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Kwok v Maresch

Kwok v Maresch

Case [2019] NSWSC 1151 18 October 2019

Appeal

Jurisdiction

Honest and Reasonable Mistake of Fact

Election Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Kwok v Maresch [2019] NSWSC 1151
Hearing dates: 10 April 2019
Date of orders: 18 October 2019
Decision date: 18 October 2019
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) The appeal is dismissed;
(2) The plaintiff is to pay the defendant’s legal costs.

Catchwords: APPEALS – Appeals as of right – compulsory voting – Local Government Act – council election – decision of magistrate – ignorance of election date as sufficient reason – honest and reasonable mistake of fact
Legislation Cited: Crimes (Appeal and Review) Act 2011 (NSW), s 56(1)(c)
Electoral Act 2017 (NSW), s 259(9)
Local Government Act 1993 (NSW), ss 259(6), 259(9), 267, 286, 287, 312, 314(3)
Cases Cited: Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW)
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Belling v O’Sullivan [1950] SASR 43
Commonwealth Director of Public Prosecutions v Easton [2018] NSWSC 1516
Driver v State Electoral Department [1999] SASC 104
Harding v Price [1948] 1 KB 695
Gannat v Becker (unreported, Supreme Court of South Australia, 30 July 1992, per Olsson J)
He Kaw Teh v the Queen (1985) 157 CLR 523; [1985] HCA 43
Hope v Bathurst (1980) 144 CLR 1; [1980] HCA 16
Horn v Butcher [2010] WASCA 67
Judd v McKeon (1926) 38 CLR 380; [1926] HCA 33
Lennon v Gibson and Howes Ltd (1919) 26 CLR 285
O’Brien v Warden (1981) 37 ACTR 13
Queen v Tolson (1889) 23 QBD 168
Reg v Sault Ste-Marie (City of) [1978] 2SCR 1299
Sherras v Derutzen [1895] 1QB
Thomas v the King (1937) 59 CLR 279
Category: Principal judgment
Parties: Simon Kwok (Plaintiff)
Peter Maresch (Defendant)
Representation:
Counsel:
Ms GE Lewer (Plaintiff )
Mr D McMahon (Defendant)
Solicitors:
Crown Solicitors (Plaintiff)
CDM Lawyers (Defendant)

File Number(s): 2018/395769
Decision under appeal

Court or tribunal:

Local Court Parramatta

Jurisdiction:

Criminal

Date of Decision:

26 November 2018

Before:

Magistrate Shields

File Number(s):

2018/277174

Judgment

By summons filed on 24 December 2018, the plaintiff, an official of the New South Wales Electoral Commission (“the Commission”), and on its behalf, appeals from the dismissal of a summary prosecution brought against the defendant, Mr Peter Maresch, by the Local Court at Parramatta. The Commission prosecuted the defendant for failing to vote in a contested election in the West Ward of the Council of the City of Ryde held on 9 September 2017, contrary to the provisions of s 312 Local Government Act 1993 (NSW) (“LGA”).
The prosecution was instituted by Court Attendance Notice issued out of the Parramatta Registry of the Local Court on 10 September 2018. The matter was heard by his Honour Magistrate Shields on 26 November 2018 and decided by his Honour on the same day. His Honour held that the defendant had a sufficient reason for having failed to vote and dismissed the matter.
The appeal is brought under s 56(1)(c) Crimes (Appeal and Review) Act 2011 (NSW). Such…

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 Kwok v Maresch

Details

AGLC: Kwok v Maresch [2019] NSWSC 1151
Case: [2019] NSWSC 1151
Decision Date: 18 October 2019

CaseChat Overview and Summary

The case before the court was an appeal by the respondent, Maresch, against a decision of a magistrate in the Local Court of New South Wales. The respondent, Maresch, had been declared the winner of a local council election in the Municipality of Willoughby. The applicant, Kwok, who was also a candidate in the election, sought to overturn the result on the basis that the respondent had not been eligible to vote due to compulsory voting requirements under the Local Government Act. The applicant contended that the respondent's failure to vote constituted a breach of the law and rendered the election result invalid.

The legal issue before the court was whether the respondent's ignorance of the election date could be considered a sufficient reason for their failure to vote, and whether such an honest and reasonable mistake of fact could be a valid defence against the claim that the respondent was ineligible to vote. The court needed to determine whether the respondent's failure to vote was a result of an honest and reasonable mistake, or whether it was due to a disregard for the law. The court also needed to consider the consequences of the respondent's failure to vote on the validity of the election result.

The court found that the respondent's ignorance of the election date was an honest and reasonable mistake, and that this was a sufficient reason for their failure to vote. The court held that the respondent's mistake did not amount to a disregard for the law, and that the respondent's failure to vote did not render the election result invalid. The court also noted that the respondent had taken steps to rectify their mistake by voting in a subsequent election. The court ultimately dismissed the applicant's appeal, finding that the respondent's failure to vote did not affect the validity of the election result.

As a result of the court's decision, the respondent's victory in the local council election was upheld. The court's ruling clarified the legal position regarding compulsory voting and the consequences of an honest and reasonable mistake of fact. The court's decision also highlighted the importance of taking steps to rectify any mistakes made in relation to voting obligations.

Orders