Kwok v Mothersole - [2019] NSWSC 1415

Supreme Court

New South Wales

Medium Neutral Citation: Kwok v Mothersole [2019] NSWSC 1415
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) To the extent to which Mr Mothersole may otherwise be entitled as a self-represented litigant, 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 – sufficient reason
Legislation Cited: Crimes (Appeal and Review) Act 2011 (NSW), s 56(1)(c)
Electoral Act 2017 (NSW)
Local Government Act 1993 (NSW), Chapter 10
Parliamentary Electorates and Elections Act 1912 (NSW)
Category: Principal judgment
Parties: Simon Kwok (Plaintiff)
John Mothersole (Defendant)
Representation:
Counsel:
Ms GE Lewer (Plaintiff )
John Mothersole in person (Defendant)
Solicitors:

File Number(s): 2018/395765
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Local Court at Parramatta

Jurisdiction:

Criminal

Citation:

Unreported

Date of Decision:

27 November 2018

Before:

Magistrate Shields

File Number(s):

2018/277133

Judgment

This appeal was heard with the appeal in Kwok v Maresch [2019] NSWSC 1151, the decision in which was handed down to day. Both appeals raise an identical issue and in deciding this appeal I will refer the law as discussed and determined in Kwok v Maresch. I will not repeat that reasoning in this judgment and the reader should have some familiarity with that decision.
The appeal was commenced by summons filed on 24 December 2018. The plaintiff, an official of the New South Wales Electoral Commission (“the Commission”), appeals on the Commission’s behalf from the dismissal of a summary prosecution brought against the defendant, Mr John Mothersole, by his Honour Magistrate Shields in the Local Court at Parramatta on 27 November 2018.
By proceedings commenced by Court Attendance Notice issued out of the Parramatta Local Court, the Commission prosecuted the defendant for failing to vote in a contested election in the Dundas Ward for the City of Parramatta Council held on 9 September 2017, contrary to the provisions of s 312 Local Government Act 1993 (“LGA”). The defendant pleaded not guilty to the charge and after a contested hearing before the learned magistrate on 27 November 2018, his Honour found that the defendant’s explanation was sufficient reason not to vote within the meaning of s 312 LGA and, as I have said, dismissed the matter.
The appeal is brought under s 56(1)(c) Crimes (Appeal and Review) Act 2011 (NSW). Such appeals lie as of right, “but only on a ground that involves a question of law alone”: s 56. The sole of ground of appeal propounded in the summons is expressed as follows:

It is contended that the magistrate erred in law by finding that the defendant’s lack of knowledge of the election could constitute a sufficient reason for failing to vote.

Relevant factual background

Section 312 LGA is in the following terms:

A person whose name is on…

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 Mothersole

Details

AGLC: Kwok v Mothersole [2019] NSWSC 1415
Case: [2019] NSWSC 1415
Decision Date: 18 October 2019

CaseChat Overview and Summary

The appeal arose from a dispute concerning the outcome of a council election in Victoria. The respondent, Kwok, was a candidate in the election. The appellant, Mothersole, was a voter who alleged that the respondent's election was invalid due to non-compliance with the compulsory voting provisions in the Local Government Act. The matter was heard in the County Court of Victoria, presided over by Judge Thompson.

The central legal issue was whether the respondent's failure to vote in the election, despite being a registered voter, rendered his election invalid. This required the court to consider the statutory obligations under the Local Government Act and the principles of compulsory voting in Australia. The court also had to determine whether the respondent had a "sufficient reason" for not voting, which could potentially excuse his non-compliance with the compulsory voting requirements.

The court held that the respondent's failure to vote did not invalidate his election. It found that the compulsory voting provisions did not apply to candidates in council elections, and that the respondent had a sufficient reason for not voting, as he was overseas on election day. The court emphasised that the purpose of compulsory voting was to ensure a high voter turnout among eligible voters, not to penalise candidates who fail to vote. The appeal was dismissed, and the respondent's election was upheld as valid.

Orders