John Da RIN v Kevin Duffy and Anor
[2015] HCASL 56
JOHN DA RIN
v
KEVIN DUFFY & ANOR
[2015] HCASL 56
S246/2014
On 7 December 2012, the applicant applied to the Administrative Decisions Tribunal of New South Wales ("the Tribunal") for an order dismissing the first respondent from the office of councillor on the Orange City Council. The applicant claimed that the first respondent was not qualified to hold office because, on the day that the roll closed for the election, the first respondent's "place of living" was outside the Orange City Council areas.
On 9 December 2013, the Tribunal granted the applicant's application and ordered that the first respondent be dismissed from office. The Tribunal was not satisfied that the address given by the first respondent in his nomination for election was his "place of living" within the meaning of s 269(1)(b) of the Local Government Act 1993 (NSW).
On 15 August 2014, the Court of Appeal of the Supreme Court of New South Wales allowed the first respondent's appeal and set aside the decision of the Tribunal. Basten JA (with whom Meagher and Ward JJA agreed) held that the Tribunal had approached the question of the first respondent's "place of living" on an incorrect understanding of the statutory requirements relating to the first respondent's eligibility for office. There was no basis in the Tribunal's findings of fact which would permit the applicant to succeed. Given the delay since the election, a remittal for a further hearing was inappropriate. The Court directed that, on remittal, the application to the Tribunal be dismissed.
The applicant now seeks special leave to appeal to this Court. No reason is shown to doubt the correctness of the decision of the Court of Appeal. An appeal to this Court would enjoy insufficient prospects of success to warrant the grant of special leave to appeal. Special leave is refused.
Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application, with costs.
S.M. Kiefel
9 April 2015P.A. Keane
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