voters so to render the result of the election uncertain.

147 It is useful at this point to examine in some detail the results of the by-election and the method of counting votes. As previously noted the votes were counted in accordance with the optional preferential system.

148 Clause 3 of Schedule 1 of the Election Regulations sets out the process to be followed in the optional preferential system which we set out below.

3. One candidate to be elected

149 The ballot papers issued to voters listed the names of nine candidates and adjacent to each name was a box. Voters were instructed to number at least one square but they could choose to number all squares or, any number less than nine.

150 The number of enrolled voters in the by-election was 22,548. The total number of formal votes cast was 16,981. A document headed “Vote Tracker” set out in tabular form the results of the counting process.

151 This document reveals that at the first count no candidate achieved an absolute majority, ie 8491 votes, and accordingly Candidate Gill, who received the least first preference votes was excluded from the ballot and his/ her preferences distributed to that candidate recorded as next in order on the ballot paper (if any), and added to the votes already allocated to the total number of first preference votes recorded for each candidate at the first count.

152 The results of that count revealed again that no candidate had received an absolute majority and the process of redistributing the preferences (if any) of the candidate with the fewest votes, in this case Candidate Milligan, was repeated.

153 The results of the third count again revealed that no candidate had received an absolute majority and accordingly any preferences votes of the candidate with the fewest number of votes (at that count), namely Candidate Clendinning, were allocated to the candidate next in order and added to the votes already counted for that candidate.

154 The fourth count revealed that again no candidate had received an absolute majority and the process of redistributing the preferences of the candidate with the fewest votes, namely Candidate Hutchinson, was repeated. At this count again no candidate received an absolute majority and the process was repeated and this time candidate Steele was excluded, being the candidate with the fewest number of votes. Following the distribution of Candidate Steele’s preferences again no candidate achieved an absolute majority.

155 At that stage there were four candidates remaining in the count: Roberts, Ireland, Bakes and Foster holding 3,579, 3402, 4,765 and 4,018 votes respectively. Again no candidate achieved an absolute majority and accordingly Candidate Ireland, being the candidate with the fewest number of votes was excluded from the ballot and his preferences distributed.

156 Following the distribution of Mr Ireland’s preferences, again no absolute majority was achieved and thus Candidate Foster the candidate with the fewest number of votes was excluded and her preferences distributed. At the final count Candidate Roberts held 7883 votes to the remaining candidate, Candidate Bakes’ 6906 votes. Accordingly Mr Roberts was declared elected.

157 Mr Zipser argues that it is highly relevant to the Tribunal’s determination that at one stage of the counting, following the exclusion of Candidate Steele, a mere 177 votes stood between Mr Roberts and his (then) closest rival, Mr Ireland. Had 89 voters put Mr Ireland ahead of Mr Roberts, Mr Roberts rather than Mr Ireland would have been eliminated from the count. Mr Zipser referred to the evidence of Mr Day who agreed with the proposition that at this particular point [after the elimination of Candidate Steele] matters were “very close” between these two candidates.

158 We accept the proposition that the margin between Candidate Ireland and the respondent was narrow. Mr Roberts’ 177-vote lead must be seen in the context of an election where just under 17,000 formal votes were cast. Relevantly this was an election where the final outcome was determined by preferences. It is noteworthy that at the first count Candidate Bakes had 3,446 first preference votes to Mr Roberts’ 2735. Following the final distribution of preferences Mr Roberts total vote was 7883 to Mr Bakes’ 6906.

159 What is relevant is not just that a relatively small number of votes stood between Candidates Roberts and Ireland at a particular stage of the count but that, had it not been for his 177-vote lead, Mr Roberts, rather than Mr Ireland, would have been excluded.

160 To establish that the election was uncertain it is not enough for the applicants to establish that the successful candidate was elected by only a small margin or that at any stage in the count the respondent was in a precarious position. It falls to the applicants to prove that the nature of the irregularities rendered the outcome uncertain. This is a question of fact–there is no presumption involved.

161 We turn first to the Extra advertisement and any impact it may have had on the election results. It is not enough for us to be satisfied that the advertisement itself and the consequent exposure gained by Mr Roberts affected the outcome of the election, we must be satisfied that Mr Thompson’s purported endorsement made the outcome uncertain.

162 The advertisement appeared on page two of a local newspaper in a reasonably prominent position. The newspaper was distributed to about 7500 people residing in the electorate covered by the Great Lakes Council. Its publication date was 29 June and, it would appear to have been widely distributed prior to polling day.

163 It is common ground that Mr Thompson, who had purportedly authorised the advertisement, enjoyed considerable respect within the electorate. At the time of the by-election he was Deputy Mayor of the Great Lakes Council.

