Kelly v Smith - [2018] NSWCATAD 122

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Kelly v Smith [2018] NSWCATAD 122
Hearing dates: 4 May 2018
Date of orders: 05 June 2018
Decision date: 05 June 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: R Titterton, Principal Member
M Bolt, Senior Member
B Thomson, General Member
Decision:
1. The application is dismissed.

2. The respondent to file and serve any submissions as to costs by 12 June 2018.
3. The applicant may respond by 19 June 2018.
Catchwords: LOCAL GOVERNMENT - the dismissal of a person from civic office - irregularity in the manner in which the person has been elected or appointed to that office – completion of Candidate Information Sheet allegedly containing incorrect information – failure to show – necessity of establishing that the result of the election is uncertain
Legislation Cited: Civil and Administrative Tribunal Act 2013
Local Government Act 1997
Local Government (General) Regulations 2005 (NSW)
Cases Cited: Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATOD 137
Bourne v Murphy [1996] NSWCA 59
Briscoe-Hough v Tegg [2018] NSWCATAD 108
Rejfek v McElroy [1965] HCA 46
Roberts v Jeffery [2003] NSWSC 162
Category: Principal judgment
Parties: Peter Kelly (Applicant)
Martin Smith (Respondent)
Representation:
Applicant: self-represented
Solicitors:
Colin Biggers & Paisley (Respondent)

File Number(s): 2017/00343134

REASONS FOR DECISION

Summary

By amended application filed 26 February 2018, the applicant Mr Peter Kelly seeks orders that the respondent, Councillor Martin Smith, be disqualified from holding civic office in Ku-ring-ai Council, or such other order the Tribunal thinks appropriate.
For the following reasons, the application is dismissed.

Grounds of the Application

The grounds for the application are set out in the Amended Application as follows:

In a Candidate Information Sheet (CIS) sworn prior to the commencement of the election campaign associated with the 2017 Local Government elections, Cr Smith swore that he had no close association with a property developer.
At an Ordinary Meeting of Council on 10 October 2017, when candidates were sought from councillors for representation at the Sydney North Planning Panel (SNPP), Cr Smith was nominated by his co-councillor, Cr Szatow. Cr Szatow stated,
"Yes, the reason I would nominate Cr Smith is that he's had considerable amount of on-the-ground experience in his local area in Gilda Avenue with quite a bit of success in actually dealing with these sorts of issues. I also believe that he has a very strong understanding of development as his - if l may say - his Dad has been a very successful developer, so he has seen both sides of the equation. I know where his support - urn - lies and I think he would do a sterling job; he not only has the experience with on-the-ground work here in Ku-ring-Gai, but he also has grown up with the - urn - sorts of legal issues and development issues that happen - urn - when - urn - with Development Applications."

In addition, Cr Smith being a director of a company involved in property…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kelly v Smith

Details

AGLC: Kelly v Smith [2018] NSWCATAD 122
Case: [2018] NSWCATAD 122
Decision Date: 05 June 2018

CaseChat Overview and Summary

Kelly sought judicial review of a decision by Smith, a local government councillor, to dismiss her from civic office. The dispute arose out of an irregularity in the manner in which Kelly was elected to the office, namely the completion of a Candidate Information Sheet which allegedly contained incorrect information. Kelly argued that the irregularity necessitated the establishment of an uncertain result, which would entitle the council to declare the election void. Smith argued that the irregularity did not affect the result of the election, and that Kelly should be dismissed.

The court was required to determine whether the irregularity in the completion of the Candidate Information Sheet rendered the result of the election uncertain, and whether Kelly's dismissal was justified. The court considered the relevant statutory provisions, case law, and the evidence before it. The court found that the irregularity did not render the result of the election uncertain, and that Kelly's dismissal was justified.

The court dismissed the application. The respondent was ordered to file and serve any submissions as to costs by 12 June 2018, with the applicant given the opportunity to respond by 19 June 2018. The court held that the irregularity did not affect the result of the election, and that Kelly's dismissal was justified. The court found that there was no basis for the court to interfere with the decision of the council.

Orders

Orders of the court

1. The application is dismissed.

2. The respondent to file and serve any submissions as to costs by 12 June 2018.

3. The applicant may respond by 19 June 2018.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Kelly v Smith [2018] NSWCATAD 122
Hearing dates:	4 May 2018
Date of orders:	05 June 2018
Decision date:	05 June 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	R Titterton, Principal Member M Bolt, Senior Member B Thomson, General Member
Decision:	1. The application is dismissed. 2. The respondent to file and serve any submissions as to costs by 12 June 2018. 3. The applicant may respond by 19 June 2018.
Catchwords:	LOCAL GOVERNMENT - the dismissal of a person from civic office - irregularity in the manner in which the person has been elected or appointed to that office – completion of Candidate Information Sheet allegedly containing incorrect information – failure to show – necessity of establishing that the result of the election is uncertain
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Local Government Act 1997 Local Government (General) Regulations 2005 (NSW)
Cases Cited:	Alliance Motor Auctions Pty Ltd v Saman [2018] NSWCATOD 137 Bourne v Murphy [1996] NSWCA 59 Briscoe-Hough v Tegg [2018] NSWCATAD 108 Rejfek v McElroy [1965] HCA 46 Roberts v Jeffery [2003] NSWSC 162
Category:	Principal judgment
Parties:	Peter Kelly (Applicant) Martin Smith (Respondent)
Representation:	Applicant: self-represented Solicitors: Colin Biggers & Paisley (Respondent)
File Number(s):	2017/00343134