164 We have before us limited evidence on how widely read, as opposed to circulated, the newspaper was at the relevant time. While there is no evidence on the actual number of voters who saw the advertisement, the evidence establishes that some people had read the advertisement prior to polling day, generating a number of complaints and enquiries to Mr Thompson. Ms Slater’s evidence supports a finding that the advertisement, and importantly the endorsement, did not go unnoticed, although she claims that a number of people told her having seen the purported endorsement that they now had second thoughts about voting for Mr Roberts.

165 There is limited evidence on whether the advertisement influenced voters in their choice of candidate. The only direct evidence that any voter actually decided his/her vote on the strength of the endorsement was that given by Mr Coombe.

166 Mr Roberts contends that there is no evidence to support the applicants’ submission that Mr Thompson’s purported endorsement influenced any voter in respect of their vote. He submits that any number of factors influence voters and attributes his success (in part) to what he claimed was his high public profile achieved through campaigning on various local issues. In short Mr Roberts argues that the advertisement was inconsequential to the election outcome. While this may, of course, be correct, it begs the question why Mr Roberts (and presumably other candidates) went to the trouble and expense of placing advertisements in local newspapers. Candidates in local government election are not alone in subscribing to the view that advertisements in local newspapers play some role in influencing readers and are joined by an array of retailers and service providers who obviously also hold the belief, mistaken or otherwise that such advertisements have some effect.

167 We turn now to the display of the poster. One thousand nine hundred and ninety five (1995) formal votes were cast at the Forster Council offices during the two weeks of the pre-poll with 209 voters marking Mr Roberts as number one. It is impossible to determine from the Vote Tracker document how voters who voted for candidates other than Mr Roberts, distributed their preference votes, if indeed they opted to do so, and in particular whether they placed Mr Roberts before Mr Ireland. There is no evidence on the number of votes cast on the morning of June 21 or indeed on any other day of the pre-poll.

168 On polling day a total of 808 formal votes were cast at the Tea Gardens booth with just over half of the voters (410) nominating Mr Roberts as their first preference.

169 Mr Zipser referred us to the opinion evidence of Mrs McWilliams and Mr Greenham who both state that the logo would have influenced some voters. Mr Thatcher states that a voter reported to him that had he known Mr Roberts was in the National Party he would have voted for him. This, argues Mr Zipser, supports his contention that some voters base their voting decision on the endorsement of a major political party.

170 We understand Mr Roberts to also argue that even if it established that the advertisement and poster either separately or in combination did influence some voters, it does not necessarily follow that they placed him number one or at the very least before Mr Ireland on the strength of those representations. It may, he contends have caused them to direct their vote away from him.

171 We accept Mr Roberts’ argument that it is impossible to determine with any degree of accuracy why individual voters select one candidate over another, in any particular election. No doubt many factors will come into play. Such factors may include the profile of the candidate; the success of certain campaigning methods, such as door knocking and the use of the media; voter profile and demographics, to name but a few. However, while no one factor is generally determinative, in our view, the endorsement or purported endorsement by a major political party will for some voters be highly influential if not conclusive.

172 As we concluded earlier it is likely that some voters who saw the poster with the logo uncovered would have been misled into believing that Mr Roberts was the endorsed candidate of the National Party. Further it is likely that a number of voters who had decided to vote for the National Party would have decided to cast their vote for Mr Roberts on the strength of the endorsement representation.

173 Accepting that the endorsement of a major political party will be pivotal in the minds of some voters, can we be satisfied on balance that a sufficient number of such persons saw and acted on the purported endorsement so that the outcome of the election was rendered uncertain? While we do not know precisely how many voters attended the two booths during the relevant periods the evidence establishes that the poster featuring the offending logo was on display at times when voters were attending booths to cast their votes. Similarly in respect of Mr Thompson’s purported endorsement we know that some voters saw the advertisement but we do not know the exact numbers.

174 It is self evident that the Tribunal could never be satisfied in a case such as this that the outcome of the election would have been different had the Extra advertisement not been run and/or the National Party logo not displayed. However the evidentiary hurdle before the applicants is not set that high. The Tribunal must be persuaded on the basis of the evidence before it that the separate or combined irregularities have created an uncertain result. It is not necessary for the applicants to show that one result or another was inevitable but for the irregularity complained of.

175 Mr Zipser contends that, first, there is powerful evidence that the irregularities proven had an effect at least on some voters, and that we can infer that more are likely to have been affected. Secondly, he submits that, given the closeness of the election, and the narrow margin by which Mr Roberts wended his way through the distribution of preferences, that there must be uncertainty in relation to the outcome of the election. We accept these arguments.

176 There is a critical difference between mere speculation as to whether the result might have been different but for the irregularities which took place, and satisfaction on the basis of evidence that the election result was rendered uncertain due to the irregularities. The difference might be illustrated by drawing an analogy from the distinction between objectively proven facts, belief or suspicion based on reasonable grounds, and mere prejudice. In the first two cases, the conclusion is drawn from objectively ascertainable material, whereas prejudice and speculation are, if not entirely necessarily groundless, based on the application of previous experience or innate belief systems rather than evidence relating to the circumstances in question.

177 Here we have evidence on which we can base conclusions. We are not left merely to speculate as to the possible alternative outcomes but for the proven irregularities. This is not a situation where one candidate won handsomely and the irregularities can be regarded as having had no material influence on the result. This was a very close race in which every vote was likely to count. Mr Thompson’s high public profile and the well-known popularity of the National Party in rural and regional electorates were assets Mr Roberts could benefit from or could seek to benefit from in irregular fashion. While the evidence before us does not show the exact numbers of persons who saw and acted upon (to Mr Roberts advantage) the purported endorsements, the only reasonable inference to draw from the evidence before us is that a not insignificant number of persons saw them and, importantly, were influenced to direct their vote (or preference) towards Mr Roberts as a result. In this case in our view, a “not insignificant number” of voters is a sufficient number of voters to render the election outcome uncertain. While there is some evidence to support Mr Roberts’ contention that he lost votes because of the purported endorsements we are not satisfied that as a result that evidence renders the outcome any more certain.

178 Accordingly we are satisfied on balance that the purported endorsements by Mr Thompson and the National Party were of such a nature, in the context of this election, that the result of the election was relevantly uncertain.

Should Mr Roberts be dismissed from office?

179 Section 329(2), is of course, a discretionary provision providing that “the Tribunal may order the dismissal of a person from civic office if there has been any irregularity in the manner in which [the respondent] has been elected to office”. Mr Zipser and Mr Lancaster submit that if the Tribunal finds that there has been any irregularity in the manner in which Mr Roberts has been elected, the Tribunal must order his dismissal.

180 Section 9(1) of the Interpretation Act 1987 (NSW) provides that the word “may” if used to confer a power, indicates that the power may be exercised or not at discretion. But regard is to be had to the context in which the particular provision is found and the general scope and the purpose of the provision to ascertain if the provision has the effect of requiring the exercise of the power in certain circumstances: s 5(2) of the Interpretation Act 1987 (NSW).

181 As noted by the Tribunal (differently constituted) in Insley v State Electoral Commissioner [2000] NSWADT 90 at [48-53], Beazley JA's approach to the construction of s 329(2) is different from that adopted by Cole JA in Bourne v Murphy: see 92 LGERA 329 at 349-350.

182 Beazley JA said (at 365): “in my opinion…upon its proper construction [s 329] does not confer a discretion on the court to make an order.” In contrast, Cole JA said (at 349), “Section 329 confers a judicial discretion.”

183 In this decision we intend to follow the approach taken by Beazley JA. Accordingly having found that there have been irregularities in the manner in which the respondent has been elected to civic office, we are required to dismiss him from that office.

Orders

184 Accordingly we order that Mr Roberts be dismissed from civic office.

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Jeffery & ors v Roberts [2002] NSWADT 57

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CITATION:	Jeffery & ors -v- Roberts [2002] NSWADT 57
DIVISION:	General Division
PARTIES:	APPLICANTS Victor Robert Jeffery Jack Ireland Barry Clendinning William Coombe RESPONDENT Lennard Bruce Roberts
FILE NUMBER:	003306
HEARING DATES:	06/06/2001, 30/07/2001, 24/09/2001
SUBMISSIONS CLOSED:	09/24/2001
DATE OF DECISION:	04/19/2002
BEFORE:	Britton A - Judicial Member; Lees M - Judicial Member; Mapperson K - Member
APPLICATION:	Dismissal from civic office
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Evidence Act 1995 Interpretation Act 1987 Local Government Act 1993 Local Government (Elections) Regulation 1998 Parliamentary Electorates and Election Act 1912
CASES CITED:	Jeffery v Roberts [2001] NSWADT 66 R v Gray; Ex Parte Marsh (1985) 157 CLR 351 Bourne v Murphy (1996) 92 LGERA 329 (NSW CA) Sansom v Hudson (1997) 94 LGERA 293 Insley v State Electoral Commissioner [2000] NSWADT 90 Burston v Cosh [2000] NSWADT 163 Bridge v Bowen (1916) 21 CLR 582 Equity Access Pty Ltd v Westpac Banking Corporation (1990) ATPR 40-994 Evans v Crichton-Browne (1981) 147 CLR 169 Given v Pryor (1979) 24 ALR 442 Woodward v Sarsons (1875) LR 10 GP 733
REPRESENTATION:	APPLICANTS N Beaumont, barrister (06/06/ 2001) B Zipser, barrister (30/07/2001, 24/09/2001) RESPONDENT In person ATTORNEY GENERAL R Lancaster, barrister
ORDERS:	That Mr Roberts be dismissed from civic office.